When Is Public Property Legally Dangerous?

Our page on dangerous conditions of public and private property gives the overview; this guide sets out the full legal test when the property belongs to a government body. The starting point surprises many people: a public entity is not liable for an injury at all unless a statute says it is (Government Code 815). For broken sidewalks, potholes, missing railings, crumbling stairs and similar hazards on public land, the statute that opens the door is Government Code section 835, and the definitions that go with it are in sections 830 to 840.6.

The same statutes also list defenses and immunities. A claim succeeds only if it meets every element and survives every defense the entity raises, so it helps to know both sides before the six-month claim deadline arrives.

How does a dangerous condition claim work, step by step?

Identify the owner. Find out which city, county, district or State agency owned or controlled the spot where you were hurt. Each one is a separate public entity (Government Code 811.2).
Document the condition as it was. Photos, measurements and witness names matter because the entity may repair the hazard soon after.
Present a written claim within six months of the injury to each entity that may be responsible (Government Code 911.2). Our guide on how to file an injury claim against a city, county or the State covers the form and where it goes.
Wait for the decision. No lawsuit may be filed until the entity acts on the claim or it is treated as rejected (Government Code 945.4).
File suit on time. After a written rejection, the lawsuit is due within six months of the date the notice was delivered or mailed; with no written notice, within two years of the injury (Government Code 945.6).
Prove the elements in the table below, and answer the defenses the entity raises, such as reasonableness or design immunity.

What must be proven?

The Judicial Council's jury instruction for these cases, CACI 1100, breaks Government Code 835 into six elements. The injured person must prove all of them.

Element	What it means in practice	Source
1. The entity owned or controlled the property	Control means the power to prevent, fix or guard against the condition	CACI 1100, 1101; Gov. Code 830(c)
2. The property was in a dangerous condition when the injury happened	A substantial, not trivial, risk of injury to careful, foreseeable users	Gov. Code 830(a); CACI 1102
3. The condition created a reasonably foreseeable risk of the kind of injury that happened	A broken step foreseeably causes falls; the injury must fit the risk	Gov. Code 835; CACI 1100
4a. A public employee's negligent or wrongful act created the condition	For example, a crew that left a hole unguarded	Gov. Code 835(a)
4b. Or the entity had actual or constructive notice in time to protect against it	Knowledge, or a condition obvious enough and old enough that a careful entity would have found it	Gov. Code 835(b), 835.2; CACI 1103
5. The person was harmed	Injury, medical bills, lost income and other losses	CACI 1100
6. The condition was a substantial factor in causing the harm	The hazard, not only some other event, must have contributed	CACI 1100

"Protect against" has a broad meaning. It includes repairing or correcting the condition, putting up safeguards, or warning of it (Government Code 830(b)). So an entity with notice could meet its duty with a barrier or a clear warning, not only a full repair.

What makes a condition "dangerous" rather than minor?

The definition looks at the property, not at the person who was hurt. A condition is dangerous when it creates a substantial risk of injury to members of the general public who use the property, or adjacent property, with reasonable care and in a reasonably foreseeable manner (CACI 1102). A condition that creates only a minor risk does not qualify. In a decision the Judicial Council quotes under CACI 1102, the California Supreme Court described dangerous public property as property that is physically damaged, deteriorated or defective in a way that foreseeably endangers those using it.

Several rules follow from that test:

Your own care is a separate question. Whether the property was dangerous is decided without regard to whether the injured person was careful (CACI 1102). Carelessness can reduce the damages through comparative fault, but it does not make a dangerous condition safe.
Trivial defects are excluded. A judge can rule, viewing the evidence most favorably to the injured person, that a risk was so minor that no reasonable person would see a substantial risk of injury (Government Code 830.2). Small sidewalk lifts are where this comes up most; our guide on what counts as a trivial defect explains how courts size them up.
The accident alone is not proof. The fact that someone was hurt is not, by itself, evidence that the property was dangerous, except where the doctrine of res ipsa loquitur applies (Government Code 830.5(a)).
A later repair is not proof either. Work done after the injury to protect against the condition is not evidence that it was dangerous at the time (Government Code 830.5(b)).
Past accidents help but do not decide it. In a decision quoted under CACI 1102, a court of appeal said that the absence of similar accidents is relevant but does not by itself compel a finding that a condition was safe.

Whether a condition was dangerous is usually a question of fact for the jury; a Supreme Court decision quoted under CACI 1102 says it may be decided as a matter of law only if reasonable minds can reach just one conclusion.

Who has to own or control the property?

A public entity answers only for its own property. "Public property" means real or personal property the entity owns or controls, and it does not include easements, encroachments or other things located on public land but not owned or controlled by the entity (Government Code 830(c)). The jury instruction on control asks whether the entity had the power to prevent, fix or guard against the condition, and whether it treated the property as its own (CACI 1101). The Judicial Council's notes add that the mere power to regulate a privately owned facility is not control.

This is why the same stretch of pavement can involve two defendants. A city usually controls a public sidewalk, while the owner of the adjoining lot may have duties of its own; our guide on who is responsible for a sidewalk trip and fall in Sonoma or Marin County covers that split. Conditions on neighboring private land can also make public property dangerous, for example a hedge that blocks the view at a crosswalk, and the jury may consider them (CACI 1125). For roads and intersections, see our guide on crashes caused by a dangerous road.

How is notice proven?

When no employee created the hazard, the injured person must show notice. Actual notice means the entity knew of the condition and knew or should have known it was dangerous (Government Code 835.2(a)). Under CACI 1103, the entity knows of a condition if one of its employees knew of it and reasonably should have told the entity.

Constructive notice means the condition existed long enough, and was obvious enough, that the entity should have found it using due care (Government Code 835.2(b)). Evidence can include whether a reasonably adequate inspection system would have revealed the hazard, weighing the cost of inspecting against the likelihood and size of the danger, and whether the entity ran its inspection system with due care (Government Code 835.2(b)(1) and (2); CACI 1104). Repair requests, complaint logs, earlier claims and maintenance schedules are the kinds of records that bear on notice, and many of them can be requested from the entity. For how notice works against a private owner, compare our guide on proving that the owner knew about a hazard.

What defenses can a public entity raise?

Defense or immunity	What it says	Source
Reasonable act or omission	No liability if the act that created the condition, or the entity's response to it, was reasonable, weighing the risk against the cost and practicality of doing something else	Gov. Code 835.4; CACI 1111, 1112
Design immunity	No liability for injury caused by a plan or design approved in advance by an authorized body, if substantial evidence shows it was reasonable	Gov. Code 830.6; CACI 1123
Missing traffic signals or signs	A road is not dangerous merely because regulatory signals, stop signs, yield signs or speed signs are missing; and no liability for a missing warning sign unless one was needed for a danger a careful driver would not see or expect	Gov. Code 830.4, 830.8
Natural conditions	No liability for a natural condition of unimproved public property, such as a lake, stream or beach	Gov. Code 831.2; CACI 1110
Trails and unpaved access roads	No liability for the condition of a recreational trail or an unpaved road that gives access to recreation areas	Gov. Code 831.4
Trivial defect	The condition was too minor to be dangerous as a matter of law	Gov. Code 830.2

Design immunity has limits worth knowing. It is an affirmative defense the entity must plead and prove (CACI 1123, Directions for Use). And when the entity learns that changed conditions have made an approved design unsafe, the immunity lasts only a reasonable time to get funds and do the remedial work; if it cannot fix the problem, it keeps the immunity only while it reasonably tries to warn of the condition (Government Code 830.6). A public entity can never be ordered to pay punitive damages (Government Code 818).

What changes the answer?

Another person's conduct was the immediate cause. A careless driver or a third party's act does not end the claim if a physical feature of the property increased the danger. Decisions quoted under CACI 1100 and 1102 say there must be a defect in the property itself, and that the entity gains no immunity just because the condition combined with someone else's negligence (Government Code 835). A pothole that throws a cyclist into traffic is one setting where this matters; see who is responsible for a bike crash caused by a pothole in Sonoma County.

A public crew created the hazard. Under Government Code 835(a), notice is not needed when an employee's negligent or wrongful act created the condition, though the entity can still argue the act was reasonable (Government Code 835.4(a)). A decision quoted under CACI 1100 says either negligence or notice will suffice.

The injury happened in a park or on a trail. The trail immunity (Government Code 831.4) and the natural condition immunity (Government Code 831.2) can apply even where the general test would be met. Our guide on falls on a trail or in a park in Sonoma or Marin County explains how they work.

A child was hurt. Whether a condition creates a substantial risk depends on how the general public would use the property with due care, and a decision quoted under CACI 1102 notes that this includes children, who are held to a lower standard of care. Playground claims are covered in our guide on who is responsible for a playground injury. Pools at public facilities raise their own safety statutes, covered in our guide on who is responsible for a pool injury or drowning.

A private contractor was working on public property. A construction company is judged under the ordinary negligence rules, not the public entity statutes, and the entity may also be responsible if it controlled the site (Government Code 830(c); CACI 1101). See injuries caused by a construction site to people walking or driving by.

You were partly careless. Your share of fault can reduce the damages, but it does not decide whether a dangerous condition existed (CACI 1102).

What could this look like? An example

For example, imagine a city maintenance crew in Rohnert Park that lifts a storm drain grate from a paved path in a neighborhood park to clear debris, sets a single traffic cone beside the opening, and leaves for the weekend. After dark on Saturday, a woman walking her dog steps into the opening and breaks her ankle.

The path is city property, so her claim goes to the City within six months (Government Code 911.2). An open drain on a path people use at night is a strong candidate for a substantial risk to careful walkers (Government Code 830(a)). Because the crew created the condition, she would rely on Government Code 835(a) and would not need to prove how long the hole was open. The City might argue that the cone was a reasonable precaution (Government Code 835.4(a)), and that the path is a recreational trail covered by Government Code 831.4; a paved path in a developed park would test that argument. If the City replaced the grate on Monday, that repair would not be evidence that the opening was dangerous (Government Code 830.5(b)), so her photos from Saturday night would matter. This example is made up to show how the rules fit together; it says nothing about any real case.

What mistakes do people make?

Assuming that because they were hurt, the property must have been legally dangerous, when the law looks at the risk to careful users.
Waiting for the entity to repair the hazard before taking photos and measurements.
Presenting the claim to the wrong entity, such as the city when a county, a water district or Caltrans controls the spot.
Not asking for the entity's inspection schedules, repair requests and complaint records, which bear on notice.
Letting the six-month claim date pass while waiting to see how an injury heals.

What should I do this week?

Go back, or send someone, to photograph and measure the hazard from several distances, with a common object for scale.
Write down the exact location and what you saw: lighting, signs, cones, weather.
List every public body that may own or control the place; our Sonoma County injury page lists the county offices.
Mark the date six months from the injury on your calendar. Our guide to California personal injury deadlines shows how that fits with the other limits.
Keep every medical record, bill and receipt, and note days missed from work.
Ask neighbors or regular users whether they reported the hazard before, and to whom.

Frequently asked questions

Is "dangerous condition" the same as negligence?

No. A private owner is judged under ordinary negligence (Civil Code 1714), while a public entity is liable for its property only under the statutes in Government Code 830 to 840.6. The test overlaps with negligence but adds its own elements and immunities.

Can I sue the public employee personally?

Sometimes. An employee can be liable for a dangerous condition if the employee created it, or had the responsibility, authority and immediately available funds to fix it after notice (Government Code 840.2). A written claim is still required first.

Does it matter that nobody else was hurt there before?

It is relevant, but it is not decisive. A decision quoted under CACI 1102 says the absence of earlier accidents does not by itself compel a finding that the condition was safe.

Does poor lighting make a place legally dangerous?

Not by itself. A decision quoted under CACI 1102 says that a dangerous condition may call for lighting, but the absence of street lighting is not itself a dangerous condition.

Are the State and Caltrans held to the same test?

Yes. The State is a public entity under Government Code 811.2, and the same sections apply, though its claims go to the Department of General Services or, for smaller highway claims, Caltrans.

Where would a Sonoma County case be filed?

Code of Civil Procedure 395 generally makes the county where the injury occurred a proper place for the case. See what to expect at Sonoma County Superior Court in an injury case.

If you were hurt by a hazard on public property, contact Young Law Group today at (707) 343-0556 or through our contact page for a free consultation.

What makes public property legally "dangerous" in California?