Key Defensive Strategies to Common Law Claims: Permanent vs. Temporary Injuries (Consequences of Distinction)

Michael Goldman
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An accomplished litigator representing his clients in complex environmental disputes throughout the country.

While there is considerable uncertainty about which nuisances are temporary or permanent, there is no uncertainty about the legal consequences.[1]  For guidance on how to make the distinction, it is important to look to the consequences that flow from it.[2]

First, the distinction between temporary and permanent nuisances determines the damages that may be recovered.[3] It has long been the rule in Texas that if a nuisance is temporary, the landowner may recover only lost use and enjoyment (measured in terms of rental value) that has already accrued.[4]  Conversely, if a nuisance is permanent, the owner may recover lost market value—a figure that reflects all losses from the injury, including lost rents expected in the future.[5] Because the one claim is included in the other, the two claims are mutually exclusive; a landowner cannot recover both in the same action.[6]

The second reason for distinguishing temporary and permanent nuisances stems directly from the first.[7] If future harm can reasonably be predicted, the nuisance is a permanent one and a claimant must sue for all injuries in one suit.[8]  But if future harm is anyone’s guess, the nuisance is a temporary one and a claimant must bring a series of suits involving the same parties, pleadings, and issues as each injury occurs.[9]

Third, characterizing a nuisance as temporary or permanent determines when limitation accrues, and thus when an injured party’s claims are barred.[10]  For instance, the statute of limitations for trespass, nuisance, and negligence for damages to land are governed by the two-year statute of limitations and are required to be brought within two years from the date of accrual.[11] 

An action for permanent damages to land accrues, for limitations purposes, upon the date of discovery of the first actionable injury—not on the date the damages to the land are fully ascertainable.[12]  Thus, an action to recover damages for permanent injury accrues when injury first occurs or is discovered. [13] On the other hand, a temporary injury claim accrues anew upon each injury.[14]  With respect to nuisance claims, since plaintiffs usually know of unreasonable discomfort or annoyance promptly, application of the discovery rule is rare.[15]  But a different rule may apply when the nature of a nuisance has substantially changed.[16] The continuing tort doctrine, which is an exception to the statute of limitations, does not apply to claims where the damages arise from permanent injury to the land.[17]  Several courts have also held that the limitations, as opposed to laches, does not bar a suit seeking only to enjoin a nuisance.[18]

Finally, the distinction between temporary and permanent nuisances determines the damages that may be recovered.[19]  The general rule in cases involving injury to real property is that the proper measure of damages is the cost to restore or replace, plus loss of use for temporary injury, and loss in fair market value for permanent injury.[20] However, this rule is applied with some flexibility, considering the circumstances of each case to ensure that an award of damages neither over–nor under-compensates a landowner for damage to his property.[21] According to the Supreme Court, the purpose of the law “in every case, is to compensate the owner for the injury received, and the measure of damages which will accomplish this in a given case ought to be adopted.”[22] For that reason, Texas courts have appealed to a number of exceptions to the general rule when it would compensate a landowner unjustly.[23]

In cases involving temporary injury, Texas courts have recognized the so-called economic feasibility exception to the general rule that the cost to restore is the proper measure of damages.[24] This exception applies when the cost of required repairs or restoration exceeds the diminution in the property’s market value to such a disproportionately high degree that the repairs are no longer economically feasible.[25] In those circumstances a temporary injury is deemed permanent, and damages are awarded for loss in fair market value.[26] 

Unaccepted offers to purchase property are no evidence of market value.[27] In addition, the question of economic feasibility and the difference in market value both concern the value of the property as a whole not selected parts of the property.[28]  Finally, it is error to not let the plaintiff’s expert provide an opinion as to the market value of the land before the contamination by the defendant.[29]  In order to determine economic feasibility, the jury must consider evidence of the difference in value of the land before and after the injury.[30]

The Texas Supreme Court recently held that in cases involving the destruction of trees, even when the proper measure of damages is the loss in the fair market value of the property, and the value of the land has not declined, the injured party may nevertheless recover for the trees’ intrinsic value.[31] This exception was created to compensate landowners for the loss of the aesthetic and utilitarian value that trees confer on real property.[32]

The proper measure of damages for permanent injury to the land is the diminution in the value of the land.[33]  When an injury to land is temporary and can be remediated at reasonable expense, the proper measure of damages is the cost of restoration to its condition immediately preceding the injury.[34]  However, when the cost of restoration exceeds the diminution in fair market value, the diminution in fair market value is the cap on the measure of damages.[35]

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[1] Id.

[2] Id.

[3] Id. at 276.

[4] Id.

[5] Id.

[6] Id.

[7] Id. at 278.

[8] Id.

[9] Id.

[10] Id. at 279.

[11] See Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a) (West 2012 & Supp. 2012); Mitchell Energy Corp. v. Bartlett, 958 S.W.2d 430, 435 (Tex. App.—Fort Worth 1997, pet. denied). 

[12] Corley v. Exxon Pipeline Co., 821 S.W.2d 435, 437 (Tex. App.—Houston [14th Dist.] 1991, writ denied).

[13] Id.

[14] Id.

[15] Schneider Nat. Carriers, Inc., 147 S.W.3d at 279.

[16] Id.

[17] Walton v. Phillips Petroleum Co., 65 S.W.3d 262, 275 (Tex. App.—El Paso 2001, pet. denied).

[18] Schneider Nat. Carriers, Inc., 147 S.W.3d at 288 (citing Nugent v. Pilgrim’s Pride Corp., 30 S.W.3d 562, 575 (Tex. App.—Texarkana 2000, pet. denied) (holding equitable relief not barred by limitations); Abbott v. City of Princeton, 721 S.W.2d 872, 875 (Tex. App.—Dallas 1986, writ ref’d n.r.e.) (same); Stein v. Highland Park Indep. Sch. Dist., 540 S.W.2d 551, 554 (Tex. Civ. App.—Texarkana 1976, writ refused n.r.e.) (same)).

[19] Id. at 276.

[20] Gilbert Wheeler, Inc. v. Enbridge Pipelines (East Texas), LP, 449 S.W.3d. at 481.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Id.

[26] Id.

[27] Mieth v. Ranchquest, Inc., 177 S.W.3d 296, 307 (Tex. App.—Houston [14th Dist.] 2005, no pet.).

[28] North Ridge Corp. v. Walraven, 957 S.W.2d 116, 120 (Tex. App.—Eastland 1997, pet. denied).

[29] Id.

[30] Id.

[31] Id. at 482.

[32] Id.

[33] Kraft v. Langford, 565 S.W.2d 223, 227 (Tex. 1978).

[34] Kraft, 565 S.W.2d at 227.

[35] N. Ridge Corp. v. Walraven, 957 S.W.2d 116, 119 (Tex. App.—Eastland 1997, pet. denied) (citing Atlas Chem. Indus., Inc. v. Anderson, 514 S.W.2d 309 (Tex. Civ. App.—Texarkana 1974), aff’d, 524 S.W.2d 681 (Tex. 1975)).

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