On August 14, 2013, the South Carolina Supreme Court answered four questions certified to it by the U. S. District Court for the District of South Carolina. Babb v. Lee County Landfill SC, LLC, No. 27299 (August 14, 2013). The court held:

  1. The maximum amount of damages for temporary trespass or nuisance is the lost rental value of property.
  2. South Carolina does not recognize a cause of action for trespass solely from odors or from any other nonphysical, intangible thing.
  3. The maximum amount of damages for any trespass or nuisance, whether temporary or permanent, is the fair market value of the property.
  4. A negligence cause of action may arise from offensive odors, but such a claim must satisfy all the standard elements of negligence.

Based on the posture of the case and the limited record before it, the court declined to answer a fifth question: whether the standard of care for a landfill operator must be established by expert testimony.

The case arose out of a lawsuit by six plaintiffs who lived near a landfill in Bishopville, South Carolina. The plaintiffs asserted nuisance, trespass, and negligence claims against the landfill because of odors they claimed substantially interfered with the use and enjoyment of their property. The plaintiffs abandoned any claims for loss of use, diminution in property value, and personal injury. The case was tried in federal court based on diversity of citizenship, so South Carolina state law applied to the claims.

The jury returned verdicts for the plaintiffs totaling more than $2.3 million for their annoyance, discomfort, inconvenience, loss of enjoyment of life, and losses associated with the interference with their enjoyment of the property and their mental tranquility. The landfill filed post-trial motions for judgment as a matter of law or, alternatively, a new trial.

The federal court concluded that South Carolina law was not clear on the state law issues raised in the post-trial motions and certified five questions to the South Carolina Supreme Court. Ogletree Deakins filed an amicus brief in the Supreme Court on behalf of the National Solid Wastes Management Association, the Palmetto Chapter of the Solid Waste Association of North America, the Institute of Scrap Recycling Industries, and the American Forest and Paper Association. With the certified questions answered, the federal court will now rule on the post-trial motions.

For companies doing business in South Carolina, the ruling is welcome news. Although earlier trespass and nuisance cases had stated the rule that damages were limited to the value of the plaintiff’s property (lost-use value for temporary injury and fair market value for permanent injury), all of the earlier cases involved claims of injury to property as well as personal annoyance, discomfort, and inconvenience. Additionally, no case in South Carolina had determined whether a physical, tangible invasion of property was required to support a trespass or nuisance claim. The court in Babb rejected a line of cases from other states that discarded the traditional common law rule requiring a physical invasion. Finally, the court reiterated the elements that a plaintiff must establish to prove negligence: duty; breach; causation; and damages. The court noted that in South Carolina the damages element requires proof of physical injury or property damage; the mere offensive smell of odors is not enough.

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