PJC General Negligence 2022

PJC 12.4

N UISANCE

PJC 12.4

Nature of Nuisance—Permanent or Temporary

QUESTION ______ If you answered “Yes” to Question _____ [ applicable liability question ], then answer the following question. Otherwise, do not answer the following question. Is the property capable or incapable of being repaired, fixed, or restored? Answer “Capable” or “Incapable.” Answer: _______________ QUESTION ______ Is the injury— 1. substantially certain to recur repeatedly, continually, and regularly; or 2. such that any anticipated recurrence would be only occasional, irregular, intermittent, and not reasonably predictable? Answer “1” or “2.” Answer: _______________ COMMENT When to use. The supreme court has ruled that whether an injury to land is tem porary or permanent is a question of law. Gilbert Wheeler, Inc. v. Enbridge Pipelines (E. Tex.), L.P ., 449 S.W.3d 474, 481 (Tex. 2014). Thus, PJC 12.4 will only be neces sary if there is a factual dispute regarding the frequency, extent, and duration of the injury. Such a factual dispute may develop if a plaintiff asserts alternative claims or if a defending party asserts that a different damages measure or accrual point for statute of limitations applies. In essence, this legal determination is a question that the trial court must answer before deciding what the correct measure of damages is under the facts of the case. See Gilbert Wheeler, Inc. , 449 S.W.3d at 480–81; Schneider National Carriers, Inc. v. Bates , 147 S.W.3d 264, 281 (Tex. 2004). This is consistent with the rule that determin ing the correct measure of damages is a question of law. See, e.g ., Progressive County Mutual Insurance Co. v. Delgado , 335 S.W.3d 689, 691 (Tex. App.—Amarillo 2011, pet. denied).

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