California Civil Jury Instructions (CACI)

2001. Trespass—Extrahazardous Activities

[Name of plaintiff] claims that [name of defendant] trespassed on [his/her/its] property. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of plaintiff] [owned/leased/occupied/controlled] the property;

2. That [name of defendant] was engaged in [insert extrahazardous activity];

3. That [insert extrahazardous activity] caused [insert thing] to enter [name of plaintiff]’s property;

4. That [name of plaintiff] did not give permission for the entry [or that [name of defendant] exceeded [name of plaintiff]’s permission];

5. That [name of plaintiff] was harmed; and

6. That [name of defendant]’s conduct was a substantial factor in causing [name of plaintiff]’s harm.

[Entry can be on, above, or below the surface of the land.]

[Entry may occur indirectly, such as by causing vibrations that damage the land or property on the land.]

New September 2003

Directions for Use

Nominal damages alone are not available in cases involving intangible intrusions such as noise and vibrations; proof of actual damage to the property is required: “[T]he rule is that actionable trespass may not be predicated upon nondamaging noise, odor, or light intrusion…” (San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 936 [55 Cal.Rptr.2d 724, 920 P.2d 669], internal citation omitted.)

“Whether an activity is ultrahazardous is a question of law to be determined by the court.” (Smith v. Lockheed Propulsion Co. (1967) 247 Cal.App.2d 774, 785 [56 Cal.Rptr. 128].)

Sources and Authority

  • “[W]e conclude that the rule of the Restatement is sound, and that in this state there is no liability for a trespass unless the trespass is intentional, the result of recklessness or negligence, or the result of engaging in an extra-hazardous activity.” (Gallin v. Poulou (1956) 140 Cal.App.2d 638, 645 [295 P.2d 958].)
  • “Section 520 of the Restatement of Torts defines ultrahazardous activity as follows: ‘An activity is ultrahazardous if it (a) necessarily involves a risk of serious harm to the person, land or chattels of others which cannot be eliminated by the exercise of the utmost care, and (b) is not a matter of common usage.’ California has apparently accepted the Restatement definition.” (Smith v. Lockheed Propulsion Co., supra, 247 Cal.App.2d at p. 785.)
  • “Trespass may be ‘ “by personal intrusion of the wrongdoer or by his failure to leave; by throwing or placing something on the land; or by causing the entry of some other person…” ’ A trespass may be on the surface of the land, above it, or below it. The migration of pollutants from one property to another may constitute a trespass, a nuisance, or both.” (Martin Marietta Corp. v. Insurance Co. of North America (1995) 40 Cal.App.4th 1113, 1132 [47 Cal.Rptr.2d 670], internal citations omitted.)

Secondary Sources

5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 693—695

2 Levy et al., California Torts, Ch. 17, Nuisance and Trespass, § 17.20 (Matthew Bender)

48 California Forms of Pleading and Practice, Ch. 550, Trespass, § 550.15 (Matthew Bender)

1 California Civil Practice: Torts (Thomson West) §§ 18:1, 18:4—18:8, 18:10