CACI No. 2001. Trespass - Extrahazardous Activities

Judicial Council of California Civil Jury Instructions (2023 edition)

Download PDF
2001.Trespass - Extrahazardous Activities
[Name of plaintiff] claims that [name of defendant] trespassed on [his/her/
nonbinary pronoun/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 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 (11th ed. 2017) Torts, §§ 803-805
2 Levy 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
California Civil Practice: Torts §§ 18:1, 18:4-18:8, 18:10 (Thomson Reuters)

© Judicial Council of California.