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. Federal law may preempt a nuisance action.31
A nuisance action may be prevented if the defendant has acquired a prescriptive right to maintain the activity.32
Assumption of the risk is a defense which is recognized in South Carolina in two forms: express assumption and implied assumption.33 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.34 A variation of the doctrine applied in nuisance cases is "coming to the nuisance."35 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.36
The South Carolina Tort Claims Act37 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.38 Thus, a governmental entity is not liable for a loss resulting from a nuisance, but apparently nothing in Act would prohibit and action seeking an injunction to abate a nuisance.39 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.40 Equitable relief, an injunction to prohibit unlawful activity, may still be available under the Act.41
Contributory negligence may arguably, in some cases, be a defense to a nuisance action.42 Contributory negligence requires the defendant show the plaintiff was negligent43 and that the negligence was the proximate cause of the injuries.44 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.45 Punitive damages, however, are not reduced by the proportion of the plaintiff's negligence under comparative negligence.46
The statute of limitations may bar a nuisance action.47 The applicable restriction provides a three-year limitation period.48 Where there is a series of recurring injuries, each one begins a new limitation period,49 or where the damage is permanent and entire from its start, the limitation begins at that time.50 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.51
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.52
Other statutes limit the above quoted statute in certain cases of pollution and flooding,53 and restrict the ability of local governments to regulate agricultural facilities as nuisances.54 There is also a definition of nuisance in regulations concerning standards for the permitting of agricultural animal facilities.55
Another Act that limits nuisance actions is the "South Carolina Shooting Range Protection Act."56 One section of the Act specifically addresses nuisance actions.57 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.58 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.59 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.60
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Notes:
[31] See, e.g., Funderburk v. S.C. Elec. & Gas Co., 406 F. Supp. 3d 527 (D.S.C. 2019) (federal Interstate Commerce Commission Termination Act preempted nuisance action).
[32] Conestee Mills v. City of Greenville, 160 S.C. 10, 158 S.E. 113 (1931).
[33] There are four requirements to establishing the defense: "(1) the plaintiff must have knowledge of the facts constituting a dangerous condition; (2) the plaintiff must know the condition is...
