United States: North Carolina General Assembly Limits Nuisance Damages Against Agricultural And Forestry Operations

An Act that was recently passed by the General Assembly has limited the damages private parties can recover against agricultural or forestry operations in civil actions for nuisance claims.

In Session Law 2017-11, the General Assembly added a new section to Article 57 of Chapter 106 of the General Statutes entitled "An Act to Clarify the Remedies Available in Private Nuisance Actions Against Agricultural and Forestry Operations" (the "Act"). The Act specifies the measure of compensatory damages for a nuisance claim based upon the nature of the nuisance (permanent or temporary) and sets limits which are tied to property value.

If the nuisance is classified as permanent and cannot be abated, damages are calculated by the reduction in the fair market value of the claimant's property caused by the nuisance. The Act limits the damages recoverable for a permanent nuisance to the fair market value of the claimant's property. If the nuisance is classified as a temporary nuisance that can be abated, damages are calculated by and limited to the diminution of the fair rental value of the claimant's property caused by the nuisance.

The Act also places limits on subsequent claims by nuisance claimants. It prohibits a previously successful nuisance claimant or his successors from obtaining a subsequent recovery that, when combined with the prior recovery, would exceed the fair market value of the property. This limitation applies regardless of whether the subsequent action was brought against a different defendant than in the prior action.

Parties in a contractual or business relationship with an agricultural or forestry operation are also protected by the new limitations imposed by the Act. Thus, businesses who are working with farming or timber operations could utilize the protections as well.

Tort claims for nuisance are the only cause of action limited by the Act. Claims based upon negligence, trespass, personal injury, strict liability, or other cause of action for tort liability other than nuisance, are exempted from the Act's terms along with requests for injunctive relief and punitive damage claims.

Causes of action filed on or after May 11, 2017 are covered by the Act. Any civil actions containing a nuisance claim which were filed prior to May 11, 2017 are not affected. The initial version of the Act would have applied to pending cases, but it was amended prior to passage after objections were raised regarding the impact on pending cases.

The primary impact of the Act is the elimination of recovery for annoyance, discomfort, fear, anxiety, stress, mental anguish, and other non-economic harms in nuisance claims. Instead, claimants could only recover damages based upon either a diminution in fair market value of real property (permanent nuisance) or diminution in fair rental value of real property (temporary nuisance).

Despite the new limitations on damages for nuisance claims, claimants can still recover damages for annoyance, discomfort and other non-economic injuries caused by agricultural and forestry operations, but must now utilize a trespass claim or other torts. North Carolina courts have recognized the recovery of non-economic damages for trespass in a number of settings. For example, the North Carolina Supreme Court allowed recovery for insult, humiliation, and anguish from unauthorized entry onto land in an attempt to seduce plaintiff's spouse in Brame v. Clark, 62 S.E. 418, 419 (1908), and damages for embarrassment, humiliation and mental anguish resulting from defendant's trespass and desecration of a spouse's grave in Matthews v. Forrest, 69 S.E.2d 553, 556 (1952).

Further, the North Carolina Court of Appeals has recently relied on and favorably cited the Restatement (Second) of Torts in BSK Enterprises, Inc. v. Beroth Oil Company, 783 S.E.2d 236 (N.C. Ct. App. 2016) to determine the appropriate measure of damages for damage to real property. The Court cited the Restatement (Second) of Torts § 929 which contains the following comment, "Discomfort and annoyance to an occupant of the land and to the members of the household are distinct grounds of compensation for which in ordinary cases the person in possession is allowed to recover in addition to the harm in his proprietary interests."

Claimants can still recover non-economic aggravation damages against agricultural or forestry operations based upon a negligence claim, as well. Iadanza v. Harper, 611 S.E.2d 217, 221 (N.C. Ct. App. 2005) ("If plaintiffs prove their claim of negligence at trial, they would be entitled to all damages which proximately flow from this negligence including all physical and mental injuries and pain and suffering. As to the element of damages for pain and suffering: Pain and suffering damages are intended to redress a wide array of injuries resulting from physical pain to anxiety, depression, and the resulting adverse impact upon the injured party's lifestyle.")(internal quotations and citations omitted)(emphasis added).

Going forward, the Act's limits on nuisance actions and emphasis on property valuation will increase litigants' reliance and focus on expert witnesses for appraisals of property value. Selection of a properly qualified appraiser who utilizes the appropriate standards and methodology will be even more important. Further still, the Act's changes will almost certainly lead claimants to develop more creative and enterprising theories for other tort claims, particularly trespass. In addition, courts will probably be called upon to sort out confusion over the Act's vague limitation of damages on subsequent nuisance claims and the appropriate measure of the fair market value of the claimant's property.

Gavin Parsons is a partner in the Raleigh office of Troutman Sanders LLP, and regularly represents clients in all state and federal courts across North Carolina and adjoining states in a variety of industries.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.