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Texas Supreme Court Sharpens Dividing Line Between Temporary and Permanent Nuisance Claims

By KIM E. WHITTINGTON

In Schneider National Carriers, Inc. v. Bates, No. 03-0236, 2004 WL 2192576, 2004 Tex. LEXIS 921 (Tex. Oct. 1, 2004), the Texas Supreme Court analyzed the criteria used to distinguish between a temporary nuisance and a permanent nuisance. In so doing, the Court disapproved of several previous opinions addressing nuisance claims.
Bates and others lived near several manufacturing plants along the Houston Ship Channel. They filed suit against Schneider and several other companies, alleging that they had been subjected to years of various nuisance conditions caused by the plants’ emissions of noise, light, chemicals, dust, odors, and other substances. As part of their nuisance suit, the residents asserted damages for their physical discomfort, annoyance, mental anguish, loss of use and enjoyment and rental value of real property, and cost of repairing real and personal property.
At the trial court, the companies moved for summary judgment based on the statute of limitations. Specifically, defendants argued that plaintiffs’ petition and affidavits alleged a permanent nuisance that was barred by limitations. In response, plaintiffs amended their petition, and confined their damages to the two years before filing suit, including exemplary damages and a request for an injunction. The trial court granted summary judgment in favor of the companies. On appeal, however, the First Court of Appeals reversed, finding that there was a fact issue as to whether the nuisance alleged was permanent or temporary.
The Texas Supreme Court reversed and rendered judgment for the companies. Essentially, the Court held that plaintiffs’ nuisance claims alleged regular and continuous occurrences for years before the lawsuit was filed, and were therefore barred by the applicable two-year statute of limitations. In so holding, the Court honed the criteria used to distinguish between temporary and permanent nuisances. A nuisance is temporary only if it is so irregular or intermittent over the period leading up to the filing of suit and trial that future injury cannot be estimated with reasonable certainty. Conversely, a nuisance should be deemed a “permanent nuisance” if it is sufficiently constant or regular, no matter how long between occurrences, so that future impact can be reasonably evaluated. A plaintiff’s injuries or a defendant’s operations can establish a permanent nuisance. “Even if a nuisance causes annoyance only during certain weather conditions or certain months, annual experience should provide a sufficient basis for evaluating the nuisance. Absent evidence that current experiences are unrepresentative or about to change, such nuisances should be considered ‘permanent’ as a matter of law.” In further developing the criteria for a permanent nuisance, the Court disapproved of several previous opinions, including one that was 90 years old.
Additionally, a court should determine whether the nuisance is temporary or permanent regardless of how the claimants characterize it. Therefore, even if the claimants assert a “temporary nuisance claim,” the court should still decide for itself what type of nuisance is really at issue. In other words, the claimants cannot “elect” whether to assert a temporary nuisance or a permanent nuisance in an effort to avoid the statute of limitations or manipulate accrual of the claim. In so holding, the Court disapproved of two cases.
Finally, the possible abatement of the nuisance conditions is irrelevant to determining whether the nuisance is temporary or permanent. In this connection, the abatement of the nuisance will not revive barred permanent damages by allowing them to be asserted as temporary.
According to the Bates claimants, the nuisances caused by Schneider and others were “continuous,” “ongoing,” “regular,” and “frequent.” They claimed that their properties were “constantly” or “always” covered with dirt and soot. None of the complained conditions were variable or intermittent. Although there were differences in the impacts of the nuisance conditions on the individual lives of the claimants, none of the claimants alleged conditions that were so sporadic or unpredictable that a jury would have to guess their effect. In other words, the Bates claimants failed to raise a fact issue as to whether the nuisance was permanent. Accordingly, the Court held that the claims were barred by the statute of limitations.

Kim E. Whittington is a trial attorney with Forman, Perry, Watkins, Krutz & Tardy in the firm’s Houston office. She received her J.D. degree from South Texas College of Law.



Texas Supreme Court Clarifies the Scope and Application of the ‘Sophisticated User’ Doctrine

By MERCY CARRASCO LOWE

In this silicosis case styled Humble Sand & Gravel, Inc. v. Gomez, No. 01-0652, 2004 WL 2090592, 2004 Tex. LEXIS 894 (Tex. Sept. 17, 2004), the Texas Supreme Court addressed the scope of the “sophisticated user” doctrine. More specifically, the Court determined whether applying the doctrine to the particular circumstances of the case would relieve a silica supplier of a duty to warn end user employees about the dangers of inhaling silica.
After developing silicosis, Raymond Gomez sued Humble Sand & Gravel for personal injuries resulting from Gomez’s use of a silica-based, abrasive product supplied by Humble Sand to Gomez’s employer, Spincote. At trial, the jury found that Humble Sand failed to adequately warn users about the dangers of its sand product, and awarded substantial damages to Gomez. On appeal to the Texarkana Court of Appeals, Humble Sand argued that it had no duty to warn Gomez of the dangers of the silica product because it only sold its product to sophisticated users. With one justice dissenting, the Texarkana appellate court affirmed.
The Texas Supreme Court reversed the holding of the intermediate court of appeals and remanded for a new trial in the interest of justice. After an exhaustive recitation of the facts and procedural history, the Court embarked on an equally exhaustive analysis of a supplier’s duty to warn. Distilled to its essence, the Court made two holdings. First, the Court determined that silica suppliers like Humble Sand had no duty to warn its customers (i.e., Gomez’s employer) of the risks of working around silica dust. The Court so held because the risks of silica exposure were common knowledge in the abrasive blasting industry long before 1984, when Gomez first began working as a sand blaster.
Second, the Court addressed whether it should impose a duty on companies like Humble Sand to warn its customers’ employees of the risks of silica exposure. Although the Court held that such a duty existed, it could not resolve the issue in this case because the record was insufficient. The crux of this issue, insofar as the facts and circumstances of this case and its trial, was whether the original manufacturer had “a reasonable assurance that its warning will reach those endangered by the use of its product.”
The Court set out several factors to be balanced in determining whether the silica sand industry as a whole (not just Humble Sand) had a duty to warn a customer’s employees that inhaling silica dust can be disabling and fatal and that an air-fed hood should be worn around silica dust at all times: (1) likelihood of serious injury from a supplier’s failure to warn; (2) the supplier’s burden of giving a warning; (3) the feasibility and effectiveness of such a warning; (4) the reliability of employers to warn their own employees; (5) the existence and efficacy of other protections; and (6) social utility of requiring, or not requiring, suppliers to warn.
Ultimately, the Court held that Humble Sand had the burden to demonstrate that, based on the above six factors —

the legal duty that a supplier ordinarily has to warn end users of product dangers should not be imposed on suppliers of flint in bags to warn abrasive blasters of two specific dangers: that air-fed hoods or respirators should be used around blasting areas at all times, and that the failure to do so can result in a disease that is fatal.

Because the record in this case was insufficient as to this proof, the Court remanded for a new trial.
In a sharply worded dissent, Justice O’Neil and Schneider argued that the majority opinion improperly interpreted and applied the sophisticated user doctrine, such that worker safety would be seriously undermined. Basically, the dissent proposed that the majority’s interpretation of the elements of duty and causation improperly allowed Humble Sand to prove it had no duty to Gomez, when precedent and the applicable section of the Restatement of Torts provided otherwise. The dissent also argued that the majority’s parameters of “duty” improperly traversed into the element of causation. Although the dissent agreed that the sophisticated user doctrine had merit and should apply in an appropriate case, the dissent also concluded that this was not such a case.

Mercy Carrasco Lowe is Corporate Counsel with SCI Management in Houston. She received her undergraduate degree, summa cum laude, from Baylor University, and her J.D. degree from the University of Texas Law School.



Supreme Court Enforces Contractual Jury Waiver by Mandamus

By ROBERT W. HIGGASON

In a 5-4 decision, the Texas Supreme Court recently held that contractual jury waivers may be enforced by mandamus. In Re Prudential Ins. Co., No. 02-0690, 2004 WL 1966015, 2004 Tex. LEXIS 789 (Tex. Sept. 3, 2004).
Dallas restaurateurs Francesco and Jane Secchi, and their limited partnership, Italian Cowboy Partners, Ltd. (“ICP”), entered into a commercial lease with landlord The Prudential Insurance Co. for space to open another restaurant. The lease, which the Secchis signed only as guarantors for ICP, contained a provision waiving ICP’s right to bring counterclaims if the landlord sued for nonpayment of rent. Both parties waived rights to a jury in any future litigation.
Nine months into the lease, the Secchis sued for rescission on grounds that a persistent sewage odor made it impossible to do business in the space, and they demanded a jury trial. Prudential filed a motion to quash the jury setting based on the waiver provision. The Secchis argued that contractual jury waivers violate five provisions of the Texas constitution, are inconsistent with T.R.C.P. 216 (jury fee), and are against public policy. They further argued that this jury waiver was not made knowingly because the provision was inconspicuous, and that it was not voluntary because of unequal bargaining power of the parties. Finally, they argued that the waiver did not apply to an action for rescission or to the Secchis who were only guarantors. The trial court denied Prudential’s motion to quash, explaining that contractual jury waivers are against public policy and that this particular waiver was unenforceable.

Is the Jury Waiver Enforceable?
On mandamus review, the Supreme Court focused on the bases of the trial court’s order denying Prudential’s motion to quash. The Court reasoned that if public policy permits parties to choose governing law and forum, to waive in personam jurisdiction, and even “to opt out of the civil justice system altogether and submit future disputes to arbitration[,]” then public policy would not prohibit parties from waiving their right to a jury. The Court noted that rights to a jury can be waived “simply because no party requests a jury[,]” and that its conclusion is consistent with nearly all other state and federal courts that have considered the issue. Moreover, “there is a compelling public policy reason to enforce legal agreements freely made.”
Considering whether this particular jury waiver was enforceable, the Court was not persuaded by the Secchis’ arguments and concluded that it was both knowing and voluntary as a matter of law. ICP also argued that the waiver should not be enforced in an action for rescission of the whole contract based upon fraudulent inducement. Again, the Supreme Court was not persuaded, and it held that any provision pertaining to resolution of future disputes would be enforced unless the specific provision was obtained by fraud. Because the Secchis did not argue that the jury waiver itself was obtained by fraud, that provision would be enforced even in a claim for rescission. The Secchis’ final argument was that the jury waiver could not be enforced against them as guarantors of the lease. But the Court agreed with Prudential’s argument that the Secchis’ guaranty incorporated the jury waiver provision.

Is Mandamus the Proper Mechanism?
The Court then turned to whether mandamus was the proper mechanism. Mandamus relief is available only when there has been a clear abuse of discretion and there is no adequate remedy by appeal. By holding that Prudential was entitled as a matter of law to have this waiver provision enforced, the Court concluded that Prudential had satisfied the first prong of the test.
The Court discussed what makes an appellate remedy “adequate.” This section will be useful to attorneys who find themselves evaluating whether to seek mandamus relief in a given case:
An appellate remedy is “adequate” when any benefits to mandamus review are outweighed by the detriments. When the benefits outweigh the detriments, appellate courts must consider whether the appellate remedy is adequate.
The Court observed that Prudential’s complaint “eludes answer by appeal. In no real sense can the trial court’s denial of Prudential’s contractual right to have the Secchis waive a jury ever be rectified on appeal.” The Court reasoned that Prudential could have no basis for appeal if it prevailed in a jury trial “and its contractual right would be forever lost.” On the other hand, if Prudential suffered an adverse judgment on a jury verdict, it would not be able to obtain a reversal unless it convinced an appellate court that the presence of a jury caused the improper judgment.
Even if Prudential were to obtain a reversal, it would already have lost a part of its contractual right to jury waiver by having been subjected to a jury trial in the first place. By similar rationale, the Court has previously granted mandamus relief to compel arbitration, and it considers the benefit of a non-jury trial to be at least as worthy of mandamus relief as the benefit of arbitration. In granting relief, the Court concluded that “[t]o deny Prudential enforcement of the jury waiver by mandamus is to deny it any remedy at all.”

The Dissenting Opinion
Four dissenting justices would have held that mandamus was not proper here even if the jury waiver was enforceable (a question they would not reach). They opined that the majority “confuses the adequacy of Prudential’s appellate remedy with the damage Prudential may suffer as a consequence of its tenant’s breach of contract.” All that Prudential has shown is that the “appellate remedy is not as efficient or economical as mandamus, but that has never been the test.”

Robert W. Higgason is a solo practitioner whose work focuses on appellate matters. He is a member of The Houston Lawyer editorial board.

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