Typical Common Law Claims: Public Nuisance

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

 

A public nuisance is a condition that amounts to “an unreasonable interference with a right common to the general public.”[1]  A public nuisance is maintained (1) by act, or by failure to perform a legal duty, (2) intentionally causing or permitting a condition to exist, (3) which injures or endangers the public health, safety, or welfare.[2] The government may abate public nuisances by virtue of its police powers.[3] Circumstances that may sustain a holding that an interference with a public right is unreasonable include the following:

  1. Whether the conduct involves a significant interference with the public health, the public safety, the public peace, the public comfort or the public convenience; or
  2. Whether the conduct is proscribed by a statute, ordinance or administrative regulation; or
  3. Whether the conduct is of a continuing nature or has produced a permanent or long-lasting effect, and, as the actor knows or has reason to know, has a significant effect upon the public right.[4]

A public nuisance could also arise from the operation of business in a residential neighborhood.[5] For instance, in one case the City of Bryan filed suit against the plaintiff to abate a nuisance caused by the operation of a chicken and egg farm within its city limits.[6]  In another case, the City of Corsicana brought suit in a public nuisance claim to enjoin a defendant from discharging sewage into a nearby creek.[7]  Therefore, a public nuisance usually involves an act or condition that subverts public health or public order or which constitutes an obstruction of public rights.[8]  Some courts have held that if an activity is explicitly licensed or permitted by state law it cannot be a public nuisance.[9]  Conversely, as a general rule, a permit granted by a state agency does not act to immunize a permit holder from private nuisance claims.[10]

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[1] Jamail v. Stoneledge Condominium Owners Ass’n, 970 S.W.2d 673, 676 (Tex. App.—Austin 1998, no pet.)

[2] See LJD Properties, Inc. v. City of Greenville, 753 S.W.2d 204, 207 (Tex. App.—Dallas 1988, writ denied).

[3] See id.

[4] Id. (citing Restatement (Second) of Torts § 821B(1)(a)–(c)).

[5] Ballenger v. City of Grand Saline, 276 S.W.2d 874 (Tex. Civ. App. —Waco 1955, no writ).

[6] Ellen v. City of Bryan, 410 S.W.2d 463, 465 (Tex. Civ. App.—Waco 1966, writ ref’d n.r.e.).

[7] City of Corsicana v. King, 3 S.W.2d 857, 859 (Tex. Civ. App.—Waco 1928, writ ref’d).

[8] Stoughton v. City of Fort Worth, 277 S.W.2d 150, 153 (Tex. Civ. App.—Fort Worth 1955, no writ).

[9] North Carolina, ex rel. Cooper v. Tennessee Valley Authority, 615 F.3d 291, 309 (4th Cir. 2010) (citing O’Neil v. State ex rel. Baker, 185 Tenn. 534, 206 S.W.2d 780, 781 (1947); Fey v. Nashville Gas & Heating Co., 16 Tenn. App. 234, 64 S.W.2d 61, 62 (1933)).

[10] FPL Farming v. Envtl. Processing, 351 S.W.3d 306, 310 (Tex. 2011).

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