California Civil Jury Instructions (CACI)

2020. Public Nuisance—Essential Factual Elements

[Name of plaintiff] claims that [he/she] suffered harm because [name of defendant] created a nuisance. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of defendant], by acting or failing to act, created a condition that [insert one or more of the following:]

[was harmful to health;] [or]

[was indecent or offensive to the senses;] [or]

[was an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property;] [or]

[unlawfully obstructed the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway;]

2. That the condition affected a substantial number of people at the same time;

3. That an ordinary person would be reasonably annoyed or disturbed by the condition;

4. That the seriousness of the harm outweighs the social utility of [name of defendant]’s conduct;

5. That [name of plaintiff] did not consent to [name of defendant]’s conduct;

6. That [name of plaintiff] suffered harm that was different from the type of harm suffered by the general public; and

7. That [name of defendant]’s conduct was a substantial factor in causing [name of plaintiff]’s harm.

New September 2003; Revised December 2007

Directions for Use

Private nuisance concerns injury to a property interest. Public nuisance is not dependent on an interference with rights of land: “[A] private nuisance is a civil wrong based on disturbance of rights in land while a public nuisance is not dependent upon a disturbance of rights in land but upon an interference with the rights of the community at large.” (Venuto v. Owens-Corning Fiberglas Corp. (1971) 22 Cal.App.3d 116, 124 [99 Cal.Rptr. 350], internal citation omitted.)

Sources and Authority

  • Civil Code section 3479 provides: “Anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance.”
  • Civil Code section 3480 provides: “A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal.”
  • Civil Code section 3493 provides: “A private person may maintain an action for a public nuisance, if it is specially injurious to himself, but not otherwise.”
  • Civil Code section 3482 provides: “Nothing which is done or maintained under the express authority of a statute can be deemed a nuisance.”
  • “[T]he exculpatory effect of Civil Code section 3482 has been circumscribed by decisions of this court… ‘ “A statutory sanction cannot be pleaded in justification of acts which by the general rules of law constitute a nuisance, unless the acts complained of are authorized by the express terms of the statute under which the justification is made, or by the plainest and most necessary implication from the powers expressly conferred, so that it can be fairly stated that the Legislature contemplated the doing of the very act which occasions the injury.” ’ ” (Varjabedian v. City of Madera (1977) 20 Cal.3d 285, 291 [142 Cal.Rptr. 429, 572 P.2d 43], internal citation omitted.)
  • “Where the nuisance alleged is not also a private nuisance as to a private individual he does not have a cause of action on account of a public nuisance unless he alleges facts showing special injury to himself in person or property of a character different in kind from that suffered by the general public.” (Venuto, supra, 22 Cal.App.3d at p. 124, internal citations omitted; but see Birke v. Oakwood Worldwide (2009) 169 Cal.App.4th 1540, 1550 [87 Cal.Rptr.3d 602] [“to the extent Venuto . . . can be read as precluding an action to abate a public nuisance by a private individual who has suffered personal injuries as a result of the challenged condition, we believe it is an incorrect statement of the law”].)
  • “Unlike the private nuisance—tied to and designed to vindicate individual ownership interests in land—the ‘common’ or public nuisance emerged from distinctly different historical origins. The public nuisance doctrine is aimed at the protection and redress of community interests and, at least in theory, embodies a kind of collective ideal of civil life which the courts have vindicated by equitable remedies since the beginning of the 16th century.” (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1103 [60 Cal.Rptr.2d 277, 929 P.2d 596].)
  • “[W]hen the nuisance is a private as well as a public one, there is no requirement the plaintiff suffer damage different in kind from that suffered by the general public. That is, the plaintiff ‘ “does not lose his rights as a landowner merely because others suffer damage of the same kind, or even of the same degree …” ’ ” (Birke, supra, 169 Cal.App.4th at p. 1551, internal citations omitted.)
  • “Of course, not every interference with collective social interests constitutes a public nuisance. To qualify . . . the interference must be both substantial and unreasonable.” (People ex rel. Gallo, supra, 14 Cal.4th at p. 1105.)
  • “The fact that the defendants’ alleged misconduct consists of omission rather than affirmative actions does not preclude nuisance liability.” (Birke, supra, 169 Cal.App.4th at p. 1552 [citing this instruction], internal citation omitted.)
  • “A nuisance may be either a negligent or an intentional tort.” (Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 920 [162 Cal.Rptr. 194], internal citation omitted.)
  • “An essential element of a cause of action for nuisance is damage or injury.” (Helix Land Co., Inc. v. City of San Diego (1978) 82 Cal.App.3d 932, 950 [147 Cal.Rptr. 683].)
  • “By analogy to the rules governing tort liability, courts apply the same elements to determine liability for a public nuisance.” (People ex rel. Gallo, supra, 14 Cal.4th at p. 1105, fn. 3, internal citation omitted.)
  • “The elements ‘of a cause of action for public nuisance include the existence of a duty and causation.’ Public nuisance liability ‘does not hinge on whether the defendant owns, possesses or controls the property, nor on whether he is in a position to abate the nuisance; the critical question is whether the defendant created or assisted in the creation of the nuisance.’ ” (Melton v. Boustred (2010) 183 Cal.App.4th 521, 542 [107 Cal.Rptr.3d 481], internal citations omitted.)
  • “ ‘Where negligence and nuisance causes of action rely on the same facts about lack of due care, the nuisance claim is a negligence claim.’ The nuisance claim ‘stands or falls with the determination of the negligence cause of action’ in such cases.” (Melton, supra, 183 Cal.App.4th at p. 542, internal citations omitted.)

Secondary Sources

13 Witkin, Summary of California Law (10th ed. 2005) Equity, § 133

California Real Property Remedies and Damages (Cont.Ed.Bar 2d ed.) Ch. 11, Remedies for Nuisance and Trespass, § 11.7

2 Levy et al., California Torts, Ch. 17, Nuisance and Trespass, §§ 17.01—17.04, 17.06 (Matthew Bender)

34 California Forms of Pleading and Practice, Ch. 391, Nuisance, § 391.12 (Matthew Bender)

16 California Points and Authorities, Ch. 167, Nuisance, § 167.20 et seq. (Matthew Bender)

1 California Civil Practice: Torts (Thomson West) §§ 17:1—17:3