Law Office of Elizabeth G. Hill

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Law Office of Elizabeth G. Hill: Elizabeth Geary Hill practices in the areas of commercial litigation, appellate law and agricultural law in both state and federal court. Elizabeth assists clients with a wide range of litigation and appellate issues, as well as transactional business and agricultural needs, including vineyard and winery law. 

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It must be in the air: Will the Texas Supreme Court formally recognize particulate trespass as a viable cause of action?

On March 1, 2017, the Texas Supreme Court heard oral argument in the multi-party case, Atmos Energy Corp., et al. v. Town of Dish, et al., involving three separate petitions, multiple parties, including multiple individual citizens and the Town of Dish.  After some years of complaints, numerous citizens and the Town of Dish sued Atmos Energy, and several other energy companies in three separate lawsuits for claims of nuisance and trespass due to noise, light, odors, and chemical particulates emanating from the Defendants’ facilities. The suits were consolidated and prior to trial, the Defendants moved for summary judgment on five separate grounds, including whether migration of odors and chemical particulates onto another’s property could constitute trespass as a matter of law. Without specifying the grounds, the trial court granted summary judgment and the plaintiffs appealed.

 The court of appeals first considered the question of whether particulate trespass could present a valid cause of action with these facts. The energy companies argued that the “migration of airborne particulates originating from their facilities and crossing over and onto [the town’s] properties could never constitute a trespass, as a matter of law” because the airborne particulates did not constitute both a physical entry and a “significant deposit of particulate materials on the properties.” The court of appeals disagreed and found that airborne particulates could constitute a trespass and that the Town’s claims were not impermissible as a matter of law. In support, the court relied on Villarreal v. Grant Geophysical, Inc. out of the San Antonio Court of Appeals in 2004, where it found that trespass need not be committed in person and could include any substance that crossed a boundary, even subsurface or in the immediate airspace of the property.

 The theory of particulate trespass has already been advanced successfully in other forums in not only contamination cases, but also in crop-loss spray drift cases. This could potentially have significant implications on the High Plains where spray drift is a recurrent problem for farmers who grow sensitive crops, such as wine grapes, organic crops and fruit trees. The negligence cause of action that arises from a spray drift loss has existed in Texas for decades, but the potential for particulate trespass would present an entirely new claim theory that does not require a showing of a breach of a duty. The Texas Supreme Court’s ruling may not squarely decide the issue, but if the Court does not rule out the possibility of particulate trespass, litigants may likely have another available theory to advance in spray drift claims. And, if the Court formally recognizes the cause of action, a new theory of liability could greatly improve the chances of recovery for some growers.

Check back this summer on our blog when the Texas Supreme Court will possibly decide the remainder of its cases on its docket.