Schneider Nat. Carriers, Inc. v. Bates

• Decision Date: 01 October 2004
• Docket Number: No. 03-0236.,03-0236.
• Citation: 147 S.W.3d 264
• Parties: SCHNEIDER NATIONAL CARRIERS, INC. et al., Petitioners, v. Andrea L. BATES et al., Respondents.
• Court: Texas Supreme Court

147 S.W.3d 264

SCHNEIDER NATIONAL CARRIERS, INC. et al., Petitioners, v. Andrea L. BATES et al., Respondents.

No. 03-0236.

Supreme Court of Texas.

October 1, 2004.

John Dixon Walker, Michael P. Cash, Cash Allen L.L.P., James Edward Smith, Beirne, Maynard & Parsons, L.L.P., Amy Douthitt Maddux, Michael L. Brem, F. Walter Conrad Jr., and Karlene D. Poll, Baker Botts LLP, William Howard Farrell, Cotton Farrell, P.C. and James M. Riley Jr., Coats Rose Yale Holm Ryman & Lee, Houston, Guy M. Hohmann, Hohmann Taube & Summers, L.L.P., Austin, Marvin B. Peterson and Ron T. Capehart, Law Office of Marvin B. Peterson, Houston, for petitioners.

Allen Eli Bell and John B. Turney, Bell, Turney, Coogan & Richards, L.L.P., Austin, Nova Carlene Rhodes and Shelly Ann Sanford, Goforth, Lewis & Williams, Carlene Rhodes Lewis, Goforth Lewis Sanford LLP, Houston, for respondents.

Justice BRISTER delivered the opinion of the Court.

This is one of several multi-party suits by residents living near the Houston Ship Channel complaining of conditions created by industrial plants nearby. Because the residents' own complaints show the conditions have existed for many years, the trial court granted summary judgment based on limitations. The court of appeals reversed, finding a fact question on whether the nuisances alleged were temporary or permanent.¹ We granted the petition to try to clarify the distinction, one of the oldest and most complex in Texas law.

We hold that the distinction between temporary and permanent nuisances must take into account the reasons for which that distinction is drawn. Viewed from that perspective, the record here establishes as a matter of law that the alleged nuisances were permanent, and thus barred by limitations. We reverse the court of appeals' judgment and render judgment for the defendants.

I. Background

Andrea Bates and seventy-eight other individuals are homeowners and renters² who have resided in the Haden Road area near the Houston Ship Channel for at least two years.³ The defendants operate a trucking firm, a painting and sandblasting firm, and firms that manufacture bleach, wood preservatives, polyesters, and other chemical products. The residents allege air contaminants, odors, lights, and noise from the plants interfere with their use and enjoyment of property, and assert claims for nuisance, trespass, negligence, negligence per se, negligent endangerment, and gross negligence.

The trial court signed a "Lone Pine" case-management order⁴ requiring the residents to specify (among other things) their dates of residence, specific complaints, and substances they contend were emitted from the defendants' plants. In response, the residents filed affidavits, each and every one of which included the following:

• The conditions that have resulted in my claims are ongoing and occur frequently.

• Air pollution that has caused my complaints has occurred on an ongoing basis since I have lived here. One or more of my symptoms/complaints occur each time the wind comes from the direction of the industrial plants or facilities, and it is worse when the wind is out of the south, when conditions are humid, or when it rains.

• I have been exposed on a regular basis to one or more of these substances and possibly others.

In addition, individual affidavits included more specific descriptions of the alleged nuisances:

• When I was inside I would keep my windows closed at all times to keep the foul odor out.

• The house and yard are constantly dirty.

• Our car is always covered with black stuff.

• There is always dust blowing in my backyard.

• I have a picnic table in my backyard which is constantly covered in a black film.

• We always have to keep the windows and doors closed and stay inside because of the foul odors.

• It smells so bad that you cannot sit outside and enjoy it. The dust is also really bad and covers our house and cars constantly.

• The foul smell bothers me constantly.

• There is always dust blowing in my backyard.

None of the affidavits mentions bright lights from the defendants' facilities. While several mention ailments of varying severity, the residents' pleadings, appellate briefs, and the affidavit submitted by their medical expert in response to the case-management order allege causation only as to symptoms typical of discomfort rather than disease, thus alleging nuisance damages rather than personal injury.⁵

The residents also submitted an affidavit from a chemical engineer, who opined that the defendants' plants are "directly upwind" from most of the plaintiffs' residences, and suggested several steps that could reduce emissions, odors, noise, and light from the plants without rendering operations uneconomic.

The defendants moved for summary judgment based on limitations, asserting that the residents' affidavits (the only evidence submitted in support of the motions) established as a matter of law that their claims alleged permanent nuisances. The trial court granted the motions.

The First Court of Appeals reversed, finding fact issues were created by contradictions in the residents' own affidavits regarding the frequency of nuisance conditions and by their expert's affidavit on the feasibility of injunctive relief.⁶ The court of appeals remanded the case, presumably for a jury to decide whether the facts alleged constituted a temporary or permanent nuisance.⁷

II. Limitations and Nuisances

A

A "nuisance" is a condition that substantially interferes with the use and enjoyment of land by causing unreasonable discomfort or annoyance to persons of ordinary sensibilities.⁸ There is no question that foul odors, dust, noise, and bright lights—if sufficiently extreme—may constitute a nuisance.⁹

The limitations period for a private nuisance claim is two years.¹⁰ As with many other common-law claims, the accrual date is not defined by statute, but is a question of law for the courts.¹¹

For more than a hundred years, this Court has held that accrual of a nuisance claim depends on whether the nuisance alleged is "permanent" or "temporary."¹² A permanent nuisance claim accrues when injury first occurs or is discovered; a temporary nuisance claim accrues anew upon each injury.¹³

The distinction is critical in this case, as it is undisputed that conditions similar to those the residents allege have existed for many years. If the nuisances alleged here are temporary, injuries that occurred within two years of suit are timely regardless of when they began; if they are permanent, all the residents' claims are barred.

B

Many other jurisdictions make the same distinction between temporary and permanent nuisances for the purpose of determining when limitations accrues.¹⁴ But the test used to make the distinction in Texas is fairly unique.

Most states define nuisances by looking at the structure of the source or the possibility of stopping it.¹⁵ Thus, some define a permanent nuisance as one that stems from a permanent structure being operated in a lawful, non-negligent manner.¹⁶ Others define a temporary nuisance as one that can be abated by injunction, and a permanent nuisance as one that cannot.¹⁷ Still others balance several factors in making the determination.¹⁸

But for more than a century, Texas courts have defined temporary and permanent nuisances along lines that are somewhat closer to the plain meaning of the words. We define a permanent nuisance as one that involves "an activity of such a character and existing under such circumstances that it will be presumed to continue indefinitely."¹⁹ Thus, a nuisance is permanent if it is "constant and continuous,"²⁰ and if "injury constantly and regularly recurs."²¹

Conversely, a nuisance is temporary if it is of limited duration.²² Thus, a nuisance may be considered temporary if it is uncertain if any future injury will occur,²³ or if future injury "is liable to occur only at long intervals."²⁴ A nuisance is also temporary if it is "occasional, intermittent or recurrent,"²⁵ or "sporadic and contingent upon some irregular force such as rain."²⁶

Texas courts in some cases have also considered several of the factors used by other states. For example, some courts in categorizing nuisances have considered whether the source is a permanent structure,²⁷ whether it is operated lawfully and without negligence,²⁸ and whether it can be abated.²⁹ As discussed below, these factors may indeed figure into certain nuisance cases.

But the general Texas rule—based on whether a nuisance is constant, regular, and likely to continue or whether it is sporadic, uncertain, and likely to end Bhas been in place for more than a hundred years. Texas appellate opinions rarely refer to the nuisance jurisprudence from other jurisdictions, nor have the many able counsel in this case. Moreover, in other jurisdictions there is no consensus as to where the line between permanent and temporary nuisances should be ("there is no clear test generally accepted"³⁰), or how it should be applied ("which category to allocate a particular nuisance leads to widely varying results"³¹).

Accordingly, we adhere to the traditional American rule that distinguishes temporary from permanent nuisances, and to the traditional Texas rule for making that distinction. But we consider the latter rule in some detail because of the conflicts that have arisen among Texas appellate courts regarding its application.

C

The line in Texas between temporary and permanent nuisances "can be plainly and simply stated," but "its application to the facts involved in each case has been a continuing problem."³²

The difficulty in applying the stated rule stems from the relative nature of the terms involved.³³ Whether a nuisance is "temporary" or "permanent" obviously turns on how long it lasts, and whether it is "infrequent" or "continuous" on how often it occurs. But without a standard of reference, the terms give no guidance regarding where either line should be drawn.

For example, every...