In Metcalf v. County of San Joaquin, filed February 21, 2008, the California Supreme Court rejected an argument that a public entity may be held liable under Government Code section 835 (dangerous condition of public property) merely because its property was in a dangerous condition; or even merely because the entity created the condition. Instead, the plaintiff must prove either that a negligent or wrongful act of a public employee created the condition; or that the entity had notice of the condition long enough before the accident to take precautions.
The court explained that the creation of a dangerous condition may be evidence that the act of creation was negligent ; but it is not enough to compel a conclusion that the act was negligent. Instead, the plaintiff must prove either common-law negligence on the part of the employee who created the condition; or notice.
The court also discussed the interaction of this standard with Government Code section 835.4, which provides that public entities cannot be held liable under section 835 if the acts or omissions that created the condition were reasonable. The court explained that proof of negligent creation does not necessarily negate a finding of reasonableness. Under section 835.4, the entity may absolve itself from liability for creating or failing to remedy a dangerous condition by showing it would have been too costly and impractical to have done anything else.
These cases are always very difficult. This ruling makes an uphill battle even tougher.
Robert May
www.mayfirm.com
Posted by: Robertsmay | June 14, 2012 at 02:44 PM