Stanford Law School - Robert Crown Law Library

Filed 2/21/08

IN THE SUPREME COURT OF CALIFORNIA

THOMAS METCALF, a Minor, etc.,
Plaintiff and Appellant,
S144831
v.
) Ct.App.
3
C047734
COUNTY OF SAN JOAQUIN,
San Joaquin County
Defendant and Respondent.
Super. Ct. No. CV018106

Government Code section 835, part of California’s Government Claims
Act,1 generally provides that “a public entity is liable for injury caused by a
dangerous condition of its property if the plaintiff establishes” various
circumstances, including “that the property was in a dangerous condition at the
time of the injury,” and “either: [¶] (a) A negligent or wrongful act or omission
of an employee of the public entity within the scope of his employment created the
dangerous condition; or [¶] (b) The public entity had actual or constructive
notice of the dangerous condition under Section 835.2 a sufficient time prior to the
injury to have taken measures to protect against the dangerous condition.”
Here, the jury found that public property was in a dangerous condition at
the time of the accident giving rise to this lawsuit, but it also found that the

1
All further statutory references are to the Government Code unless
otherwise indicated. We refer to the act of which section 835 is a part as the
Government Claims Act. (See City of Stockton v. Superior Court (2007) 42
Cal.4th 730, 741-742 & fns. 6, 7.)
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negligent or wrongful conduct of the public entity did not create the dangerous
condition, and the public entity did not have notice of the dangerous condition for
a long enough time to have protected against it. Because of the latter two findings,
the trial court entered judgment for the public entity. We must decide whether the
Government Claims Act requires that, before a public entity can be held liable for
an injury that a dangerous condition on its property caused, the plaintiff must
establish that the entity negligently created or had notice of that condition.
We read section 835 to mean what it says. The plaintiff bears the burden of
establishing either that the public entity negligently or wrongly created the
dangerous condition or that the entity had notice of the dangerous condition for a
long enough time to protect against the danger. Accordingly, the jury’s findings
were fatal to plaintiff’s claim of public entity liability. The trial court correctly
entered judgment for the entity, and the Court of Appeal correctly affirmed that
judgment.
I. FACTS AND PROCEDURAL HISTORY2
On October 6, 2001, plaintiff Thomas Metcalf, a minor, was seriously
injured in an automobile accident that occurred at an intersection that defendant
County of San Joaquin (the County) controls. He was driving his parents’ Toyota
Corolla with a passenger, Raquel Rodriguez, on Sperry Road approaching
McKinley Avenue. Sperry Road ends at McKinley Avenue, forming a T-
intersection that requires motorists approaching from Sperry Road to turn right or
left. Railroad tracks run parallel to McKinley Avenue just before the intersection.
Before the intersection, Sperry Road rises in elevation to the railroad tracks. The
road then descends from the railroad tracks into the intersection with McKinley
Avenue. On Sperry Road before the railroad tracks, there is a “stop ahead” sign, a

2
Much of this factual recitation is taken from the Court of Appeal opinion.
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railroad crossing sign, cross bucks (a post with X’s), a stop sign, and a stop bar
(two white lines on the pavement where motorists are required to stop for the
train). On Sperry Road after the tracks before McKinley Avenue, there is a stop
legend (the word “STOP” on the pavement) and a stop limit line (a white line on
the pavement where motorists are required to stop). Also facing approaching
motorists is a yellow sign at the end of Sperry Road with a black directional arrow
informing motorists they must turn right or left onto McKinley Avenue.
As Metcalf approached McKinley Avenue, Rodriguez told him to stop
before the railroad tracks and then make a left turn onto McKinley Avenue.
Metcalf stopped the Corolla before the railroad tracks. As Metcalf then attempted
to make a left turn onto McKinley Avenue, the Corolla collided with a truck that
was driving on McKinley Avenue. The Corolla hit the truck’s refrigeration unit
fuel tank and one of the truck’s axles. Rodriquez did not remember whether
Metcalf stopped at the intersection or whether she had told him he needed to stop.
Metcalf did not testify at trial and cannot recall how the accident occurred because
of injuries sustained from the collision.
Metcalf sued the County for damages under the Government Claims Act.
He alleged the County owned and controlled the intersection; the intersection
constituted a dangerous condition in the way it was “designed, constructed and
maintained”; the dangerous condition created a substantial risk of injury to people
using the roadway; the County knew or should have known the dangerous
condition existed; the County “negligently and carelessly” failed to “remove,
repair, construct or correct the dangerous conditions . . . and negligently failed to
take reasonable precautions to prevent injuries”; and, as a result of the dangerous
condition, he was injured.
The matter was tried to a jury. At trial, the parties agreed that the County
controlled the intersection at issue, including the “signage and the marking.” The
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dispute was over whether the intersection was in a dangerous condition, whether
the County employee responsible for sign placement acted improperly or made a
“wrong” decision, and whether the County had “notice that they had a problem.”
Both parties presented substantial evidence, including conflicting expert
testimony, on these questions. In essence, the County’s witnesses testified that the
signs were in the best location possible under the circumstances given the
proximity of the railroad tracks; plaintiff’s expert testified that it would have been
possible to place the stop sign closer to McKinley Avenue, where it would be
better placed, by creating an island in the road and placing the stop sign on the
island. Defendant’s expert believed that creating an island would not be feasible
because trucks would hit the island. Plaintiff’s expert disagreed.
As the parties agreed, the court instructed the jury that to establish his
claim, “Metcalf must prove all of the following: [¶] 1. That County of San
Joaquin owned or controlled the property; [¶] 2. That the property was in a
dangerous condition at the time of the incident; [¶] 3. That the dangerous
condition created a reasonably foreseeable risk of the kind of incident that
occurred; [¶] 4. That negligent or wrongful conduct of County of San Joaquin’s
employee acting within the scope of his or her employment created the dangerous
condition or that County of San Joaquin had notice of the dangerous condition for
a long enough time to have protected against it; and [¶] 5. That the dangerous
condition was a substantial factor in causing the incident.”
The jury returned a special verdict containing a series of 10 questions. The
jury answered “yes” to questions No. 1 (whether the County owned or controlled
the property), No. 2 (whether the property was in a dangerous condition at the time
of the incident), and No. 3 (whether the dangerous condition create a reasonably
foreseeable risk that this kind of incident would occur). It answered “no” to
questions No. 4 (whether the negligent or wrongful conduct of an employee of the
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County acting within the scope of his or her employment created the dangerous
condition), and No. 5 (whether the County had notice of the dangerous condition
for a long enough time to have protected against it). Because of these latter two
answers, as it was instructed, the jury did not answer the remaining questions No.
6 (whether the County was acting reasonably in failing to take sufficient steps to
protect against the risk of this incident), No. 7 (whether the dangerous condition
was a substantial factor in causing the incident), No. 8 (whether Thomas Metcalf
was negligent), No. 9 (whether, if so, his negligence was a substantial factor in
causing the incident), and No. 10 (if so, what percentage of responsibility for the
incident did the jury assign to the County and Metcalf).
After the verdict, Metcalf filed a “motion for new trial and/or to vacate and
enter new judgment.” He argued that given the jury’s finding that the intersection
constituted a dangerous condition, “the jury rendered an inconsistent finding on
the question of whether the negligent or wrongful conduct of an employee of the
County acting within the scope of the employment created the dangerous
condition.” The trial court denied the motion and entered judgment for the
County.
The Court of Appeal affirmed the judgment. It interpreted the plain
language of section 835, subdivision (a), as requiring a plaintiff to prove that a
public entity negligently or wrongfully created the dangerous condition. It also
rejected plaintiff’s argument that the evidence was insufficient to support the
jury’s findings that the County did not negligently create, and did not have notice
of, the dangerous condition.
We granted plaintiff’s petition for review to decide how to interpret the
relevant provisions of the Government Claims Act.
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II. DISCUSSION
The Court of Appeal found the evidence was sufficient to support the jury’s
findings that the County did not negligently or wrongfully create, and did not have
notice of, the dangerous condition. As this fact-specific issue does not present an
issue worthy of review, we accept this conclusion for purposes of review. (Cal.
Rules of Court, rules 8.500(b)(1), 8.516(b)(3); see People v. Weiss (1999) 20
Cal.4th 1073, 1076-1077.) Our review focuses instead on the proper legal
interpretation of California’s Government Claims Act.
The nature and extent of a public entity’s liability for an injury suffered on
its property is governed by statute, specifically the Government Claims Act. “[A]
public entity is not liable for injuries except as provided by statute (§ 815) and . . .
section 835 sets out the exclusive conditions under which a public entity is liable
for injuries caused by a dangerous condition of public property. ‘[T]he intent of
the [Government Claims Act] is not to expand the rights of plaintiffs in suits
against governmental entities, but to confine potential governmental liability to
rigidly delineated circumstances: immunity is waived only if the various
requirements of the act are satisfied.’ (Williams v. Horvath (1976) 16 Cal.3d 834,
838.)” (Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 829 (Brown).)
Section 835 provides: “Except as provided by statute, a public entity is
liable for injury caused by a dangerous condition of its property if the plaintiff
establishes that the property was in a dangerous condition at the time of the injury,
that the injury was proximately caused by the dangerous condition, that the
dangerous condition created a reasonably foreseeable risk of the kind of injury
which was incurred, and either:
“(a) A negligent or wrongful act or omission of an employee of the public
entity within the scope of his employment created the dangerous condition; or
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“(b) The public entity had actual or constructive notice of the dangerous
condition under Section 835.2 [defining actual and constructive notice] a sufficient
time prior to the injury to have taken measures to protect against the dangerous
condition.”
We summarized in Brown what section 835 means. To establish public
entity liability for injury caused by a dangerous condition of its property, “The
statute requires a plaintiff to prove, among other things, that either of two
conditions is true: ‘(a) A negligent or wrongful act or omission of an employee of
the public entity within the scope of his employment created the dangerous
condition; or [¶] (b) The public entity had actual or constructive notice of the
dangerous condition under Section 835.2 a sufficient time prior to the injury to
have taken measures to protect against the dangerous condition.’ ” (Brown, supra,
4 Cal.4th at p. 824.) (Henceforth, we will sometimes refer to the two bases for
public entity liability under section 835, subdivisions (a) and (b), respectively, by
the shorthand terms, “negligence” and “notice.”)
At trial, the court and plaintiff himself interpreted this statute to mean what
we said it means in Brown. As plaintiff proposed, the court instructed the jury
essentially in the language of section 835, including instructions that to prevail,
plaintiff had to prove either “[t]hat negligent or wrongful conduct of County of
San Joaquin’s employee acting within the scope of his or her employment created
the dangerous condition or that County of San Joaquin had notice of the dangerous
condition for a long enough time to have protected against it.” (See Judicial
Council of Cal. Civil Jury Instrns., CACI No. 1100, as rev. Apr. 2007.) In
addition to proposing this particular instruction, plaintiff stated he had no
objection to any of the instructions the court gave. Plaintiff also proposed the
special jury verdict form the court used, which asked the jury to answer questions
taken from section 835. (The verdict form was based on VF-1101 [dangerous
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condition of public property], contained within the CACI instructions.) In arguing
his case to the jury, plaintiff stated that he “need[ed] to prove one of those two
[referring to special verdict questions No. 4 and No. 5] in order to obtain a verdict
against the County. Either that under question number four, that it was the
negligent or wrongful conduct which created the condition . . . , or that they had
notice of the dangerous condition for long enough to have done something to
protect against it.”
Plaintiff thus recognized at trial that, to prevail, he had to prove either
negligence or notice. On appeal, however, after the jury rejected both bases of
liability by finding no negligence and no notice, he argues that he does not have to
establish negligence or, at least, that the negligence he must establish is different
from common law negligence. He argues the trial court should have instructed the
jury on this different form of statutory negligence. His argument fails for a
number of reasons.
First, by requesting the instructions the court gave and not requesting any
additional instructions, plaintiff has forfeited the right to argue on appeal that the
court misinstructed the jury. “ ‘ “In a civil case, each of the parties must propose
complete and comprehensive instructions in accordance with his theory of the
litigation; if the parties do not do so, the court has no duty to instruct on its own
motion.” [Citations.]’ (Agarwal v. Johnson (1979) 25 Cal.3d 932, 950-951.)
Neither a trial court nor a reviewing court in a civil action is obligated to seek out
theories plaintiff might have advanced, or to articulate for him that which he has
left unspoken.” (Finn v. G. D. Searle & Co. (1984) 35 Cal.3d 691, 701-702.)
“ ‘Instructions in the language of an applicable statute are properly given.’ (7
Witkin, Cal. Procedure (4th ed. 1997) Trial, § 280, p. 326.) Where, as here, ‘the
court gives an instruction correct in law, but the party complains that it is too
general, lacks clarity, or is incomplete, he must request the additional or
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qualifying instruction in order to have the error reviewed.’ [Citations.]”
(Conservatorship of Gregory (2000) 80 Cal.App.4th 514, 520.) Plaintiff’s failure
to request any different instructions means he may not argue on appeal the trial
court should have instructed differently. (Agarwal v. Johnson, supra, at p. 951;
Conservatorship of Gregory, supra, at pp. 520-521.)
In order to provide guidance to future courts, we will also discuss the merits
of the issue, which the parties have fully briefed. As we explain, the trial court
properly instructed the jury in the language of section 835 and asked it to answer
the questions that the section makes pertinent. Specifically, it properly required
the jury to find, as a basis for liability, either that the County acted negligently
(§ 835, subd. (a)) or had notice of the dangerous condition (§ 835, subd. (b)). The
statute’s plain language permits no other interpretation. “If the [statutory]
language is clear, courts must generally follow its plain meaning unless a literal
interpretation would result in absurd consequences the Legislature did not intend.”
(Coalition of Concerned Communities, Inc. v. City of Los Angeles (2004) 34
Cal.4th 733, 737.) There is nothing absurd in the Legislature’s imposing liability
on a public entity only if it either acted negligently or had notice. Accordingly, we
must follow section 835’s plain meaning.
Plaintiff argues, however, that he should prevail because he established that
the County deliberately created and maintained the dangerous condition, and that
establishing these elements is sufficient to make the County liable. This argument
fails both factually and legally. Factually, the argument is based on a false
assumption — that the jury found the County created the dangerous condition.
Although the jury found the property was in a dangerous condition at the time of
the accident, it did not find that the County created that condition, much less that it
did so deliberately. It was not asked to answer whether the County created the
dangerous condition, but whether it did so negligently. It answered this question
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in the negative. As the County noted in arguing against plaintiff’s new trial
motion in the trial court, we do not know why the jury found the property was in a
dangerous condition. The jury’s finding of no County negligence suggests that it
based its finding of a dangerous condition on the proximity of the railroad tracks
to the intersection or something else unrelated to an act or omission of a County
employee. Plaintiff argues to the contrary, but his is not the only possible
interpretation of the evidence and jury verdict. Because the jury was not asked to
state what it found about the property to be dangerous, we do not know the basis
for its findings.
In any event, the argument also fails legally. We agree with the Court of
Appeal that, given section 835’s language, “the Legislature could not have
intended that any act by a public entity’s employee that creates a dangerous
condition is negligent or wrongful per se.” Instead, as the Court of Appeal
concluded, “to establish liability under section 835, subdivision (a), for injury
caused by a dangerous condition, a plaintiff must prove that the public entity acted
negligently or wrongfully even when the public entity created the dangerous
condition.”
Section 830, subdivision (a), defines a “dangerous condition” as “a
condition of property that creates a substantial (as distinguished from a minor,
trivial or insignificant) risk of injury when such property or adjacent property is
used with due care in a manner in which it is reasonably foreseeable that it will be
used.” However, as the California Law Revision Commission comment to that
section explains, “The definition of ‘dangerous condition’ defines the type of
property conditions for which a public entity may be held liable but does not
impose liability. A public entity may be held liable for a ‘dangerous condition’ of
public property only if it has acted unreasonably in creating or failing to remedy
or warn against the condition under the circumstances described in subsequent
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sections.” (Cal. Law Revision Com. com., reprinted at 32 West’s Ann. Gov. Code
(1995 ed.) foll. § 830, p. 298, italics added.) “Because the official comments of
the California Law Revision Commission ‘are declarative of the intent not only of
the draftsman of the code but also of the legislators who subsequently enacted it’
[citation], the comments are persuasive, albeit not conclusive, evidence of that
intent [citation].” (Bonanno v. Central Contra Costa Transit Authority (2003) 30
Cal.4th 139, 148 (Bonanno).)
Plaintiff bases his argument that a public entity is liable whenever it creates
a dangerous condition partly on a statement in a leading treatise on government
tort liability: “The negligence or wrongful quality of the responsible employee’s
act appears to be inherent in the very fact that the condition created is, at least
prima facie, dangerous. The plaintiff is not required to prove that the employee’s
conduct was unreasonable (i.e., negligent or wrongful) in any other respect; proof
of the creation of a ‘dangerous condition,’ as that term is defined in Govt C
§ 830(a), is itself evidence of negligent or wrongful conduct sufficient to support
liability.” (2 Coates et al., Cal. Government Tort Liability Practice (Cont.Ed.Bar
4th ed. 1999), § 12.42, p. 892 (rev. 1/07, second italics added.)3 Plaintiff takes
this statement to mean that if a jury finds the public entity created a dangerous
condition, it need not also find the entity did so negligently. We do not so
understand the statement. As the italicized language indicates, we take this
language to mean only that evidence that the entity created a dangerous condition
is itself sufficient to warrant a finding that it did so negligently. So understood,

3
This treatise is based on a previous edition that we cited as authoritative in
Brown, supra, 4 Cal.4th at pages 831 et seq. (Van Alstyne, Cal. Government Tort
Liability Practice (Cont.Ed.Bar 1980).) That previous edition contained similar
language. (Id., § 3.16, p. 207.)
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the discussion is no doubt correct. But we see nothing in that discussion that reads
the words “negligent or wrongful” out of section 835, subdivision (a).
Any expansive reading of that treatise as suggesting that merely creating a
dangerous condition makes a public entity liable without the additional finding
that it did so negligently (or had notice of the dangerous condition) would run
afoul of section 835’s plain language. The treatise cites three cases in support of
its statement, none of which supports plaintiff’s position. (2 Coates et al., Cal.
Government Tort Liability, supra, § 12.42, pp. 892-893.) Two of the cases have
little to do with this precise issue. In Ducey v. Argo Sales Co. (1979) 25 Cal.3d
707, we upheld a jury verdict against the State of California that was predicated on
the notice provision of section 835, subdivision (b). (Ducey, supra, at pp. 716-
717.) We said nothing suggesting that a public entity can be liable for a dangerous
condition on its property without either notice or negligence. In Hill v. People ex
rel. Dept. of Transportation (1979) 91 Cal.App.3d 426, the Court of Appeal
reversed the sustaining of the State of California’s demurrer in an action for
personal injuries. The main issue was whether the plaintiff had adequately alleged
a dangerous condition. The Court of Appeal found she had done so. It also held
that the complaint adequately pleaded a cause of action for negligence under
section 835, subdivision (a). (Hill, supra, at pp. 430-431, fn. 4.) It did not suggest
that liability could be predicated on section 835, subdivision (a), absent a finding
of negligence.
The third case cited in the treatise is the one plaintiff relies on most heavily
in arguing the County is liable notwithstanding the jury verdict. (Pritchard v.
Sully-Miller Contracting Co. (1960) 178 Cal.App.2d 246 (Pritchard).) We
discussed Pritchard extensively in Brown, supra, 4 Cal.4th at pages 833-835.
Pritchard was decided before the current Government Claims Act existed and was
governed by the Public Liability Act of 1923. (Pritchard, supra, at p. 249.) “The
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plaintiff in Pritchard, who had been injured in an automobile accident, alleged that
the accident was caused by the manner in which a city employee had timed traffic
signals.” (Brown, supra, at p. 833.) However, the Public Liability Act of 1923
did not contain a provision comparable to section 835, subdivision (a), which
today makes a public entity liable for negligently creating a dangerous condition.
At the time of Pritchard, the relevant statute predicated liability only on a notice
provision comparable to section 835, subdivision (b). (See Brown, supra, at p.
833; Pritchard, supra, at p. 249.) The statutory absence of liability for negligence
was “perceived to be an unfair loophole in the Public Liability Act of 1923.”
(Brown, supra, at p. 833.) Accordingly, “[o]ver time, a rule evolved to the effect
that the statutory notice requirements did not apply to dangerous conditions that
had been deliberately created by public employees because, in such circumstances,
knowledge was presumed.” (Brown, at p. 833.) Pritchard was a leading case in
the evolution of this rule. (Ibid.) The Pritchard court “reason[ed] that ‘the fact
that the city itself deliberately created the dangerous condition dispensed with the
necessity of the notice contemplated by [the applicable statute].’ ” (Brown, supra,
at p. 833, quoting Pritchard, supra, at p. 254.)
As we explained in Brown, supra, 4 Cal.4th at pages 834-835, the
Legislature adopted the rule of Pritchard, supra, 178 Cal.App.2d 246, in section
835 when it predicated public entity liability on either notice or negligently
creating a dangerous condition of property. From this circumstance, plaintiff
argues that the Legislature codified a holding that a public entity is always liable
whenever it creates (or at least deliberately creates) a dangerous condition without
requiring an additional finding that the public entity did so negligently. We
disagree. Although neither the Pritchard court nor this court in Brown always
used qualifying words like “negligence” or “negligently” in describing Pritchard’s
theory of liability, both opinions make clear that that theory was predicated on
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negligence. As Pritchard explained, “The action sanctioned by [the relevant part
of the Public Liability Act of 1923] is based on negligence [citation] . . . . The
elements of notice and failure to exercise reasonable diligence ordinarily are
essential to show culpability on the part of the city but where it has itself created
the dangerous condition it is per se culpable and notice, knowledge and time for
correction have become false quantities in the problem of liability. It would not
seem a reasonable construction of the statute to hold that a city may create a
defective and dangerous condition in property . . . and be absolved from liability
for the consequences upon the theory that it could not correct the danger created
by its own negligence.” (Pritchard, supra, at p. 256, first and third italics added.)
Thus, the Pritchard court concluded that if the public entity’s employee
created the dangerous condition, the notice element that the Public Liability Act of
1923 required was satisfied. But when the Legislature adopted the Pritchard rule
in section 835, it provided that, to be liable under subdivision (a) of that section,
the entity must have created the dangerous condition negligently. Indeed, the
Senate legislative committee comments to section 835 specifically so state:
“ ‘Although there is no provision similar to subdivision (a) [of section 835] in the
Public Liability Act of 1923, the courts have held that entities are liable under that
act for dangerous conditions created by the negligent or wrongful acts of their
employees. [Pritchard, supra, 178 Cal.App.2d 246].’ ” (Sen. Com. com.,
reprinted at 32 West’s Ann. Gov. Code, supra, foll § 835, p. 350, italics added.)
As we explained in Brown, the California Law Revision Commission, in its
recommendation to the Legislature that led to the adoption of the Government
Claims Act, “had already explained the same concept in different words: ‘The
dangerous conditions statute should provide specifically that a governmental entity
is liable for dangerous conditions of property created by the negligent or wrongful
act of an employee acting within the scope of his employment even if no showing
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is made that the entity had any other notice of the existence of the condition or an
opportunity to make repairs or take precautions against injury. The courts have
construed the existing Public Liability Act as making public entities liable for
negligently created defects.’ ” (Brown, supra, at p. 834, first and third italics
added, second italics added in Brown, quoting Recommendation Relating to
Sovereign Immunity, No. 1, Tort Liability of Public Entities and Public
Employees (Jan. 1963), 4 Cal. Law Revision Com. Rep. (1963) p. 824.)
Focusing on the language in Pritchard, supra, 178 Cal.App.2d at page 256,
stating that where the public entity “has itself created the dangerous condition it is
per se culpable,” plaintiff argues that the negligence that section 835, subdivision
(a), refers to is not common law negligence, but something that exists whenever
the public entity creates the dangerous condition of property. We disagree. If the
Legislature had wanted to impose liability whenever a public entity created a
dangerous condition, it would merely have required plaintiff to establish that an
act or omission of an employee of the public entity within the scope of his
employment created the dangerous condition. Instead, section 835, subdivision
(a), requires the plaintiff to establish that a “negligent or wrongful act or omission
of an employee of the public entity within the scope of his employment created the
dangerous condition.” (Italics added.) Plaintiff’s interpretation would transform
the highly meaningful words “negligent or wrongful” into meaningless surplusage,
contrary to the rule of statutory interpretation that courts should avoid a
construction that makes any word surplusage. (Cooley v. Superior Court (2002)
29 Cal.4th 228, 249.)
“While there is, thus, ample evidence that section 835, subdivision (a), was
intended to incorporate the Pritchard rule” (Brown, supra, 4 Cal.4th at p. 835), the
Legislature incorporated that rule only to the extent it was predicated on
negligence. If a public entity created a dangerous condition of property, and
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especially if it did so deliberately, that circumstance might support a jury finding
that it acted negligently. But the operative question the jury must answer under
section 835, subdivision (a), is not whether the public entity created the dangerous
condition, or even whether it did so deliberately, but whether it did so negligently.
Our discussion in Bonanno, supra, 30 Cal.4th 139, bolsters this conclusion.
The issue in Bonanno was whether the location of a bus stop could constitute a
dangerous condition of public property within the meaning of sections 830 and
835 because the location caused patrons to cross a busy street that had no
crosswalk. We concluded that those facts could give rise to a dangerous condition
within the meaning of those statutes. But we cautioned that we were not reaching
any conclusion regarding the other elements of a cause of action, including “that
the public entity either created the dangerous condition through a negligent or
wrongful act or omission of its employee, or had actual or constructive notice of
the dangerous condition sufficiently in advance of the accident as to have had time
to remedy it.” (Bonanno, supra, at p. 155, italics added.) As is evident, we
viewed the element of the public entity’s negligence as separate and not included
within the element of the existence of a dangerous condition.
The definition of dangerous condition found in section 830, combined with
the traditional requirement — codified in section 835, subdivision (a) — that the
public entity’s creation of the dangerous condition must have been unreasonable,
reflects an ordinary-negligence standard. (See Lugtu v. California Highway Patrol
(2001) 26 Cal.4th 703, 716 [“Under general negligence principles, . . . a person
ordinarily is obligated to exercise due care in his or her own actions so as not to
create an unreasonable risk of injury to others, and this legal duty generally is
owed to the class of persons who it is reasonably foreseeable may be injured as the
result of the actor’s conduct”]; Zelig v. County of Los Angeles (2002) 27 Cal.4th
1112, 1128; Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1156; Civ. Code, § 1714;
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CACI No. 1001 [defining the basic duty of care in ordinary premises-liability
dangerous condition cases].)
Plaintiff also argues that section 835.4 places on the public entity the
burden of establishing that it acted reasonably and claims that doing so is
inconsistent with requiring him to show negligence. Subdivision (a) of section
835.4 provides: “A public entity is not liable under subdivision (a) of Section 835
for injury caused by a condition of its property if the public entity establishes that
the act or omission that created the condition was reasonable. The reasonableness
of the act or omission that created the condition shall be determined by weighing
the probability and gravity of potential injury to persons and property foreseeably
exposed to the risk of injury against the practicability and cost of taking alternative
action that would not create the risk of injury or of protecting against the risk of
injury.”4
In this case, the basis of the jury’s verdict of no liability was that the
County did not negligently create the dangerous condition and did not have notice
of it. The jury rendered no verdict based on section 835.4. Although the special
verdict form asked a question based on section 835.4, the court did not instruct the
jury on this defense, and the jury left that question unanswered. The court gave no
instruction along the lines of CACI No. 1111 (regarding § 835.4, subd. (a)) or

4
Section 835.4, subdivision (b), is an equivalent provision regarding liability
based on the notice provision of section 835, subdivision (b): “A public entity is
not liable under subdivision (b) of Section 835 for injury caused by a dangerous
condition of its property if the public entity establishes that the action it took to
protect against the risk of injury created by the condition or its failure to take such
action was reasonable. The reasonableness of the action or inaction of the public
entity shall be determined by taking into consideration the time and opportunity it
had to take action and by weighing the probability and gravity of potential injury
to persons and property foreseeably exposed to the risk of injury against the
practicability and cost of protecting against the risk of such injury.”
17

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CACI No. 1112 (regarding § 835.4 subd. (b)).5 But because plaintiff relies on the
interplay between sections 835 and 835.4 in his argument, we consider how those
two sections interact.
Section 835.4 provides a defense to liability that the plaintiff has otherwise
established under section 835. As the Senate Legislative Committee comment to
section 835 explains, “Liability does not necessarily exist if the evidentiary
requirements of this section are met. Even if the elements stated in the statute
[section 835] are established, a public entity may avoid liability if it shows that it
acted reasonably in the light of the practicability and cost of pursuing alternative
courses of action available to it. In addition to the defenses available to public
entities under Section 835.4,” other defenses may also be available. (Sen. Com.
com. to § 835, reprinted at 32 West’s Ann. Gov. Code, supra, p. 350.)
The Court of Appeal found conceptual difficulties in the interplay between
section 835, subdivision (a) (plaintiff must establish negligence) and section
835.4, subdivision (a) (providing a defense if the public entity establishes that the
act or omission that created the condition was reasonable). As it noted, normally
“negligence is the absence of reasonableness.” (Citing Richardson v. Kier (1867)
34 Cal. 63, 75.) That being the case, the court reasoned, one cannot reasonably act
negligently. Because of this conundrum, the Court of Appeal found that section
835.4 does not provide an affirmative defense.
We disagree. Section 835.4 clearly creates an affirmative defense that the
public entity must establish. (Hibbs v. Los Angeles County Flood Control Dist.

5
We note that if, as here, the trial court does not instruct the jury on the
section 835.4 defense, it should not include a question pertaining to that defense in
the verdict form given the jury. Including such a question without proper
instruction could only cause confusion if the jury were to find either negligence or
notice (or both) and then turn to the next question regarding the section 835.4
defense.
18

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(1967) 252 Cal.App.2d 166, 172.) Moreover, the Legislature created this defense
specifically for public entities. The California Law Revision Commission
explained, “Under this section, a public entity may absolve itself from liability for
creating or failing to remedy a dangerous condition by showing that it would have
been too costly and impractical for the public entity to have done anything else.[6]
[¶] This defense has been provided public entities in recognition that, despite
limited manpower and budgets, there is much that they are required to do. Unlike
private enterprise, a public entity often cannot weigh the advantage of engaging in
an activity against the cost and decide not to engage in it. Government cannot ‘go
out of the business’ of governing. Therefore, a public entity should not be liable
for injuries caused by a dangerous condition if it is able to show that under all the
circumstances, including the alternative courses of action available to it and the
practicability and cost of pursuing such alternatives, its action in creating or failing
to remedy the condition was not unreasonable.” (Cal. Law Revision Com. com.,
reprinted at 32 West’s Ann. Gov. Code, supra, foll. § 835.4, p. 434; see Bonanno,
supra, 30 Cal.4th at p. 156 [quoting some of this language].)

6
The concurring and dissenting opinion is correct that in this comment to
section 835.4, the California Law Revision Commission used the word “creating”
without a qualifying word such as “negligently” or “unreasonably.” (Conc. & dis.
opn., post, at p. 2.) However, as we have explained, (1) in its comment to section
830, the same commission stated that a public entity may be liable for a dangerous
condition “only if it has acted unreasonably in creating” the condition (Cal. Law
Revision Com. com., reprinted at 32 West’s Ann. Gov. Code, supra, foll. § 830, p.
298); (2) the Senate legislative committee comments to section 835 stated that
public entities are liable “for dangerous conditions created by the negligent or
wrongful acts of their employees” (Sen. Com. com., reprinted at 32 West’s Ann.
Gov. Code, supra, foll § 835, p. 350); and, most importantly, (3) section 835,
subdivision (a), requires, as a condition of liability, that the plaintiff establish that
a “negligent or wrongful act . . . created the dangerous condition.” We do not
believe the comment to section 835.4 permits us to disregard the comments to
sections 830 and 835 or, above all, to read section 835, subdivision (a), as if it did
not contain the words “negligent or wrongful.”
19

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The reasonableness standard referred to in section 835.4 differs from the
reasonableness standard that applies under sections 830 and 835 and ordinary tort
principles. Under the latter principles, the reasonableness of the defendant’s conduct
does not depend upon the existence of other, conflicting claims on the defendant’s
resources or the political barriers to acting in a reasonable manner. But, as the
California Law Revision Commission recognized, public entities may also 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.
Our decision in Ducey v. Argo Sales Co., supra, 25 Cal.3d 707, provides an
example of the defense that section 835.4 defines. The plaintiff in that case sought to
impose liability on the state for an injury assertedly caused by the state’s failure to
place median barriers on a highway. We analyzed the plaintiff’s claim under
section 835, subdivision (b). Then we considered the defendant’s defense, which was
that “as a matter of financial reality it cannot afford to construct median barriers on all
freeways on which such barriers are needed . . . .” (Ducey, supra, at p. 720.) This is
the defense established by section 835.4, subdivision (b), but it basically parallels the
defense established by subdivision (a) of that statute. The defendant presented
evidence that the State Highway Commission had appropriated funds for median
barriers, but subsequently withdrew the appropriation because it planned to widen and
otherwise change the configuration of the highway. (Ducey, supra, at pp. 713-714.)
We concluded that it was for the jury to decide whether the state had established its
defense pursuant to section 835.4. (Ducey, supra, at p. 720.) The jury in that case
was apparently unpersuaded by the defense evidence; it rendered a verdict for the
plaintiff despite proper instructions under section 835.4. (Ducey, supra, at p. 720.)
In sum, we conclude that negligence under section 835, subdivision (a), is
established under ordinary tort principles concerning the reasonableness of a
20

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defendant’s conduct in light of the foreseeable risk of harm. The plaintiff has the
burden to demonstrate that the defendant’s conduct was unreasonable under this
standard, or that it had notice under section 835, subdivision (b). If the plaintiff
carries this burden, the public entity may defend under the provisions of
section 835.4 — a defense that is unique to public entities. In this case, because
the jury found the County neither acted negligently nor had notice of the
dangerous condition, the County is not liable for plaintiff’s injuries.
III. CONCLUSION
We affirm the judgment of the Court of Appeal.
CHIN,
J.

WE CONCUR:

GEORGE, C.J.
KENNARD, J.
BAXTER, J.
MORENO, J.
CORRIGAN, J.

21

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CONCURRING AND DISSENTING OPINION BY WERDEGAR, J.

I concur in the judgment affirming the Court of Appeal. Because plaintiff
requested the instructions given the jury, he cannot now complain they were
erroneous or incomplete. I write separately to distance myself from any
implication by the majority that the instructions were correct and to state my view
of what the statutory scheme governing a public entity’s liability for injuries
caused by a dangerous condition on its property requires the plaintiff to prove.
As the majority states, the plaintiff must show that the defendant acted
negligently (or wrongfully), and the jury may properly be so instructed. As the
majority also states, if the plaintiff shows that the defendant created the dangerous
condition, that showing is “itself sufficient to warrant a finding that it did so
negligently.” (Maj. opn., ante, at p. 11.) Here, the jury did not find that defendant
created the dangerous condition (see id. at p. 9); hence it lacked that basis on
which to hold defendant liable for negligence. But in a case where the jury finds
the defendant did create a dangerous condition, i.e., “a condition of property that
creates a substantial (as distinguished from a minor, trivial or insignificant) risk of
injury when such property or adjacent property is used with due care in a manner
in which it is reasonably foreseeable that it will be used” (Gov. Code,1 § 830,
subd. (a)), the plaintiff has met his or her initial burden to show the defendant did

1
All statutory references are to the Government Code.
1

---

so negligently, and the jury may so find, unless the defendant proves to the jury’s
satisfaction, as permitted by section 835.4, that its act or omission in creating the
dangerous condition “was reasonable.” (Id., subd. (a).) As the California Law
Revision Commission comment to section 835.4 explains, “Under this section, a
public entity may absolve itself from liability for creating or failing to remedy a
dangerous condition by showing that it would have been too costly and impractical
for the public entity to have done anything else.” (Cal. Law Revision Com. com.,
reprinted at 32 West’s Ann. Gov. Code (1995 ed.) foll. § 835.4, p. 434, italics
added.)
As the majority correctly notes, “ ‘Because the official comments of the
California Law Revision Commission “are declarative of the intent not only of the
draftsman of the code but also of the legislators who subsequently enacted it”
[citation], the comments are persuasive, albeit not conclusive, evidence of that
intent [citation].’ (Bonanno v. Central Contra Costa Transit Authority (2003) 30
Cal.4th 139, 148 . . . .)” (Maj. opn., ante, at p. 11.) Clearly the Commission was
of the view, as am I, that once the plaintiff has shown the public entity has created
a dangerous condition, the entity is liable, subject to its ability to advance the
affirmative defense that to have done anything else would have been too costly
and impractical.
In sum, I agree with the majority that the trial court here “properly required
the jury to find, as a basis for liability, either that the County acted negligently
(§ 835, subd. (a)) or had notice of the dangerous condition (§ 835, subd. (b)).”
(Maj. opn., ante, at p. 9.) But the trial court’s instructions were incomplete, thus
creating the possibility that the public entity defendant might, contrary to
legislative intent, benefit from a section 835.4 defense to which it had not proven
its entitlement. The court should have further instructed the jury that creation of a
2

---

dangerous condition is negligence, unless the public entity can show it was
reasonable under the circumstances.
WERDEGAR, J.
3

---

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Metcalf v. County of San Joaquin
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 139 Cal.App.4th 969
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S144831
Date Filed: February 21, 2008
__________________________________________________________________________________

Court:

Superior
County: San Joaquin
Judge: Elizabeth Humphreys

__________________________________________________________________________________

Attorneys for Appellant:

Arkin & Glovsky, Sharon J. Arkin; Law Offices of Tony J. Tanke, Tony J. Tanke; Tabak Law Firm,
Stewart M. Tabak; Law Offices of Lawrence Knapp and Lawrence M. Knapp for Plaintiff and Appellant.

Steven G. Ingram for Consumer Attorneys of California as Amicus Curiae on behalf of Plaintiff and
Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Law Offices of Brunn & Flynn, Charles K. Brunn; and Andrew N. Eshoo, Deputy County Counsel, for
Defendant and Respondent.

Jennifer B. Henning for California State Association of Counties and League of California Cities as Amici
Curiae on behalf of Defendant and Respondent.

---

Counsel who argued in Supreme Court (not intended for publication with opinion):

Sharon J. Arkin
Arkin & Glovsky
27031 Vista Terrace, Suite 201
Lake Forest, CA 92630
(949) 455-9300

Andrew N. Eshoo
Deputy County Counsel
222 East Weber Avenue
Courthouse – Room 711
Stockton, CA 95202
(209) 468-2980

---

Petition for review after the Court of Appeal affirmed the judgment in a civil action. This case presents the following issues: (1) Is a public entity liable under the Tort Claims Act (Gov. Code, section 810 et seq.) for an injury caused by a dangerous condition on the public entity's property only if it acted negligently or wrongfully (see sec. 835, subd. (a)), or is it sufficient that the public entity created the dangerous condition (see sec. 835, subd. (b))? (2) Is the reasonableness of the public entity's conduct in creating the allegedly dangerous condition an element of the plaintiff's claim on which the plaintiff bears the burden of proof, or is it an affirmative defense on which the public entity bears the burden of proof?

Opinion Information

Date:	Citation:	Docket Number:	Category:	Status:
Thu, 02/21/2008	42 Cal.4th 1121 original opinion	S144831	Review - Civil Appeal	closed; remittitur issued

Disposition
Feb 21 2008	Opinion: Affirmed

Dockets
Jul 3 2006	Petition for review filed   Thomas Metcalf, Appellant Tony J. Tanke, Counsel
Jul 5 2006	Received Court of Appeal record   1 doghouse
Aug 24 2006	Time extended to grant or deny review   to and includng October 3, 2006.
Sep 20 2006	Petition for review granted (civil case)   Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ.
Sep 26 2006	Certification of interested entities or persons filed   counsel for aplt.
Oct 3 2006	Certification of interested entities or persons filed   by Charles K. Brunn, counsel for respondent.
Oct 16 2006	Filed:   by counsel for resp. Substitution of Attorney, new legal rep. Andrew N. Eshoo
Oct 19 2006	Request for extension of time filed   to December 19, 2006 to file appellants opening brief on the merits. by Tony J. Tanke, counsel
Oct 26 2006	Extension of time granted   Appellant's time to serve and file the opening brief on the merits is extended to and including December 19, 2006.
Dec 13 2006	Request for extension of time filed   counsel for appellant requests (60-day) extension of time to 2-20-07, to file the opening brief on the merits.
Dec 19 2006	Extension of time granted   On application of appellant and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including February 20, 2007.
Feb 22 2007	Request for extension of time filed   counsel for appellant requests extension of time to March 22, 2007, to file the opening brief on the merits.
Mar 5 2007	Extension of time granted   On application of appellant and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including March 22, 2007
Mar 22 2007	Request for extension of time filed   Appellant, Thomas Metcalf, asking to April 11, 1007, to file the opening brief on the merits. by counsel, Tony J. Tanke.
Mar 27 2007	Extension of time granted   On application of appellant and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including April 11, 2007. No further extensions of time are contemplated.
Apr 11 2007	Opening brief on the merits filed   counsel for aplts.
Apr 19 2007	Request for judicial notice filed (granted case)   counsel for aplt. (Metcalf)
May 2 2007	Request for extension of time filed   Counsel for respondent requests 60-day extension of time to 7-10-07 to file the answer brief on the merits. *** granted *** order being prepared.
May 4 2007	Extension of time granted   On application of respondent and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including July 10, 2007.
Jul 5 2007	Answer brief on the merits filed   County of San Joaquin, respondents by Andrew N. Eshoo, counsel
Jul 10 2007	Request for extension of time filed   Counsel for appellant requests extension of time to 8-24-07, to file the reply brief on the merits.
Jul 19 2007	Extension of time granted   On application of appellant and good cause appearing, it is ordered that the time to serve and file the reply brief on the merits is extended to and including August 24, 2007.
Jul 24 2007	Received additional record   3 manila jackets containing original superior court.
Aug 15 2007	Request for extension of time filed   Counsel for aplt. requests extension of time to 9-24-07 to file the reply brief on the merits.
Aug 20 2007	Extension of time granted   On application of appellant and good cause appearing, it is ordered the the time to serve and file the reply brief on the merits is extended to and including September 24, 2007. No further extensions of time are contemplated.
Aug 22 2007	Filed:   counsel for aplt. (Tanke) Notice of Unavailability. November 2-18, 2007 & February 15 - March 15, 2008.
Sep 24 2007	Reply brief filed (case fully briefed)   Appellant Thomas Metcalf by Tony J. Tanke, counsel of record
Oct 17 2007	Received application to file Amicus Curiae Brief   California State Assoc. of Counties and League of Calif. Cities request permission to file amicus curiae brief in support of respondent.
Oct 22 2007	Permission to file amicus curiae brief granted   Calif. State Assoc. of Counties and League of Calif. Cities.
Oct 22 2007	Amicus curiae brief filed   The application fo California State Association of Counties and League of California Cities for permission to file an amicus curiae brief in support of respondent is hereby granted. An answer thereto may be served and filed by any party within 20 days of the filing of the brief.
Oct 25 2007	Case ordered on calendar   to be argued Tuesday, December 4, 2007 at 2:00 p.m., in Los Angeles.
Nov 5 2007	Association of attorneys filed for:   appellant Thomas Metcalf, for co-counsel Sharon J. Arkin.
Nov 5 2007	Filed:   Notice of appearance of counsel on behalf of heir-at-law. After the death of appellant Thomas Metcalf on September 25, 2007, mother and heir-at-law Bobbi Metcalf is proceeding with the lawsuit.
Nov 13 2007	Received application to file Amicus Curiae Brief   Consumers Attorneys of Caifornia (non-party)
Nov 19 2007	Permission to file amicus curiae brief granted   Consumer Attorneys of California (non-party)
Nov 19 2007	Amicus curiae brief filed   The application of Consumer Attorneys of California for permission to file an amicus curiae brief in support of plaintiff and appellant is hereby granted. An answer thereto may be served and filed by any party on or before November 30, 2007.
Nov 28 2007	Request for judicial notice granted   Appellant's request for judicial notice, filed April 19, 2007 is granted.
Dec 4 2007	Cause argued and submitted
Feb 20 2008	Notice of forthcoming opinion posted
Feb 21 2008	Opinion filed: Judgment affirmed in full   OPINION BY: Chin, J. ---- joined by: George, C.J., Kennard, Baxter, Moreno, Corrigan, JJ. CONCURRING AND DISSENTING OPINION BY: Werdegar, J.
Mar 25 2008	Remittitur issued (civil case)
Mar 28 2008	Received:   from CA 3, receipt for remittitur.
May 7 2008	Returned record   3 envelopes - shipped to Darlene Warnaock at Sacramento on Wednesday, 5/14/08 via UPS Next Day Air.
May 14 2008	Note:   Superior Court record returned to 3 DCA for delivery to Superior Court of San Joaquin County.

Briefs
Apr 11 2007	Opening brief on the merits filed
Jul 5 2007	Answer brief on the merits filed
Sep 24 2007	Reply brief filed (case fully briefed)
Oct 22 2007	Amicus curiae brief filed
Nov 19 2007	Amicus curiae brief filed

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