CERTIFIED QUESTION
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 enjоyment 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.
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 damagеs 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 plaintiffs 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 plaintiffs property, does the standard ofcare for a landfill operator and breach thereof need to be established through expеrt 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.
From their earliest inception through the present day, the аctions 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. Rеv. 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 plaintiffs 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 tresрass 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:
“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 interruption with his use or freedom from detrimental change in the physical condition of the land itself. This interest in freedom from annoyance and discomfort in the use of land is to be distinguished from the interest in freedom from emotional distress. The latter is purely an interest of personality and receives limited legal protection, whereas the former is essentially an interest in the usability of land ...
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.,
In Lever v. Wilder Mobile Homes, Inc.,
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 hypotheticаl 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.,
The general rule is that in case of an injury of a permanent nature to real property, by the pollution of a stream, the proper measure of damages is the diminution of the market value by reason of that injury, or in other words, thedifference between the value of the land before the injury and its value after the injury. Where the pollution of a stream results in a temporary or nonpermanent injury to real property, the injured landowner can recover the depreciation in the rental or usable value of the property caused by the pollution.
Id. at 569,
Contrary to the plaintiffs’ assertions, the case of Threatt v. Brewer Mining Co.,
[Tjhis plaintiff is entitled to have the defendant to pay him damages for thus ruining, for the time, at any rate, his fertile bottoms. In the measure of the damages to the plaintiff for the injuries to his thirty-five acres of bottom lands, the jury should be limited, in ascertaining his damages, to the difference in the value of the lands from 8th May, 1890, to the date plaintiff brought his suit. But in the assessment of his damаges from having a tainted — bad smelling — deposit thrown upon his bottom lands and in his ditches, they (the jury) are not limited to the actual injury in the market value of those lands from 8th May, 1890, to the date, in May, 1893, when the suit was brought; but they may find a reasonable, just compensation by way of damages to the plaintiff for this matter. This deposit has a threefold injury — first, it destroys the fertility of the lands; second, by filling up the ditches, it causes water to stand upon other parts of the land; and, third, the deposits exhale noxious odors. For the first and second injuries, the verdictmust be limited to the depreciation in the market value caused by the deposits from 8th May, 1890, to May, 1893. As to the third, the jury must estimate in dollars and cents what the bad odors from these deposits, between the same dates, may have damaged the plaintiff, if any such damage has occurred.
Threatt,
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.
II. TRESPASS FROM INVISIBLE ODORS
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,
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,
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.,
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.,
It is quite possible that in an earlier day when science had not yet peered into the molecular and atomic world of small particles, the courts could not fit an invasion through unseen physical instrumentalities into the requirement that a trespass can result only from a direct invasion. But in this atomic age even the uneducated know the great and awful force contained in the atom and what it can do to a man’s property if it is released. In fact, the now famous equation E=mc2 has taught us that mass and energy are equivalents and that our concept of ‘things’ must be reframed.
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 plaintiffs 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.,
However, we find persuasive the Michigan Court of Appeals’ rejection of this divergent line of decisions in Adams v. Cleveland-Cliff's Iron Co. There, the court adhered to the dimensional test, holding that intangible invasions аre properly characterized as giving rise to nuisance or negligence actions and cannot give rise to a trespass action. Adams,
We acknowledge that the dimensional test is an imperfect rule. It does not сomport 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 tеst 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 becаuse 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.
III. MAXIMUM RECOVERABLE DAMAGES FOR TRESPASS OR NUISANCE
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 plaintiffs 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.
IV. NEGLIGENCE CAUSE OF ACTION FOR OFFENSIVE ODORS
The fourth question asks whеther a negligence cause of action may arise from a plaintiffs 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.,
Y. STANDARD OF CARE
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 plaintiffs property, must the standard of care for a landfill operator and breach thereof be estаblished 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,
CONCLUSION
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.
Notes
. The general concept of nuisance covers both public and private nuisances. Here, рlaintiffs asserted only a private nuisance claim, and herein, the term "nuisance" is used solely to connote a private nuisance.
. While trespass may mean any “unlawful act committed against the person or property of another,” and in that sense is the mother of all common law tort liability, we use it here in the form in which it is now generally used to mean an action to recover for an unlawful entry by another onto one’s real property. Black’s Law Dictionary 1541 (8th ed.1999); see also Charles O. Gregory, Trespass to Negligence to Absolute Liability, 37 Va. L. Rev. 359, 361 (1951) (explaining trespass’s role as the ancestor of modern torts). With the development of tort law over the intervening centuries, those other forms of trespass have become their own distinct causes of action with their own names.
. "Disseisin” is ”[t]he act of wrongfully depriving someone of the freehold possession of property.” Black's Law Dictionary 506 (8th ed.1999).
. Rather, over time the common law developed numerous causes of action — for example, battery and negligence — to permit a plaintiff to recover for harm to his person. Of course, a trespass or nuisance plaintiff also has those causes of action available to him to recover for harm to his person in addition to harm to his land.
. While rendered irrelevant by our holding herein, it is worth noting the Borland court explicitly stated that even after dispensing with the dimensional test and adopting the Martin rule, ''[t]he classic cases of the barking dog, the neighboring bawdy house, noise, smoke, fumes, or obnoxious odors generally invoke the doctrine of the law of nuisance,” rather than trespass, because "[tjhese intrusions do not typically result in any actionable damages to the Res; the injury caused by such acts usually results in a diminution of the use value of the property causally related to the harmful conduct made the basis of the claim.” Id. at 530 (emphasis added).