nuisanceGardiner v. Crosstex North Texas Pipeline LLC, has brought clarity to Texas nuisance law. It took the Texas Supreme Court 54 pages; we have it in under 600 words. (We explained the lower court case here.)

  • “Nuisance” now refers, not to a defendant’s conduct or a legal claim or cause of action, but to a type of legal injury involving interference with the use and enjoyment of real property.
  • It 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 quote a treatise, the law “does not concern itself with trifles or seek to remedy all the petty annoyances and disturbances of everyday life in a civilized community even from conducted committed with knowledge that annoyance and inconvenience will result.” Crybabies not allowed!

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. Some plaintiffs are not as special as they think they are.

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 which could determine whether a defendant’s interference with a plaintiff’s use and enjoyment of the land is substantial and whether any particular effect of that interference is unreasonable. This indicates how fact-intensive nuisance cases can be.

The standard of care

Actionable nuisance can be divided into three classifications; in each there must be some level of culpability.

Intentional nuisance

“Intent” here means that the actor desires to cause a consequence of his act or that he 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 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 defendant intentional 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 relies on a strict liability nuisance. Strict liability is based on the idea 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, even though defendant acted with reasonable care. One takeaway from the decision is that the court found no evidence that a compressor station is abnormally dangerous.

Thanks to your supreme court, Texas nuisance law has gone from this to this.