Public Entity Is Not Liable for Injuries From Dangerous Condition In Absence of Either Negligence or Notice--Existence of Condition Is Not Alone Sufficient

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In Metcalf v. San Joaquin (2008) 42 C.4th. __, __ C.R.3d __, __ P.3d __, 2008 WL 450634, plaintiff motorist brought an action against defendant county under the Government Claims Act to recover for injuries he suffered in a vehicle collision at a T-intersection controlled by the county. Plaintiff alleged that the placement of signage and road markings constituted a dangerous condition of public property. The jury found that, although a dangerous condition existed, the county did not negligently or wrongfully create the condition, and that the county did not have notice of the condition for a sufficient time to have protected against it. Accordingly, the trial court entered judgment for the county. The Court of Appeal affirmed. Held, affirmed.

(a) Plaintiff forfeited claim of instructional error. Plaintiff agreed at trial to instructions requiring the jury to find either negligence or notice for plaintiff to prevail. Therefore, he may not argue on appeal that he was not required to establish negligence. (2008 WL 450634, p. 4.)

(b) County was not liable in absence of either negligence or notice. To provide guidance to future courts, the court discussed the merits of that issue. The plain language of Govt.C. 835 requires, as a basis for liability, either that the county acted negligently or wrongfully in creating the dangerous condition (Govt.C. 835(a)) or had notice of the condition (Govt.C. 835(b)). Govt.C. 835(a) imposed on plaintiff the burden of showing, under ordinary tort principles, unreasonable conduct by the county in light of the foreseeable risk of harm. The mere existence of the dangerous condition, even if deliberately created by the county, did not establish the requisite negligence or wrongdoing. (2008 WL 450634, pp. 3, 4.)

(c) County had affirmative defense to negligence. Govt.C. 835.4, providing that a public entity is not liable for a negligently created dangerous condition of public property if the public entity establishes that the act or omission that created the condition was reasonable, is an affirmative defense, unique to public entities, where the plaintiff establishes the public entity's negligence as a basis for liability for a dangerous condition of public property under Govt.C. 835(a). Public entities may defend against liability on the basis that, because of financial or political constraints, the public entity may not be able to accomplish what reasonably would be expected of a private entity. Govt.C. 835.4 does not place on the public entity the burden of showing its reasonableness in the absence of the plaintiff's showing of negligence. (2008 WL 450634, p. 10.)

One justice filed a concurring and dissenting opinion, agreeing that plaintiff's request for the instructions barred his contention that they were erroneous, but disagreeing on plaintiff's burden of proof as to negligence.

Witkin References

On elements of public entity liability for injuries from dangerous conditions, see 5 Summary (10th), Torts, §258.

On what constitutes dangerous condition, see 5 Summary (10th), Torts, §259 et seq.

On causation of injury by dangerous condition, see 5 Summary (10th), Torts, §263.

On reasonableness of act or omission creating dangerous condition, see 5 Summary (10th), Torts, §272.