California Civil Jury Instructions (CACI) (2017)

2021. Private Nuisance—Essential Factual Elements

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2021.Private Nuisance—Essential Factual Elements
[Name of plaintiff] claims that [name of defendant] interfered with [name
of plaintiff]’s use and enjoyment of [his/her] land. To establish this claim,
[name of plaintiff] must prove all of the following:
1. That [name of plaintiff] [owned/leased/occupied/controlled] the
2. 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:]
2. [was harmful to health;] [or]
2. [was indecent or offensive to the senses;] [or]
2. [was an obstruction to the free use of property, so as to interfere
with the comfortable enjoyment of life or property;] [or]
2. [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]
2. [was [a/an] [fire hazard/specify other potentially dangerous
condition] to [name of plaintiff]’s property;]
3. That this condition interfered with [name of plaintiff]’s use or
enjoyment of [his/her] land;
4. That [name of plaintiff] did not consent to [name of defendant]’s
5. That an ordinary person would be reasonably annoyed or
disturbed by [name of defendant]’s conduct;
6. That [name of plaintiff] was harmed;
7. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm; and
8. That the seriousness of the harm outweighs the public benefit of
[name of defendant]’s conduct.
New September 2003; Revised February 2007, December 2011, December 2015,
June 2016
Directions for Use
Element 8 must be supplemented with CACI No. 2022, Private
Nuisance—Balancing-Test Factors—Seriousness of Harm and Public Benefit. (See
Wilson v. Southern California Edison Co. (2015) 234 Cal.App.4th 123, 160–165
[184 Cal.Rptr.3d 26].) For instruction on control of property, see CACI No. 1002,
Extent of Control Over Premises Area, in the Premises Liability series.
Sources and Authority
• “Nuisance” Defined. Civil Code section 3479.
Acts Done Under Express Authority of Statute. Civil Code section 3482.
• “[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.)
• “In distinction to trespass, liability for nuisance does not require proof of
damage to the plaintiff’s property; proof of interference with the plaintiff’s use
and enjoyment of that property is sufficient.” (San Diego Gas & Electric Co. v.
Superior Court (1996) 13 Cal.4th 893, 937 [55 Cal.Rptr.2d 724, 920 P.2d 669].)
• “[T]he essence of a private nuisance is its interference with the use and
enjoyment of land. The activity in issue must ‘disturb or prevent the
comfortable enjoyment of property,’ such as smoke from an asphalt mixing
plant, noise and odors from the operation of a refreshment stand, or the noise
and vibration of machinery.” (Oliver v. AT&T Wireless Services (1999) 76
Cal.App.4th 521, 534 [90 Cal.Rptr.2d 491], internal citations omitted.)
• “Unlike public nuisance, which is an interference with the rights of the
community at large, private nuisance is a civil wrong based on disturbance of
rights in land. A nuisance may be both public and private, but to proceed on a
private nuisance theory the plaintiff must prove an injury specifically referable
to the use and enjoyment of his or her land. The injury, however, need not be
different in kind from that suffered by the general public.” (Koll-Irvine Center
Property Owners Assn. v. County of Orange (1994) 24 Cal.App.4th 1036, 1041
[29 Cal.Rptr.2d 664], internal citation omitted.)
• “Examples of interferences with the use and enjoyment of land actionable under
a private nuisance theory are legion. ‘So long as the interference is substantial
and unreasonable, and such as would be offensive or inconvenient to the normal
person, virtually any disturbance of the enjoyment of the property may amount
to a nuisance.’ ” (Koll-Irvine Center Property Owners Assn., supra, 24
Cal.App.4th at p. 1041, internal citation omitted.)
• “The first additional requirement for recovery of damages on a nuisance theory
is proof that the invasion of the plaintiff’s interest in the use and enjoyment of
the land was substantial, i.e., that it caused the plaintiff to suffer ‘substantial
actual damage.’ The Restatement recognizes the same requirement as the need
for proof of ‘significant harm,’ which it variously defines as ‘harm of
importance’ and a ‘real and appreciable invasion of the plaintiff’s interests’ and
an invasion that is ‘definitely offensive, seriously annoying or intolerable.’ The
degree of harm is to be judged by an objective standard, i.e., what effect would
the invasion have on persons of normal health and sensibilities living in the
same community? ‘If normal persons in that locality would not be substantially
annoyed or disturbed by the situation, then the invasion is not a significant one,
even though the idiosyncrasies of the particular plaintiff may make it
unendurable to him.’ This is, of course, a question of fact that turns on the
circumstances of each case.” (San Diego Gas & Electric Co., supra, 13 Cal.4th
at p. 938, internal citations omitted.)
• “The second additional requirement for nuisance is superficially similar but
analytically distinct: ‘The interference with the protected interest must not only
be substantial, but it must also be unreasonable’, i.e., it must be ‘of such a
nature, duration or amount as to constitute unreasonable interference with the
use and enjoyment of the land.’ The primary test for determining whether the
invasion is unreasonable is whether the gravity of the harm outweighs the social
utility of the defendant’s conduct, taking a number of factors into account.
Again the standard is objective: the question is not whether the particular
plaintiff found the invasion unreasonable, but ‘whether reasonable persons
generally, looking at the whole situation impartially and objectively, would
consider it unreasonable.’ And again this is a question of fact: ‘Fundamentally,
the unreasonableness of intentional invasions is a problem of relative values to
be determined by the trier of fact in each case in the light of all the
circumstances of that case.’ ” (San Diego Gas & Electric Co., supra, 13 Cal.4th
at pp. 938–939, internal citations omitted.)
• Appellant first argues that the judgment is erroneous because there is no
showing that any act or conduct of his caused the damage. It is true that there
is neither showing nor finding of any negligent or wrongful act or omission of
defendant proximately causing the falling of the trees. But no such showing is
required. If the trees remained upright, with some of their branches extending
over or upon plaintiff’s land, they clearly would constitute a nuisance, which
defendant could be required to abate.” (Mattos v. Mattos (1958) 162 Cal.App.2d
41, 42 [328 P.2d 269].)
• “The fact that the defendants’ alleged misconduct consists of omission rather
than affirmative actions does not preclude nuisance liability.” (Birke v. Oakwood
Worldwide (2009) 169 Cal.App.4th 1540, 1552 [87 Cal.Rptr.3d 602], internal
citations 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
• “We acknowledge that to recover on a nuisance claim the harm the plaintiff
suffers need not be a physical injury. Thus, the absence of evidence in this case
to establish that [plaintiff]’s physical injuries were caused by the stray voltage
would not preclude recovery on her nuisance claim.” (Wilson, supra, 234
Cal.App.4th at p. 159, internal citations omitted.)
• “[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].)
• Restatement Second of Torts, section 822 provides:
One is subject to liability for a private nuisance if, but only if, his conduct is a
legal cause of an invasion of another’s interest in the private use and
enjoyment of land, and the invasion is either
(a) intentional and unreasonable, or
(b) unintentional and otherwise actionable under the rules
controlling liability for negligent or reckless conduct, or for
abnormally dangerous conditions or activities.
• Restatement Second of Torts, section 826 provides:
An intentional invasion of another’s interest in the use and enjoyment of land
is unreasonable if
(a) the gravity of the harm outweighs the utility of the actor’s
conduct, or
(b) the harm caused by the conduct is serious and the financial
burden of compensating for this and similar harm to others would
not make the continuation of the conduct not feasible.
Secondary Sources
13 Witkin, Summary of California Law (10th ed. 2005) Equity, § 153
2Levy et al., California Torts, Ch. 17, Nuisance and Trespass, §§ 17.01–17.05
(Matthew Bender)
34 California Forms of Pleading and Practice, Ch. 391, Nuisance, § 391.13
(Matthew Bender)
16 California Points and Authorities, Ch. 167, Nuisance, § 167.20 (Matthew
California Civil Practice: Torts §§ 17:1, 17:2, 17:4 (Thomson Reuters)