CACI 4572 Right to Repair Act—Affirmative Defense—Act of Nature (Civ. Code, § 945.5(a))

California Civil Jury Instructions CACI

4572 Right to Repair Act—Affirmative Defense—Act of Nature (Civ. Code, § 945.5(a))

[Name of defendant] claims that [he/she/nonbinary pronoun/it] is not responsible for [name of plaintiff]’s harm because it was caused by an unforeseen event. To establish this defense, [name of defendant] must prove that the [specify defect, e.g., door that allowed unintended water to pass through it] was caused by [specify, e.g., a landslide], which was an unforeseen [act of nature/manmade event] that caused the home not to meet the otherwise required standard.

Directions for Use

This instruction sets forth a builder’s affirmative defense to a homeowner’s construction defect claim under the Right to Repair Act, asserting the construction defect was caused by an unforeseen act of nature. An “unforeseen act of nature” includes unforeseen manmade events such as war, terrorism, or vandalism, in addition to weather conditions and earthquakes. (See Civ. Code, § 945.5(a).)

The unforeseen event must be “in excess of the design criteria expressed by the applicable building codes, regulations, and ordinances in effect at the time of original construction.” (Civ. Code, § 945.5(a).) If there is a question of fact with regard to such a situation, modify the instruction accordingly.

Sources and Authority

Right to Repair Act Affirmative Defense of Unforeseen Act of Nature. Civil Code section 945.5(a).

Secondary Sources

6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1312
10 California Forms of Pleading and Practice, Ch. 104, Building Contracts, § 104.43 (Matthew Bender)
12 California Real Estate Law and Practice, Ch. 441, Consumers’ Remedies, § 441.70 (Matthew Bender)