Texas Supreme Court Restricts Scope of Common-Law Nuisance

Featured Expert Column − Toxic Tort and Environmental Litigation

Richard O. Faulk, a Partner with Alexander Dubose Jefferson & Townsend LLP serving clients in Texas and Washington DC.

*The views and opinions expressed in this article are those of the author and do necessarily represent or reflect the views of Alexander Dubose Jefferson & Townsend LLP.

In a unanimous decision, the Texas Supreme Court recently clarified key points regarding the common-law doctrine of private nuisance.  See Crosstex North Texas Pipeline v. Gardiner.¹ Although the doctrine of public nuisance has given rise to a great deal of litigation over the past decades,² private nuisance cases have been considerably less conspicuous.  The distinction between the two torts is based not upon the defendant’s conduct, but rather on the nature of the interest the conduct affects.  Historically, a public nuisance is “an act or omission ‘which obstructs or causes inconvenience or damage in the exercise of rights common to all,”³ while a private nuisance is a condition that substantially interferes with the use and enjoyment of land causing unreasonable discomfort or annoyance to persons of ordinary sensibilities attempting to enjoy it.”⁴

Beyond the contrast between the two remedies’ broad and narrow perspectives, they share the problems of vagueness and subjectivity that have plagued nuisance claims for centuries.⁵  As the Crosstex Court remarked, “[t]his is a nuisance case, but that does not tell you much.”⁶  The court cited Dean Keeton’s comment that, as a legal concept, nuisance “has meant all things to all people,”⁷ and further pointed to Dean Prosser’s declaration that the tort was the law’s “garbage can.”⁸  The court also cited equally disparaging remarks by members of the United States Supreme Court and the Texas Supreme Court.⁹  These criticisms set the stage for the Court’s effort to clarify a historically nebulous remedy.

The Crosstex Controversy

Crosstex arose from a dispute between landowners and the operator of a natural-gas compressor station on adjacent property.  The landowners claimed the compressor station was a private nuisance because it produced excessive noise that was a “constant roar.” Witnesses described the noise being “as loud as a jet plane” or “an engine of a locomotive” sitting on the driveway.  After receiving complaints, the operator implemented a number of mitigation measures to reduce the noise, but the landowners insisted that the mitigation was not sufficient to stop the “constant deafening noise” that sounded like a “helicopter” hovering over them.

Although the operator made further efforts to reduce the noise, the landowners deemed them insufficient.  They then sued the operator for intentionally or negligently causing a private nuisance, ordinary negligence and gross negligence, claiming that the compressor station had diminished their property value, ruined their financial investment, and their “ability to use and enjoy their land.”  At trial, the jury failed to find that an intentional nuisance, but did find that the nuisance was created negligently. The jury also found that the landowners’ property values were diminished by over $2,000,000.  Judgment was then rendered for the landowners and the operator appealed.

The intermediate appellate court reversed the judgment because the evidence was “legally sufficient but not factually sufficient” to support the jury’s verdict.  The court of appeals also held, however, that the trial court erred in denying the landowner’s request for a trial amendment that would have supported an additional jury question regarding whether the nuisance was created by the operator’s “abnormal and out of place” conduct.  As a result, the court of appeals reversed and remanded the case for a new trial to allow the landowners to “add the abnormal and out of place variation to their nuisance claim.”  All parties then sought review in the Texas Supreme Court, which was granted.

The Court’s Decision

The Texas Supreme Court agreed that the trial court’s judgment should be reversed and remanded for a new trial, but decided to clarify certain points of nuisance law to ensure that the remanded case was tried under the correct legal standards.¹⁰  Like other jurisdictions, Texas has struggled to define and describe exactly what constitutes a nuisance.  After recognizing Dean Prosser’s warning that there “is perhaps no more impenetrable jungle in the entire law than that which surrounds the word ‘nuisance,’”¹¹ the Texas Supreme Court decided to “provide a more comprehensive, though certainly not exhaustive, explanation of the circumstances in which Texas law may hold a party liable for causing a private nuisance.”¹²  Although the court’s analysis was thorough, its definition of “nuisance” remained highly subjective and fact-intensive:

[T]he term ‘nuisance’ refers to a ‘condition that substantially interferes with the use and enjoyment of land by causing unreasonable discomfort or annoyance to persons of ordinary sensibilities attempting to use and enjoy it.’ …  It refers to a legal injury that may support a cause of action, but it is not itself the cause of action or the conduct that is necessary to support the cause of action. To establish such a legal injury, the plaintiff must prove that the interference is substantial and the resulting discomfort or annoyance is unreasonable, but need not establish that the defendant’s conduct or land use was unreasonable.¹³

However subjective this definition may be, it notably focuses on the condition’s impact on the plaintiffs—not the conduct of the defendant who created the nuisance.¹⁴  Significantly, the court recognized that this definition does not state the elements of a cause of action, but rather described the “legal injury” necessary to justify relief.¹⁵

The court further clarified the law by defining the specific types of conduct that justify recovery for “substantial interference with another’s use and enjoyment of property.”  To recover, the person subject to the interference must prove one of the following:

• The defendant intended to interfere with the plaintiff’s use and enjoyment of property. In this context, “the evidence must establish that the defendant intentionally caused the interference that caused the nuisance, not just that the defendant intentionally engaged in the conduct that caused the interference.”¹⁶
• The defendant knew with substantial certainty that its actions would cause an interference. A defendant who acts “with knowledge that the interference is substantially certain to result is liable for intentionally causing the interference even if the defendant does not agree that the interference is substantial or that the effects on the plaintiffs are unreasonable.”¹⁷
• The defendant negligently created the interference. This element is governed by “ordinary negligence principles” and the plaintiff must prove that the defendant’s conduct constituted negligence, which is “simply doing or failing to do what a person of ordinary prudence in the same or similar circumstances would have not done or done.”¹⁸ or
• The interference resulted from abnormally dangerous activity. Even if an activity is “abnormal or out of place” with its surroundings, nuisance liability arises only from “abnormally dangerous activity” or an “abnormally dangerous substance” that creates a “high degree of risk” of serious injury.¹⁹

Since “nuisance cannot be premised on a mere accidental interference,”²⁰ the court generally insisted on proof that the defendants intentionally or negligently created a nuisance.²¹  In exceptional circumstances, defendants may be subject to “strict liability nuisance” if they engage in conduct that involves an “abnormally dangerous activity” or “abnormally dangerous substance” that creates a “high degree of risk” of serious injury.²²

The court specifically rejected the plaintiffs’ argument that they could recover for nuisances caused by conduct that was merely “abnormal and out of place in its surroundings” by limiting the liability to abnormally dangerous activity.  Such circumstances may give rise to a “strict liability” nuisance.  Since the court defined such activity as “conduct that creates a high degree of risk of serious injury,”²³ noise from the compressor station could not meet that standard as a matter of law.²⁴  In the same way, excess lighting at night, noxious odors, or other conditions are not subject to “strict liability nuisance” unless they are caused by an abnormally dangerous activity or substance. In so ruling, the court limited the availability of traditional nuisance law to redress annoyances that were “merely a right thing in the wrong place, like a pig in the parlor instead of the barnyard.”²⁵  In the absence of intentional, knowing, or negligent misconduct, or abnormally dangerous circumstances, proof of an incongruity between the circumstances and the “locality” is legally insufficient to state a claim for private nuisance in Texas.

Finally, it is also important that this case views nuisance exclusively as a tort arising from the misuse of property.  It does not recognize that scenarios not associated with the use of property, such as selling products, are actionable. The decision certainly does not support the use of nuisance as a “Super Tort” or as an extension or a substitute for strict products liability.

This important limitation distinguishes the Texas decision from public-nuisance claims made against product manufacturers in Rhode Island, California, and elsewhere. With this decision, the Texas Supreme Court ensured that Texas jurisprudence remained firmly grounded in common-law principles.  In doing so, it avoided the vagaries and injustices associated with the persistent and growing abuse of public-nuisance litigation in the United States.  As a result, this important Texas decision provides a strong precedent to curb the extension of nuisance liability beyond its traditional borders.

Notes

1. ___ S.W.3d ___, 2016 WL 3483165 (Tex., June 24, 2016) (hereafter Crosstex).
2. See generally, Richard O. Faulk and John S. Gray, Public Nuisance at the Crossroads: Policing the Intersection Between Statutory Primacy and Common Law, 15 Chapman L. Rev. 495 (2012); Richard O. Faulk and John S. Gray, Alchemy in the Courtroom: The Transmutation of Public Nuisance Litigation, 2007 Mich. St. L. Rev. (2007) (hereafter “Alchemy”); see also Victor E. Schwartz and Phil Goldberg, The Law of Public Nuisance, Maintaining Rational Boundaries on a Rational Tort, 45 Washburn L. J. 541 (2006); Donald G. Gifford, Public Nuisance as a Mass Product Liability Tort, 71 U. Cin. L. Rev.741 (2003).
3. William L. Prosser, Handbook of the Law of Torts § 72, at 566 (1941). According to the Restatement (Second) of Torts, “[a] public nuisance is an unreasonable interference with a right common to the general public.” See also Restatement (Second) of Torts § 821(B) (1979) (“[a] public nuisance is an unreasonable interference with a right common to the general public.”).
4. Holubec v. Brandenberger, 111 S.W.2d 32, 37 (Tex. 2003).
5. See generally, Alchemy, supra note 2, at 948-55.
6. Crosstex, 2016 WL 3483165 *1.
7. Ibid. See Prosser and Keeton on Torts § 86, at 616 (5^th ed. 1984).
8. Ibid. See William L. Prosser, Nuisance Without Fault, 20 Tex. L. Rev. 399, 410 (1942).
9. See Id. at n. 1, citing Lucas v. S.C. Coastal Council, 505 U.S. 1003 (1992) (per Blackmun, J. (“one searches in vain … anything resembling a principle in the common law of nuisance.”); Schneider Nat’l Carriers, Inc. v. Bates, 147 S.W.3d 264, 274-75 (Tex. 2004) (noting that test for distinguishing temporary and permanent nuisances “has no standard of reference.”).
10. Crosstex, 2016 WL 3483165, at *1 (“Taking this opportunity to clarify the law … [w]e affirm the court of appeals’ judgment remanding the case for a new trial, in which the parties should apply the guidance we provide today.”).
11. William L. Prosser, Law of Torts § 88, at 592 (3d ed.1964).
12. 2016 WL 3483165 at *4.
13. Id. at *9.
14. Ibid (“Today we clarify that to prove a nuisance (that is, a legal injury based on interference with use and enjoyment of land), a plaintiff must establish that the effects of the substantial interference on the plaintiff are unreasonable—not that the defendant’s conduct or land use was unreasonable.”).
15. Id. at *6.
16. Id. at *16.
17. Ibid.
18. Id. at *18.
19. Id. at *19. The court characterized this remedy as “strict liability nuisance.” The court specifically held that, absent such proof, the “mere fact that the defendant’s use of its land is “abnormal and out of place with its surroundings” will not support a nuisance claim.
20. Id. at *15.
21. Ibid.
22. The court specifically held that, absent such proof, the “mere fact that the defendant’s use of its land is “abnormal and out of place with its surroundings” will not support a nuisance claim. Id.
23. Ibid.
24. Id. at *26.
25. Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 388 (1926) (per Southerland, J.).