Should I Sue My Neighbor

Under Texas law, a 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.’ In other words, a nuisance is something that would annoy a reasonable person. Seems easy, right? Not in Texas!

In Crosstex North Texas Pipeline, L.P. v. Gardiner, the Supreme Court of Texas determined that a person’s use of their property that is ‘abnormal and out of place in its surroundings’ will not support a claim alleging a nuisance.

Liability for creating a nuisance and potential remedies

The Court addressed when a defendant can be liable for creating a nuisance. The Court noted that ‘there must be some level of culpability on behalf of the defendant; nuisance cannot be premised on a mere accidental interference. In short, the Court retained the following three general categories of conduct that may support liability for creating a nuisance:

Intentional nuisance: A defendant who acts with the desire to create an interference or with knowledge that the interference is substantially certain to result is liable for intentionally causing the interference, even if the defendant does not agree that the interference is substantial or that the effects on the plaintiffs are unreasonable.
Negligent nuisance: A negligent nuisance claim is governed by ordinary negligence principles, meaning a plaintiff only needs to prove duty, breach, and damages caused by that breach.
Strict-liability nuisance: A strict liability claim must be based on conduct that constitutes an ‘abnormally dangerous activity,’ not an activity that is ‘abnormal and out of place in its surroundings.

The Court further discussed three remedies that are potentially available to a plaintiff who prevails on a nuisance claim: damages, injunctive relief, and self-help abatement. The availability of damages depends on whether a nuisance is temporary or permanent. If a nuisance is temporary, the landowner may recover only lost use and enjoyment that has already accrued. If a nuisance is permanent, the plaintiff may recover lost market value, including lost rents expected in the future.

What does this mean?

A defendant’s culpability ultimately determines liability, as well as the evidence that the interference is a nuisance. The mere fact that the defendant’s use of its land is ‘abnormal and out of place in its surroundings’ will not support a claim alleging a nuisance. In the absence of evidence that the defendant intentionally or negligently caused the nuisance, the abnormal and out-of-place conduct must be ‘abnormally dangerous’ conduct that creates a high degree of risk of serious injury to be actionable.