CACI No. 2005. Affirmative Defense - Necessity

Judicial Council of California Civil Jury Instructions (2020 edition)

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2005.Affirmative Defense - Necessity
[Name of defendant] claims that [he/she/nonbinary pronoun/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/
nonbinary pronoun/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 noted as having been previously cited 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)
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Copyright Judicial Council of California
22 California Points and Authorities, Ch. 225, Trespass, §§ 225.220, 225.221
(Matthew Bender)
1 California Civil Practice: Torts § 18:11 (Thomson Reuters)
2006-2019. Reserved for Future Use
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