Key Defensive Strategies to Common Law Claims: Permanent vs. Temporary Injuries.

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

Under common law, plaintiffs are generally entitled to either permanent or temporary injuries. Drawing a distinction between the two has proven a vexing task for litigants and courts alike and according to the Texas Supreme Court is “one of the oldest and most complex [issues] in Texas law.[1]  After all, injury to real property often appears permanent in the sense that the exact real estate in question—a demolished house or destroyed tree—no longer exists.[2] However, the law recognizes that such items frequently can be replaced in an adequate manner, rendering the landowner suitably compensated.[3] To further complicate matters, Texas courts have attempted to categorize various aspects of a legal claim, including a party’s conduct, an event or occurrence, a condition, an injury or harm, and the damages resulting from an injury or harm, as either temporary or permanent.[4]

I have not failed. I’ve just found 10,000 ways that won’t work.” Thomas Edison

However, as discussed below, multiple purposes are served by characterizing an injury to real property as temporary or permanent.[5] For instance, the distinction guides courts in determining: (1) whether damages are available for future or only past injuries; (2) whether one or a series of suits is required; and (3) whether claims accrue (and thus limitation  begins) with the first or each subsequent injury; and (4) the proper measure of damages for injury to real property.[6]  To that end, the Texas Supreme Court has applied the distinction in evaluating real-property damages across many different theories of liability including: trespass, nuisance, eminent domain, negligence, and breach of contract. [7]

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[1] Schneider Nat’l Carriers, Inc. v. Bates, 147 S.W.3d 264, 268 (Tex. 2004); Gilbert Wheeler, Inc. v. Enbridge Pipelines (East Texas), LP, 449 S.W.3d 474, 478 (Tex. 2014).

[2] Gilbert Wheeler, Inc., 449 S.W.3d at 478.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id. (citing Coinmach Corp. v. Aspenwood Apartment Corp., 417 S.W.3d 909, 921 (Tex. 2013) (trespass); Natural Gas Pipeline Co. v. Justiss, 397 S.W.3d 150, 152 (Tex. 2012) (nuisance); State v. Bristol Hotel Asset Co., 293 S.W.3d 170, 172 (Tex. 2009) (eminent domain); Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 235 (Tex. 2004) (negligence).

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