CACI No. 2020. Public Nuisance - Essential Factual Elements

Judicial Council of California Civil Jury Instructions (2020 edition)

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2020.Public Nuisance - Essential Factual Elements
[Name of plaintiff] claims that [he/she/nonbinary pronoun] 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 or permitted a condition to exist 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
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, June 2016, November 2017, May
2019, November 2019
Directions for Use
Give this instruction for a claim for public nuisance. For an instruction on private
nuisance, give CACI No. 2021, Private Nuisance - Essential Factual Elements.
While a private nuisance is designed to vindicate individual land ownership
interests, a public nuisance is not dependent on an interference with any particular
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rights of land: The public nuisance doctrine aims at the protection and redress of
community interests. (Citizens for Odor Nuisance Abatement v. City of San Diego
(2017) 8 Cal.App.5th 350, 358 [213 Cal.Rptr.3d 538].)
There is some uncertainty as to whether lack of consent is an element (element 5)
or consent is a defense. Cases clearly list lack of consent with the elements. (See
Department of Fish & Game v. Superior Court (2011) 197 Cal.App.4th 1323, 1352
[129 Cal.Rptr.3d 719]; Birke v. Oakwood Worldwide (2009) 169 Cal.App.4th 1540,
1548 [87 Cal.Rptr.3d 602].) However, other cases have referred to consent as a
defense, albeit in the context of a nuisance action involving parties with interests in
the same property. (See Newhall Land & Farming Co. v. Superior Court (1993) 19
Cal.App.4th 334, 341-345 [23 Cal.Rptr. 2d 377]; Mangini v. Aerojet-General Corp.
(1991) 230 Cal.App.3d 1125, 1138-1140 [281 Cal.Rptr. 827].)
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.)
• “Public nuisance and private nuisance ‘have almost nothing in common except
the word “nuisance” itself.’ Whereas private nuisance is designed to vindicate
individual land ownership interests, the public nuisance doctrine has historically
distinct origins and aims at ‘the protection and redress of community interests.’
With its roots tracing to the beginning of the 16th century as a criminal offense
against the crown, public nuisances at common law are ‘offenses against, or
interferences with, the exercise of rights common to the public,’ such as public
health, safety, peace, comfort, or convenience.” (Citizens for Odor Nuisance
Abatement, supra, 8 Cal.App.5th at p. 358, original italics, internal citation
omitted.)
• “The elements of a public nuisance, under the circumstances of this case, are as
follows: (1) the 2007 poisoning obstructed the free use of property, so as to
interfere with the comfortable enjoyment of life or property; (2) the 2007
poisoning affected a substantial number of people; (3) an ordinary person would
be unreasonably annoyed or disturbed by the 2007 poisoning; (4) the seriousness
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of the harm occasioned by the 2007 poisoning outweighed its social utility; (5)
plaintiffs did not consent to the 2007 poisoning; (6) plaintiffs suffered harm as a
result of the 2007 poisoning that was different from the type of harm suffered by
the general public; and (7) the 2007 poisoning was a substantial factor in
causing plaintiffs’ harm.” (Department of Fish & Game, supra, 197 Cal.App.4th
at p. 1352 [citing this instruction].)
• “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 v.
Owens Corning Fiberglas Corp. (1971) 22 Cal.App.3d 116, 124 [99 Cal.Rptr.
350], internal citations omitted; but see Birke, supra, 169 Cal.App.4th at p. 1550
[“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.)
• “A public nuisance cause of action is established by proof that a defendant
knowingly created or assisted in the creation of a substantial and unreasonable
interference with a public right.” (People v. ConAgra Grocery Products Co.
(2017) 17 Cal.App.5th 51, 79 [227 Cal.Rptr.3d 499].)
• “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.)
• “It is substantial if it causes significant harm and unreasonable if its social utility
is outweighed by the gravity of the harm inflicted.” People v. ConAgra Grocery
Products Co., supra, 17 Cal.App.5th at p. 112.)
• “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.
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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
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].)
• “[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.’ ” (Melton v. Boustred (2010) 183 Cal.App.4th 521, 542
[107 Cal.Rptr.3d 481], internal citations omitted.)
• “[L]iability for nuisance 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.” (People v. ConAgra Grocery Products Co.,supra, 17
Cal.App.5th at p. 109, original italics.)
• “Causation is an essential element of a public nuisance claim. A plaintiff must
establish a ‘connecting element’ or a ‘causative link’ between the defendant’s
conduct and the threatened harm.” (Citizens for Odor Nuisance Abatement,
supra, 8 Cal.App.5th at p. 359 [citing this instruction], internal citation omitted.)
• “Causation may consist of either ‘(a) an act; or [¶] (b) a failure to act under
circumstances in which the actor is under a duty to take positive action to
prevent or abate the interference with the public interest or the invasion of the
public interest.’ A plaintiff must show the defendant’s conduct was a ‘substantial
factor’ in causing the alleged harm.” (Citizens for Odor Nuisance Abatement,
supra, 8 Cal.App.5th at p. 359 [citing this instruction], internal citation 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
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cases.” (Melton, supra, 183 Cal.App.4th at p. 542, internal citations omitted.)
• “[W]here, as here, an owner of property seeks damages for creation of a
nuisance by a prior lessee, the lessee has a defense that his use of the property
was lawful and was authorized by the lease; i.e., his use of the property was
undertaken with the consent of the owner.” (Mangini, supra, 230 Cal.App.3d at
p. 1138, original italics.)
• “Nor is a defense of consent vitiated simply because plaintiffs seek damages
based on special injury from public nuisance. ‘Where special injury to a private
person or persons entitles such person or persons to sue on account of a public
nuisance, both a public and private nuisance, in a sense, are in existence.’ ”
(Mangini, supra, 230 Cal.App.3d at p. 1139.)
• “[W]here the law expressly declares something to be a nuisance, then no inquiry
beyond its existence need be made and in this sense its mere existence is said to
be a nuisance per se. [Citation.] But, to rephrase the rule, to be considered a
nuisance per se the object, substance, activity or circumstance at issue must be
expressly declared to be a nuisance by its very existence by some applicable
law.” (People v. ConAgra Grocery Products Co.,supra, 17 Cal.App.5th at p.
114.)
Secondary Sources
13 Witkin, Summary of California Law (11th ed. 2017) Equity, § 152
Greenwald & Asimow, California Practice Guide: Real Property Transactions, Ch.
5-D, Common Law Environmental Hazards Liability, ¶¶ 5:140-5:179 (The Rutter
Group)
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 §§ 17:1-17:3 (Thomson Reuters)
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