Tort Claims Act does not permit partial community damage even if tangible personal property is used

 

 Port of Houston Authority v. Aaron, et al. No. 01-12-00373-CV (Tex. App. – Houston [1st Dist.] September 5, 2013).

This is one of two cases decided at the same time involving the same parties. This case is an interlocutory appeal from the denial of a plea to the jurisdiction in a suit where numerous property owners sued the Port of Houston Authority (“Port”) alleging a container terminal constituted a nuisance and violated noise ordinances. The First Court of Appeals reversed the denial and determined that no waiver of sovereign immunity exists for this type of case.

The Port is a complex of marine terminals and facilities including container docks. Ninety-five property owners sued the Port under the Texas Tort Claims Act (“TTCA”) alleging the excessive noise, light, and chemical pollution interfered with their use of their properties. The Port defended via plea that the TTCA requires physical damage to property and physical bodily injury, not the economic loss, diminution in value, and mental anguish asserted by the property owners. The court sidestepped the issue of the TTCA requiring a physical damage, and held the property owners did not suffer an indivisible injury apart from those generally surrounding the terminal. No one plaintiff alleges a particularized injury to property, but only general injuries suffered by anyone near the terminal. In the accompanying case, the court held the concept of community damage is not necessarily the location, but the nature/type of injury that is determinative. Pulling from case law on different types of constitutional takings claims, the court held the TTCA cannot be brought for injuries suffered by the community as a whole and can only be brought for particularized injuries. Further, no specific personal injury is plead. The mental anguish alleged in the specific live pleadings is a minor derivative symptom, not an injury in itself (both under common law and the T TCA). So no waiver of immunity exists.

If you would like to read this opinion click here.

If you would like to read the accompanying opinion involving inverse-condemnation and intentional nuisance (which holds exactly the same thing) click here.