California Civil Jury Instructions (CACI)

3903G. Loss of Use of Real Property (Economic Damage)

[Insert number, e.g., "7."] The loss of use of [name of plaintiff]'s [insert identification of real property].

To recover damages for the loss of use, [name of plaintiff] must prove the reasonable cost to rent similar property for the time when [he/she/it] could not use [his/her/its] own property.

Directions for Use

This instruction is not intended for cases in which the plaintiff is a landlord seeking to recover compensation for lost rents. A more appropriate instruction for that situation is CACI No. 3903N, Lost Profits (Economic Damage).

Sources and Authority

"[T]he general measure of damages where injury to property is capable of being repaired is the reasonable cost of repair together with the value of lost use during the period of injury." (Erlich v. Menezes (1999) 21 Cal.4th 543, 555 [87 Cal.Rptr.2d 886, 981 P.2d 978], internal citation omitted.)

"There is no question that when cost of restoration is the correct measure of damages for injury to real property, compensation for loss of use . . . would be appropriate." (Ferraro v. Southern California Gas Co. (1980) 102 Cal.App.3d 33, 51 [162 Cal.Rptr. 238].)

When real property has been damaged so that it cannot be restored, damages for loss of use may not be recovered. (Ferraro, supra, 102 Cal.App.3d at pp. 50-51.)

Restatement Second of Torts section 931 provides: If one is entitled to a judgment for the detention of, or for preventing the use of, land or chattels, the damages include compensation for

(a) the value of the use during the period of detention or prevention or the value of the use of or the amount paid for a substitute, and

(b) harm to the subject matter or other harm of which the detention is the legal cause.

Secondary Sources

6 Witkin, Summary of California Law (9th ed. 1988) Torts, § 1462

4 Levy et al., California Torts, Ch. 52, Medical Expenses and Economic Loss, § 52.36 (Matthew Bender)

California Real Property Remedies Practice (Cont.Ed.Bar 1982) Damages for Injury to Real Property, § 11.5

15 California Forms of Pleading and Practice, Ch. 177, Damages (Matthew Bender)

6 California Points and Authorities, Ch. 65, Damages (Matthew Bender)

1 Bancroft-Whitney's California Civil Practice (1992) Torts, § 5:19

(New September 2003)