DALLAS BAR ASSOCIATION ENERGY LAW SECTION

Transcription

1 DALLAS BAR ASSOCIATION ENERGY LAW SECTION December 17, 2016 Texas Nuisance Law After Crosstex v. Gardiner Charles W. Sartain Sonya Reddy Gray Reed & McGraw, P.C Elm Street, Suite 4600 Dallas, Texas Telephone:

2 INTRODUCTION Over the years the Texas law of nuisance has been described in many ways by many different courts and commentators. Among the most colorful: The law of nuisance is the law s garbage can 1 and an impenetrable jungle. 2 The United States Supreme Court weighed in, observing that one searches in vain for anything resembling a principle in the common law of nuisance. 3 In the early 1970 s the Texas Supreme Court simply gave up, observing that there is general agreement that [nuisance liability] is incapable of any exact or comprehensive definition, and thus declared, we shall attempt none here. 4 In Crosstex North Texas Pipeline, L.P. n/k/a EnLink North Texas Pipeline, L.P. v. Andrew Gardiner and Shannon Gardiner 5 the Supreme Court of Texas clarified the Texas law of nuisance, explaining what the claim is and what it is not, thereby giving much needed direction to litigants and the lower courts. While we will refer throughout this presentation to a nuisance, the Crosstex court addressed the law of private nuisance only and not public nuisance, the difference being that a public nuisance is one which generally addresses conduct that interferes with common public rights, as opposed to individual rights. 6 1 WILLIAM L. PROSSER, Nuisance Without Fault, 20 Tex. L. Rev. 399, 410 (1942). 2 WILLIAM L. PROSSER, Law of Torts, 87 at 592 (1964) 3 Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1005 (1992) (Blackmun, J., dissenting). 4 Wales Trucking Co. v. Stallcup, 474 S.W.2d 184, 186 (Tex. 1971). 5 Crosstex N. Tex. Pipleline v. Gardiner, No , 2016 WL (Tex. June 24, 2016) ( Crosstex II ). 6 Crosstex II at fn. 3; PROSSER 3d Edition, 87 at P age

3 CROSSTEX V. GARDINER - THE FACTS To understand how the case at hand arose, (and to illustrate the difficulty in balancing rights and obligations involving competing and seemingly incompatible uses of neighboring lands) we should recite the facts of the case, as reported in the opinions: 7 Date Facts Favorable to the Gardiners Facts Favorable to Crosstex 2005 Crosstex and the Gardiners become neighbors. Gardiners are using their undeveloped 95 acre ranch as an investment property and as a place to raise cattle, ride horses, and enjoy as a family until a future sale. Crosstex preparing to construct the pipeline and in doing so, purchases a 20 acre tract along the pipeline's projected path in a rural part of Denton County to use as a storage yard during construction and as a prospective site for a compressor station. Purchase easement of After purchasing the adjacent tract, Crosstex offers to purchase an easement from the Gardiners to run a pipeline across the SW corner of the Gardiner Ranch. Crosstex threatened condemnation proceedings to get the easement and does not mention that the 20 acre tract was a possible site for a compressor station. Crosstex also makes a higher offer. Gardiners grants Crosstex an easement and right-of-way. January 2006 Crosstex completes construction and began operating the pipeline a few months later. Compressor station installation. No specific line was item budgeted for sound mitigation when the station is approved but Mueller, Crosstex's director of Texas operations, says that all compressor stations are noisy. Crosstex's budget for the station shows buildings, and Mueller states that A high volume of natural-gas production is occurring in the Barnett Shale. To increase the pipeline s capacity, Crosstex decided to install a compressor station. 7 Crosstex II at P age

4 Date Facts Favorable to the Gardiners Facts Favorable to Crosstex before start-up, hospital-grade mufflers were installed on the compressors and that, to his knowledge, Crosstex had always intended to put a building over the compressors. 8 Crosstex chose the 20 acre tract for the pipeline because that location was about halfway along the pipeline, was easily accessible by good roads, and was surrounded by quite a bit of open land. Crosstex builds its compressor station at a location where it appears to affect the fewest people: an unzoned, rural area across the street from a pasture instead of a home; the station has to be on the pipeline, which was already in place. 9 Noise mitigation efforts May 2007 Compressor station begins operating. The Crosstex mufflers are not as effective as critical or super-critical mufflers. Right after Crosstex began operating the station, the peace and quiet of the ranch with just country sounds was replaced with what was described as a constant roar or the equivalent. This is confirmed by notes by Crosstex PR specialist (who visited right after the compressor began operating): the noise was BAD throughout the area and VERY LOUD in the areas closest to the station. She reported that a person standing near the road by the station would have to scream to be heard, and she agreed that the noise was louder than it should have been and louder than Crosstex intended it to be. Crosstex does sound-level measurements and concludes... that noise-mitigation measures were unnecessary, but still installed hospital-grade- mufflers on the compressor-station engines, which are more effective in suppressing engine noise than regular-grade mufflers. 8 Crosstex N. Texas Pipeline, L.P. v. Gardiner, 451 S.W.3d 150, 175 (Tex. App. Fort Worth 2014) (Crosstex I). 9 Crosstex I at P age

5 Date Facts Favorable to the Gardiners Facts Favorable to Crosstex June: Gardiners demand that Crosstex enclose the engines within a building containing sound-absorbing insulation and construct a sound wall around the property. June 2007 end of 2007: Soundproofing complaints, Crosstex addresses complaints Crosstex never complies with the Gardiners specific demand (in June) to fully enclose the engines, and the noise still continues (and was worse for the Gardiners, according to them because now the three wall partially enclosed building funneled the noise toward them). By the end June, Crosstex hosts a meeting with dozens of neighbors, including the Gardiners, and promises to take steps to mitigate the noise. Crosstex begins implementing a series of mitigation efforts based on the recommendations of a professional sound-control firm who conducted studies. These efforts include (1) construction of a partially enclosed building around engines, (2) installation of sound blankets in that building s walls, and (3) planting vegetation around the building. Crosstex believes these measure were enough to eliminate any unreasonable noise levels. January 2008 May 2008 May 2008 onward December 2010 Crosstex s expert Continued complaints by Gardiners culminating in the lawsuit. Gardiners continue to complain re: noise levels. Testimony supporting continued loud noise. Crosstex continues noise mitigation efforts. Noise study (in which recordings were played for jury): expert concludes the noise in various locations around the station was either compatible or marginally compatible with neighboring agricultural land and the noise levels on the Gardiners' tract were acceptable and reasonable for agricultural tracts, compatible with the use of the ranch to graze livestock, and 5 P age

6 Date Facts Favorable to the Gardiners Facts Favorable to Crosstex compatible in most of the ranch for residential use. September 2011 November 2011 January 2012 Gardiners complain that the compressor station has greatly diminished their ranch's value and ruined both their financial investment and their ability to use and enjoy their land. In response to continued complaints, Crosstex installs air intake silencers. Crosstex installs a 15-foot sound wall on the east side of the station, which faces the Gardiners' ranch. Gardiners acknowledge that Crosstex had made many mitigation efforts over the years and had not consciously disregarded their concerns... A BRIEF HISTORY OF NUISANCE LAW Over the years, Texas courts have used the term nuisance in a variety of ways. It has been characterized as a reference to a particular legal cause of action, a defendant s conduct that gives rise to the cause of action, an event or activity or operation that is the cause or source of a harm, the harm itself, and the liability that results from the harm. 10 Historically, even a substantial interference did not constitute a nuisance unless the effect of the interference on those who would otherwise use and enjoy their land is unreasonable. Prosser and Keeton described it as a substantial interference that has unreasonable results. 11 Nuisance and oil and gas operations 10 Restatement (Second) of Torts 821A cmt.b 11 PROSSER AND KEETON, 88 at P age

7 Rather than dissect the long, confusing, often contradictory, and in some (but not all) respects obsolete history of nuisance law in Texas, here is a brief survey of a variety of nuisance cases arising out of oil and gas operations. 12 McDonald v. Home Oil Corp., 241 S.W. 274 (Tex. Civ. App. San Antonio 1922) Oil refinery right outside of San Antonio not a nuisance to nearby Bexar County resident property owners contending defective construction and operation resulting in fumes they inhaled. The oil company proved it invested a lot of money in the refinery, had built the refinery in the most approved style, and was operating it as other refineries were operated. Goldston v. Wieghart, 243 S.W.2d 404 (Tex. Civ. App. Galveston 1951) Gas pipeline running across highway was a public nuisance when it obstructed a public road, trespassing and in violation of a statute. Domengeaux v. Kirkwood & Co., 297 S.W.2d 748 (Tex. Civ. App. San Antonio 1956) Affirmed a jury funding that oil drilling operations were not a nuisance to neighboring tourist facilities on the beach, when tour company owner helped locate site of drilling operations. There was evidence that the rig was operated as carefully and quietly as possible and special steps were taken to reduce the noise, and tour company owners only complaint during the actual operations (guy wire on his property) was addressed. Klostermann v. Houston Geophysicial Co., 315 S.W.2d 664 (Tex. Civ. App. San Antonio 1958) Seismographic operations for mineral exploration consisting of explosions were not a nuisance because nuisance is a strict liability theory, strict liability is not appropriate for judging seismographic operations, and Texas is committed to the rule that seismographic operations fall 12 We do not intend this to be a comprehensive survey. 7 P age

8 within the tort field of negligence law and the better reasons argue against our return to the ancient rule of liability without fault. Humble Pipe Line Co. v. Anderson, 339 S.W.2d 259 (Tex. Civ. App. Waco 1960) Pipeline which leaked crude oil into neighbor s water well damaging neighbor s land value was not a nuisance because there was no finding of negligence. Bay Petroleum Corp. v. Crumpler, 372 S.W.2d 318 (Tex. 1963) Gas storage in a salt dome was not a nuisance to neighbors complaining of gases, fumes, and stenches released when there was a finding that gases escaping from the operations of the defendants had not been carried by the winds in substantial quantities onto plaintiffs premises. Maranatha Temple, Inc. v. Enterprise Products Co., 893 S.W.2d 92 (Tex. App. Houston [1 st Dist.] 1994) Hydrocarbon facility was not a nuisance per se or nuisance in fact to a church because church could only rely on past industrial accidents over the years at other hydrocarbon facilities. The court decline[d] to allow a nuisance in fact cause of action based on fear, apprehension, or other emotional reaction that results from the lawful operation of industries in Texas. OXY USA v. Cook, 127 S.W.3d 16 (Tex. App. Tyler 2003) Oil and gas lessee s structures left behind on surface estate owner s land were not a nuisance as a matter of law because the lease governed the lessee s duties. Cerny v. Marathon Oil Corp., 480 S.W.3d 612 (Tex. App. San Antonio 2015) Oilfield operations were not a nuisance to neighbors alleging excessive dust, noise, traffic, and foul odors. Neighbors failed to raise a material fact issue on causation because of lack of expert testimony. REMEDIES 8 P age

9 It is well settled that three different remedies are potentially available to a claimant who prevails on a private nuisance claim: damages, injunctive relief, and self-help abatement. 13 However, not all remedies are available in every case. As it is with other cases in which an injunctive relief is sought, the decision to enjoin the defendant s conduct or use is a discretionary decision for the judge after the case has been tried and the jury discharged. 14 Damages are measured differently depending on whether the nuisance is temporary or permanent. If the nuisance is temporary the landowner may recover lost use and enjoyment that has already accrued. If the nuisance is permanent the owner may recover lost market value of his property. 15 Interestingly from Gardiner s perspective, while the court may not consider purely speculative uses, holding land as an investment is a legitimate use and a theory of market value that a jury may consider. 16 WHAT ABOUT THE EVIDENCE? Crosstex challenged the judgment on legal sufficiency and factual sufficiency grounds. This presentation is not intended to be a detailed treatment of these challenges to evidence, but a brief discussion would be helpful. Legal Sufficiency Crosstex argued that to establish evidence of the negligence standard of care applicable to a pipeline operator who operates a compressor station requires expert testimony. The court 13 Storey v. Cent. Hide & Rendering Co., 226 S.W.2d 615, 617 (Tex. 1950); Crosstex II at Schneider v. Bates, 147 S.W.3d 264, 286 (Tex. 2004); Crosstex II at Natural Gas Pipeline Co. of American v. Justiss, 397 S.W.3d 150, 155 (Tex. 2012); Schneider, 147 S.W.3d at 276; Crosstex II at City of Austin v. Cannizzo, 153 Tex. 324, 267 S.W.2d 808 (1954), 814; Houston Unlimited, Inc. Metal Processing v. Mel Acres Ranch, 443 S.W.3d 820, 828, n. 8 (Tex. 2014). 9 P age

10 disagreed, finding that the duty that Crosstex owed to the Gardiners was to do what a person of ordinary prudence in the same or similar circumstances would have done and that the jury does not need expert testimony to understand that duty. 17 However, it does not appear that in every case the holding would be the same. The question appears to be whether the issue involves only general knowledge and experience rather than expertise. If that is the case, it is up to the jury to decide, and admission of expert testimony would be error. 18 However, for example, in a case alleging personal injuries from toxic emissions, the plaintiffs must prove with scientifically reliable expert testimony that their exposure to the defendant s product increased the plaintiff s risk of contracting the disease. 19 Factual Sufficiency A court of appeal may set aside a jury finding because the evidence was factually insufficient only if, after considering and weighing all the evidence in the record pertinent to that finding, it determine that credible evidence supporting the finding is so weak or so contrary to the overwhelming weight of all the evidence, that the finding should be set aside and a new trial granted. 20 The court of appeal determined that the evidence supporting the jury finding in favor of the Gardiners was factually insufficient to support the jury verdict. Having no jurisdiction to evaluate the court of appeals reasoning in weighing the evidence, the Supreme Court concluded that the court of appeal had properly considered and weighed the evidence and affirmed remand of the matter for a new trial. 17 Elliff v. Texon Drilling, 210 S.W.2d 558, 563 (Tex. 1948); GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605, 620 (Tex. 1999). 18 GTE Southwest, at Cerny v. Marathon Oil Corp., 480 S.W.3d 612 (Tex. App San Antonio 2015); Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997). 20 Pool v. Ford Motor Company, 715 S.W.2d 629 (Tex. 1986). 10 P age

11 THE STANDARD OF CARE The general standard for establishing a cause of action for which the law provides a right to relief, at least on the absence of circumstances giving rise to strict liability is that there must not only be an injury or loss, but it must have been occasioned by the commission of a legal wrong, that is, violation of legal right and a breach of legal duty. 21 There must be some level of culpability by the defendant. However, showing of an illegal or unlawful activity is not required. 22 Historically, the courts have broken actionable nuisance into three classifications: negligent invasion of another s interests; intentional invasion of another s interests; or other conduct, culpable because abnormal and out of place in its surroundings, that invades another s interests. 23 Negligent Nuisance A suit for negligent nuisance will be guided by ordinary common law negligence principles. In other words, the plaintiff must prove the existence of legal duty, a breach of that duty, and damages proximately caused by the breach. 24 Intentional Nuisance Liability for an intentional nuisance will be imposed when the plaintiff establishes that the defendant intentionally caused the interference that caused the nuisance, not just that the defendant engaged in the conduct. 25 Intent in this context means that the actor desires to cause the consequences of his act, or that he believes that the consequences are substantially certain to result from it. 26 While a plaintiff may establish intent with proof that the defendant acted with a specific 21 Crosstex II at Burditt v. Swenson, 17 Tex 489, 505 (1856). 23 City of Tyler v. Likes, 962 S.W.2d 489, 503 (Tex. 1997). 24 Crosstex II at 21; IHS Cedars Treatment Center of Desoto, Texas, Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004). 25 Crosstex II, at 20; Reed Tool Co. v. Copelin, 689 S.W.2d 404, 406 (Tex. 1985). 26 Crosstex II at 20; Reed Tool at P age

12 intent to inflict injury, such intent or desire to do harm is not required. The plaintiff can establish intent with evidence that the defendant acted with the belief that the interference was substantially certain to result from the defendant s conduct 27. Strict-Liability Nuisance The court confirmed the standard in Texas for strict-liability nuisance. Now, strict liability nuisance must be based on conduct that constitutes an abnormally dangerous activity, not just an activity that is abnormal and out of place in its surroundings. 28 The trial court rejected the Gardiners trial amendment to add an allegation that Crosstex s conduct was abnormal and out of place in its surroundings. The court of appeals reversed the trial court. In reaching its result, the Supreme Court reversed the court of appeals. The result is that a claim that an activity is out of place, and any jury question or instruction to that effect, should not be accepted. The justification for imposing strict liability for abnormally dangerous activities is the high degree of risk caused by legitimate but dangerous activities. Strict liability is based on the idea that the defendant was engaged in some kind of activity exposing others to risk of harm from an accidental invasion under circumstances that justify allocating certain losses from such risk to the defendant even though the defendant acted with reasonable care. 29 Thus, the court concluded that to the extent that a claim exists in Texas based on a nuisance created by abnormal and out of place conduct, the mere fact that the defendant s use of its land is abnormal and out of place will not support a claim alleging nuisance. In the absence of evidence of an intentional or negligent 27 Crosstex II at 20; Reed Tool at Crosstex II at 22; Turner v. Big Lake Oil Co., 96 S.W.2d 221, 222 (Tex. 1936) 29 Prosser and Keeton, 91, at P age

13 nuisance, the conduct must constitute an abnormally dangerous activity or involve an abnormally dangerous substance that creates a high degree of risk of serious injury. 30 WHAT IS A PRIVATE NUISANCE AFTER CROSSTEX? As a result of Crosstex, the term nuisance will now refer to the particular type of legal injury that can support a claim or cause of action seeking legal relief. In other words, the court clarifies that the term describes a type of injury that the law has recognized can give rise to a cause of action because it is an invasion of a plaintiff s legal rights. 31 Nuisance refers not to a cause of action or a defendant s conduct, but to the legal injury that the conduct causes that give use to the cause of action. 32 The court confirms that Texas precedent characterizes a nuisance, not as an invasion of an interest but as 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. 33 In addressing the unreasonableness requirement, the Supreme Court made three points. First, unreasonableness of the interference s effect on the plaintiff s comfort or contentment, not on the unreasonableness of the defendant s conduct or land use. Second, unreasonableness must be determined based on an objective standard of persons of ordinary sensibilities, not the subjective response of any particular plaintiff. Third, the determination requires balancing a wide variety of factors, depending on the specific facts. Unreasonable use or unreasonable effect? 30 Crosstex II at Crosstex II at 13, citing several cases. 32 Crosstex II at Crosstex II at P age

14 In the past, confusion has arisen over whether to prove a nuisance, the plaintiff must establish that the defendant s conduct or land use was unreasonable or that the effect of the resulting interference with the plaintiff s use and enjoyment of land was unreasonable, or both. For example, Crosstex relied on Vestal v. Gulf Oil Corp. 34 to argue that the plaintiff must also establish that the defendant s conduct or land use was unreasonable. The court disagreed. Vestal addressed whether the defendant could be liable for its interference with the plaintiffs use and enjoyment of their property, not whether the interference itself was sufficient to constitute a nuisance. The court clarified the confusion about whether the test is an unreasonable use or unreasonable effect as follows: To prove a nuisance (that is, a legal injury based on interference with use and enjoyment of land), a plaintiff must establish that the effects of the substantial interference on the plaintiff are unreasonable not that the defendant s conduct or land use was unreasonable. 35 Unreasonable in nuisance law does not refer to risk-creating conduct of the defendant but to the reasonable expectations of a normal person occupying the plaintiff s land. 36 The test is objective The second hurdle for establishing private nuisance liability is that the effect of the defendant s conduct or land use must be such as would disturb and annoy persons of ordinary sensibilities and of ordinary tastes and habits. 37 An interference is not a nuisance if it interferes only with the especially sensitive persons or uses. That the plaintiff himself is offended or annoyed but is peculiarly sensitive does not establish a nuisance. Is the interference substantial? 34 Vestal v. Gulf Oil Corp., S.W.2d 440, 442 (Tex. 1951). 35 Crosstex II at Dobbs, Crosstex II at P age

15 To rise to a level of nuisance, the interference must be substantial in light of all the circumstances. As Prosser and Keeton said, the law does not concern itself with trifles, or seek to remedy all of the petty annoyances and disturbances of everyday life in a civilized community even from conduct committed with knowledge that annoyance and inconvenience will result. 38 Whether an interference is substantial or merely a trifle or a petty annoyance necessarily depends on the particular facts at issue, including, for example, the nature and extent of the interference, and how long it lasts or how often it recurs. How can I interfere? Let me count the ways To support a claim for private nuisance the condition may interfere with a variety of the plaintiff s interests in the use and enjoyment of the property. For example, physical damage to the plaintiff s property, economic harm to the property s market value, harm to the plaintiff s health, or psychological harm to the plaintiff s peace of mind can be the basis for a nuisance claim. The court cited a multitude of factors that must be balanced in order determine whether a defendant s interference with a plaintiff s enjoyment of land is substantial or whether any particular effect of that interference is unusual. Among others: The character and nature of the neighborhood, each party s land usage, and social expectations; The location of each party s land and the nature of that locality; The extent to which others in the vicinity are engaging in similar conduct in the use of their land; The social utility of each property s usage; 38 PROSSER AND KEETON 88 at P age

16 The tendency or likelihood that the defendant s conduct will cause interference with the plaintiff s use and enjoyment of their land. The magnitude, extent, degree, frequency, or duration of the interference and resulting harm; The relative capacity of each party to bear the burden of ceasing or mitigating the usage of their land; The timing of each party s conduct or usage that creates the conflict; The defendant s motive in causing the interference; and The interests of the community and the public at large. 39 How the factors are to be applied depends on the circumstances of the case at hand. The court did not limit the possible factors to these 10; no doubt creative litigants will present others. TRYING YOUR NUISANCE CASE First, say hello to the jury. It is clear that in the court s judgment, questions such as whether an interference with the use and enjoyment of property is substantial, whether the effects of such an interference on the plaintiffs are unreasonable, whether the defendant intentionally or negligently created the interference, and whether the interference results from abnormally dangerous activities generally present questions of fact for the jury to decide. 40 This is not a new approach for the court. 41 The question for the jury 39 Crosstex II at Crosstex II at Natural Gas Pipeline Co. of America v. Justiss, 397 S.W.3d 150, 153 (Tex. 2012). 16 P age

17 The court rejected an argument by Crosstex that the Gardiners were required to prove and secure a jury finding that Crosstex s use of its property was unreasonable. The court found that in a negligently created nuisance case the plaintiff need not prove both that the defendant negligently created the nuisance and that the defendant s use of its land was unreasonable. The finding the jury must make in a negligently created nuisance case is that the effects on the plaintiffs or the interference with their use and enjoyment of the land were unreasonable (and thus the condition causing interference qualifies as a nuisance) and that the defendant s conduct that created the condition was unreasonable, and thus the defendant negligently created a nuisance. The jury need not separately find that the defendant s use of the land was unreasonable. 42 What about the parties state of mind? In the case of an intentional nuisance, the test is subjective. Evidence of the plaintiff s state of mind, such as whether the plaintiff actually desired or intended to create the interference or actually knew or believed that the interference would result, is necessary. 43 There is no crying in baseball, and so it is with nuisance cases. That is to say, a plaintiff who is hypersensitive will not prevail. Unreasonableness must be determined based on the objective standard of a person with ordinary sensibilities. What about the plaintiff who loves her land more than she has ever loved anything else in her life? It will depend on whether the jury concludes that she is person of ordinary sensibilities. The use of experts As discussed, the plaintiff does not always have to rely on expert testimony to prove negligence, depending on the nature of the activity. In Crosstex, it was not necessary. In some 42 Crosstex II at Crosstex II at P age

18 cases courts have deemed expert testimony necessary to establish causation. Plaintiffs seeking damages in the nature of personal injuries must prove with scientifically reliable expert testimony that their exposure to the defendant's product more than doubled the plaintiff's risk of contracting a disease or symptom. This is especially so where multiple sources of exposure to toxic emissions exist. 44 The plaintiff need not offer expert testimony to establish certain damages to which he will be entitled. If the plaintiff is seeking monetary damages, such as for the market value of the land, expert testimony is admissible. 45 Under the Property Owner Rule that testimony could be from the owner, who may testify about the value of his property. 46 But relying on the owner to prove his damages is not without its limits. This testimony falls within the ambit of opinion testimony by a lay witness and therefore does not relieve the owner of the requirement that the witness be personally familiar with the property and its fair market value. Also, the witness who will be giving such opinion testimony must be disclosed and designated as an expert under the discovery rules. 47 CONCLUSION Crosstex v. Gardiner brings clarity to this important, but up until now confusing, aspect of Texas law. However, this will not be the end of the controversy. The court itself considered the decision to be a more comprehensive, though certainly not exhaustive, explanation of the circumstances in which Texas law may hold a party liable for causing a private nuisance Cerny v. Marathon Oil Corp., 480 SW 3d 612 (Tex. App -San Antonio 2015); Merrell Dow Pharmaceuticals v Havner, 953 SW 2d 706 (Tex 1997). 45 County of Bexar v. Santikos, 144 S.W.3d 455, 458 (Tex. 2004). 46 Reid Road Mun. Utility District No. 2 v. Speedy Shop Food Stores, Ltd. 337 S.W.3d 846 (Tex. 2011). 47 Reid Road at 851, Crosstex II at P age