CACI No. 2023. Failure to Abate Artificial Condition on Land Creating Nuisance

Judicial Council of California Civil Jury Instructions (2020 edition)

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2023.Failure to Abate Artificial Condition on Land Creating
Nuisance
[Name of plaintiff] claims that [name of defendant] unreasonably failed to
put an end to an artificial condition on [name of defendant]’s land that
was a [public/private] nuisance. To establish this claim, in addition to
proving that the condition created a nuisance, [name of plaintiff] must
also prove all of the following:
1. That [name of defendant] was in possession of the land where the
artificial condition existed;
2. That [name of defendant] knew or should have known of the
condition and that it created a nuisance or an unreasonable risk
of nuisance;
3. That [name of defendant] knew or should have known that [[name
of plaintiff]/the affected members of the public] did not consent to
the condition; and
4. That after a reasonable opportunity, [name of defendant] failed to
take reasonable steps to put an end to the condition or to protect
[[name of plaintiff]/the public] from the nuisance.
New November 2018
Directions for Use
This instruction is based on the Restatement Second of Torts, section 839 (see Leslie
Salt Co. v. San Francisco Bay Conservation etc. Com. (1984) 153 Cal.App.3d 605,
618-622 [200 Cal.Rptr. 575]), which applies to both public and private nuisances.
(Rest. 2d Torts, § 839, comment (a).) For a private nuisance, select the plaintiff in
elements 3 and 4.
Give this instruction with either CACI No. 2020, Public Nuisance - Essential
Factual Elements, or CACI No. 2021, Private Nuisance - Essential Factual
Elements. For public nuisance, modify element 1 of CACI No. 2020 to replace
“created a condition” with “allowed a condition to exist.” For private nuisance, this
instruction replaces element 3 of CACI No. 2021.
Sources and Authority
• “Under the common law, liability for a public nuisance may result from the
failure to act as well as from affirmative conduct. Thus, for example, section 839
of the Restatement Second of Torts declares that ‘A possessor of land is subject
to liability for a nuisance caused while he is in possession by an abatable
artificial condition on the land [such as the placement of fill], if the nuisance is
otherwise actionable [e.g., prohibited by statute], and [para. ] (a) the possessor
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knows or should know of the condition and the nuisance or unreasonable risk of
nuisance involved, and [para. ] (b) he knows or should know that it exists
without the consent of those affected by it, and [para. ] (c) he has failed after a
reasonable opportunity to take reasonable steps to abate the condition or to
protect the affected persons against it.’” (Leslie Salt Co., supra, 153 Cal.App.3d
at pp. 619-620.)
Secondary Sources
19 Witkin, Summary of California Law (11th ed. 2017) Equity, § 160
17 Witkin, Summary of California Law (11th ed. 2017) Real Property, § 1045
9 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1230, 1300
2024-2029. Reserved for Future Use
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