Parallel with its sister court, the Fourteenth Court of Appeals has held that the Texas Citizens Participation Act (Chapter 27, CPRC) does not apply to plaintiffs’ suit against a railroad for personal injury claims based on the railroad’s alleged contamination of residential neighborhoods with creosote.

The case, Union Pacific Railroad Company v. Dorsey, et al. (No. 14-20-00308-CV), involves claims by a number of plaintiffs against the railroad for negligence, negligence per se, negligent misrepresentation, fraudulent concealment, and nuisance. The plaintiffs allege that the railroad knowingly contaminated residential neighborhoods in Houston with creosote, and that the contamination is ongoing. As a result of exposure to the contaminant, plaintiffs allege, they have suffered injuries from cancer, death, and property damage. Plaintiffs further allege that the railroad has concealed information regarding the known health risks of creosote contamination and misrepresented the extent of the contamination to regulatory agencies. The suit also includes claims for failure to safely store hazardous materials, failure to train and supervise employees on safe handling and storage of hazardous materials, failure to warn, failure to take adequate steps to contain contamination, and failure to implement safety barriers and security measures to prevent the public from coming into contact with hazardous materials. The suit also includes a nuisance claim alleging that the railroad unreasonably invaded plaintiffs’ interests in the private use and enjoyment of their property and unreasonably interfered with rights common to the general public, including discharge of creosote and toxic chemicals into public rights of way.

The railroad moved to dismiss the plaintiffs’ claims under the TCPA to the extent that they are “property damage” claims because the claims are “based on” or “in response to” the railroad’s exercise of rights of free speech, association, and petition. The plaintiffs argued that their claims arise from the railroad’s contamination, not its communications, and that in any event the TCPA exempts personal injury and fraud claims. In an opinion by Justice Wise, the court of appeals held that to the extent the plaintiffs’ claims are based on the railroad’s failure to disclose information, no protected speech is implicated and the TCPA does not apply. With respect to the negligent misrepresentation claims, the railroad failed to demonstrate that the plaintiffs’ claims were “based on” or “in response to” the communications rather than the contamination itself. As the court noted, when analyzing the nature of the claim for TCPA purposes, the court looks to the gravamen of the suit. Surrounding communications may have occurred, but in this case the gravamen of the plaintiffs’ claims involve creosote contamination. Finally, the court rejected the railroad’s attempt to split the property damage component of the plaintiffs’ claims from the personal injury component. As the court noted, “[T]he plain language of the statute indicates that if the claim seeks recovery for bodily injury, wrongful death, or survival, then the TCPA does not apply—it does not matter that the claim could also result in recovery of damages that arguably fall outside the meaning of ‘bodily injury.””

The opinion cites the ML Dev case we previously reported on the proposition that the 2019 legislative amendments require a closer nexus between the claims against the movant and the communications claimed as protected rights.  It also points to another recent decision by the First Court of Appeals denying the railroad’s TCPA motion to dismiss in a similar case. See Union Pacific R.R. Co. v. Chenier, No. 01-21-0073-CV, 2022 WL 547642 (Tex. App.—Houston [1stDist.] Feb/ 24. 2022, no pet. h.).

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