PJC General Negligence 2022

PJC 12.2

N UISANCE

PJC 12.2C Private Nuisance—Strict Liability QUESTION ______

Did Don Davis cause a private nuisance by [ engaging in abnormally danger ous conduct/using an abnormally dangerous substance ] that was out of place in its surroundings and created a high degree of risk of serious injury? A private nuisance is a condition that substantially interferes with the use and enjoyment of Paul Payne ’s land by causing unreasonable discomfort or annoyance to persons of ordinary sensibilities attempting to use and enjoy it. Answer “Yes” or “No.” Answer: _______________ COMMENT Source. PJC 12.2 is based on Crosstex North Texas Pipeline, L.P. v. Gardiner , 505 S.W.3d 580, 593, 604–05 (Tex. 2016). Caveat. The Committee has drafted the strict liability question based on guidance found in the Crosstex opinion but notes that the supreme court may have cast doubt that such a cause of action exists in Texas. Compare Crosstex North Texas Pipeline, L.P. , 505 S.W.3d at 588 (the court stated that “a defendant can be liable for causing a nuisance if the defendant intentionally causes it, negligently causes it, or—in limited circumstances—causes it by engaging in abnormally dangerous or ultra-hazardous activities”), with Crosstex North Texas Pipeline, L.P. , 505 S.W.3d at 609 (the court, discussing strict liability nuisance, noted “to the extent that a claim exists in Texas based on nuisance created by ‘abnormal and out of place’ conduct. …” ). When to use. PJC 12.2 is appropriate in cases alleging a private nuisance. The grounds listed are alternatives, and any of the listed grounds that are not raised by the pleadings or supported by sufficient evidence should be omitted. In private nuisance cases, the jury decides factual disputes regarding the frequency, extent, and duration of the conditions causing the nuisance. Schneider National Carriers, Inc. v. Bates , 147 S.W.3d 264, 275 (Tex. 2004); see also Crosstex North Texas Pipeline, L.P. , 505 S.W.3d at 609; Barnes v. Mathis , 353 S.W.3d 760, 763–64 (Tex. 2011) (per curiam). The question should be phrased based on the pleadings, evidence, and specific allega tions. A claim for public nuisance is distinct from a claim for private nuisance. See Crosstex North Texas Pipeline, L.P. , 505 S.W.3d at 591 n.3 (public nuisance is conduct that interferes with common public rights as opposed to private rights). Source of definition and culpability levels. “Nuisance” generally means a con dition that substantially interferes with the use and enjoyment of land by causing

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