Key Defensive Strategies to Common Law Claims: Permanent vs. Temporary Injuries (Key Differences between the two)

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

In Schneider Nat. Carriers v. Bates, the Texas Supreme Court stated that for more than a century, Texas courts have defined temporary and permanent nuisances along lines that are somewhat closer to the plain meaning of the words.[1] Texas courts have defined a permanent nuisance as one that involves “an activity of such a character and existing under such circumstances that it will be presumed to continue indefinitely.”[2]  Thus, a nuisance is permanent if it is “constant and continuous,” and if “injury constantly and regularly recurs.”[3]

Conversely, a nuisance is temporary if it is of limited duration.[4]  Thus, a nuisance may be considered temporary if it is uncertain if any future injury will occur, or if future injury “is liable to occur only at long intervals.”[5] A nuisance is also temporary if it is “occasional, intermittent or recurrent,” or “sporadic and contingent upon some irregular force such as rain.”[6]  However, according to the court, the line in Texas between temporary and permanent nuisances “can be plainly and simply stated,” but “its application to the facts involved in each case has been a continuing problem.” [7]

The difficulty in applying the stated rule stems from the relative nature of the terms involved.[8] Whether a nuisance is “temporary” or “permanent” obviously turns on how long it lasts, and whether it is “infrequent” or “continuous” on how often it occurs.[9]  But without a standard of reference, the terms give no guidance regarding where either line should be drawn.[10]  For example, every plant, feedlot, or landfill could be considered “temporary” when compared to all of human history, or “permanent” when compared to the life of a mayfly.[11] And while conditions occurring every day are “continuing” and those occurring once in a blue moon “infrequent,” it is not clear which term ought to apply to those in between.[12]

As a result, Texas courts addressing very similar cases have reached very different results.[13] For example, in Kraft v. Langford, the Texas Supreme Court held that flooding caused by a storm sewer in Montgomery County was a temporary nuisance as a matter of law.[14]  But in City of Amarillo v. Ware, the Court held that flooding caused by a storm sewer in Amarillo was properly pleaded as a permanent nuisance.[15]  According to the court, it was not clear from either opinion why heavy rains near the Gulf Coast must be considered temporary, while those in the Texas Panhandle do not.[16]

Cases involving soot and cinders are similarly incompatible.[17] In Parsons v. Uvalde Electric Light Co., the Court held that smoke, dust, and cinders from an electric power plant constituted a temporary nuisance as a matter of law.[18]  But in Rosenthal v. Taylor, B. & H. Railway Co., the Court held that noise, dust, smoke, and cinders from passing locomotives constituted a permanent nuisance as a matter of law.[19] According to the court, it is again hard to see why smoke from an electrical plant is necessarily temporary, while smoke from passing trains must be permanent.[20]

Irreconcilable differences also appear to permeate cases involving foul odors.[21] In City of Lubbock v. Tice, the Seventh Court of Appeals found that odors from a landfill presented a permanent nuisance as a matter of law, even though they varied “as the West Texas wind changed.”[22] In Meat Producers, Inc. v. McFarland, the Fifth Court of Appeals affirmed a jury verdict finding odors from a cattle feedlot permanent, even though they varied with wind direction and humidity.[23]  But the Fourteenth Court of Appeals held in Gulf Coast Sailboats, Inc. v. McGuire that jurors could deem odors from a fiberglass plant temporary, even though they occurred about three times a week, and more often in the summer.[24] And in Youngblood’s, Inc. v. Goebel, the Tenth Court of Appeals found odor from a poultry-rendering plant was temporary as a matter of law, because it “depends on direction of wind,” “comes and goes,” and was present “3 or 4 times a week.”[25]  Thus, in four cases regarding foul odors carried on variable winds, Texas appellate courts have deemed them temporary as a matter of law, permanent as a matter of law, and a fact question that could go either way.[26]

In Schneider Nat. Carriers v. Bates, the Texas Supreme Court stated that assuming each of these cases turned on the facts stated in each opinion, half of them must be wrong as they are simply irreconcilable.[27] However, because the Texas test has no standard of reference, it is not immediately apparent which cases were wrongly decided.[28]  As the distinction between temporary and permanent nuisances determines the statute of limitations for bringing a claim, different standards in different cases result in different limitations periods, which can “put the parties in a serious predicament.”[29]

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[1] Schneider Nat’l Carriers, Inc. v. Bates, 147 S.W.3d 264, 272 (Tex. 2004).

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id. at 273.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Id. at 274 (citing Kraft v. Langford, 565 S.W.2d 223, 227 (Tex. 1978).

[15] Id. (citing City of Amarillo v. Ware, 120 Tex. 456, 40 S.W.2d 57, 61-62 (1931).

[16] Id.

[17] Id.

[18] Id. (citing Parsons v. Uvalde Electric Light Co.,106 Tex. 212, 163 S.W.1, 1 (1914).

[19] Id. (citing Rosenthal v. Taylor, B. & H. Railway Co., 79 Tex. 325, 15 S.W. 268, 269 (1891).

[20] Id.

[21] Id.

[22] Id. (citing City of Lubbock v. Tice, 517 S.W.2d 428, 431 (Tex. Civ. App.—Amarillo 1974, no writ).

[23] Id. (citing Meat Producers, Inc. v. McFarland, 476 S.W.2d 406, 410 (Tex. Civ. App.—Dallas 1972, writ ref’d n.r.e.).

[24] Id. (citing Gulf Coast Sailboats, Inc. v. McGuire, 616 S.W.2d 385, 387 (Tex. Civ. App.—Waco 1966, writ ref’d n.r.e.).

[25] Id. (citing Youngblood’s, Inc. v. Goebel, 404 S.W.2d 617, 619-20 (Tex. Civ. App.—Waco 1966, writ ref’d n.r.e).

[26] Id.

[27] Id.

[28] Id.

[29] Id. at 275.

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