Day on Torts
Where a developer failed to install proper erosion control, causing recurring sediment runoff into a pond owned by a neighbor, the trial court’s ruling that the nuisance was temporary was affirmed.
In Lippert v. B&D Real Estate Properties, LLC, No. E2024-01676-COA-R3-CV (Tenn. Ct. App. Mar. 30, 2026), the plaintiffs owned property next to a neighborhood being developed by the defendant. The plaintiffs land included a pond. While developing the neighborhood, the defendant failed to use proper erosion control measures, and the plaintiffs began experiencing runoff issues in their pond. Significant amounts of dirt and silt washed into the pond, and the water became discolored, especially after rain.
The plaintiffs first complained to the state in December 2016. In 2016 and 2017, the defendant took remedial measures that temporarily resolved the issues. As the defendant continued developing the neighborhood, though, it stopped responding to the plaintiffs’ concerns. The plaintiffs filed this complaint in March 2020.
The trial court ruled for the plaintiffs, finding that the defendant had created a temporary nuisance. The trial court ordered that the defendant remove the sediment in a specific area of the pond. While the trial court originally awarded the plaintiffs attorney’s fees, it later overturned that ruling. The trial court did, however, award the plaintiffs damages for emotional distress. On appeal, the rulings regarding nuisance were affirmed, but the award of emotional distress damages was reversed.
The defendant made several arguments on appeal. First, it argued that the plaintiffs failed to prove proximate causation on their nuisance claim. The Court of Appeals found that the defendant’s own expert provided causation testimony, however, as he “explicitly admitted that the caramel color or turbidity of the pond was primarily caused by runoff from the development.” This testimony was further supported by the documentary evidence in this case.
Next, the defendant argued that the nuisance should have been classified as permanent, which would have made the plaintiffs’ complaint time-barred. “A temporary nuisance is one that can be corrected by the expenditure of labor or money.” (internal citation and quotation omitted). The Court pointed out that the plaintiffs produced evidence showing that the nuisance here was temporary. The nuisance was recurrent, as it would occur sporadically during rain. The defendant had taken measures to successfully abate the nuisance in the past. The defendant’s own expert discussed ways to correct the condition, and a state agency had also identified corrective measures that could be taken. Although the defendant argued that sediment was already present in the pond, the Court explained that the existence of the sediment did not change the nature of the nuisance as temporary. Based on the record, the Court found that the evidence did not preponderate against the finding that the nuisance was temporary.
The defendant also took issue with the remedy ordered by the trial court. Regarding the court’s order that the defendant implement specific erosion control measures to stop allowing sediment runoff, the defendant argued that doing so would be impossible, but the Court of Appeals stated that the defendant “misinterpret[ed] the extent of the trial court’s mandate.” The Court explained that the order didn’t require the defendant to stop all water runoff, but to “stop the flow of sediment resulting from negligent erosion control practices in developing the property.” The Court noted that the trial court’s ruling “merely demands compliance with the standard of care and state regulations.”
The trial court also ruled that the defendant must remove the sediment at the points nearest to the discharge from the neighborhood. The Court affirmed this portion of the order as well, as “restoration of a property” is available in connection with a nuisance claim. While the defendant raised an argument on appeal regarding the cost of this requirement, the Court found that argument undeveloped.
Finally, the defendant argued that the trial court improperly awarded the plaintiffs emotional distress damages, and the Court of Appeals agreed. The defendant argued that, in the context of a nuisance claim, damages for emotional distress are special damages that must be specifically pled under Tennessee Rule of Civil Procedure 9.07. The Court agreed that while emotional distress damages may be available in a nuisance case, emotional distress “does not necessarily” naturally result from nuisance. They are therefore special damages, and the plaintiffs’ failure to plead emotional distress in their complaint barred their recovery in this case. The award of $20,000 for emotional distress was therefore reversed.
The Court of Appeals accordingly affirmed the finding for the plaintiffs of a temporary nuisance, as well the order requiring the defendant to remediate the nuisance, but it overturned the finding of emotional distress damages.
This opinion was released six months after oral arguments.