A. Nuisance

• Library: The South Carolina Law of Torts (SCBar) (2023 Ed.)

A. Nuisance

1. Nature and Elements of the Cause of Action in Nuisance

A private nuisance exists when the defendant's conduct results in an "unreasonable interference" with the plaintiff's use and enjoyment of land,² which interference is continuous or at least potentially recurring.³ "Stated another way, "'[a] private nuisance is anything done to the hurt or annoyance of the lands, tenements, or hereditaments of another. It produces damage to [ ] one or two persons, and cannot be said to be public.'"⁴ "Generally, a private nuisance is that class of wrongs that arises from the unreasonable, unwarrantable, or unlawful use by a person of his own property, personal or real."⁵

a. Use and Enjoyment of Land

The types of interests involved in the "use and enjoyment" of land include the following:⁶

(1) mental tranquility;⁷

(2) a "reasonable" noise level;⁸

(3) air that is free from excessive dust and particles⁹ and from excessive odors;¹⁰

(4) flooding;¹¹ and

(5) physical health, both of humans and of plants and livestock.¹²

Merely suffering a reduction in property value is not, by itself, an interest protected by nuisance doctrine.¹³

b. "Unreasonable Interference"

No single test determines whether "unreasonable interference" is involved.¹⁴ However, the following factors are relevant to the determination:¹⁵

(1) whether the interference is "substantial";¹⁶

(2) whether an "ordinary" person would be upset by the interference;¹⁷

(3) the nature and social value of the activity;¹⁸

(4) the manner of conducting the activity;¹⁹

(5) the appropriateness of the activity to the location involved;²⁰ and

(6) the "intent" of the defendant.²¹

c. Causation and Responsibility

Plaintiffs must show that the defendant's activities caused the unreasonable interference with the use and enjoyment of land.²² When expert testimony is used to satisfy this required showing, the testimony must satisfy the "most probably rule,"²³ which requires the expert to testify that the interference most probably resulted from the defendant's activities.²⁴

When a defendant who is not an owner or occupier "participates" in the activity, or otherwise controls the use of the land that causes the interference, the defendant can be held liable for foreseeable interference.²⁵

d. Comparison with Other Doctrines

The concept of "unreasonable interference" should not be confused with the concept of "unreasonable conduct" used in negligence analysis. Although there is some overlap in analysis, the overlap is only partial.²⁶

An example of similarity between the two doctrinal approaches is that the relative costs of injury to the plaintiff and of the prevention of that injury are relevant both to nuisance and negligence.²⁷ Thus, a lawful activity may become a nuisance if it is conducted negligently. ²⁸ It should be noted that when a nuisance involves negligence, that negligence may be an additional basis of liability under some circumstances.²⁹

Other important differences exist between nuisance law and the negligence doctrine. A nuisance may exist when no negligence is involved because lack of due care is not essential to a cause of action for a nuisance.³⁰ Similarly, a plaintiff may have a cause of action for negligence but not for nuisance; for example, the interference with use and enjoyment may result in a single instance of damage³¹ or because a public nuisance is involved.³² Finally, the remedies³³ and defenses³⁴ for the respective torts are significantly different in a number of respects.

Liability for nuisance should also be distinguished from liability for trespass and from liability for abnormally dangerous activities. Trespass is similar to nuisance in that both involve liability for harm in relation to property even though the defendant may not have engaged in negligent or intentional conduct.³⁵ At the same time, however, trespass is different from nuisance in that trespass protects the right to exclusive possession of land rather than its use and enjoyment.³⁶ The requirements for an activity to be categorized as abnormally dangerous³⁷ are different from the factors relevant to whether an activity is unreasonable in terms of nuisance doctrine. Moreover, the interests protected³⁸ and the remedies available³⁹ for the two approaches to tort liability are somewhat different. However, the same conduct could be both a nuisance and an abnormally dangerous activity in certain situations.⁴⁰

Nuisance law also overlaps with several other areas of the law. First, rights defined by property law can affect land use in a number of important ways. For example, conflicts between uses of land may be regulated by deed restrictions.⁴¹ Second, constitutional doctrine may be important because an interference with property rights can involve the right granted by the Fifth Amendment to the United States Constitution and Article I, Section 13 of the South Carolina Constitution that private property will not be "taken" for public use without just compensation. Thus, for example, an owner may sue a governmental entity for a continuous nuisance caused by an affirmative act on a "taking theory" regardless of sovereign immunity.⁴² Similarly, an attempt by a city administrator to prohibit conduct that is neither a nuisance nor otherwise unlawful could be a denial of a right, requiring compensation.⁴³ This constitutional approach is important because the South Carolina Tort Claims Act specifically provides that a governmental entity is not liable for a loss resulting from a nuisance,⁴⁴ although the Act also provides that a governmental entity could be enjoined from continuing an unlawful nuisance although it could not be liable for damages in tort.⁴⁵ Third, the concern of nuisance law with reasonable use of land results in its overlap with zoning restrictions.⁴⁶ Although zoning is not necessarily determinative of a nuisance issue, it will always be important, particularly where the plaintiff challenges the location of the activity rather than the manner of its operation.⁴⁷ Finally, nuisance law overlaps on occasion with statutory environmental schemes. Such schemes are relevant to the reasonableness of conduct but are not necessarily determinative unless the legislation is meant to preempt the field.⁴⁸

2. Types of Nuisance

Some cases distinguish nuisances per se from nuisances per accidens.⁴⁹A nuisance per se is an activity that would be a nuisance wherever and however it is conducted:⁵⁰ for example, stagnant water where mosquitoes breed could be "dangerous at all times and under all circumstances to life, health or property."⁵¹ A nuisance per accidens is a nuisance only because of the manner or location in which it is conducted: for example, "like a pig in the parlor instead of the barnyard."⁵² This type of nuisance requires a case-by-case analysis of the circumstances unique to a given situation.

It is also common to distinguish "private nuisances" from "public nuisances."⁵³ The interests protected by public nuisance doctrine are defined more broadly⁵⁴ and include, for example, conduct like lewdness, which is offensive to public morality.⁵⁵ In addition, a public nuisance is involved where the effect on use and enjoyment of land is on the public generally.⁵⁶ Determining whether such a public effect exists is often difficult. A large number of people need not be affected because the cases indicate that the number of persons affected is not crucial as long as the nuisance occurs in a public place and generally annoys anyone who encounters it.⁵⁷ At the same time, the nuisance is not necessarily public even though many people are affected.⁵⁸ Public nuisances will not be addressed herein except insofar as a private party may sue for a remedy for that nuisance.

The right of private parties to sue for a public nuisance is limited because (1) the injury to any particular person is usually minor; (2) this limitation prevents a multiplicity of suits; and (3) discretion to sue should lie in the hands of public officials.⁵⁹ As a result of these concerns, a private party may not sue for nuisance (as opposed to some other theory of recovery)⁶⁰ when a public nuisance is involved unless he suffers an injury that is different in kind, not just in degree, from the public at large.⁶¹ When the nuisance involved is clearly a private rather than (or as well as) a public nuisance, the plaintiff is not required to plead any sort of unique injury.⁶²

The case of Carnival Corp. v. Historic Ansonborough Neighborhood Association,⁶³illustrates the difficulty in bringing a private action based on public nuisance. In that case, the plaintiff citizens groups brought nuisance and zoning claims in the S.C. Supreme Court's original jurisdiction, seeking injunction against defendant cruise ship operator for activities in and around the city terminal in the historic district. The S.C. Supreme Court dismissed the case, finding that the groups lacked standing. The plaintiffs claimed that the ship disrupted historic skyline, emitted noise pollution, passengers caused traffic congestion, and other problems, thus creating inter alia a public nuisance, private nuisance, violation of city ordinances regarding permissible use, and State Pollution Control Act.

After dismissing various ordinance claims, the court withheld ruling on other claims to consider issues of standing, preemption and whether zoning ordinances apply to ship's use of terminal. The court ordered dismissal of the complaint in its entirety on lack of standing, as the plaintiffs alleged only generalized grievances suffered by the public as a whole and failed to allege a concrete particularized harm—one affecting the plaintiff in a personal and individual way—to a legally protected interest.⁶⁴ As to associational standing, neither the claim asserted nor the relief requested required participation of individual members in the lawsuit.⁶⁵ As to the public importance exception to lack of standing, the grant of original jurisdiction of expeditious handling...