                             Fourth Court of Appeals
                                    San Antonio, Texas

                      CONCURRING & DISSENTING OPINION
                                       No. 04-14-00650-CV

                       Michael A. CERNY and Myra L. Cerny, Individually,
                        and as Next Friends of Cameron A. Cerny, a Child,
                                           Appellants

                                                 v.

                   MARATHON OIL CORPORATION, Marathon Oil EF LLC,
                       and Plains Exploration & Producing Company,
                                         Appellees

                    From the 218th Judicial District Court, Karnes County, Texas
                                Trial Court No. 13-05-00118-CVK
                              Honorable Stella Saxon, Judge Presiding

Opinion by: Rebeca C. Martinez, Justice
Concurring & Dissenting Opinion by: Luz Elena D. Chapa, Justice

Sitting:         Sandee Bryan Marion, Chief Justice
                 Rebeca C. Martinez, Justice
                 Luz Elena D. Chapa, Justice

Delivered and Filed: October 7, 2015

           The Cernys’ nuisance claims are not based solely upon the migration of hazardous

chemicals and wastes onto their property causing medical “symptoms,” but also upon excessive

noise, foul odors, dust pollution, and abnormal traffic interfering with the use and enjoyment of

their property. 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, I dissent in part to the majority’s judgment.
Concurring & Dissenting Opinion                                                       04-14-00650-CV


        The Cernys pled claims against appellees for three different categories of nuisance: (1)

“Defendants caused releases, emissions, or discharges of hazardous gases, chemicals, and

hazardous wastes through its operations, which migrated to the plaintiffs’ property;” (2)

“Defendants caused offensive odors, foul smells, and noises through its operations which were

constantly assaulting the plaintiffs’ senses, when on their property;” and (3) Defendants caused

offensive dust pollution and abnormal traffic through its operations through and by the plaintiffs’

property.” They further alleged:

                The frequency, duration, degree and extent of defendants’ conduct resulted
        in a condition that substantially interfered with the plaintiffs’ private use and
        enjoyment of their property by, among other things, causing unreasonable fear,
        apprehension, offense, discomfort, annoyance, sickness, injury to physical health,
        impairment of physical health, exacerbation of physical health and/or preexisting
        health conditions, harm from assault on plaintiffs’ senses, nausea, depression, loss
        of peace of mind, emotional harm/distress, inconvenience, deprivation of
        enjoyment of property, deprivation of use of property for plaintiffs' business, injury
        to plaintiffs’ animals, damage to plaintiffs’ home and land around the home,
        diminution of plaintiffs’ property value, constructive eviction from the plaintiffs’
        property, and loss of plaintiffs’ quality of life.

They sought damages for medical expenses and for the loss of use and enjoyment of their property.

        “There is no question that foul odors, dust, noise, and bright lights—if sufficiently

extreme—may constitute a nuisance.” Schneider Nat’l Carriers, Inc. v. Bates, 147 S.W.3d 264,

269 (Tex. 2004). Such nuisance claims may support a damages award for loss of use and enjoyment

of property, even in the absence of personal injury and property damage. Burditt v. Swenson, 17

Tex. 489, 502-03 (1856); Rankin v. FPL Energy, LLC, 266 S.W.3d 506, 512 n.9 (Tex. App.—

Eastland 2008, pet. denied); GTE Mobilnet of S. Texas Ltd. P’ship v. Pascouet, 61 S.W.3d 599,

615 (Tex. App.—Houston [14th Dist.] 2001, pet. denied). Furthermore, abnormal conduct giving

rise to a nuisance claim can include “a more or less continuous interference with the use and

enjoyment of property by causing or permitting the escape of deleterious substances or things,



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Concurring & Dissenting Opinion                                                        04-14-00650-CV


such as smoke, odors, noises, etc.” Wales Trucking Co. v. Stallcup, 474 S.W.2d 184, 187 (Tex.

1971).

         Although the Cernys disclaim any damages that would implicate Havner’s strict standard,

their other damage claims are not exempt from ordinary evidentiary requirements for proving

causation. The Cernys sought damages for medical expenses and a variety of other damages

relating to the loss of use and enjoyment of their property. When plaintiffs allege a defendant

caused them to suffer a medical injury, lay testimony of causation will suffice only when “both

the occurrence and conditions complained of are such that the general experience and common

sense of laypersons are sufficient to evaluate the conditions and whether they were probably caused

by the occurrence.” Jelinek v. Casas, 328 S.W.3d 526, 534 (Tex. 2010) (quoting Guevara v.

Ferrer, 247 S.W.3d 662, 668 (2007)). Expert testimony is necessary when there are multiple

potential causes of the medical injury. Id. at 533-34. I agree with the majority the Cernys were

required to present expert testimony that any of appellees, to the exclusion of other potential

causes, caused their alleged medical injuries. See id. However, the Cernys claim other

compensable, non-medical damages resulting from the second and third categories of nuisances:

unreasonable fear, apprehension, offense, discomfort, annoyance, harm from assault on plaintiffs’

senses, loss of peace of mind, emotional harm/distress, inconvenience, deprivation of enjoyment

of property, deprivation of use of property for plaintiffs’ business, constructive eviction from the

plaintiffs’ property, and loss of plaintiffs’ quality of life. See Burditt, 17 Tex. at 502; Rankin, 266

S.W.3d at 512; Pascouet, 61 S.W.3d at 616.

         A lay witness may testify to opinions that are rationally based on the perception of the

witness and helpful to an understanding of his testimony or a determination of the fact at issue.

Havner v. E–Z Mart Stores, Inc., 825 S.W.2d 456, 464-65 (Tex. 1992); see TEX. R. EVID. 701.

“Lay testimony is adequate to prove causation in those cases in which general experience and
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Concurring & Dissenting Opinion                                                        04-14-00650-CV


common sense will enable a layman to determine, with reasonable probability, the causal

relationship between the event and the condition.” Morgan v. Compugraphic Corp., 675 S.W.2d

729, 733 (Tex. 1984). In nuisance cases based on excessive noise and foul odors, landowners’

testimony that a defendant caused the excessive noise or foul odors, if rationally based on the

perception of the witness, can be some evidence of causation. See, e.g., Pool v. River Bend Ranch,

LLC, 346 S.W.3d 853, 859 (Tex. App.—Tyler 2011, pet. denied) (holding testimony of landowners

and neighbors regarding noise and excessive traffic was legally sufficient to support trial court’s

finding that the noise levels constituted nuisance); Pascouet, 61 S.W.3d at 616 (holding

landowners’ testimony of substantial and continuous interference with the use and enjoyment of

their property caused by bright lights and noise was legally sufficient to support jury’s damages

finding).

        The Cernys submitted affidavits in support of the nuisance claims that Plains caused foul

odors to permeate their property. After describing the extent of the foul odors and how they

interfered with the use and enjoyment of their property, the Cernys’ affidavits state that in the area

where they live, the wind usually blows from the south and during the south winds, they would

smell a strong odor. The Cernys stated they set out to detect where the smell was coming from and

drove until they found Plains’s drip station almost directly to the south of their property. Their

affidavits confirmed they “regularly smell[ed] its odors during southerly winds.” I would hold the

trial court clearly abused its discretion by striking the affidavits on the ground that the Cernys were

not qualified experts; lay witness testimony is sufficient for this type of nuisance claim and the

Cernys’ affidavits were clearly relevant to prove causation and other elements of their nuisance

claims (e.g. interest in the property). See Pool, 346 S.W.3d at 859; Pascouet, 61 S.W.3d at 616.




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Concurring & Dissenting Opinion                                                       04-14-00650-CV


        The Cernys also submitted the affidavit of Sharon Wilson. Wilson’s affidavit states she

conducted air sampling and took video-recordings with a FLIR GasFindIR camera. Her affidavit

explains:

                In March 2013, Mike and Myra took members of Earthworks and ShaleTest
        to several facilities where we recorded FLIR video. At a Plains Exploration &
        Producing Company (“PXP”) facility named Kotara Ridley/Love Crews Drip
        Station we observed through the FLIR camera a huge release blowing across the
        road. There was an overpowering smell of hydrogen sulfide (rotten eggs). An air
        sample was collected from the plume in a Summa Canister. The results showed
        several hazardous substances, including benzene at a rate 20 times above the Texas
        Commission on Environmental Quality's (TCEQ) Long Term Health Effects
        Screenings Limit. Everyone in our group except one person who was wearing a
        respirator experienced health effects including headache, nausea, sore throat and
        burning eyes and nasal passages.

                In order to see if any of these hazardous substances were migrating onto the
        Cerny property, we placed a second, 12-hour canister at the Cerny property, outside
        of their house. The canister results at the Cerny property showed that 6 of the
        hazardous substances found at the PXP drip station were also found on the Cemy
        property, including the benzene. . . .

Appellees moved to strike Wilson’s affidavit on the grounds that she was “not qualified to testify

that emissions from oil and gas facilities caused medical symptoms and such testimony is unfairly

prejudicial” (emphasis added). They also moved to strike the samples and the FLIR video she took

on the grounds they would “not assist the trier of fact to understand the issue of whether emissions

from [defendants’] facilities caused Plaintiffs’ alleged injuries because there is no indication as to

the level of emissions shown on the video, the content of the emissions, or how the emissions

would affect Plaintiffs or Plaintiffs’ property.” Appellees did not object to Wilson’s qualifications

for collecting and analyzing air samples or for taking video-recordings with a FLIR camera. I

would hold the trial court abused its discretion by striking Wilson’s affidavit because, even if

Wilson were not qualified to testify to the Cernys’ medical conditions and the FLIR video did not

connect the alleged toxins to the Cernys’ medical conditions, Wilson’s affidavit is some evidence

that a Plains facility was responsible for the foul odors detected at the Cernys’ home.
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Concurring & Dissenting Opinion                                                       04-14-00650-CV


        Appellees note that several other companies conducted operations near the Cernys’ home.

When plaintiffs claim a defendant caused them a medical injury, and there are multiple potential

causes for the medical injury, then expert testimony is necessary to prove causation. Jelinek, 328

S.W.3d at 534. Appellees do not cite to any authority that the requirement for expert testimony

extends to nuisance cases, such as this one, in which plaintiffs complain of foul odors.

Furthermore, Wilson’s and the Cernys’ affidavits are not conclusory or speculative because they

explain why, based on their observations, the foul odors were coming from a Plains facility, and

appellees do not refer to any evidence that the foul odors were emitted by any of the other

companies’ operations. See Meat Producers, 476 S.W.2d at 410 (holding testimony from lay

witnesses about the source and severity of foul odors, and that wind carried over the odors to

plaintiff’s land, sufficient to support jury’s nuisance finding); Bowie Sewerage Co. v. Chandler,

138 S.W.2d 585, 589 (Tex. Civ. App.—Fort Worth 1940, writ dism’d) (“If offensive odors are

emitted from Jones Creek and may be smelled by the persons who live on plaintiff’s farm, this

may be testified to by laymen, as a matter of course, . . . .”).

        When the evidence is viewed in a light most favorable to the Cernys and all reasonable

inferences are drawn in their favor, there is more than a scintilla of evidence connecting Plains’s

operations to the foul odors interfering with the Cernys’ use and enjoyment of their property.

Although I agree with most of the majority’s opinion, I would reverse and remand the Cernys’

odor-based nuisance claim against Plains.

                                                        Luz Elena D. Chapa, Justice




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