Conn. Civ. Jury Instr. 3.13-12

The plaintiff claims that the defendant trespassed by causing <insert offending substance> to

enter the plaintiff’s property without the express or implied consent of the plaintiff. To recover

(his/her/its) claimed damages for trespass, the plaintiff must prove the following three elements

by a preponderance of the evidence:

1. the plaintiff possessed, to the exclusion of others, the portion of property where the

trespass allegedly occurred;

2. activity of the defendant caused an invasion, intrusion or entry of a substance onto

the affected property without the plaintiff’s express or implied consent; and

3. the invasion, intrusion or entry was done intentionally by the defendant.

With respect to the first element, the issue of possession is to be determined at the time of the

alleged trespass.

With respect to the second element, a trespass may be committed on, beneath, or above the

surface of the earth. A trespass need not be inflicted directly on another’s property but may be

committed by discharging a foreign offending substance at a point outside the boundary of the

affected property.

With respect to the third element, the issue is not whether the defendant intended the <insert

offending substance> to enter the plaintiff’s land but rather whether the defendant intended the

act that produced the offending invasion of the plaintiff’s property and had good reason to know

or expect that conditions would cause the <insert offending substance> to migrate from the

defendant’s property to the plaintiff’s property.

If you find that the plaintiff has failed to prove any of these three elements, then you must find in

favor of the defendant on this count. If you find that the plaintiff has proven all three elements,

then you must award the plaintiff at least nominal damages. Nominal damages are usually one

dollar. The reason for awarding nominal damages is that some damage results from the mere

invasion of the plaintiff’s property rights even if no other injury is proven. To recover more than

nominal damages, the plaintiff must prove that the trespass proximately caused (him/her/it)

injury. “Injury” means damage to the property or property rights of the plaintiff. [To charge on

the measure of damages, guidance may be found in the cases referenced in the notes.] <Insert

Proximate Cause, Instruction 3.1-1.>