bad-dayIt was a bad day for the Parrs in Aruba Petroleum v. Parr. The trial court judgment was against the operator for intentional nuisance. The Parrs recovered $2.9 million for pain and suffering and mental anguish and for loss of market value of their home caused by Aruba’s gas wells in Wise County, Texas. (See our erudite discussions of this case at the trial court here, here and here.)

This, along with Cerny v Marathon Oil, makes one wonder what it might take for a Texas plaintiff with a nuisance claim arising out of oil and gas activities to recover personal injury damages, especially if there are operations in the area by non-defendants (there were no wells on the Parrs’ property and 87 other wells in the area).  As you will see, litigation by ambush is not likely to work.

The Parr’s claim was for “environmental contamination and polluting events” on their property by way of, among others, air contamination, light pollution and offensive noises and odors.

Recall Crosstex v. Gardiner, in which the Supreme Court described what is required to prove an intentional nuisance:

The actor desires to cause the consequences of his act or believes that the consequences are substantially certain to result from it. It is a subjective standard. It is not enough to conclude that the defendant intentionally engaged in the conduct that caused the injury.

The Parrs relied on three categories of evidence:

  • complaints by a neighbor to Aruba,
  • complaints to the Texas Commission on Environmental Quality,
  • complaints by the Parrs to Aruba.

Generalized, anonymous grievances fall short

For all their complaints, the Parrs never identified themselves or their specific problems to anyone in particular at Aruba. They failed to identify evidence that Aruba knew that the Parrs were complaining to the TCEQ or that complaints were about the Parr’s property.

The jury didn’t believe Aruba’s conduct was abnormal and out of place in its surroundings. Recall that after Crosstex that is an improper jury question anyway.

My guess is that the jury was persuaded by testimony of an Aruba witness that well sites are noisy, dusty, emitted odors, and result in underground vibrations and significant lights at night, that the Parrs “probably “ had complaints, that he considers smoke plumes a health hazard and a nuisance. That all might be true, but to the court that wasn’t the issue.

It’s all about the evidence

There was no evidence to support the jury’s finding that Aruba intentionally created or maintained a condition that substantially interfered with the Parrs’ use and enjoyment of their land. The Parrs couldn’t cite any evidence that Aruba knew who placed phone calls to Aruba and complained to the TCEQ, or that complaints were specific to the Parr’s property.

For our musical interlude, happy Valentine’s Day.

Co-author Maryann Zaki

In case you’ve been living in your van down by the river, you’ve heard that a Texas jury awarded $2.9 million to landowners in a case involving alleged hydrocarbon exposure due to hydraulic fracturing operations. Here is the jury verdict. The Parrs sued Aruba Petroleum, alleging that drilling and fracing at Aruba’s 22 wells located within two miles of the Parr’s 40-acre property in Wise County was making them sick. They alleged a wide array of health issues, including nose bleeds, irregular heartbeat, muscle spasms, and open sores, all of which were allegedly caused by hazardous gases and airborne chemicals emanating from Aruba’s well sites.

The Original Claims

The original claims against a number of operators with wells in the area included assault, intentional infliction of emotional distress, negligence, gross negligence, civil conspiracy, private nuisance and trespass. All defendants other than Aruba either settled before trial on undisclosed terms, were dismissed, or obtained summary judgment.

Proceeding on Nuisance

The case proceeded to the jury only on the nuisance claim. The award, for intentionally creating a private nuisance, comprised $275,000 for loss in property value, $2 million for past pain and suffering, $250,000 for future pain and suffering, and $400,000 for past mental anguish. The jury did not find evidence of the malice necessary to justify an award of punitive damages.

The Takeaways

  • What effect will the verdict have? Although this is not the first lawsuit against an energy company for damages related to fracing, the verdict has been coined as the “first fracing verdict in U.S. history.” The trial judge has not yet entered a judgment on the verdict, which will almost certainly be challenged by the defendant in post-trial motions, and on appeal if necessary.
  • Whether a compressor station was a nuisance was discussed in one of our long-ago  entries. See that entry for a general discussion of what constitutes a public nuisance in Texas.
  • It remains to be seen whether the Parrs will ultimately prevail in holding Aruba solely liable for their alleged injuries, when there are dozens of other wells and facilities operated by other companies within a two mile radius of the Parr home.
  • This verdict has inspired debate and raised questions. Will people living near oilfield operations begin running to the courthouse to file similar lawsuits, and will such claims ultimately succeed?
  • Several of our Gray Reed colleagues are participating in litigation similar to Parr. We are following Parr and other cases and from time to time will be commenting.

Acknowledging that those who don’t know better see fracing as malignant, we offer this musical interlude. (Tolerate the ad; the rest is worth it.)