California Civil Jury Instructions (CACI) (2017)

2001. Trespass—Extrahazardous Activities

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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
2. That [name of defendant] was engaged in [insert extrahazardous
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
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
2Levy et al., California Torts, Ch. 17, Nuisance and Trespass, § 17.20 (Matthew
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