Legal Brief so. The good news is that the law recognizes this reality. Public agencies are treated differently than private entities when it comes to injuries which occur because of a condition of property. Unlike private entities, a public agency can only be held liable if certain very specific conditions are met. The rules are generally found in Government Code sections 830 and 835. Under those rules, a public entity is liable for injuries caused by a “dangerous condition” if: • a dangerous condition existed at the time of the injury, • the dangerous condition was the cause of the injury, • the risk of injury was foreseeable, and • either the public entity created the condition or it had actual or constructive notice of the dangerous condition.
It May be Dangerous Out There, But That Does Not Mean You are Liable By Carl Fessenden, Shareholder, Porter Scott Special districts serve an important public function by providing services tailored to meet the community’s specific needs. Special districts will often own or control real property in order to fulfill their function, be it airports, parks, or anything in between. It is that ownership or control that could make them potentially liable for injuries that occur on the property. For many administrators of special districts, the words “dangerous condition” will undoubtedly conjure memories of sidewalk displacements or jungle gym hijinks, and frustration over the ensuing legal fees. Substantial human and monetary resources are often expended dealing with injury claims by users of your property. But, by understanding the law, such claims are manageable and the exposure can be limited. It is impossible for any public agency to eliminate all danger users of its property may face. There simply is not enough time, resources, or workers available to do
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Dangerous condition is uniquely defined as a condition of public property that creates a “substantial risk of injury” to members of the public when the property is used with “due care” and in a reasonably foreseeable manner. Whether a condition creates a “substantial” risk of injury when used with “due care” has been the subject of legal debate. In addition to your typical sidewalk crack case, a dangerous condition has been found where a city failed to exercise reasonable diligence in making inspections to discover that pressure was built up in a terra cotta sewage line, which caused damage to cars on an overpass.1 As is clear in the definition of a dangerous condition, the user has a responsibility to protect him or herself from injury. The law understands that if a reasonable person would have been able to avoid injury by using due care, then the public agency should not be liable for that person’s indiscretion. As an example, a child riding a bicycle down a steep hill was not considered reasonable care, therefore the condition was not “dangerous” as defined in the law.2 The reasonableness of the actions taken by the public entity will also determine if a dangerous condition exists or if they should be liable for injuries caused by such a condition. Specifically, under Government Code section