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San Antonio Court of Appeals Denies Cernys’ Nuisance Claim

I have written before about landowners’ efforts to collect damages for personal injury and property damage caused by nearby oil and gas exploration operations on the theory that such activities cause a nuisance. Nuisance is a recognized tort claim. To recover, a person must prove that (1) the person has an interest in land (2) the defendant interfered with or invaded the person’s interest in the land by conduct that was negligent, intentional, or abnormal and out of place in its surroundings, (3) the defendant’s conduct resulted in a condition that substantially interfered with the person’s use and enjoyment of his land, and (4) the nuisance caused injury to the plaintiff.

In the case decided by the court of appeals in San Antonio, Cerny v. Marathon Oil, the Cernys bought an acre of land with a residence on it in 2002. In 2012, Marathon began drilling wells in the area. Plains Exploration and Production also constructed production facilities in the area. Eventually, there were 22 well sites within 1 1/2 mile of the Cernys’ home.  The Cernys hired experts, who measured chemicals in the air around their home and near oil and gas production sites in the area. The experts included an air quality expert, a forensic meteorologist, and a toxicologist.

The Cernys sued Marathon and Plains, alleging that the fumes, odors and dust from their facilities caused physical health symptoms and made their home uninhabitable. Marathon asked the trial court to dismiss the case, on the ground that the Cernys had no evidence that their facilities were the “proximate cause” of the Cernys’ alleged damages.

A plaintiff in a tort case must prove that the defendant’s conduct was the “proximate cause” of the plaintiffs’ injuries. In “toxic tort” cases, this can be difficult to do. Courts have imposed a high bar on plaintiffs in such cases, holding that expert testimony is required for such proof, and that the experts must support their testimony by “epidemiological evidence showing a statistically significant doubling of the risk” of harm resulting from the toxic chemical exposure. “Proof is required that the plaintiff was exposed to the same substance as in the epidemiological studies, that the plaintiff’s exposure or dose level was comparable to or greater than those in the studies, that the plaintiff’s exposure occurred before the onset of injury, and that the timing of the onset of the plaintiff’s injury was consistent with that experienced by those in the study.” The plaintiff must also provide evidence “excluding other plausible causes of the injury with reasonable certainty.” The court of appeals held that the Cernys’ evidence failed to provide evidence of causation using this high standard, and so affirmed the trial court’s dismissal of their claim. It held that the Cernys’ and their experts’ affidavits  do “not amount to more than a scintilla of probative evidence that Marathon and Plains were the proximate cause of the dust, noise, traffic, and foul odors experienced by the Cernys.”

One justice, Luz Elena Chapa, filed a concurring and dissenting opinion. She said that part of the Cernys’ claims against Plains should survive and be tried. She distinguished between the Cernys’ claims for damages from medical symptoms they suffered, and claims for damage for interference with the use and enjoyment of their property. Justice Chapa said that “because determining the source of the latter types of nuisance claims is within common knowledge and experience, and the record contains some admissible evidence connecting the alleged foul odors to Plains’s conduct,” the Cernys’ claims against Plains for interference with loss and enjoyment of their property should survive and be tried. Justice Chapa disagreed that expert testimony was necessary to prove the source of the odors that the Cernys complained of, and that the Cernys affidavits were “some evidence” that the defendants were the source of those odors.

The facts and result in this case should give some pause to landowners, and their counsel, who seek recovery of damages for nuisance caused by oilfield activities. Proof of causation may be a very high hurdle to overcome if there are multiple operators in the vicinity. Expert testimony is expensive, and courts examine that testimony in minute detail to test whether it meets the tests laid down by the Texas Supreme Court to establish causation.

Majority opinion:  Cerny opinion

Dissent:  Cerny dissent



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