Summary of a Recent
Judicial Development in
Renewable Energy

Emotional Response Alone is Insufficient to Establish
a Cause of Action for Nuisance

Walt McCarter
National AgLaw Center Research Associate

Summary of Decision

In Rankin v. FPL Energy, LLC, 266 S.W.3d 506, 2008 WL 3864829 (Tex. App. 2008), the Texas Court of Appeals held that the plaintiffs' emotional response to the loss of their view due to a neighboring wind farm was not sufficient to establish a cause of action for nuisance against the wind farm's owners.

Background

Plaintiffs brought public and private nuisance claims against FPL Energy relating to the construction and operation of the Horse Hollow Wind Farm. Id. at *1. The trial court granted FPL's motion for partial summary judgment and dismissed the plaintiff's claims regarding the wind farm's visual impact. Id. At trial, the jury found against the plaintiffs, and the plaintiffs appealed. Id.

Arguments

Plaintiffs argued that the trial court erred by granting FPL's motion for partial summary judgment, by excluding their fact rebuttal witnesses, and by excluding expert rebuttal testimony. Id. They argued that the jury was entitled to consider the wind farm's visual impact in connection with other testimony such as the turbines' blinking lights, the shadow flicker affect they created, and their operational noises to determine whether it was a nuisance. Id. at *3. They also argued that case law precedent should not be blindly followed without a consideration of the intervening societal changes, and that since nuisance claims should be viewed through the prism of a person of ordinary sensibilities, case law involving unreasonable plaintiffs should be considered accordingly. Id.

FPL argued that the trial court ruling was correct because no Texas court had ever recognized a nuisance claim based upon aesthetical complaints, and claimed that precedent was supported by sound public policy because perceptions of beauty and unsightliness are subjective in nature. Id. FPL further argued that the wind farm did not prevent the plaintiffs from using their property, and at most involved an emotional reaction to the loss of their view, which was insufficient to sustain a nuisance claim. Id.

Analysis and Holdings

Texas law defines "nuisance" as "a condition that substantially interferes with the use and enjoyment of land by causing unreasonable discomfort or annoyance to persons of ordinary sensibilities." Id. at *2. The court here noted that nuisances were typically related to light, sound, odor, or a foreign substance, and that Texas courts had never found a nuisance merely because of aesthetic-based complaints. Id. The court determined that the only possible nuisance was because the plaintiffs' emotional response to the loss of their view substantially interfered with the use and enjoyment of their property, so the issue was whether that emotional response was sufficient to establish a cause of action. Id. at *4. The court reasoned that if people had the right to bring a nuisance action because a neighbor's lawful activity interfered with the view from their property, they would effectively have the right to zone the surrounding property, and because there was no physical invasion on the property, concluded that "recognizing a new cause of action for aesthetical impact causing an emotional injury is beyond the purview of an intermediate appellate court." Id. The court also held that the trial court had not abused its discretion in excluding the plaintiffs' witnesses and expert testimony, as they had not been properly disclosed prior to trial. Id. at *5-7. The court did, however, remand the case for consideration of the allocation of taxable costs. Id. at *8.

The case was decided on August 21, 2008.