Last week, the Texas Supreme Court issued its opinion in Crosstex North Texas Pipeline, L.P. v. Gardiner. [Read full opinion here.] In doing so, the Court took the much-needed opportunity to address and clarify the law of nuisance in Texas. The 54-page opinion walks through a detailed discussion and analysis of nuisance law in Texas.
Crosstex operates a natural gas pipeline running from Tarrant County to Lamar County. Along this route, in Denton County, Crosstex bought a 20 acre tract of land midway along the pipeline that it used as a storage yard during the construction of the pipeline and upon which it subsequently built a compressor station. Crosstex conducted noise analysis, determining there was no need for “noise mitigation procedures,” but nevertheless installed “hospital grade” mufflers on the four engines. At least one of these four engines runs 24 hours/day, 7 days/week.
The plaintiffs own a 95 acre ranch adjacent (across a farm-to-market road) to Crosstex’ 20 acre tract. The ranch is undeveloped, and the family purchased it as an investment property and to run cattle, ride horses, and enjoy the country.
Shortly after the compression station was operational, the plaintiffs and other neighbors complained about the constant roar of the engines. Some described the noise as being similar to a jet plane, and Crosstex’ own public relations specialist who visited the site described the noise as being “bad” and “very loud.” After receiving these complaints, Crosstex worked with a sound-control firm to implement noise reduction measures, including constricting a building partially enclosing the engines, installing sound blankets, installing sound walls, and planting vegetation. The Gardiners were not satisfied, however, particularly because the partial enclosure was left open on the side of the building facing their property.
In May 2008, the Gardiners filed suit for nuisance, negligence, and gross negligence. The lawsuit was amended to assert claims of intentional and negligent nuisance. The trial court entered a verdict for Crosstex on the negligence claims, but allowed the issues of intentional and negligent nuisance to go to the jury. The jury found in favor of the plaintiffs on the negligent nuisance theory, awarding $2 million, the amount the jury believed the nuisance damaged the fair market value of the plaintiffs’ property. Crosstex appealed. The appellate court found the evidence not factually sufficient to show negligent nuisance, but reversed the case on the grounds that the trial court should have allowed the plaintiffs to make a claim of nuisance based not on intentional acts or negligence, but instead based on the idea that the nuisance was caused by conduct that was “abnormal and out of place.” Both parties sought review at the Texas Supreme Court.
Supreme Court Opinion — Nuisance Law
The Court kicked off its opinion by discussing many of the difficulties facing courts when dealing with nuisance claims, perhaps most succinctly by quoting a legal scholar’s statement 70 years ago who deemed nuisance to be the law’s “garbage can.” Recognizing the lack of clarity available for people seeking to recover or defend against nuisance claims, the Court decided to “attempt a more comprehensive, although certainly not exhaustive, explanation of the circumstances in which Texas law may hold a party liable for causing a private nuisance.”
First, the Court made clear that under Texas law, nuisance is 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.” A number of factors are considered in analyzing a nuisance claim, including the character of the neighborhood, the parties’ land usage, social expectations, the location of the land, the extent to which others are engaging in similar conduct in the area, the magnitude, extent, degree, frequency, or duration of the interference, the capacity of each party to bear the burden of ceasing or mitigating the usage, the defendants’ motive in causing the interference, and the interest of the public and community at large.
The Court walked individually through two of the key requirements:
- Substantial Interference: Requiring interference to be substantial is the law’s attempt at making clear that it does not intend to protect landowners from minimal annoyances or disturbances of everyday life. What constitutes a “substantial interference” will vary by case and factual circumstance. This will be analyzed by looking at the particular facts at issue, including the nature and extent of the interference and how long the interference lasts or how often it recurs. The damage occurring may be physical property damage, economic harm to the property’s economic value, harm to the plaintiff’s health, and harm to the plaintiff’s peace of mind, but regardless, it must be substantial.
- Unreasonable discomfort or annoyance: Even if an interference is substantial, a party may not successfully claim nuisance unless the discomfort or annoyance suffered is found to be unreasonable. In analyzing reasonableness, the Court focuses on the effect of the interference on the plaintiff’s comfort or contentment, not whether the defendants’ actions are reasonable on his or her own land. It is not, therefore, whether the defendant acted reasonably or unreasonably that matters. Instead, the key is whether the effects of the substantial interference on the plaintiff are unreasonable. Additionally, the standard of reasonableness is based on the objective idea of a person with ordinary sensibilities.
Second, the Court stated that nuisance should not refer to a particular cause of action or to a defendant’s conduct, but instead “to the particular type of legal injury that can support a claim or cause of action seeking legal relief.” In other words, “the term ‘nuisance’ described a type of injury that the law has recognized can give rise to a cause of action because it is an invasion of a plaintiff’s legal rights.”
Third, the Court turned to the liability standard of care applicable to a nuisance case. The Court noted that there must be some level of culpability for a nuisance to occur–nuisance injuries may not be premised on accidental interference. Instead, a nuisance claim must fall within one of three general categories of conduct.
- Intentional nuisance: If a defendant intentionally creates or maintains a condition that meets the nuisance requirements, that defendant may be liable. Under this category, a plaintiff must prove intent to inflict injury on the part of the defendant. A defendant may also fall under this category if he or she acted with “substantial certainty” that interference would result from his or her conduct. This is measured by a subjective standard–did the defendant actually know or believe interference would result? It is not enough that the defendant should have known or that a reasonable person would have known.
- Negligent nuisance: Here, a plaintiff need only prove that the defendant acted negligently–namely, unreasonably under the circumstances based upon the legal duty owed–and such action created nuisance injury.
- Strict-liability nuisance: Strict liability is imposed when a defendant undertakes an abnormally dangerous activity. The law deems some activities so dangerous, and injury so likely to occur, that liability is imposed even if the defendant took all precautions and acted reasonably. For example, the use of explosives is usually considered to be abnormally dangerous and if a person using explosives causes injury–whether the user did anything wrong or not–liability is imposed. The Court stated that this category applies only where the nuisance is created by conduct that is considered an “abnormally dangerous activity” or involves an “abnormally dangerous substance” that creates a high degree of risk of serious injury.
Fourth, the Court turned to remedies available to a plaintiff when nuisance occurs.
- Damages: The damages available depend on the type of nuisance. If a nuisance is deemed temporary, the damages available are lost use and enjoyment that has already accrued. On the other hand, if a nuisance is permanent, the owner may recover lost market value of the property. The market value is considered based on a number of factors and is based on the highest and best use of the land, which is presumed to be the current use.
- Injunctive relief: Whether an injunction is warranted is a discretionary decision for the judge after a jury has rendered a verdict. An injunction is essentially an order requiring the defendant to stop the action causing the nuisance.
- Self-help abatement: This remedy essentially gives a neighboring landowner who is the victim if nuisance the right to abate–or clean up/prevent–the nuisance from occurring.
Supreme Court Opinion — Application to This Case
The Court then applied the nuisance law described above to the facts of this case.
First, the Court considered the jury verdict that a negligent nuisance occurred. The Court found the reasoning of the Court of Appeals to be sufficient and upheld the finding that there were insufficient facts upon which a negligent nuisance could have been found. Thus, the Court remanded the case back to the trial court for a new trial on this issue based on the principles announced in this opinion. It will, then, but up to a jury to weigh the factual evidence and determine if Crosstex created a negligent nuisance as defined by the Court.
Second, the Court determined that operating an oil and gas pipeline is not an abnormally dangerous activity such that strict liability nuisance could have occurred. Thus, the trial court was correct in refusing to send that claim to the jury.
Why Do We Care?
Texas landowners should be aware of the law regarding nuisance. Nuisance claims arise in a variety of circumstances, but all of them involve landowners. Whether the suits be over noise from a compressor station or odor from a feed yard, knowing how the law works and how these claims are analyzed is important for Texans. This opinion serves as a type of treatise offering the detailed information necessary to analyze any potential nuisance claim.