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South Carolina High Court Finds Odors and Intangibles Do Not Constitute Trespass

Calling into question a jury’s multi-million dollar award to the neighbors of a landfill, the South Carolina Supreme Court sided with the minority of states and determined that South Carolina law does not recognize a cause of action for trespass solely from odors. Babb v. Lee Cnty. Landfill SC, LLC, No. 2012-212741 (S.C. Aug. 14, 2013), at 17, available at www.bdlaw.com/assests/attachments/BabbvLeeCty.pdf.

Plaintiffs, six individuals residing near a landfill, asserted negligence, trespass, and nuisance claims based on landfill odors. Babb, slip op. at 2. Following a trial in which the jury awarded Plaintiffs more than $2 million, the United States District Court for the District of South Carolina determined that state precedent was unclear on several issues and certified five questions to the state Supreme Court, including whether a claim for trespass can be based on odors or other intangible invasions.Id. at 3.

The court acknowledged that some states have expanded the traditional trespass rule’s requirement of a “physical” invasion given that modern science shows that intangible invasions such as odors can be caused by microscopic particulates landing on property. Id. at 12-14. Since not all microscopic invasions can amount to trespass, courts adopting this “modern rule” have also required plaintiffs to show that the intrusion is sufficiently substantial to interfere with exclusive possession. Id. at 13.

The South Carolina Supreme Court declined to adopt this rule noting that it conflated trespass and nuisance, and that the traditional view was more clear, easier to administer, and provided better protections for exclusive possessory rights. Id. at 15-17. The court confirmed that plaintiffs may bring a negligence cause of action based on migration of offensive odors, but the plaintiff must still demonstrate the traditional elements of a negligence claim. Id. at 17-18.

© 2020 Beveridge & Diamond PC National Law Review, Volume III, Number 302

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About this Author

Daniel M. Krainin Environmental Litigation Attorney Beveridge & Diamond New York, NY
Principal

Dan deploys more than two decades of environmental litigation experience to resolve clients’ legal and business challenges.

Primarily focused on environmental and toxic tort litigation, Dan helps clients successfully resolve groundwater contamination, hazardous waste site remediation, natural resource damages, permit defense and product-related matters. He enjoys using his skills as a litigator to help clients solve environmental problems.

Among his many wins, Dan successfully led a team that defeated an emergency challenge to a permit that Dan’s client needed to continue its...

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Mackenzie S. Schoonmaker Environmental Litigation Attorney Beveridge & Diamond New York, NY
Principal

Mackenzie’s practice includes both litigation and regulatory matters arising under FIFRA, the Clean Water Act, and related environmental laws.

She is passionate about conserving air, water, wildlife, and land for future generations, and enjoys helping clients navigate and enforce the detailed framework of environmental law because she believes compliance is key to preventing adverse impacts to the environment.

Mackenzie is a co-chair of Beveridge & Diamond’s Industrial Hemp & Cannabis industry team. She advises clients, and regularly writes and presents, on federal and state environmental regulations impacting this thriving industry. 

Under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), Mackenzie represents pesticide companies in data compensation arbitrations, focusing on defending the rights of data owners against follow-on registrants of pesticides. She has also worked extensively with task forces comprised of national and multinational companies of all sizes that operate as joint ventures or limited liability companies to generate data and other information to meet government requirements under FIFRA.

Among the wide range of issues under the Clean Water Act that Mackenzie has handled are assisting companies with responses to Clean Water Act Section 308 information requests and Clean Water Act Section 404 compensatory mitigation requirements.

Mackenzie also defends public utilities against toxic tort claims. She was part of the team that obtained a defense judgment after a three-week trial regarding claims alleging that the client supplied corrosive water to apartment buildings. The case, Cormier v. D.C. WASA, 2011 D.C. Super. Lexis 7, 84 A.3d 492 (2013), was successfully upheld on appeal.

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