 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
GTE Mobilnet of South Texas Limited Partnership v. Pascouet9/13/2001
etermining that Coker's testimony was reliable. See Helena Chem. Co., 47 S.W.3d at 499-501; Gammill, 972 S.W.2d at 725-26. We overrule GTE's third issue.
Was the Evidence Legally and Factually Sufficient to Support the Jury's Nuisance Findings?
In its fourth issue, GTE attacks the jury's findings as to the Pascouets' nuisance claim, arguing that GTE cannot be liable for nuisance as a matter of law because there is no personal injury or physical damage and that there was legally and factually insufficient evidence to support the jury's loss-of-use-and-enjoyment findings.
GTE first asserts that there was no evidence at trial to support nuisance liability because the Pascouets did not prove nuisance per se and because the Pascouets must prove physical injury to their person or property in order to recover on a nuisance in fact claim. GTE's view of nuisance liability is to too narrow. A nuisance is a condition which substantially interferes with the use and enjoyment of land by causing unreasonable discomfort or annoyance to persons of ordinary sensibilities attempting to use and enjoy it. Meat Producers, Inc. v. McFarland, 476 S.W.2d 406, 410 (Tex. Civ. App.--Dallas 1972, writ ref'd n.r.e.), citing Sherman Gas & Elec. Co. v. Belden, 123 S.W. 119 (1909). A "nuisance per se" is a nuisance at all times and locations. City of Sundown v. Shewmake, 691 S.W.2d 57, 59 (Tex. App.--Amarillo 1985, no writ). A "nuisance in fact" is a condition that is a nuisance because of its particular surroundings. Id.
GTE cites Maranatha Temple, Inc. v. Enterprise Prods. Co., 893 S.W.2d 92, 98-99 (Tex. App.--Houston [1 st Dist.] 1994, writ denied) and argues that the Pascouets cannot recover for the loss of use and enjoyment caused by GTE's nuisance unless the Pascouets prove either a nuisance per se or physical damage to persons or property. While dicta in the Maranatha Temple case might be read to support GTE's argument, GTE's assertion that non- physical nuisance damages may only be recovered under a nuisance per se theory is incorrect. The court in Meat Producers rejected any physical damage requirement, stating: "We do not agree that damages to land from nuisance are limited to physical disturbance of the soil or water. A nuisance is by definition a non-trespassory invasion of another's interest in the use and enjoyment of land. . . An offensive odor in itself may be sufficient interference with the use and enjoyment of land to entail liability for permanent damage." Meat Producers, Inc., 476 S.W.2d at 410-11. Other cases hold that noise and glaring light--two of the Pascouets' complaints in this case--can be a nuisance. See, e.g., Lamesa Co-op Gin v. Peltier, 342 S.W.2d 613, 616 (Tex. Civ. App.--Eastland 1961, writ ref'd n.r.e.) ("The facts found by the jury show that defendant's proposed use of its property would cause loud noises, glaring lights, dust, odors, smoke and cotton lint to come into plaintiff's home and substantially, materially and 'unreasonably' interfere with plaintiff and his family in the proper use and enjoyment of their home . . . "); City of River Oaks v. Moore, 272 S.W.2d 389, 390 (Tex. Civ. App.--Fort Worth 1954, writ ref'd n.r.e.) (plaintiffs alleged, among other things, that water towers had lights that shined into their bedroom, disturbing their sleep and that gauges and other devices attached to the sides of the towers created loud noises). These cases all involved nuisance in fact rather than nuisance per se. Therefore, GTE's argument that the Pascouets had to prove physical damage or nuisance per se fails. GTE also contends there was no evidence or factually insufficient evidence to support the jury's damage findings as to loss of use and enjoyment of the Pasco
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Texas Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|