California Civil Jury Instructions (CACI)

2005. Affirmative Defense—Necessity

[Name of defendant] claims that [he/she/it] is not responsible for [name of plaintiff]’s harm, if any, because the entry on to [name of plaintiff]’s property was lawful. To succeed, [name of defendant] must prove that it was necessary, or reasonably appeared to [him/ her/it] to be necessary, to enter the land to prevent serious harm to a person or property.

New September 2003; Revised October 2008

Sources and Authority

  • “[I]t has long [been] recognized that ‘[n]ecessity often justifies an action which would otherwise constitute a trespass, as where the act is prompted by the motive of preserving life or property and reasonably appears to the actor to be necessary for that purpose.’ ” (People v. Ray (1999) 21 Cal.4th 464, 473 [88 Cal.Rptr.2d 1, 981 P.2d 928], internal citations omitted.)
  • Restatement Second of Torts, section 197 provides:

    (1) One is privileged to enter or remain on land in the possession of another if it is or reasonably appears to be necessary to prevent serious harm to

    (a) the actor, or his land or chattels, or

    (b) the other or a third person, or the land or chattels of either, unless the actor knows or has reason to know that the one for whose benefit he enters is unwilling that he shall take such action.

    (2) Where the entry is for the benefit of the actor or a third person, he is subject to liability for any harm done in the exercise of the privilege stated in Subsection (1) to any legally protected interest of the possessor in the land or connected with it, except where the threat of harm to avert which the entry is made is caused by the tortious conduct or contributory negligence of the possessor.

  • This Restatement section was approved in People v. Ray, supra, 21 Cal.4th at p. 474.

Secondary Sources

5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 663, 664

2 Levy et al., California Torts, Ch. 17, Nuisance and Trespass, § 17.22[2] (Matthew Bender)

48 California Forms of Pleading and Practice, Ch. 550, Trespass, §§ 550.22, 550.51 (Matthew Bender)

22 California Points and Authorities, Ch. 225, Trespass, §§ 225.220, 225.221 (Matthew Bender)

1 California Civil Practice: Torts (Thomson West) § 18:11