The Texas Supreme Court has declined to review a decision of the Houston [1st] Court of Appeals holding 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. Betty Chenier, et al. (No. 01-21-00073-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 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. 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. In any event, the railroad failed to separate protected and unprotected conduct in its motion to dismiss, so the trial court did not commit error by denying the motion to dismiss the negligent misrepresentation claim.
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. The Houston [14th] Court of Appeals reached the same decision in a case involving the same facts in Union Pacific Railroad Company v. Dorsey, et al. (No. 14-20-00308-CV).