CACI No. 2022. Private Nuisance - Balancing-Test Factors - Seriousness of Harm and Public Benefit
Judicial Council of California Civil Jury Instructions (2024 edition)
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2022.Private Nuisance - Balancing-Test Factors - Seriousness of
Harm and Public Benefit
In determining whether the seriousness of the harm to [name of plaintiff]
outweighs the public benefit of [name of defendant]’s conduct, you should
consider a number of factors.
To determine the seriousness of the harm [name of plaintiff] suffered, you
should consider the following:
a. The extent of the harm, meaning how much the condition [name
of defendant] caused interfered with [name of plaintiff]’s use or
enjoyment of [his/her/nonbinary pronoun] property, and how long
that interference lasted.
b. The character of the harm, that is, whether the harm involved a
loss from the destruction or impairment of physical things that
[name of plaintiff] was using, or personal discomfort or annoyance.
c. The value that society places on the type of use or enjoyment
invaded. The greater the social value of the particular type of use
or enjoyment of land that is invaded, the greater is the
seriousness of the harm from the invasion.
d. The suitability of the type of use or enjoyment invaded to the
nature of the locality. The nature of a locality is based on the
primary kind of activity at that location, such as residential,
industrial, or other activity.
e. The extent of the burden (such as expense and inconvenience)
placed on [name of plaintiff] to avoid the harm.
To determine the public benefit of [name of defendant]’s conduct, you
should consider:
a. The value that society places on the primary purpose of the
conduct that caused the interference. The primary purpose of the
conduct means [name of defendant]’s main objective for engaging
in the conduct. How much social value a particular purpose has
depends on how much its achievement generally advances or
protects the public good.
b. The suitability of the conduct that caused the interference to the
nature of the locality. The suitability of the conduct depends upon
its compatibility to the primary activities carried on in the
locality.
c. The practicability or impracticality of preventing or avoiding the
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invasion.
New December 2015
Directions for Use
This instruction must be given with CACI No. 2021, Private Nuisance - Essential
Factual Elements. (See Wilson v. Southern California Edison Co. (2015) 234
Cal.App.4th 123, 160−165 [184 Cal.Rptr.3d 26].) CACI No. 2021 has been found to
be inadequate to express the requirement that the plaintiff must suffer serious harm
without this additional guidance to the jury on how to determine whether the
seriousness of the plaintiff’s harm outweighs the public benefit of the defendant’s
conduct (CACI No. 2021, element 8). (See Id. at pp. 162−163.)
Sources and Authority
• “ ‘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. v. Superior Court (1996) 13 Cal.4th 893, 938-939 [55 Cal.Rptr.2d
724, 920 P.2d 669], internal citations omitted.)
• “Had the jury been instructed on the proper factors to consider when weighing
the gravity of the harm against the social utility of [defendant]’s conduct and
found [defendant] liable, the statement of these elements would be sufficient
because in finding in favor of [plaintiff] the jury necessarily would have
concluded that the harm was substantial. Without such instruction, it is not.”
(Wilson, supra, 234 Cal.App.4th at p. 163.)
• Restatement Second of Torts, section 827 provides:
In determining the gravity of the harm from an intentional invasion of another’s
interest in the use and enjoyment of land, the following factors are important:
(a) the extent of the harm involved;
(b) the character of the harm involved;
(c) the social value that the law attaches to the type of use or
enjoyment invaded;
(d) the suitability of the particular use or enjoyment invaded to the
character of the locality; and
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(e) the burden on the person harmed of avoiding the harm.
• Restatement Second of Torts, section 828 provides:
In determining the utility of conduct that causes an intentional invasion of
another’s interest in the use and enjoyment of land, the following factors are
important:
(a) the social value that the law attaches to the primary purpose of
the conduct;
(b) the suitability of the conduct to the character of the locality; and
(c) the impracticability of preventing or avoiding the invasion.
Secondary Sources
13 Witkin, Summary of California Law (11th ed. 2017) Equity, § 190
2 Levy et al., California Torts, Ch. 17, Nuisance and Trespass, § 17.05 (Matthew
Bender)
9 California Real Estate Law and Practice, Ch. 320, The Law of Nuisance, § 320.15
(Matthew Bender)
34 California Forms of Pleading and Practice, Ch. 391, Nuisance, § 391.20
(Matthew Bender)
16 California Points and Authorities, Ch. 167, Nuisance, § 167.47 (Matthew Bender)
TRESPASS CACI No. 2022
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