CACI 2023 Failure to Abate Artificial Condition on Land Creating Nuisance
California Civil Jury Instructions CACI
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.
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 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.)