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.
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.
The five questions, as certified to this Court by the United States District Court for the District of South Carolina, read:
The first question asks whether the lost rental value of property is the maximum amount of damages recoverable for a temporary trespass or nuisance.
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,
Developing from the assize of novel disseisin came the assize of nuisance, modern nuisance's medieval ancestor. See Restatement (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 also Restatement (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.
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:
Id.
To the extent South Carolina's trespass and nuisance case law discusses annoyance, discomfort, interference with the enjoyment of property, loss of enjoyment of life, or interference with mental tranquility, those cases speak in terms of injury to one's property interest in the use and enjoyment of
In Davis v. Palmetto Quarries Co., 212 S.C. 496, 48 S.E.2d 329 (1948), work at a nearby quarry vibrated the plaintiff's home, threw dust and dirt onto her property, and subjected the home's inhabitants to loud noises. Id. at 498, 48 S.E.2d at 330. The plaintiff brought a nuisance action against the quarry, and the quarry later appealed the trial court's denial of the motion to strike from the complaint allegations that the plaintiff and her family's comfort and health had been impaired by work at the quarry. Id. at 449, 48 S.E.2d at 330-31. The Court found no error and held that while the allegations concerning the plaintiff's family members would not alone support a verdict, the allegations were "proper for a full statement of the alleged damages to the plaintiff as the owner of her home." Id. at 499-500, 48 S.E.2d at 331 (emphasis added). Again, the Court found the allegations relevant only because they were tied to the plaintiff's property interest in the use and enjoyment of the property.
In Lever v. Wilder Mobile Homes, Inc., 283 S.C. 452, 322 S.E.2d 692 (Ct.App.1984), the plaintiff brought a nuisance action alleging the defendant's sewage lagoon emitted offensive odors and leaked sewage into the plaintiff's fish pond, polluting the pond and killing his fish. The defendant appealed the denial of its motions for directed verdict and judgment notwithstanding the verdict. Id. at 454, 322 S.E.2d at 693. The court of appeals found evidence establishing a nuisance in the form of testimony that the plaintiff could no longer host family picnics or church groups on the property and could no longer garden there. Id. at 454, 322 S.E.2d at 694. That
Thus, from their inception through to today, trespass and nuisance have been actions limited to the protection of one's property interests. They have never served to protect against harms to one's person.
The damages recoverable for trespass and nuisance being strictly limited to damages to one's property interests, the only proper measure of them is the value of the property. A well-known principle of property law is that property consists of a bundle of rights. The value of a piece of property is the value of all of the rights one obtains through ownership of the property. Thus, included in the value of property are the rights of exclusive possession and use and enjoyment protected by the trespass and nuisance causes of action respectively. To the extent those interests are harmed by a temporary
In other words, lost rental value includes the annoyance and discomfort experienced as the result of a temporary trespass or nuisance. The lost rental value of the property is the difference between the rental value absent the trespass or nuisance and the rental value with the trespass or nuisance. The rental value with the trespass or nuisance present would be less, in part, because a hypothetical renter would have to suffer the annoyance and discomfort of the nuisance or trespass. Thus, the lost rental value measures the monetary value of the harm to the property interest. Furthermore, because lost rental value includes damages caused by annoyance or discomfort, to permit a plaintiff to recover both the lost rental value plus an additional sum for annoyance and discomfort would be to permit a double recovery.
We have already recognized the lost rental value of property as the measure of and limit on damages for a temporary harm to property in our decision in Gray v. Southern Facilities, Inc., 256 S.C. 558, 183 S.E.2d 438 (1971). There, the plaintiff asserted a negligence claim against the defendant for pumping gasoline into a creek behind the plaintiff's home which later ignited, setting the creek ablaze. Id. at 561, 183 S.E.2d at 439. At trial, the defendant was granted an involuntary nonsuit on the ground the plaintiff had not sustained any actual or physical damages. Id. at 561-62, 183 S.E.2d at 439. Reviewing the grant of involuntary nonsuit, the Court stated:
Id. at 569, 183 S.E.2d at 443. Thus, while not explicitly using the terms trespass or nuisance, the Court held that lost rental value is the proper measure of damages for a temporary harm to real property, which would include a temporary trespass or nuisance. See also Ravan, 315 S.C. at 465, 434 S.E.2d at 307 ("The measure of damages for permanent injury to real property by pollution, whether by nuisance, trespass, negligence, or inverse condemnation is the diminution in the market value of the property." (citing Gray, 256 S.C. at 569, 183 S.E.2d at 443)).
Contrary to the plaintiffs' assertions, the case of Threatt v. Brewer Mining Co., 49 S.C. 95, 26 S.E. 970 (1897), does not establish otherwise. There, a farmer sued a neighboring mining operation for damage to the farmer's lands and odors from mining waste deposited into a waterway and from there onto the farmer's land. In the Threatt opinion, this Court wrote:
Threatt, 49 S.C. 95, 134, 26 S.E. 970, 983. We do not find that language to be controlling or even persuasive as to the issue before this Court. First, it states only that the jury may award damages in the amount the odors "damaged the plaintiff," but does not specify whether that means injury to the plaintiff's property interests or injury to the plaintiff's person. In other words, there is no clear holding that a party may recover for personal injury through a trespass or nuisance action. To the contrary, the opinion states that "[w]hat the plaintiff in the case at bar really seeks is to prevent the defenda[n]t, through its milling operations, from invading his right to property," and then goes on to describe each of the alleged damages, including the odors as an "element in this invasion of his right of property." Id. at 128, 26 S.E. at 981 (emphasis added). Furthermore, to the extent Threatt could be read as holding that trespass and nuisance damages extend to personal injury and beyond lost rental value, we believe Threatt was wrongly decided and directly contradicts our more recent decision in Gray.
We now explicitly extend the holding in Gray to cover trespass and nuisance claims for the reasons previously stated. Accordingly, we answer the certified question in the affirmative, holding that the lost rental value of property is the sole measure of temporary trespass and nuisance damages.
The second certified question asks whether South Carolina law recognizes a cause of action for trespass solely from invisible odors, rather than from a physical invasion such as dust or water. The plaintiffs argue South Carolina has abandoned the traditional rule that a trespass requires an invasion of property by a physical, tangible thing, and thus, the Court should recognize odors as constituting a trespass. The Landfill argues for the traditional rule, asserting that odors, due to their intangibility, cannot constitute a trespass,
We first note the relevant distinctions between the trespass and nuisance causes of action which presumably give rise to the plaintiffs' arguments that intangible intrusions should be sufficient to constitute a trespass. First, recovery under a nuisance claim requires proof of actual and substantial injury, whereas trespass entitles a plaintiff to nominal damages even in the absence of any actual injury. See Green Tree Servicing, LLC v. Williams, 377 S.C. 179, 184, 659 S.E.2d 193, 195-96 (Ct.App.2008). Also, in order to rise to the level of an actionable nuisance, the interference or inconvenience must be unreasonable. Winget v. Winn-Dixie Stores, Inc., 242 S.C. 152, 159, 130 S.E.2d 363, 367 (1963). The unreasonableness requirement reflects the unavoidable reality that persons must suffer some inconvenience and annoyance from their neighbors for modern life to carry on. Id. For trespass, there is no requirement of unreasonableness. Rather, any trespass, however small and insignificant, gives rise to an actionable claim. Green Tree, 377 S.C. at 184, 659 S.E.2d at 195-96.
This Court has yet to consider the tangible versus intangible distinction for trespass actions, but the plaintiffs assert the court of appeals held in Ravan that South Carolina no longer requires that an item be tangible in order to give rise to a trespass action. We find the Ravan decision contains no holding in relation to trespass by intangible things. There, the court of appeals affirmed a trial court's grant of a directed verdict for defendants on a trespass cause of action. Ravan, 315 S.C. at 465, 434 S.E.2d at 307. The court found there was no evidence the defendants' entry onto the plaintiffs' property was unauthorized, and thus, the trial court correctly granted a directed verdict on the claim. Id. at 464, 434 S.E.2d at 306. The opinion noted, anecdotally, "there is a trend in environmental law to recognize that the infiltration of contaminants onto a plaintiff's property constitutes as much an invasion of his possessory interest as the cutting of a tree on his property." Id. at 463, 434 S.E.2d at 306. Not only was that statement mere dicta in relation to the court's holding, the
The traditional common law rule, the dimensional test, provides that a trespass only exists where the invasion of land occurs through a physical, tangible object. See Adams v. Cleveland-Cliffs Iron Co., 237 Mich.App. 51, 602 N.W.2d 215, 219 (1999). Under that rule, intangible matter or energy, such as smoke, noise, light, and vibration, are insufficient to constitute a trespass. Id.; Larry D. Scheafer, Annotation, Recovery in Trespass for Injury to Land Caused by Airborne Pollutants, 2 A.L.R.4th 1054 (discussing the traditional rule). More specifically, under that rule, courts have held that odors do not give rise to a trespass cause of action because they are intangible. See, e.g., Brockman v. Barton Brands, Ltd., No. 3:06-CV-332-H, 2009 WL 4252914, at *5 (W.D.Ky. Nov. 25, 2009) ("The odors ... which are visibly undetectable and transient, are not sufficient to state a claim for trespass, because a trespass only occurs when an object or thing enters a person's property and interferes with his or her possession or control."); Ryan v. City of Emmetsburg, 232 Iowa 600, 4 N.W.2d 435, 438-39 (1942) (holding that the odors from a sewage treatment plant would not give rise to a trespass action); Wendinger v. Forst Farms, Inc., 662 N.W.2d 546, 554 (Minn.Ct.App.2003) ("Because odors do not interfere with the exclusive possession of land, an allegation that a confined-animal feeding operation emits invasive odors does not state a claim for trespass.").
In reaction to modern science's understanding of microscopic and atomic particles, a divergent line of decisions have discarded the dimensional test and permitted recovery for trespass without regard to whether the intrusion was by a tangible object, but rather by considering the nature of the interest harmed. Scheafer, supra (citing cases). The first seminal case in this line of decisions was Martin v. Reynolds Metals Co., 221 Or. 86, 342 P.2d 790 (1959). There, the plaintiffs brought a trespass action against an aluminum smelter for fluoride gases and microscopic particulates they alleged the smelter emitted, which traveled through the air and settled on the plaintiffs' property. Id. at 791. The trial court entered a directed verdict for the plaintiffs, and the defendant appealed the trial court's ruling that the plaintiffs
Id. In light of those considerations, the court held the determination of whether an invasion of the right to exclusive possession occurred, and thus whether a trespass occurred, is best determined by consideration of the energy and force of the thing intruding upon a plaintiff's land. Id. at 794.
Tellingly, the Martin court then found it necessary to immediately backpedal in order to constrain the expansion of trespass liability created by discarding the dimensional test. The court recognized that trespass imposes strict liability upon a trespasser regardless of whether the trespass caused any damages, and thus, the court's new test created the potential for manufacturers to be held liable for even the smallest intrusions. Id. at 796. The court also recognized that not all intrusions upon one's property are so great as to interfere with the right to exclusive possession. Id. at 794-95.
The next seminal decision in the divergent line was Borland v. Sanders Lead Co., Inc., 369 So.2d 523 (Ala.1979), where the plaintiffs sued a lead smelter for lead and sulfoxide emissions they alleged settled on and damaged their property. Id. at 525-26. After a discussion of Martin, the court noted that in adopting the Martin holding it "might appear, at first blush,... that every property owner in this State would have a cause of action against any neighboring industry which emitted particulate matter into the atmosphere, or even a passing motorist, whose exhaust emissions come to rest upon another's property." Id. at 529. However, the court found that Martin's substantiality requirement obviates that concern. Id. Adopting the Martin rejection of the dimensional test, the court set forth a two-tiered concept of trespass. Where a trespass is "direct," as formerly required for a trespass to exist and including physical, tangible intrusions, there is no substantiality requirement and nominal damages may be awarded. Id. However, where the intrusion is indirect, including where the intrusion is intangible, the intrusion constitutes a trespass only if the plaintiff can show: "1) an invasion affecting an interest in the exclusive possession of his property; 2) an intentional doing of the act which results in the invasion; 3) reasonable foreseeability that the act done could
However, we find persuasive the Michigan Court of Appeals' rejection of this divergent line of decisions in Adams v. Cleveland-Cliffs Iron Co. There, the court adhered to the dimensional test, holding that intangible invasions are properly characterized as giving rise to nuisance or negligence actions and cannot give rise to a trespass action. Adams, 602 N.W.2d at 222. The court first noted that courts rejecting the dimensional test have been troubled by the principle that nominal damages are available for trespass, and in order to avoid "subjecting manufacturing plants to potential liability to every landowner on whose parcel some incidental residue of industrial activity might come to rest, these courts have grafted onto the law of trespass a requirement of actual and substantial damages." Id. at 221. But in adopting the substantiality requirement, those courts transmute the trespass cause of action into the nuisance cause of action. Id. The court went on to explain that "[w]here the possessor of land is menaced by noise, vibrations, or ambient dust, smoke, soot, or fumes, the possessory interest implicated is that of use and enjoyment, not exclusion, and the vehicle through which a plaintiff normally should seek a remedy is the doctrine of nuisance." Id. at 222. Finally, the court found that the substantiality requirement inherent in the divergent view endangers the sanctity of the right to exclusive possession, explaining: "The law should not require a property owner to justify exercising the right to exclude. To countenance the erosion of presumed damages in cases of trespass is to endanger the right of exclusion itself." Id. at 221. Accordingly, the court concluded it would retain the dimensional test because it safeguards "genuine claims of trespass and keep[s] the line
We acknowledge that the dimensional test is an imperfect rule. It does not comport with modern science's understanding of matter and the relationship between matter and energy. However, we question whether any rule can perfectly distinguish between those things that intrude upon the right to exclusive possession of land and those that do not. The right to exclusive possession is an artificial construct incapable of precise definition or measurement and thus, defies the creation of a perfect rule to measure intrusions upon it.
Imperfections also plague the divergent line of decisions rejecting the dimensional test and their new form of trespass. The initial imperfection and that from which the others arise is that trespass is a strict liability theory under which a plaintiff may collect nominal damages for any intrusion regardless of whether it caused harm. The dimensional test traditionally stood as a bulwark excluding from trespass those intrusions not substantial enough to affect the right to exclusive possession. Without the dimensional test, even the most ephemeral intrusion — the exhaust from a passing car, the sound waves from neighbors talking, or even a sneeze that carry onto one's land — would constitute a trespass and an entitlement to at least nominal damages. In order to avoid that absurd result and the arresting effect it would have on modern life, those courts rejecting the dimensional test are compelled to adopt a substantiality requirement to distinguish between those intrusions substantial enough to constitute a trespass and those too insubstantial to do so.
Lacking a perfect measure of when one's right to exclusive possession has been infringed and comparing the merits and demerits of the dimensional test and the divergent view with its substantiality requirement, we conclude the dimensional test is superior to the divergent view. First, adoption of the substantiality requirement would seriously undermine the protection afforded the important right of exclusive possession, whereas the dimensional test maintains the strict liability protection afforded that right. Property is commonly conceptualized as a bundle of rights, and among the
Furthermore, the dimensional test possesses the virtues of clarity, ease of implementation, and ability to serve as a guide for future conduct. The substantiality requirement is a fact-specific, case-by-case rule, whereas the dimensional test, as applied to different intrusions over time, yields a stable rule as to what rises to the level of a trespass. Thus, the dimensionality test gives members of the public some idea of what constitutes a trespass and enables them to conform their conduct to the standard. The substantiality test would leave them uncertain as to whether they would be liable in trespass for certain actions. The rule would thus result in inefficient behavior because persons would forego some legally permissible and socially and economically beneficial activities due to uncertainty as to whether the activities would constitute a trespass under the substantiality test. See Issac Ehrlich &
Finally, as previously discussed, the divergent view would transform trespass into nuisance. Nuisance already exists to remedy substantial harms to property, and thus, the divergent view leaves property owners with less, rather than more, protection of their property rights.
For these reasons, we answer this question in the negative. South Carolina does not recognize a trespass cause of action for invisible odors. Rather, South Carolina hews to the traditional dimensional test and only recognizes intrusions by physical, tangible things as capable of constituting a trespass.
The third certified question asks whether the damages for any trespass or nuisance action, temporary or permanent, are limited to the full market value of the plaintiff's property where no claim for restoration or cleanup costs were alleged. This question is related to the first question dealing with whether damages for temporary trespass and nuisance are limited to lost rental value, and the reasoning employed there applies with equal force here. Thus, for the reasons stated in regards to question one and having already held that the damages for temporary trespass or nuisance are limited to lost rental value, we hold that the damages for permanent trespass or nuisance in South Carolina are limited to the full market value of the property.
The fourth question asks whether a negligence cause of action may arise from a plaintiff's contact with offensive odors created by a defendant. We hold that while it may be possible for a plaintiff to recover in negligence for offensive odors, we stress that such a claim would have to satisfy the
To prevail on a negligence claim, a plaintiff must establish duty, breach, causation, and damages. Sherrill v. Southern Bell Tel. & Tel. Co., 260 S.C. 494, 499, 197 S.E.2d 283, 285 (1973). Generally, under South Carolina law, the damages element requires a plaintiff to establish physical injury or property damage. Damages for emotional or mental suffering are typically not recoverable, unless there is some physical manifestation of the emotional distress. See Dooley, 283 S.C. 372, 322 S.E.2d 669 (declining to recognize a negligent infliction of emotional distress cause of action and holding that damages for emotional distress are generally not recoverable in a negligence action absent some physical manifestation). Thus, the mere annoyance, inconvenience, or discomfort a plaintiff may suffer from offensive odors is not sufficient to establish a negligence claim. Accordingly, we answer this question in the affirmative, but hold that a negligence claim based on offensive odors is subject to the same standard elements as any other negligence claim, including the limited damages upon which a negligence claim may be premised.
Finally, the fifth question asks, assuming a plaintiff can make out a negligence cause of action based on offensive odors that have migrated from a neighbor's landfill onto the plaintiff's property, must the standard of care for a landfill operator and breach thereof be established through expert testimony. The determination of whether expert testimony is required is a fact-specific inquiry that can only be made on a case-by-case basis, and due to the posture of this case and the limited record before this Court, we can do no more than state the guidelines to be applied in particular cases.
The general rule in South Carolina is that where a subject is beyond the common knowledge of the jury, expert testimony is required. See Green v. Lilliewood, 272 S.C. 186, 192-93, 249 S.E.2d 910, 913 (1978). Conversely, where a lay person can comprehend and determine an issue without the assistance of an expert, expert testimony is not required. See O'Leary-Payne v. R.R. Hilton Head, II, Inc., 371 S.C. 340,
For the reasons stated, we answer the certified questions as follows. As to question one, we hold the damages recoverable for a temporary trespass or nuisance claim are limited to the lost rental value of the property. As to question two, we hold a trespass exists only when an intrusion is made by a physical, tangible thing. As to question three, we hold the damages recoverable for a permanent trespass or nuisance claim are limited to the full market value of the property. As to question four, while we recognize that a negligence claim based on offensive odors is possible, we stress that such a claim would have to satisfy all the elements of negligence like any other negligence claim. Finally, as to question five, we are unable to make a definitive determination as to whether establishing the standard of care of a landfill operator in regards to offensive odors requires expert testimony, but offer the guidelines for making such a determination and entrust that determination to the discretion of the trial judge.
TOAL, C.J., PLEICONES, BEATTY and KITTREDGE, JJ., concur.
