Babb v. Lee Cnty. Landfill SC, LLC

• Decision Date: 14 August 2013
• Docket Number: No. 27299.,27299.
• Court: South Carolina Supreme Court
• Parties: Perrin BABB, Debbie Babb, Wayne Elstrom, Sarah Elstrom, Alan Jackson, and Kathy Jackson, Plaintiffs, v. LEE COUNTY LANDFILL SC, LLC, Defendant. Appellate Case No. 2012–212741.

405 S.C. 129

747 S.E.2d 468

Perrin BABB, Debbie Babb, Wayne Elstrom, Sarah Elstrom, Alan Jackson, and Kathy Jackson, Plaintiffs,

v. LEE COUNTY LANDFILL SC, LLC, Defendant.Appellate Case No. 2012–212741.

No. 27299.

Supreme Court of South Carolina.

Heard March 19, 2013.

Decided Aug. 14, 2013.

Gary W. Poliakoff and Raymond P. Mullman, Jr., both of Poliakoff & Associates, P.A., of Spartanburg; John S. Nichols, of Bluestein, Nichols, Thompson & Delgado, LLC, of Columbia; William E. Hopkins, Jr., of Hopkins Law Firm, LLC, of Pawley's Island; and Richard H. Middleton, Jr., of The Middleton Firm, L.L.C., of Savannah, Georgia, all for Plaintiffs.

Kevin A. Dunlap, of Spartanburg, Pamela Baker, of Columbia, and Steven D. Weber, of Charlotte, North Carolina, all of Parker Poe Adams & Bernstein LLP; and William G. Beck, of Lathrop & Gage LLP, of Kansas City, Missouri, all for Defendant.

Amy Elizabeth Armstrong, of S.C. Environmental Law Project, of Pawley's Island, for Amicus Curiae Coastal Conservation League, South Carolina Wildlife Federation and Upstate Forever.

Elizabeth B. Parlow, of Ogletree, Deakins, Nash, Smoak & Stewart, PC, of Columbia, for Amicus Curiae National Solid Wastes Management Association, et al.

Ben A. Hagood, Jr., of Moore & VanAllen, PLLC, of Charleston, Mark T. Stancil, of Robbins, Russell, Engleert, Orseck, Untereiner & Sauber, LLP, of Washington, DC, for Amicus Curiae The Chamber of Commerce of the United States of America.

CERTIFIED QUESTION

Justice HEARN.

Brought in federal district court on claims arising from offensive odors migrating from a landfill onto the plaintiffs' properties, this case comes to this Court for the resolution of several issues of law. The certified questions herein require us to delve into the gray areas of common law, environmental torts. Specifically, we consider the measure of damages for trespass and nuisance claims, the requirement that a physical, tangible invasion occur for a trespass to arise, the existence of a negligence claim based on odors, and the requirement of expert testimony to establish the standard of care of a landfill operator.

FACTUAL/PROCEDURAL HISTORY

The plaintiffs, six individuals residing near a landfill operated by defendant Lee County Landfill SC, LLC (the Landfill) in Bishopville, South Carolina, initiated this action seeking to recover for substantial interference with the use and enjoyment of their property caused by odors emanating from the landfill. The plaintiffs asserted nuisance, trespass, and negligence claims based on the odors. Both before and during trial, the plaintiffs abandoned all claims for loss of use, diminution in property value, and personal injury, leaving only annoyance, discomfort, inconvenience, interference with enjoyment of their property, loss of enjoyment of life, and interference with mental tranquility as their damages claims.

Following a trial, the jury awarded the plaintiffs actual or compensatory damages totaling $532,500 on their negligence, trespass, and nuisance claims, with three plaintiffs receiving $77,500 and three receiving $100,000. The jury also awarded each plaintiff $300,000 in punitive damages. The Landfill filed motions for judgment as a matter of law or alternatively for a new trial. After determining that South Carolina precedent was not clear on state law issues raised in the post-trial motions, the District Court certified five questions to this Court.

CERTIFIED QUESTIONS

The five questions, as certified to this Court by the United States District Court for the District of South Carolina, read:

1. Under South Carolina law, when a plaintiff seeks recovery for a temporary trespass or nuisance (asserting claims for annoyance, discomfort, inconvenience, interference with their enjoyment of their property, loss of enjoyment of life, and interference with mental tranquility and abandoning all claims for loss of use, diminution in value, and personal injury), are the damages limited to the lost rental value of the property?

2. Does South Carolina law recognize a cause of action for trespass solely from invisible odors rather than a physical invasion such as dust or water?

3. Is the maximum amount of compensatory damages a plaintiff can receive in any trespass or nuisance action (temporary or permanent) the full market value of the plaintiffs' property where no claim for restoration or cleanup costs has been alleged?

4. When a plaintiff contends that offensive odors have migrated from a neighbor's property onto the plaintiff's property, may the plaintiff maintain an independent cause of action for negligence or is the plaintiff limited to remedies under trespass and nuisance?

5. If an independent cause of action for negligence exists under South Carolina law when a plaintiff contends that offensive odors have migrated from a neighbor's property onto the plaintiff's property, does the standard of care for a landfill operator and breach thereof need to be established through expert testimony?

LAW/ANALYSIS

I. TEMPORARY TRESPASS AND NUISANCE DAMAGES

The first question asks whether the lost rental value of property is the maximum amount of damages recoverable for a temporary trespass or nuisance. ¹ While the Landfill argues that the temporary trespass and nuisance damages are limited to the lost rental value of the property, the plaintiffs argue that in addition to this measure of damages, they can also recover separate damages for annoyance, discomfort, and inconvenience. Specifically, the plaintiffs argue they can recover for “damages to the person incurred through the loss of enjoyment of the property.” We answer this question in the affirmative, holding the damages recoverable for a temporary trespass or nuisance are limited to lost rental value.

From their earliest inception through the present day, the actions of trespass and nuisance have been limited to one's interest in property, rather than providing any protection to one's person. Trespass, as that term is used here, ² arose from the medieval assize of novel disseisin ³ which was created for the protection of a landowner's interest in the exclusive possessionof land. George E. Woodbine, The Origins of the Action of Trespass, 33 Yale L.J. 799, 807 (1924); see also Theodore F.T. Plucknett, A Concise History of the Common Law 369–70 (5th ed.1956). Glanville, the great medieval legal scholar who was the first to comment upon the assize of novel disseisin, wrote that it existed to aid a person when another “unjustly and without a Judgment, has disseised another of his Freehold.” R. Glanville, The Treatise on the Laws and Customs of the Realm of England, bk. XIII, ch. XXXII (John Beames trans. 1900). Thus, Glanville recognized the assize as limited to protection of one's property interests.

Developing from the assize of novel disseisin came the assize of nuisance, modern nuisance's medieval ancestor. SeeRestatement (Second) of Torts § 821D (1979); Bradford W. Wyche, A Guide to the Common Law of Nuisance in South Carolina, 45 S.C. L. Rev. 337, 340 (1994). The new writ also protected a landowner from interference with his rights in land and “closely resembled the modern cause of action for private nuisance, providing redress for interference with the use and enjoyment of plaintiff's land resulting from acts committed on the defendant's land.” Jeff L. Lewin, Boomer and the American Law of Nuisance, 54 Alb. L. Rev. 189, 193 (1990); see alsoRestatement (Second) of Torts § 821D (stating that the assize of nuisance provided redress where there was an “indirect damage to the land or an interference with its use and enjoyment”).

Blackstone, writing centuries later, described a trespass as a “species ... of real injuries, or wrongs that affect a man's lands, tenements, or hereditaments.” 3 William Blackstone, Commentaries *209. He went on to describe a trespass as “an entry on another man's ground without a lawful authority, and doing some damage, however inconsiderable, to his real property,” and explained that the trespass cause of action protects a property owner's right to exclusive possession of his land. Id. Blackstone also wrote that a nuisance was a “real injur[y] to a man's lands and tenements,” describing a private nuisance as “anything done to the hurt or annoyance of the lands, tenements, or hereditaments of another.” Id. at *216. Thus, Blackstone recognized trespass and nuisance as actions protecting and limited to one's property rights.

Arising from that common law heritage, under South Carolina law trespass and nuisance are limited to the protection of property interests. A trespass is any interference with “one's right to the exclusive, peaceable possession of his property.” Ravan v. Greenville Cnty., 315 S.C. 447, 463, 434 S.E.2d 296, 306 (Ct.App.1993). A nuisance, trespass's counterpart, provides a remedy for invasions of a property owner's right to the use and enjoyment of his property. Clark v. Greenville Cnty., 313 S.C. 205, 209, 437 S.E.2d 117, 119 (1993) (“Nuisance law is based on the premise that ‘[e]very citizen holds his property subject to the implied obligation that he will use it in such a way as not to prevent others from enjoying the use of their property.’ ” (quoting Peden v. Furman Univ., 155 S.C. 1, 16, 151 S.E. 907, 912 (1930))).

Furthermore, the Restatement (Second) of Torts bolsters this conclusion by recognizing that those causes of action are limited to one's property rights, stating that “[a] trespass is an invasion of the interest in the exclusive possession of land, as by entry upon it. A nuisance is an interference with the interest in the private use and enjoyment of the land....” Restatement (Second) of Torts § 821D (1979). It goes on to provide:

“Interest in use and enjoyment” also comprehends the pleasure, comfort and enjoyment that a person normally derives from the occupancy of land. Freedom from discomfort and annoyance while using lands is often as important to a person as freedom from physical...