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Click here for the full text of this decision FACTS: In 1992, Charles and Tracy Pollock moved into a home at 10811 Mount Mesabi. The backyard of the home abutts the West Avenue Landfill Project, a landfill owned and operated by the city of San Antonio. In the fall of 1993, Tracy became pregnant, and on June 24, 1994, Sarah Pollock was born. In January 1998, Sarah was diagnosed with acute lymphocytic leukemia. According to the Pollocks, while Tracy was pregnant with Sarah, benzene from the landfill leaked into their home and backyard. This exposure to benzene, they contend, caused Sarah’s leukemia. The Pollocks sued the city of San Antonio for negligence, nuisance and trespass. The jury found for the Pollocks on negligence and nuisance. Additionally, the jury found that the city had acted with malice. The jury awarded $7 million in personal injury damages to Sarah. The jury also awarded $6,111,000 for past and future medical care, $10,000 for loss of use and enjoyment of property, $19,000 for difference in market value, and $10 million in exemplary damages to the Pollocks. The trial court rendered judgment in conformity with the verdict, with the exception of reducing the $6 million award of future medical care to $500,000. The city appeals. HOLDING: The court reverses that portion of the trial court’s judgment awarding exemplary damages and renders judgment that the Pollocks take nothing with respect to exemplary damages. The court affirms the remainder of the judgment. The city failed to bring up the affirmative defense of immunity in accordance with Texas Rule of Civil Procedure 94. Accordingly, it has waived this issue. The city contends, however, that because it asserted a statutory cap on damages and that San Antonio is a home-rule city in its original answer, “”an opposing attorney of reasonable competence’ could easily have determined (and should have determined) that immunity was an issue in the case.” The city fails, however, to explain how asserting a cap on damages or that San Antonio is a home-rule city is equivalent to pleading sovereign immunity. The city alleges that the Pollocks’ nuisance claim does not come within the constitutional waiver of immunity because it was not brought as a takings claim. The elements of a takings claim are: 1. that the governmental unit intentionally performed certain acts; 2. that the acts resulted in a taking or damaging of the property; and 3. that the taking was for public use. Loyd v. ECO Resources Inc., 956 S.W.2d 110 (Tex. App. � Houston [14th Dist.] 1997, no pet.) Here, the Pollocks pleaded that the city “created and maintained a continuing nuisance” by permitting “toxic chemicals and substances to accumulate and to escape the confines and boundaries of the West Avenue Landfill.” The Pollocks further pleaded that the city’s nuisance “was both public and private” and that as a result of the nuisance, the Pollocks suffered “loss of the enjoyment and use” and “diminishment of the value” of their property. These allegations show that the Pollocks brought their nuisance suit “in the nature of a takings claim.” In order to fall within the waiver of immunity provided by Article I, �17, of the Texas Constitution, a nuisance claim must be based on non-negligent acts. Additionally, to maintain a cause of action for nuisance, a plaintiff must be able to show the alleged nuisance is inherent in the condition or thing itself, beyond that arising from alleged improper or negligent use. There is evidence that the migration of benzene and other toxic gases is inherent in the operation of landfills. Because there is evidence that the city knew of the gas migration problem and intentionally failed to act, the court holds that there is legally sufficient evidence that the city acted with non-negligence. The court follows the El Paso court in City of Odessa v. Bell, 787 S.W.2d 525 (Tex. App. � El Paso 1990, writ denied), and holds that a property owner is not entitled to recover exemplary damages in an inverse condemnation case brought under Article I, �17, of the Texas Constitution. The court reverses that portion of the trial court’s judgment awarding exemplary damages and renders judgment that the Pollocks take nothing with respect to exemplary damages. OPINION: Angelini, J.; Lopez, C.J., Angelini and Marion, JJ.

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