pjc-oil-and-gas-2022-lib

PJC 302.12

I MPROPER U SE OF R EAL P ROPERTY

PJC 302.12C Private Nuisance—Strict Liability QUESTION ______

Did Don Davis cause a nuisance by [ engaging in abnormally dangerous con duct/using an abnormally dangerous substance ] that was out of place in its sur roundings and created a high degree of risk of serious injury? A nuisance is a condition that substantially interferes with the use and en joyment of Paul Payne ’s land by causing unreasonable discomfort or annoy ance to persons of ordinary sensibilities attempting to use and enjoy it. Answer “Yes” or “No.” Answer: _______________ COMMENT Source. PJC 302.12 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 302.12 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). If both a public and private nuisance are at issue, the question should be modified to specify the type of nuisance alleged. For questions on public nuisance, see the current

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