California Civil Jury Instructions (CACI) (2017)

2020. Public Nuisance—Essential Factual Elements

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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:]
1. [was harmful to health;] [or]
1. [was indecent or offensive to the senses;] [or]
1. [was an obstruction to the free use of property, so as to interfere
with the comfortable enjoyment of life or property;] [or]
1. [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;] [or]
1. [was [a/an] [fire hazard/specify other potentially dangerous
condition] to [name of plaintiff]’s property;]
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
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, June 2016
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
• “Nuisance” Defined. Civil Code section 3479.
• Public Nuisance. Civil Code section 3480.
• Action by Private Person for Public Nuisance. Civil Code section 3493.
• Act Done Under Express Authority of Statute. Civil Code section 3482.
• Property Used for Dogfighting and Cockfighting. Civil Code section 3482.8.
• “[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.)
• “Nuisance liability is not necessarily based on negligence, thus, ‘one may be
liable for a nuisance even in the absence of negligence. [Citations.]’ However,
‘ “where liability for the nuisance is predicated on the omission of the owner of
the premises to abate it, rather than on his having created it, then negligence is
said to be involved. . . .” [Citations.]’ ” (City of Pasadena v. Superior Court
(2014) 228 Cal.App.4th 1228, 1236 [176 Cal.Rptr.3d 422], internal citations
• “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].)
• “[M]ere apprehension of injury from a dangerous condition may constitute a
nuisance where it interferes with the comfortable enjoyment of property . . . .”
(McIvor v. Mercer-Fraser Co. (1946) 76 Cal.App.2d 247, 254 [172 P.2d 758].)
• “A fire hazard, at least when coupled with other conditions, can be found to be
a public nuisance and abated.” (People v. Oliver (1948) 86 Cal.App.2d 885, 889
[195 P.2d 926].)
• “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
Greenwald & Asimow, California Practice Guide: Real Property Transactions, Ch.
5-D, Common Law Environmental Hazards Liability, ¶¶ 5:140–5:179 (The Rutter
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
1 California Civil Practice: Torts §§ 17:1–17:3 (Thomson Reuters)