What is a Private Nuisance?
In private nuisance, a defendant’s conduct substantially interferes with the use and enjoyment of real property owned by an individual or small group of persons.
Private nuisance “may, for example, cause physical damage to the plaintiffs’ property, economic harm to the property’s market value, harm to the plaintiffs’ health, or psychological harm to the plaintiffs’ ‘peace of mind’ in the use and enjoyment of their property.” Crosstex North Texas Pipeline, L.P. v. Gardiner, 505 S.W.3d 580, 596 (Tex. 2016). Persons whose property interests were invaded may bring a private nuisance action. Persons with property interests include owners, renters, and easement owners. See Schneider National Carriers, Inc. v. Bates, 147 S.W.3d 264, 268 at n. 2 (Tex. 2004) (tenants at time of injury maintain standing).
By contrast, in public nuisance cases a defendant’s conduct unreasonably interferes with a right common to the public at large by affecting the public health or public order. See Crosstex, 505 S.W.3d at 591 n.3.
Three Types of Culpability for Private Nuisance
Nuisance actions can be based upon any of three levels of culpability depending on the facts and circumstances of the Defendant’s conduct. In Texas, conduct or conditions that create a nuisance are classified into the following categories:
(1) intentional conduct,
(2) negligent conduct, or
(3) conduct that is abnormal and out of place in its surroundings.
See Crosstex, 505 S.W.3d at 602; City of Tyler v. Likes, 962 S.W.2d 489, 503 (Tex. 1997). A “defendant can be liable for causing a nuisance if the defendant intentionally causes it, negligently causes it, or—in limited circumstances— causes it by engaging in abnormally dangerous or ultra-hazardous activities.” Crosstex, 505 S.W.3d at 588. If the defendant is a governmental entity, the plaintiff must show intentional nuisance. City of San Antonio v. Pollock, 284 S.W.3d 809, 820–21 (Tex. 2009).
Jury Questions for Private Nuisance Claims
The questions presented to the jury differ slightly for each of the categories of private nuisance.
Form of Jury Question for Intentional Private Nuisance
Did Don Davis intentionally create a private nuisance?
A private nuisance is a condition that substantially interferes with the use and enjoyment of Paul Payne’s land by causing unreasonable discomfort or annoyance to persons of ordinary sensibilities attempting to use and enjoy it.
“Intentionally” means that Don Davis acted for the purpose of causing the interference or knew that the interference would result or was substantially cer- tain to result from his conduct.
Answer “Yes” or “No.”
Answer: ____________
Form of Jury Question for Negligent Private Nuisance
Did Don Davis negligently create a private nuisance?
A private nuisance is a condition that substantially interferes with the use and enjoyment of Paul Payne’s land by causing unreasonable discomfort or annoyance to persons of ordinary sensibilities attempting to use and enjoy it.
“Negligently” means that Don Davis failed to use ordinary care, that is, failed to do that which a person of ordinary prudence would have done under the same or similar circumstances or did that which a person of ordinary pru- dence would not have done under the same or similar circumstances.
“Ordinary care” means that degree of care that would be used by a person of ordinary prudence under the same or similar circumstances.
Answer “Yes” or “No.”
Answer: ___________
Form of Jury Question for Strict Liability Private Nuisance
Did Don Davis create a private nuisance by abnormal and out-of-place con- duct?
A private nuisance is a condition that substantially interferes with the use and enjoyment of PaulPayne’s land by causing unreasonable discomfort or annoyance to persons of ordinary sensibilities attempting to use and enjoy it.
“Abnormal and out-of-place conduct” means conduct that—
- was out of place in its surroundings; and
- was an abnormally dangerous activity or involved an abnormally dangerous substance; and
- created a high degree of risk of serious injury. Answer “Yes” or “No.”
Answer: ___________
Damages Question for Private Nuisance Claim
A plaintiff may recover in a nuisance action for property damage and personal injuries. See Crosstex, 505 S.W.3d at 596; Schneider National Carriers, Inc. v. Bates, 147 S.W.3d 264, 275–80 (Tex. 2004). The following types of damages may be recoverable when they arise from a nuisance: “physical damage to the plaintiffs’ property, economic harm to the property’s market value, harm to the plaintiffs’ health, or psychological harm to the plaintiffs’ ‘peace of mind’ in the use and enjoyment of their property.” Crosstex, 505 S.W.3d at 596.
The measure of damages for a private nuisance claim depend on the nature of the injury. Is the harm permanent or temporary.
When a nuisance is permanent, the claimant may recover lost market value. The value should be ascertained at the date of trial and should be the market value of the property for any use to which it might be appropriated. The jury is permitted to consider all the uses to which the property is reasonably adaptable and for which it is, or in all reasonable probability will become, available within the foresee- able future. However, a jury may not consider purely speculative uses. Crosstex, 505 S.W.3d at 610–11.
When the nuisance is temporary, the claimant may recover only damages that have accrued up to the institution of the suit or to the time of the trial. Such damages are cal- culated as loss of rental value, or use value, or possibly the cost of restoring the land. Crosstex, 505 S.W.3d at 610.
When the damage results from an ongoing condition rather than a single event that results in a permanent nuisance, courts apply a more flexible rule; the proper compari- son is the market value of the property with and without the nuisance. Crosstex, 505 S.W.3d at 611–12.
