South Carolina Supreme Court Issues Important Ruling on Nuisance, Trespass, and Liability for Offensive Odors

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

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.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Ogletree, Deakins, Nash, Smoak & Stewart, P.C. | Attorney Advertising

Written by:

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Ogletree, Deakins, Nash, Smoak & Stewart, P.C. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.