Key Defensive Strategies to Common Law Claims: Permanent vs. Temporary Injuries (Issues for Judge or Jury).

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 also established which issues are for the jury versus the court.[1]  It stated that jurors must decide the frequency, extent, and duration of the alleged noxious conditions.[2] Jurors must also settle any disputes as to whether similar conditions are reasonably certain to continue in the future.[3]  However, jurors cannot decide questions such as whether damages can be estimated with reasonable certainty, whether principles of res judicata allow one or a series of suits, when limitations ought to accrue, or whether to abate a nuisance which are all legal matters that must be decided by the court.[4]  While judges cannot permanently abate a nuisance until jurors decide there is one, a trial judge may decide to abate a nuisance whether it is temporary or permanent, and may choose not to abate either even if that is the only remedy requested.[5]  The reason is because a trial judge’s decision on abatement often turns on considerations never presented to the jury, and unrelated to the frequency or duration of a nuisance.[6]

In Gilbert Wheeler, Inc. v. Enbridge Pipelines (East Texas), LP, the Texas Supreme Court clarified this issue by stating that whether an injury is temporary or permanent is a question of law for the court to decide.[7]  However, the Court recognized that questions regarding the facts that underlie the temporary-versus-permanent distinction must be resolved by the jury upon proper request.[8]  Stated another way, when the facts are disputed and must be resolved to correctly evaluate the nature of the injury, the court, upon proper request, must present the issue to the jury, relying on the definitions provided in the court’s opinion.[9]

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[1] Id. at 281.

[2] Id.

[3] Id.

[4] Id. 281, 286.

[5] Id. at 286-87.

[6] Id.

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

[8] Id.

[9] Id

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