My very first assignment as a summer associate at a law firm was to look into whether our client, a rancher, could be held liable where dust from his property blew across the highway causing decreased visibility and a car accident ensued. This same question was included in the Top 10 Things Agricultural Lawyers Should Know presentation by John Huffaker and David LeBas at the Texas Ag Law Course in 2015.
It is an interesting and important issue for Texas landowners. The answer, like so many legal answers, is not completely settled.
Basic Negligence Law
Under Texas law, in order to succeed on any negligence claim, a plaintiff must prove the following elements: (1) the defendant owed a duty to the plaintiff; (2) the defendant breached the duty; (3) the defendant’s breach was the proximate cause of plaintiff’s damages; and (4) damages. See W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005). “Proximate cause” consists of cause in fact and foreseeability. The test for cause in fact asks whether the negligent act was a “substantial factor” in bringing about the injury, without which the harm would not have occurred. See Sw. Key Program, Inc. v. Gil-Perez, 81 S.W.3d 269 (Tex. 2002). The test for foreseeability is whether a person of ordinary intelligence would have anticipated the danger created by the negligent act. See Read v. Scott Fetzer Co., 990 S.W.2d 732 (Tex. 1998). These elements cannot be established by mere conjecture, guess, or speculation. See Doe v. Boys Club of Greater Dallas, Inc., 907 S.W.2d 472 (Tex. 1995).
Analysis of Dust Claims
The proper analysis in a dust claim case is to walk through each element listed above. The analysis starts with the general rule in Texas that landowners or occupants of land abutting a highway have a duty to exercise reasonable care not to endanger the safety of persons using the roadway. See Gulv, C. & S.F. Ry. Co. v. Oakes, 58 S.W. 999 (Tex. 1900). If reasonable care is not exercised, that duty has been breached. If such breach is the cause of damages, the defendant could be liable. So, if one were to merely apply this rule, the conclusion might be that landowners are liable for dust-related injuries. Texas case law, however, has not reached that outcome in a case involving dust claims.
Connaway v. Village Farms
The key case for landowners to be aware of is Connaway v. Village Farms, L.P., 200 S.W.3d 353 (Tex. Ct. App. – Dallas 2006). Here, a tomato farmer owned a greenhouse approximately 150 feet from the roadway. He had cleared all vegetation around the greenhouse, leaving the surrounding ground bare. During a wind storm, a cloud of dust blew across the roadway, impacting visibility. The plaintiffs were riding by on their motor cycle and after entering the dust cloud, collided with another vehicle. Plaintiffs brought suit against the farmer for negligence. Their theory was that the farmer unreasonably created an unnatural condition on the land that caused the dust cloud and the accident.
The evidence presented showed that although the dust cloud came from the area of the agricultural building on the farm, testimony also provided that there was high wind blowing in the area and that the wind continued to blow for three hours after the accident. Some police officers reported it was the worst dust storm they had ever seen. Further, witnesses testified that beyond the dust cloud where the accident took place, it was hazy and visibility was significantly reduced in the area. Other witnesses testified that March is the driest month in that part of Texas and dust storms are not unusual. The farmer testified that he did, indeed, keep the area around the greenhouse clear of vegetation for the purpose of preventing contamination of plants from weeds, insects, and the like.
Both the trial court and court of appeals sided with the farmer and dismissed the plaintiffs’ claim on summary judgment. The testimony provided did not offer proof of causation. In particular, there was insufficient evidence to show that the dust on the highway was caused by the tomato farmer’s clearing of the vegetation around his greenhouse. To the contrary, testimony established that visibility in the entire area was reduced due to a wind storm and that such dust storms are common in that area. There was simply insufficient evidence–apart from speculation–to prove that the dust cloud was caused by the farmer’s clearing vegetation.
Sherbin v. Dean Word Company
A similar result was found in a case involving a construction company. In Sherbin v. Dean Word Company, Ltd., a plaintiff was injured in a 20-car pile-up on I-35. Plaintiff alleged that a dust cloud caused by the defendant’s nearby construction work obscured visibility and caused the accident. The plaintiff claimed that the defendant created a dust cloud when applying lime pellets or operating a cement mixer near the roadway. Other testimony provided that lime pellets do not produce dust and that it was generally foggy in the area before the accident occurred. The jury found in favor of defendants, reasoning there was no evidence of proximate cause. The appellate court affirmed, reasoning there was sufficient evidence for the jury to reach this decision. They found only scant evidence that creation of a dust cloud from the company’s actions was foreseeable. Further, there was very little evidence to show that the defendant acted unreasonably under the circumstances even if the dust cloud was caused by the defendant.
First, there is no law in Texas that would prevent landowners from being found negligent if the plaintiff can prove each of the required elements. By far the most difficult for plaintiffs to prove is causation. If, however, a plaintiff were to offer adequate proof that the landowner’s action was the proximate cause of the plaintiff’s injury, the landowner could be liable.
Second, landowners should exercise care anytime they are working near a roadway if the risk of dust impacting nearby drivers exists. Landowners who act reasonably under the factual circumstances will not be found to have breached their duty. Again, all that is required here is to act reasonably under the circumstances. For example, it might be unreasonable for a farmer to plow a field next to a highway during a major wind storm but it might not be unreasonable for a farmer to refuse to spray down pasture land twice a day in order to keep dust at bay. This will be determined on a case by case basis, and will take into account the factual scenario taking place at the time.
Finally, landowners should ensure that they carry liability insurance that is broad enough to cover this situation and offers a sufficient coverage level if an accident were to occur and the landowner was found liable.