Typical Common Law Claims: Private Nuisance (continued)

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


Nuisance claims can further be subdivided into nuisance per se and nuisance in fact.[1] A nuisance per se is an act, occupation, or structure that is a nuisance at all times, under any circumstances, and in any location.[2] A nuisance in fact is an act, occupation, or structure that becomes a nuisance by reason of its circumstances or surroundings.[3] A business’s lawful operations cannot constitute a nuisance per se.[4] In Rankin v. FPL Energy, LLC, the court recognized that a nuisance-in-fact claim cannot result from the lawful operation of a business.[5] The court reasoned that if a party has the right to bring a nuisance action because a neighbor’s lawful activity substantially interferes with them, they will have, in effect, the right to zone the surrounding property.[6] Texas case law has balanced these conflicting interests by limiting a nuisance action when the challenged activity is lawful to instances in which the activity results in some invasion of the plaintiff’s property and by not allowing recovery for an emotional reaction alone.[7]

The appropriate measure of damages depends on whether the nuisance causing the injury is permanent or temporary.[8]  The differences between permanent and temporary injury is discussed in greater in other posts.  Nuisance claims also permit injunctive relief as well as recovery of punitive damages.[9]  Further, nuisance claims can permit recovery of damages for sickness, annoyance, discomfort, or other substantial bodily harm caused by a nuisance that impairs the comfortable enjoyment of real property.[10] 

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[1] Rankin, 266 S.W.3d at 511, n. 7.

[2] Id.

[3] Id. (citing Freedman v. Briarcroft Prop. Owners, Inc., 776 S.W.2d 212, 216 (Tex. App.—Houston [14th Dist.] 1989, writ denied).

[4] Id. at 511.

[5] Id.

[6] Id. at 512.

[7] Id.

[8] Schneider Nat’l Carriers, Inc. v. Bates, 147 S.W.3d 264, 276 (Tex. 2004).

[9] Holubec v. Brandenberger, 214 S.W.3d 650, 655–59 (Tex. App.—Austin 2006, pet. denied).

[10] Vestal v. Gulf Oil Corp., 235 S.W.2d 440, 441–42 (Tex. 1951).

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