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.