CACI No. 2005. Affirmative Defense—Necessity

Judicial Council of California Civil Jury Instructions (2017 edition)

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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
(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
2Levy et al., California Torts, Ch. 17, Nuisance and Trespass, § 17.22[2] (Matthew
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 § 18:11 (Thomson Reuters West)
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