by Charles W. Sartain
In Gardiner v. Crosstex North Texas Pipeline LLC, the Supreme Court of Texas clarified and reshaped Texas nuisance law after decades of confusion by courts and commentators. As a result of Gardiner:
- “Nuisance” now refers to a type of legal injury involving interference with the use and enjoyment of real property. Nuisance does not, as it had in past jurisprudence, refer to a defendant’s conduct, a legal claim or cause of action, an event or activity that is the “cause or source of a harm”, the harm itself, or liability that results from the harm.
- Nuisance now 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.
The interference must be substantial. To paraphrase Prosser and Keaton, the law does not concern itself with trifles or seek to remedy petty disturbances, even from conduct committed with knowledge that annoyance and inconvenience will result. Whether an interference is substantial or merely a trifle necessarily depends on the particular facts at issue, including, for example, the nature and extent of the interference and how long it lasts or how often it recurs.
The effect must be unreasonable. Substantial interference is not a nuisance unless the effect on those who otherwise use and enjoy their land is “unreasonable”, based on an objective standard of persons of ordinary sensibilities, not the subjective response of any particular plaintiff.
It’s the effect, not the conduct. The plaintiff must establish that the plaintiff’s discomfort or annoyance is unreasonable, not that the defendant’s conduct or land use was unreasonable. It concerns the reasonable expectations of a normal person occupying the plaintiff’s land. The effects of the defendant’s conduct or land use must be such that would disturb and annoy persons of ordinary sensibilities and ordinary tastes and habits.
Let us count the factors. The court identified at least ten factors that could determine whether the defendant’s interference with the plaintiff’s use and enjoyment of the land is substantial and whether any particular effect of that interference is unreasonable. These factors range from the general (the interests of the community and public at large) to the specific (the magnitude, extent, degree, frequency, or duration of the interference and resulting harm). The court recognized the fact-intensive nature of a nuisance case and made it clear that these are questions to be resolved by a jury.
Damages can vary. The condition may interfere with a variety of the plaintiff’s interests in the property. There can be physical damage to the plaintiff’s property, economic harm to the property’s market value, harm to the plaintiff’s health, or psychological harm to the plaintiff’s peace of mind. Actionable nuisance is still divided into three classifications. Each requires some degree of culpability, although illegal or unlawful activity is not required.
Intentional nuisance. “Intent” here means that the actor desires to cause a consequence of the act or believes that the consequences are substantially certain to result from it. An intent to inflict injury or desire to do harm is not required. Intent is measured by a subjective standard: The defendant must have actually desired or intended to create the interference or must have actually known or believed that the interference would result.
The evidence must establish that the defendant intentionally caused the interference that constitutes the nuisance, not just that the defendant intentionally engaged in the conduct that caused the interference. The plaintiff need not separately establish that the defendant’s conduct was also “unreasonable”.
Negligent nuisance. Nuisance not limited to intentional interferences. A claim of nuisance is appropriate so long as it refers solely to the alleged legal injury. If the allegation is negligent nuisance, the rules of ordinary negligence apply.
Strict liability. Any activity which involves an unusual hazard or risk could result in strict liability nuisance. The premise of strict liability is that the defendant was engaged in some kind of activity exposing others to a risk of harm from accidental invasion under circumstances that justify allocating certain losses from such risk to the defendant. That the defendant acted with reasonable care does not matter. In Gardiner the court found no evidence that a compressor station is abnormally dangerous.
Conclusion. Gardiner doesn’t address every issue likely to arise (limitations, for example) but it is a must-read for every practitioner about to tackle a nuisance case, whether as a plaintiff or a defendant.
Charles Sartain is partner and head of the litigation section of the Dallas office of Gray Reed & McGraw. He can be reached at firstname.lastname@example.org.