CACI 2021 Private Nuisance—Essential Factual Elements

New September 2003; Revised February 2007, December 2011, December 2015, June 2016, May 2017, May 2018, May 2019

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Private nuisance liability depends on some sort of conduct by the defendant that either directly and unreasonably interferes with the plaintiff’s property or creates a condition that does so. (Lussier v. San Lorenzo Valley Water Dist. (1988) 206 Cal.App.3d 92, 100 [253 Cal.Rptr. 470].) Element 2 requires that the defendant have acted to create a condition or allowed a condition to exist by failing to act.

The act that causes the interference may be intentional and unreasonable. Or it may be unintentional but caused by negligent or reckless conduct. Or it may result from an abnormally dangerous activity for which there is strict liability. However, if the act is intentional but reasonable, or if it is entirely accidental, there is generally no liability. (Lussier, supra, 206 Cal.App.3d at p. 100.)

The intent required is only to do the act that interferes, not an intent to cause harm. (Lussier, supra, 206 Cal.App.3d at pp. 100, 106; see Rest.2d Torts, § 822.) For example, it is sufficient that one intend to chop down a tree; it is not necessary to intend that it fall on a neighbor’s property.

If the condition results from an abnormally dangerous activity, it must be one for which there is strict liability. (Lussier, supra, 206 Cal.App.3d at p. 100; see Rest.2d Torts, § 822).

There may be an exception to the scienter requirement of element 3 for at least some harm caused by trees. There are cases holding that a property owner is strictly liable for damage caused by tree branches and roots that encroach on neighboring property. (See Lussier, supra, 206 Cal.App.3d at p.106, fn. 5; see also Mattos v. Mattos (1958) 162 Cal.App.2d 41, 43 [328 P.2d 269] [absolute liability of an owner to remove portions of his fallen trees that extend over and upon another’s land]; cf. City of Pasadena v. Superior Court (2014) 228 Cal.App.4th 1228, 1236 [176 Cal.Rptr.3d 422] [plaintiff must prove negligent maintenance of trees that fell onto plaintiff’s property in a windstorm].) Do not give element 3 if the court decides that there is strict liability for damage caused by encroaching or falling trees.

There is some uncertainty as to whether lack of consent is an element (element 6) 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].)

If the claim is that the defendant failed to abate a nuisance, negligence must be proved. (City of Pasadena, supra, 228 Cal.App.4th at p. 1236.)

Element 9 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.

•“Nuisance” Defined. Civil Code section 3479.

•Acts Done Under Express Authority of Statute. Civil Code section 3482.

•“A nuisance is considered a ‘public nuisance’ when it ‘affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal.’ A ‘private nuisance’ is defined to include any nuisance not covered by the definition of a public nuisance, and also includes some public nuisances. ‘In other words, it is possible for a nuisance to be public and, from the perspective of individuals who suffer an interference with their use and enjoyment of land, to be private as well.’ ” (Mendez v. Rancho Valencia Resort Partners, LLC (2016) 3 Cal.App.5th 248, 261–262 [207 Cal.Rptr.3d 532], internal citations 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 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.[¶] The elements of a private nuisance are the same except there is no requirement that plaintiffs prove a substantial number of people were harmed and plaintiffs suffered harm that was different from that suffered by the general public, but there are additional elements that plaintiffs owned, leased, occupied or controlled real property, that the 2007 poisoning interfered with plaintiffs’ use of their property, and that plaintiffs were harmed thereby” (Department of Fish & Game, supra, 197 Cal.App.4th at p. 1352 [citing this instruction].)

•“In their first cause of action, plaintiffs allege the 2007 poisoning adversely affected tourism for a substantial period of time, caused plaintiffs to suffer serious losses, obstructed the free use of plaintiffs’ property, and interfered with plaintiffs’ comfortable enjoyment of their property or their businesses. Strictly speaking, this does not state a claim for either public or private nuisance. There is no allegation that plaintiffs did not consent to the 2007 poisoning, that an ordinary person would have been annoyed or disturbed by the 2007 poisoning, or that the seriousness of the harm caused by the 2007 poisoning outweighed its public benefit.” (Department of Fish & Game, supra, 197 Cal.App.4th at p. 1352.)

•“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.)

•“A nuisance is an interference with the interest in the private use and enjoyment of the land and does not require interference with the possession.” (McBride v. Smith (2018) 18 Cal.App.5th 1160, 1178 [227 Cal.Rptr.3d 390].)

•“[T]o 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.)

•“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; … .” (Mendez, supra, 3 Cal.App.5th at p. 262.)

•“The requirements of substantial damage and unreasonableness are not inconsequential. These requirements stem from the law’s recognition that: ‘ “Life in organized society and especially in populous communities involves an unavoidable clash of individual interests. Practically all human activities unless carried on in a wilderness interfere to some extent with others or involve some risk of interference, and these interferences range from mere trifling annoyances to serious harms. It is an obvious truth that each individual in a community must put up with a certain amount of annoyance, inconvenience and interference and must take a certain amount of risk in order that all may get on together. The very existence of organized society depends upon the principle of ‘give and take, live and let live,’ and therefore the law of torts does not attempt to impose liability or shift the loss in every case in which one person’s conduct has some detrimental effect on another. Liability … is imposed in those cases in which the harm or risk to one is greater than he ought to be required to bear under the circumstances, at least without compensation.” ’ ” (Mendez, supra, 3 Cal.App.5th at p. 263, original italics.)

•“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, supra, 162 Cal.App.2d at p. 42.)

•“Although the central idea of nuisance is the unreasonable invasion of this interest and not the particular type of conduct subjecting the actor to liability, liability nevertheless depends on some sort of conduct that either directly and unreasonably interferes with it or creates a condition that does so. ‘The invasion may be intentional and unreasonable. It may be unintentional but caused by negligent or reckless conduct; or it may result from an abnormally dangerous activity for which there is strict liability. On any of these bases the defendant may be liable. On the other hand, the invasion may be intentional but reasonable; or it may be entirely accidental and not fall within any of the categories mentioned above. In these cases there is no liability.’ ” (Lussier, supra, 206 Cal.App.3d at p. 100, internal citations omitted.)

•“A finding of an actionable nuisance does not require a showing that the defendant acted unreasonably. As one treatise noted, ‘[c]onfusion has resulted from the fact that the intentional interference with the plaintiff’s use of his property can be unreasonable even when the defendant’s conduct is reasonable. This is simply because a reasonable person could conclude that the plaintiff’s loss resulting from the intentional interference ought to be allocated to the defendant.’ ” (Wilson v. Southern California Edison Co. (2018) 21 Cal.App.5th 786, 804 [230 Cal.Rptr.3d 595], quoting Prosser & Keeton (5th ed. 1984) Torts § 88.)

•“We do not intend to suggest, however, that one is strictly liable for damages that arise when a natural condition of one’s land interferes with another’s free use and enjoyment of his property. Such a rule would, quite anomalously, equate natural conditions with dangerous animals, ultrahazardous activities, or defective products, for which strict liability is reserved.” (Lussier, supra, 206 Cal.App.3d at pp. 101–102.)

•“Clearly, a claim of nuisance based on our example is easier to prove than one based on negligent conduct, for in the former, a plaintiff need only show that the defendant committed the acts that caused injury, whereas in the latter, a plaintiff must establish a duty to act and prove that the defendant’s failure to act reasonably in the face of a known danger breached that duty and caused damages.” (Lussier, supra, 206 Cal.App.3d at p. 106.)

•“We note, however, a unique line of cases, starting with Grandona v. Lovdal (1886) 70 Cal. 161 [11 P. 623], which holds that to the extent that the branches and roots of trees encroach upon another’s land and cause or threaten damage, they may constitute a nuisance. Superficially, these cases appear to impose nuisance liability in the absence of wrongful conduct.” (Lussier, supra, 206 Cal.App.3d at p. 102, fn. 5 [but questioning validity of such a rule], internal citations omitted.)

•“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, 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, supra, 228 Cal.App.4th at p. 1236, internal citations omitted.)

•“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].)

•“It is the general rule that the unreasonable, unwarrantable or unlawful use by a person of his own property so as to interfere with the rights of others is a nuisance [citation]. In fact, any unwarranted activity which causes substantial injury to the property of another or obstructs its reasonable use and enjoyment is a nuisance which may be abated. And, even a lawful use of one’s property may constitute a nuisance if it is part of a general scheme to annoy a neighbor and if the main purpose of the use is to prevent the neighbor from reasonable enjoyment of his own property [citation].” (McBride, supra, 18 Cal.App.5th at p. 1180.)

•“ ‘Occupancy goes to the holding, possessing or residing in or on something.’ ‘The rights which attend occupancy may be, arguably, many.’ ‘ “Invasion of the right of private occupancy” resembles the definition of nuisance, an “ ‘interference with the interest in the private use and enjoyment of the land.’ ” [Citations.] ‘The typical and familiar nuisance claim involves an activity or condition which causes damage or other interference with the enjoyment of adjoining or neighboring land.” ’ ” (Albert v. Truck Ins. Exchange (2018) 23 Cal.App.5th 367, 380 [232 Cal.Rptr.3d 774, internal citations omitted.)

•“An invasion of the right of private occupancy does not have to be a physical invasion of the land; a nonphysical invasion of real property rights can interfere with the use and enjoyment of real property.” (Albert, supra, 23 Cal.App.5th at p. 380.)

•“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].)

•“[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.)

•“[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.)