35 Nuisance

• Library: Elements of Civil Causes of Action (SCBar) (2015 Ed.)

35 Nuisance

A. Definition

Nuisance is anything which works hurt, inconvenience or damage.¹ It has been described as "the unlawful use of property causing material annoyance, discomfort or hurt to another person."² It is an unreasonable interference, which is continuous or has the potential to recur, with the use and enjoyment of the plaintiff's land by the defendant's conduct on his or her land.³ Nuisance and negligence may co-exist,⁴ and a lawful activity may be a nuisance if conducted negligently,⁵ but nuisance does not require negligence, and lack of due care need not be shown in a cause of action for nuisance.⁶ There is sometimes a distinction made between nuisance per se and nuisance per accidens.⁷ The former would be a nuisance no matter where or how conducted,⁸ and the latter is a nuisance because of its manner or location.⁹ Generally, a tort cause of action is for private nuisance.¹⁰ A private party may not sue for public nuisance unless there is an injury different in kind from that suffered by the general public.¹¹ The special or particular injury requirement needed for an individual to maintain a cause of action for public nuisance is satisfied only by injury to real or personal property, not personal injuries.¹² Nothing the law authorizes can be a public nuisance.¹³

Trespass should be distinguished from nuisance. Trespass is an intentional invasion of the plaintiff's interest in exclusive possession of his or her property.¹⁴

South Carolina recognizes the "common enemy" rule under which surface water is the common enemy of all landowners and a nuisance action will generally not lie for conduct that increases the flow of surface water to another's property.¹⁵ There are, however, exceptions to the rule, a discussion of which is beyond the scope of this chapter.¹⁶

A landlord cannot be held liable for a nuisance arising from use of his or her land when the landlord has no control over the property at the time of the alleged nuisance, but if the landowner maintains complete control of the leased property, he or she may be liable for the nuisance created by the use of the land.¹⁷

B. Elements

(1) unreasonable interference

(2) with use and enjoyment of land

(3) proximate causation of the interference by the defendant.

C. Elements Defined

1. Unreasonable Interference

Unreasonable interference is not determined by a test, but by the facts of each case.¹⁸In assessing the interference, courts have considered whether the alleged nuisance would upset an ordinary person,¹⁹ and the intent of the defendant.²⁰

2. With Use and Enjoyment of Land

A reduction in property value alone is not sufficient to constitute an actionable interference with the use and enjoyment of land,²¹ although it may be a relevant factor in determining that a nuisance exists.²² Odors²³ and dust and particles²⁴ have been considered nuisances as have interferences with mental comfort²⁵ or the physical health of people, plants and animals.²⁶

3. Proximate Causation of the Interference by the Defendant

For there to be an actionable nuisance a wrongful act by the defendant must be shown and the nuisance must be the natural and proximate cause of the plaintiff's injury.²⁷ The South Carolina Supreme Court has said:

Proximate cause requires proof of: (1) causation in fact and (2) legal cause.
Causation in fact is proved by establishing the injury would not have occurred "but for" the defendant's negligence. [citation omitted] Legal cause is proved by establishing foreseeability. [citation omitted] Although foreseeability of some injury from an act or omission is a prerequisite to establishing proximate cause, the plaintiff need not prove that the actor should have contemplated the particular event which occurred. The defendant may be held liable for anything which appears to have been a natural and probable consequence of his negligence. [citation omitted] A plaintiff, therefore, proves legal cause by establishing the injury in question occurred as a natural and probable consequence of the defendant's negligence.²⁸

Unless the evidence shows reasonable persons could not disagree, the question of proximate cause is one for the jury.²⁹

D. Defenses

Defenses to a nuisance action include prescription, assumption of the risk ("coming to the nuisance"), sovereign immunity, contributory negligence, the statute of limitations, and statutory protection for agricultural operations.

A nuisance action may be prevented if the defendant has acquired a prescriptive right to maintain the activity.³⁰

Assumption of the risk is a defense which is recognized in South Carolina in two forms: express assumption and implied assumption.³¹ Express assumption derives from an agreement to waive liability whereas implied assumption applies where the plaintiff voluntarily encounters a risk, understands and appreciates the nature and extent of a known danger created by the defendant, indicates a willingness to accept it, and freely and willingly exposes himself to it.³² A variation of the doctrine applied in nuisance cases is "coming to the nuisance."³³ A plaintiff is not barred from recovery by an implied assumption of the risk unless the degree of fault is greater than the negligence of the defendant.³⁴

The South Carolina Tort Claims Act³⁵ waives the immunity of the State, its agencies, political subdivisions, and governmental entities from liability in tort; however, nuisance actions are specifically excepted from the waiver.³⁶ It has been argued that a nuisance action can be transformed into an action for unconstitutional taking which is not barred by the Act or limited by its damages provisions.³⁷ Equitable relief, an injunction to prohibit unlawful activity, may still be available under the Act.³⁸

Contributory negligence may arguably, in some cases, be a defense to a nuisance action.³⁹Contributory negligence requires the defendant show the plaintiff was negligent⁴⁰ and that the negligence was the proximate cause of the injuries.⁴¹ South Carolina has substituted comparative negligence for contributory negligence. Under comparative negligence the plaintiff may recover if his or her negligence is not greater than the defendants, in which case the plaintiff's recovery is reduced in proportion to his or her negligence.⁴² Punitive damages, however, are not reduced by the proportion of the plaintiff's negligence under comparative negligence.⁴³

The statute of limitations may bar a nuisance action.⁴⁴ The applicable restriction provides a three-year limitation period.⁴⁵ Where there is a series of recurring injuries, each one begins a new limitation period,⁴⁶ or where the damage is permanent and entire from its start, the limitation begins at that time.⁴⁷ Although the statute of limitations may bar a nuisance action for damages, it is not a defense to an action based on nuisance for injunctive relief as statutes do not bar the equitable relief of injunction.⁴⁸

A number of statutes and administrative regulations concern agricultural facilities and nuisance. One statute provides that:

No established agricultural facility or any agricultural operation at an established agricultural facility is or may become a nuisance, private or public, by any changed conditions in or about the locality of the facility or operation. This section does not apply whenever a nuisance results from the negligent, improper, or illegal operation of an agricultural facility or operation.⁴⁹

Other statutes limit the above quoted statute in certain cases of pollution and flooding,⁵⁰ and restrict the ability of local governments to regulate agricultural facilities as nuisances.⁵¹ There is also a definition of nuisance in regulations concerning standards for the permitting of agricultural animal facilities,⁵² and, in another regulation, a list of actions or conditions that may constitute nuisances.⁵³

Another Act that limits nuisance actions is the "South Carolina Shooting Range Protection Act."⁵⁴ One section of the Act specifically addresses nuisance actions.⁵⁵ It generally prohibits a nuisance action against shooting ranges or the owners, operators, or users of them. However, when there is a substantial change in the use of a range after the would be plaintiff has acquired his or her property, a nuisance action may be maintained if brought within three years from the beginning of that substantial change.⁵⁶ Additionally, if someone owns property in the vicinity of a shooting range that was established after he or she acquired the property a nuisance action may be maintained for noise only if brought within five years after establishment of the range or three years after a substantial change in its use.⁵⁷ The statutory limitations assure property owners may not move to an area where a shooting range has been established and then bring a nuisance claim.⁵⁸

E. Remedies

Damages, actual and punitive⁵⁹ as well as injunction are remedies for nuisance. Where nuisance is shown, at least nominal damages may be recovered.⁶⁰ Where the damage is nominal, a mandatory injunction is an abuse of discretion except in highly unusual circumstances.⁶¹ Injunctive relief may only be had against a threatened or anticipated nuisance where it appears a nuisance will inevitably or necessarily result from the act or thing against which injunction is sought.⁶²

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Notes:

^[1] Neal v. Darby, 282 S.C. 277, 318 S.E.2d 18, 23 (Ct. App. 1984); Lever v. Wilder Mobile Homes, Inc., 283 S.C. 452, 322 S.E.2d 692, 693-4 (Ct. App. 1984). See generally, Wyche, A Guide to the Common Law of Nuisance in South Carolina, 45 S.C. L. Rev. 337 (1994).

^[2] Green v. Blanton, 294 S.C. 14, 362 S.E.2d 179, 181 n. 2 (Ct. App. 1987).

^[3] See Neal v. Darby, 282 S.C. 277, 318 S.E.2d 18 (Ct. App. 1984); Lever v. Wilder Mobile Homes, Inc., 283 S.C. 452, 322 S.E.2d 692 (Ct. App. 1984); Bowlin v. George, 239 S.C. 429, 123 S.E.2d 528 (1962); Strong v. Winn-Dixie Stores, Inc., 240 S.C. 244, 125 S.E.2d 628 (1962); Deason v. Southern Ry., 142 S.C. 328, 140 S.E. 575 (1927); Ravan v....