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Personal Injury

  • Nuisance


What is a nuisance?

Essentially, a nuisance is something that causes an annoyance. In 2011, the Texas Supreme Court decided Barnes v. Mathis and defined a nuisance as “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 [1].” Nuisance is not a cause of action or a term to describe the defendant’s behavior, it simply refers to a type of legal injury that can result in a lawsuit [2]. To clarify, nuisance is focused on the interference and the resulting legal injury, rather than the defendant’s conduct.

There are two types of nuisances: private and public. A private nuisance interferes with the rights of a specific person; on the other hand, a public nuisance is one that interferes with the rights of the general public or community. In 2013, the Texas Court of Appeals explained in Salazar v. Sanders that in order to file a lawsuit for nuisance, the defendant must be either (1) intentionally or negligently invading another’s interests or (2) engaged in conduct that falls within one of the categories of strict liability recognized by Texas Courts. The court further provided a few examples of when a nuisance may arise. A nuisance may happen by causing:

  1. physical harm to property, such as by the encroachment of a damaging substance or by the property's destruction,
  2. physical harm to a person on his property from an assault on his senses or by other personal injury, and/or
  3. emotional harm to a person from the deprivation of the enjoyment of his property through fear, apprehension, or loss of peace of mind [3].

What is the difference between a private and public nuisance?

In 2016, the Texas Supreme Court held in Crosstex North Texas Pipeline v. Gardiner that a private 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 attempting to use and enjoy it.” A private nuisance is not the same as trespassing (see #6 in this article for further clarification). An example of a private nuisance would be if a neighbor is playing their music at maximum volume late at night, a property owner can file a lawsuit for private nuisance even though there was no physical intrusion. Other common examples of private nuisance are extreme pollution, foul odors, dust, excessive light, and vibrations. Private nuisance lawsuits regularly arise between neighbors when one property owner is negatively affected by the acts of their neighbor. A private nuisance lawsuit can be filed by someone whose land rights are affected when the nuisance injury occurred. Tenants and those who are leasing land from the owner are also able to file a nuisance claim. In limited circumstances, close family members of land owners have also been permitted to sue.

A public nuisance is when there’s an unreasonable interference that threatens the health, safety, or welfare of the community. For example, a law that prohibits citizens from littering in public roadways addresses the harmful effect of such conduct on the health and welfare of the community, making a violation of that law a public nuisance. To determine if an invasion is unreasonable the court will look to see if the gravity of the harm is outweighed by the social benefit of the nuisance. Often, the court will look to see how many people are affected by the defendant’s conduct in determining whether a nuisance is public or private.

In both public and private nuisance lawsuits, the plaintiff is either seeking damages after suffering a substantial injury, or is seeking an injunction to stop a substantial injury that is imminent. In determining whether an injury was imminent there must be an immediate threat of harm. The plaintiff’s lawyer must prove the defendant’s conduct was either an intentional or negligent wrongdoing or the conduct calls within one of the limited categories of strict liability recognized by Texas Courts. In other words, a lawsuit for nuisance cannot be filed due to conduct that’s just an unavoidable accident.

It’s important to note that there may be times when conduct creates both a public and private nuisance; like when an interference with a public right also interferes with a property owner’s use or enjoyment of their private land. For example, if a town files an injunction claiming public nuisance against a manufacturing farm that was producing toxic odors in the neighborhood, any nearby property owners who are also affected by the toxic odors can also file a private nuisance claim. An injunction is a court order that compels a party to stop or refrain from a certain activity. A plaintiff’s lawyer may ask the court for an injunction to stop the defendant from beginning or continuing a nuisance behavior, such as producing toxic odors.

What is a substantial harm?

For both public and private nuisance lawsuits, the plaintiff’s lawyer has the burden of proving there was a substantial injury to get a damages award or a substantial harm was threatened to be granted an injunction. A substantial harm means harm of importance, something more than a slight inconvenience or petty annoyance [4]. The harm must be so offensive, so inconvenient, and so discomforting, as to impair the comfortable enjoyment of property or other rights by a person of ordinary sensibilities. Texas courts have repeatedly held that harm does not need to involve personal injury or physical damage, things such as noise, light, and vibrations can be nuisances. Although substantial harm usually occurs because there is an interference with the landowner’s present use of their property, a substantial harm may also be found when the defendant’s conduct interferes with any use to which the property might reasonably be used in the future. For example, a landowner who left his land unoccupied could recover damages for the diminished value of his land when he provided evidence that the highest and best use of his property was for building homes, and the defendant’s adjacent feedlot would substantially interfere with that future use.

It’s also important to note that the harm suffered by the plaintiff cannot be the result of an unknown hypersensitivity [5]. However, once a nuisance has been established, the defendant becomes responsible for all injuries proximately caused by the defendant’s actions. Therefore, a defendant’s liability is not limited to damages that might have been suffered by a person of only ordinary sensibilities, hypersensitivity can be factored in when calculating damages.

How to determine “unreasonableness” of invasion

One of the most important factors a plaintiff’s lawyer must prove is that the effect of the invasion of rights was unreasonable under the circumstances. When a plaintiff is seeking an injunction, one method the court takes in determining the unreasonableness of an invasion involves weighing the interests of the plaintiff, defendant, and society at large. When a plaintiff is seeking monetary damages, the court will consider if it’s reasonable and fair to require the defendant to pay damages.

If the plaintiff is seeking monetary damages, the jury will be the one to determine if the invasion was unreasonable. However, if the plaintiff is seeking an injunction, the judge will be the one to make the determination of whether the invasion was unreasonable.

A 2016 Texas Supreme Court case recently addressed how the legal theory of nuisance has not been properly defined and attempted to simplify certain factors. Namely, the Texas Supreme Court distinguished in Crosstex that for the “unreasonableness” factor, the plaintiff’s lawyer must prove the effects of the substantial interference must be unreasonable, not that the defendant’s conduct was unreasonable.

Nuisance vs. Trespass & Attractive Nuisance

Trespass and nuisance can overlap at certain times but it’s important to make the distinction between the two. Trespass to real property is an unauthorized entry upon the land of another, any may occur when one enters – or causes something to enter – another’s property. In other words, the plaintiff’s lawyer in a trespass lawsuit is trying to maintain their client’s right to exclusive possession of property whereas in a nuisance action it’s about protecting the property owner’s right to use and enjoy their land. In 2011, the Texas Supreme Court in Barnes v. Mathis held that to show trespass, there must have been a physical entry onto the land of another, but there is no requirement to show damages to the property [6].

“Attractive nuisance” and actual nuisance can also sometimes overlap, so it’s important to distinguish between the two. The term “attractive nuisance” refers to an artificial condition on land that is highly dangerous to trespassing children. Attractive nuisance is not an actual nuisance because it does not interfere with any landowner’s right to fully use and enjoy his land, nor does it present any danger or disturbance to the community. The doctrine of attractive nuisance holds a property owner legally responsible for injuries to children trespassing on their land, despite the general rule that a landowner is not responsible for injuries to a trespasser. If a child is injured from a dangerous condition on someone’s land, the landowner will be held responsible if they unreasonably failed to foresee or guard against the harm. Factors the court looks at are: the location of the nuisance the likelihood of entry onto the property, the magnitude of the risk, and the availability of alternatives to the dangerous condition.

What kind of damages can a plaintiff collect from a nuisance lawsuit?

A plaintiff can either collect money damages or file an injunction under a nuisance lawsuit.

  1. Money Damages: In order to be awarded money damages, the plaintiff’s lawyer must prove there was a substantial injury. If successful, some of the remedies for money damages (compensation) can stem from personal injury, property damage, loss of property use, and/or mental discomfort. The purpose of money damages is to compensate the plaintiff for their injury or losses. When awarding money damages, the court must determine whether the nuisance is considered permanent or temporary before calculating amounts. For a temporary nuisance, the plaintiff can only recover lost use and enjoyment that has already occurred. If the temporary is permanent, the plaintiff can recover lost market value which includes expected future lost rent.
  2. Injunction: An injunction is a court order that compels a party to stop or refrain from a certain activity. A plaintiff’s lawyer may ask the court for an injunction to stop the defendant from beginning or continuing a nuisance behavior. For an injunction to be granted, the plaintiff’s lawyer must prove that there is a threat of substantial harm. Before a court will grant an injunction, it conducts a balancing test: weighing the injury to the plaintiff (if the nuisance were to continue) against whatever injury an injunction would cause the defendant and the public. It’s important to note that an injunction is only appropriate if there is no other adequate remedy. Namely, if money damages would repair the plaintiff’s loss, filing an injunction is not an option.

What are defenses to nuisance?

  1. Comparative negligence: If a plaintiff is more than 50% responsible for the injury, they are barred from recovering any money damages from the defendant. If the plaintiff is partially responsible, but less than 50% responsible for the injury, the defendant can reduce the amount he/she owes in proportion to the plaintiff’s responsible share.
  2. Statute of Limitations: The time limit to file a nuisance lawsuit is two years for both public and private nuisances. This means, if the lawsuit isn’t filed within 2 years of the injury, a defendant can use the statute of limitations as a defense to escape liability for money damages. The statute of limitations doesn’t prohibit an injunction from being filed. When the statute of limitations begins depends on whether a nuisance is considered permanent or temporary.

    1. Permanent Nuisance: In the 2004 Texas Supreme Court case of Schneider Nat’l Carriers Inc. v. Bates, the court explained that a permanent nuisance involves an activity of such a character and existing under such circumstances that it will be presumed to continue indefinitely [7]. Specifically, a nuisance is permanent if it is constant and continuous and if injury constantly and regularly recurs [8].
    2. Temporary Nuisance: The court in Schneider also explained that a nuisance is considered temporary if it’s uncertain that any future injury will occur. A nuisance is also temporary if the injury is occasional, intermittent or recurrent, or sporadic and contingent upon some irregular force such as rain.

  3. “Coming to the nuisance”: This is not an absolute defense from liability, but it is a factor the court considers in determining the reasonableness of the defendant’s conduct. “Coming to the nuisance” essentially means the plaintiff purchased or acquired the property after the nuisance came into being.

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