nuisance claim in Texas

2019See Harris County Flood Control Dist. v. Kerr, 499 S.W.3d 793 , 795 n.1 (Tex. 2016) (stating, “because the homeowners had not invoked a separate waiver of governmental immunity in support of the nuisance claim, the claim was dependent on the takings claim in that the homeowners could only sue ‘for a nuisance that rises to the level of a constitutional taking’”) (quoting City of Dallas v. Jennings, 142 S.W.3d 310, 312 (Tex. 2004)).

2016The court of appeals held that because the homeowners had not invoked a separate waiver of governmental immunity in support of the nuisance claim, the claim was dependent on the takings claim in that the homeowners could only sue "for a nuisance that rises to the level of a constitutional taking,” 445 S.W.3d 242, 254 (quoting City of Dallas v. Jennings, 142 S.W.3d 310, 312 (Tex.2004)).

2024“But once operations begin and interference occurs, the limitations runs against a nuisance claim just as against any other.” Id.

2021CODE ANN. § 16.003(a) (“[A] person must bring suit for trespass for injury to the estate or to the property of another . . . not later than two years after the day the cause of action accrues.”); see also Schneider Nat’l Carriers, Inc. v. Bates, 147 S.W.3d 264, 270 (Tex. 2004) (applying the two-year limitations period of section 16.003 to a nuisance claim); Graham v. Pirkey, 212 S.W.3d 507, 512 (Tex. App.— Austin 2006, no pet.) (applying the two-year limitations period of section 16.003 to Texas Water Code claims).

2004As to the Shumakes' nuisance claim, although the tort claims act does not provide a waiver of sovereign immunity for nuisance claims, "[g]overnmental entities may be liable for nuisances created or maintained in the course of non-negligent [grossly negligent] performance of governmental functions." Texas Dept. of Transp. v. City of Sunset Valley, 92 S.W.3d 540 (Tex.App.-Austin 2002, no pet.) (citing *73 Wickham v. San Jacinto River Auth., 979 S.W.2d 876, 880 (Tex.App.-Beaumont 1998, no pet.)).

2003As to the Shumakes’ nuisance claim, although the tort claims act does not provide a waiver of sovereign immunity for nuisance claims, “[g]overnmental entities may be liable for nuisances created or maintained in the course of non-negligent [grossly negligent] performance of governmental functions.” Texas Dept. of Transp. v. City of Sunset Valley, 92 S.W.3d 540 (Tex.App.-Austin 2002, no pet.) (citing *73 Wickham v. San Jacinto River Auth., 979 S.W.2d 876, 880 (Tex.App.-Beaumont 1998, no pet.)).

2012See City of Abilene, 367 S.W.2d at 160 (distinguishing a nuisance claim based on noxious fumes and odors from the water-based claim in Fromme and holding that the nuisance claim did not accrue when a sewage disposal system became operational but instead accrued when “operations of [the] sewage disposal system were such as to constitute a nuisance”).

2012See City of Abilene, 367 S.W.2d at 160 (distinguishing a nuisance claim based on noxious fumes and odors from the water-based claim in Fromme and holding that the nuisance claim did not accrue when a sewage disposal system became operational but instead accrued when “operations of [the] sewage disposal system were such as to constitute a nuisance”).

2026See 32 Crosstex N. Tex. Pipeline, L.P., 505 S.W.3d at 595 ; Holubec, 111 S.W.3d at 37 ; see also Dealer Comput.

2020Nuisance Claim Each of the Palms Parties asserted the following grounds in support of their individual motions for summary-judgment on the nuisance claim: (1) The applicable statute of limitations barred the claim; (2) Harrington had no evidence of damages; 4 (3) Harrington’s damages were not recoverable under Texas law; and (4) The dog park was not a nuisance as a matter of law under the Supreme Court of Texas’s recent opinion in Crosstex NorthTexas Pipeline v. Gardiner, 505 S.W.3d 580 (Tex. 2016).

2011See Texas Woman’s Univ. v. Methodist Hosp., 221 S.W.3d 267, 285 (Tex. App.—Houston [1st Dist.] 2006, no pet.); Aguilar v. Trujillo, 162 S.W.3d 839, 851 (Tex. App.—El Paso 2005, pet. denied); Watson v. Brazos Elec.

2010See Tex. Water Code Ann. § 11.086 (a), (b) (requiring damages to have been caused by a diversion of water); Union Pump Co. v. Allbritton, 898 S.W.2d 773, 775 (Tex.1995) (explaining that proof of cause-in-fact is required in negligence and products cases); Zapata v. Ford Motor Credit Co., 615 S.W.2d 198, 201 (Tex.1981) (noting that trespass claims, not involving an owners’ loss of use of his property for a substantial period of time, require proof of damages caused by the trespass); Aguilar v. Trujillo, 162 S.W.3d 839, 850 (Tex.App.-El Paso 2005, pet. denied) (identifying causation as an elemen

2004However, the exception to governmental immunity for nuisance causes of action only applies to invasions of the rights of neighboring landowners: "... a condition on municipal [or State] land that is dangerous or hazardous to persons coming on the land is not a `nuisance' within the constitutionally-based `nuisance' exception to the rule of governmental immunity." Bragg v. City of Dallas, 605 S.W.2d 669, 672 (Tex.Civ.App.-Dallas 1980), motion for extension of time overruled, 608 S.W.2d 696 (Tex.Civ.App.-Dallas 1980, no writ).

2003However, the exception to governmental immunity for nuisance causes of action only applies to invasions of the rights of neighboring landowners: “... a condition on municipal [or State] land that is dangerous or hazardous to persons coming on the land is not a ‘nuisance’ within the constitutionally-based ‘nuisance’ exception to the rule of governmental immunity.” Bragg v. City of Dallas, 605 S.W.2d 669, 672 (Tex.Civ.App.-Dallas 1980), motion for extension of time overruled, 608 S.W.2d 696 (Tex.Civ.App.-Dallas 1980, no writ).

2023“Nuisance liability arises only when governmental immunity is clearly and unambiguously waived.” City of San Antonio v. De Miguel, 311 S.W.3d 22, 25 (Tex. App.—San Antonio 2010, no pet.).

2022“Nuisance liability arises only when governmental immunity is clearly and unambiguously waived.” City of San Antonio v. De Miguel, 311 S.W.3d 22, 25 (Tex. App.—San Antonio 2010, no pet.).

2021CODE ANN. § 16.003(a) (“[A] person must bring suit for trespass for injury to the estate or to the property of another . . . not later than two years after the day the cause of action accrues.”); see also Schneider Nat’l Carriers, Inc. v. Bates, 147 S.W.3d 264, 270 (Tex. 2004) (applying the two-year limitations period of section 16.003 to a nuisance claim); Graham v. Pirkey, 212 S.W.3d 507, 512 (Tex. App.— Austin 2006, no pet.) (applying the two-year limitations period of section 16.003 to Texas Water Code claims).

2013Code Ann. § 16.003 (a) (West Supp. 2012) (“[A] person must bring suit for trespass for injury to the estate or to the property of another . . . not later than two years after the day the cause of action accrues.”); Schneider Nat’l Carriers, Inc. v. Bates, 147 S.W.3d 264, 270 (Tex. 2004) (applying section 16.003 to a nuisance claim); Graham v. Pirkey, 212 S.W.3d 507, 512 (Tex. App.—Austin 2006, no pet.) (applying section 16.003 to water code claims); Tex. Am.

2015Keeping this single action rule in mind, a cause of action accrues when a wrongful act causes an injury, regardless of when the plaintiff learns of that injury or if all resulting damages have yet to occur.”); see also Bates, 147 S.W.3d at 279 & n.70 (“[O]nce operations begin and interference occurs, limitations runs against a nuisance claim just as against any other”), citing Fromme, 269 S.W.2d at 338 (holding nuisance claim accrued when flooding began, and was barred by limitations even though greater part of damage occurred within two years of suit); Melden & Hunt, 2013 WL 3517743 , at *2 (

2015Keeping this single action rule in mind, a cause of action accrues when a wrongful act causes an injury, regardless of when the plaintiff learns of that injury or if all resulting damages have yet to occur.”); see also Bates, 147 S.W.3d at 279 & n.70 (“[O]nce operations begin and interference occurs, limitations runs against a nuisance claim just as against any other”), citing Fromme, 269 S.W.2d at 338 (holding nuisance claim accrued when flooding began, and was barred by limitations even though greater part of damage occurred within two years of suit); Melden & Hunt, 2013 WL 3517743 , at *2 (

2012The point at which an odor moves from unpleasant to insufferable or when noise grows from annoying to intolerable “might be difficult to ascertain, but the practical judgment of an intelligent jury [is] equal to the task.” Merrill v. Taylor, 72 Tex. 293 , 10 S.W. 532, 534 (1888).

2012The point at which an odor moves from unpleasant to insufferable or when noise grows from annoying to intolerable “might be difficult to ascertain, but the practical judgment of an intelligent jury [is] equal to the task.” Merrill v. Taylor, 72 Tex. 293 , 10 S.W. 532, 534 (1888).

2011See Texas Woman’s Univ. v. Methodist Hosp., 221 S.W.3d 267, 285 (Tex. App.—Houston [1st Dist.] 2006, no pet.); Aguilar v. Trujillo, 162 S.W.3d 839, 851 (Tex. App.—El Paso 2005, pet. denied); Watson v. Brazos Elec.

2011See Texas Woman’s Univ. v. Methodist Hosp., 221 S.W.3d 267, 285 (Tex. App.—Houston [1st Dist.] 2006, no pet.); Aguilar v. Trujillo, 162 S.W.3d 839, 851 (Tex. App.—El Paso 2005, pet. denied); Watson v. Brazos Elec.

2009See RESTATEMENT (SECOND) OF TORTS § 821E cmt. d; see also Glenn, 80 S.W. at 994 ; New, 1999 Tex. App. LEXIS 6575 , at *5.

2009See Restatement (Second) Of Torts § 821E cmt. d; see also Glenn, 80 S.W. at 994 ; New, 1999 WL 675448 , at *2, 1999 Tex.App.

2008Aguilar v. Morales , 162 S.W.3d 825, 836 (Tex. App.-El Paso 2005, pet. denied).

2008Aguilar v. Morales, 162 S.W.3d 825, 836 (Tex. App.–El Paso 2005, pet. denied).

2006A directed verdict in favor of a defendant is proper if (1) there is no evidence of probative value to raise an issue of material fact on the question presented, see Bostrom Seating, Inc. v. Crane Carrier Co. , 140 S.W.3d 681, 684 (Tex. 2004), or (2) the plaintiff admits or the evidence conclusively establishes a defense to the plaintiff's cause of action.

2006A directed verdict in favor of a defendant is proper if (1) there is no evidence of probative value to raise an issue of material fact on the question presented, see Bostrom Seating, Inc. v. Crane Carrier Co., 140 S.W.3d 681, 684 (Tex. 2004), or (2) the plaintiff admits or the evidence conclusively establishes a defense to the plaintiff’s cause of action.

2005“Non-negligence” in this context is defined as “beyond negligence, as in gross negligence or an intentional act.” See, e.g., Tarrant County v. English, 989 S.W.2d 368, 374 (Tex.App.-Fort Worth 1998, pet. denied).

2004City of Tyler v. Likes, 962 S.W.2d 489, 503-04 (Tex.1997); see also Tex. Highway Dep’t v. Weber, 147 Tex. 628, 630 , 219 S.W.2d 70, 71 (1949) (providing that if damage is clearly attributable to negligent acts of governmental unit, there is no liability under rationale that damaging from unintended and negligent acts results in no *328 benefit to public). “[N]on-negligence means beyond negligence, as in gross negligence or an intentional act.” Tarrant County v. English, 989 S.W.2d 368, 374 (Tex.App.-Fort Worth 1998, pet. denied) (internal quotations omitted).

2026See 32 Crosstex N. Tex. Pipeline, L.P., 505 S.W.3d at 595 ; Holubec, 111 S.W.3d at 37 ; see also Dealer Comput.

2017A condition is a nuisance when it 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.” Holubec v. Brandenberger, 111 S.W.3d 32, 37 (Tex. 2003).

2024Although a nuisance finding may authorize the award of damages for “annoyance and discomfiture,” a “[m]ere nuisance has never been a basis for recovery of mental anguish in Texas.” Likes, 962 S.W.2d at 504 ; see also Comm. on Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury Charges: General Negligence 7 PJC 12.6 cmt. (2022) (“If the nuisance claim is based on negligence, mental anguish damages are not recoverable.”).

2004City of Tyler v. Likes, 962 S.W.2d 489, 503-04 (Tex.1997); see also Tex. Highway Dep’t v. Weber, 147 Tex. 628, 630 , 219 S.W.2d 70, 71 (1949) (providing that if damage is clearly attributable to negligent acts of governmental unit, there is no liability under rationale that damaging from unintended and negligent acts results in no *328 benefit to public). “[N]on-negligence means beyond negligence, as in gross negligence or an intentional act.” Tarrant County v. English, 989 S.W.2d 368, 374 (Tex.App.-Fort Worth 1998, pet. denied) (internal quotations omitted).

2023See City of Arlington v. State Farm Lloyds, 145 S.W.3d 165, 168 (Tex. 2004) (holding governmental immunity was not waived when plaintiff had not demonstrated a valid takings claim or alleged any applicable waiver of immunity for its nuisance claim).

2015In that case, we held that a heightened intent standard is indeed necessary 145 S.W.3d 165 , 47 Tex. Sup. Ct. J. 1170 End of Document © 2015 Thomson Reuters.

2015Furthermore, abnormal conduct giving rise to a nuisance claim can include “a more or less continuous interference with the use and enjoyment of property by causing or permitting the escape of deleterious substances or things, such as smoke, odors, noises, etc.” Wales Trucking Co. v. Stallcup, 474 S.W.2d 184, 187 .

2015Furthermore, abnormal conduct giving rise to a nuisance claim can include “a more or less continuous interference with the use and enjoyment of property by causing or permitting the escape of deleterious substances or things, -2- Concurring & Dissenting Opinion 04-14-00650-CV such as smoke, odors, noises, etc.” Wales Trucking Co. v. Stallcup, 474 S.W.2d 184, 187 (Tex. 1971).

2012Shade v. City of Dallas, 819 S.W.2d 578 , 581–82 (Tex. App.—Dallas 1991, no writ) (reversing summary judgment for the city on the plaintiff’s nuisance claim because the city failed to prove that its act was negligent and, therefore, shielded by sovereign immunity).

1999See Shade, 819 S.W.2d at 581 ; Crow, 713 S.W.2d at 156 .

2024See Holland, 221 S.W.3d at 642 .

2024See Vasquez, 492 S.W.3d at 451 ; see also Tobias, 2021 WL 2584505 , at *3.

2021An approach utilized by Texas courts to evaluate the validity of a nuisance claim has been to consider a nuisance claim “as merely meaning a term characterizing the damages done or the interest invaded, and that negligence is the real basis for the action and liability.” Callaway, 602 S.W.2d at 333 [Emphasis added].