THE STATE OF SOUTH CAROLINA 

In The Supreme Court 

Clint A. Chestnut, Rebatt Frankie Jefford, Mary Lou 

Nance, Margaret Ramsey, Nicholas Ramsey, Harold 

Cushman, Julia Edwards, Don Emery, Eula Cooke, and 

Glenda Rabon Harper, Individually, and as Class 

Representatives, Appellants, 

v. 

AVX Corporation, Respondent. 

Appellate Case No. 2012-212143 

Appeal from Horry County 

Benjamin H. Culbertson, Circuit Court Judge 

Opinion No. 27557 

Heard January 23, 2014 – Filed August 5, 2015 

AFFIRMED IN PART; REVERSED IN PART 

Gene McCain Connell, Jr., and Lawrence Sidney 

Connor, IV, both of Kelaher Connell & Connor, PC, 

of Surfside Beach, for Appellants. 

Samuel W. Outten, of Womble Carlyle Sandridge 

and Rice, LLP, of Greenville, Richard E. Morton, 

Brad A. DeVore and Todd Billmire, all of Womble 

Carlyle Sandridge and Rice, LLP, of Charlotte, North 

Carolina, and Evan Slavitt, of Myrtle Beach, for 

Respondent. 
 

JUSTICE PLEICONES: This is an appeal from an order granting respondent's 

Rule 12(b)(6), SCRCP, motion, and dismissing appellants' claims for trespass, 

nuisance, negligence, and strict liability. Appellants contend on appeal that the 

court erred in dismissing the nuisance, negligence, and strict liability claims.1 We 

affirm the circuit court's dismissal of appellants' nuisance and strict liability causes 

of action, but reverse the dismissal of the negligence claim. 

FACTS 

Respondent manufactures electronic parts at a plant in North Myrtle Beach, South 

Carolina. In 1980, respondent began using a chemical called trichloroethylene 

(TCE)2

 as a degreaser to clean machine tools and parts. At some point, TCE 

escaped respondent's plant and migrated beyond the boundaries of respondent's 

property, contaminating surrounding properties and groundwater. 

In December 1996, respondent entered into a consent order with the South 

Carolina Department of Health and Environmental Control (DHEC), in which 

respondent admitted that it had violated certain state environmental statutes and 

regulations. DHEC required respondent to implement a plan to clean up the TCE. 

In 2007, environmental testing performed in a ten block section north of 

respondent's plant showed levels of TCE greater than considered safe. 

On November 27, 2007, a group of residents who own real property near 

respondent's plant filed suit alleging causes of action for trespass, nuisance, 

negligence, and strict liability. The residents brought the suit both individually and 

as class representatives pursuant to Rule 23, SCRCP. 

The complaint describes two subclasses within the general class definition. 

Subclass A includes "all persons, partnerships, [or] corporations who own real 

property in the area defined in paragraph 15 and whose property is contaminated 

by chemicals which have escaped or have been spilled and left [respondent's] plant 

property." Subclass B includes: 

1 They do not appeal the dismissal of their trespass claim. 

2 The Environmental Protection Agency has designated TCE as a volatile organic 

compound. Because TCE is slightly heavier than water, it is difficult to extract if 

spilled into the ground. 
all persons partnerships or corporations who own real property 

in the areas defined in paragraph 15 of the Complaint but are 

not contaminated; however these properties adjoin the 

contaminated area and are in such close proximity that the real 

property value has been affected or devalued by the chemical 

release at [respondent's] plant. 

(Emphasis supplied). 

Appellants are Subclass B individuals. 

The circuit court granted respondent's Rule 12(b)(6) motion and dismissed 

appellants' claims with prejudice. In dismissing appellants' trespass, negligence, 

and strict liability claims, the circuit court stated that such claims "cannot be 

maintained when there is no evidence that alleged contamination has physically 

impacted [appellants'] properties." Further, with respect to appellants' nuisance 

claim, the circuit court noted that a claimant must plead an unreasonable 

interference with the use and enjoyment of his or her property in order to state a 

claim for nuisance. Therefore, the circuit court found that because their properties 

are not contaminated, appellants' allegations did not state a claim for nuisance. 

Appellants appealed. 

ISSUE 

Did the circuit court err in dismissing appellants' nuisance, 

negligence, and strict liability claims? 

ANALYSIS 

On appeal from the grant of a Rule 12(b)(6) motion, we are concerned only with 

whether the allegations of the complaint, which we must accept as true, state a 

cause of action. E.g., Doe v. Bishop of Charleston, 407 S.C. 128, 754 S.E.2d 494 

(2014). Further, novel questions of law should not ordinarily be resolved on a 

Rule 12(b)(6) motion. E.g., Madison v. Am. Home Prod. Corp., 358 S.C. 449, 595 

S.E.2d 493 (2004). Finally, this Court can affirm a lower court's order for any 

reason appearing in the record. Rule 220(c), SCACR. 
 

 

We affirm the circuit court's dismissal of both appellants' nuisance and strict 

liability claims because the complaint alleges actual contamination of the property 

in pleading both of these causes of action. Since each of these claims was pled 

only on behalf of the Subclass A plaintiffs and not on behalf of appellants, we 

uphold the circuit court's dismissal of these two causes of action pursuant to Rule 

220(c), SCACR. As explained below, however, we find the complaint sufficiently 

pleads a negligence cause of action on behalf of appellants, and therefore reverse 

the dismissal of this claim. 

In Babb v. Lee County Landfill S.C., LLC, 405 S.C. 129, 747 S.E.2d 468 (2013), 

we held a plaintiff could maintain an environmental negligence suit based upon 

offensive odors if the complaint alleged either "physical injury [to the plaintiff] or 

property damage." Id. at 153, 747 S.E.2d at 481. Here, appellants have pled all 

four elements of a negligence claim: duty, breach, proximate cause, and damages. 

In alleging damages, appellants contend that their property is "worthless," 

"damaged," and "devalued" by the "harmful" and "dangerous" chemicals on the 

real property that adjoins their properties. This pleading raises the novel question3 

whether South Carolina will recognize "stigma damages." We reverse the circuit 

court's dismissal under Rule 12(b)(6), SCRCP, because this case raises a novel 

question of law. Madison v. Am. Home Prod. Corp., 358 S.C. at 451, 595 S.E.2d 

at 494. 

Further development of the facts may demonstrate that appellants' property has in 

fact lost value due to its proximity to the property contaminated by TCE, or that 

the contamination has been remediated and the alleged stigma ameliorated. The 

creation of a factual record will allow us to decide whether to adopt a "no stigma 

damages rule;" an "all stigma damages rule;" or a modified rule. See Diminished 

Property Value Due to Environmental Contamination, 33 Am. Jur. 3d Proof of 

Facts § 163 (1995 and Supp. 2014) (explaining the differing approaches to stigma 

damages). 

3 Compare Gray v. Southern Facilities, Inc., 256 S.C. 558, 183 S.E.2d 438 (1971) 

(holding that appellant failed to prove that the stigma damages to his real property 

were attributable to the single act of the named defendant and therefore does not 

decide whether we will allow recovery for this type of property damage). 
CONCLUSION 

For the reasons given above, the circuit court's order is 

AFFIRMED IN PART AND REVERSED IN PART. 

BEATTY and HEARN, JJ., concur. TOAL, C.J., concurring in part and 

dissenting in part in a separate opinion in which KITTREDGE, J., concurs. 
 

 

 

CHIEF JUSTICE TOAL: I respectfully concur in part, and dissent in part. 

While I concur in the majority's decision to affirm the circuit court's dismissal of 

Appellants' claims for nuisance and strict liability, I would also affirm the 

dismissal of Appellants' negligence claim. 

I. Negligence, Strict Liability, and Nuisance Claims 

Appellants appeal the circuit court's dismissal of their negligence, strict 

liability, and nuisance claims. Despite the distinctions between these three causes 

of action, when applied to cases involving environmental contamination, each is 

defined by—and requires—a common element: actual damage or injury caused by 

the source of contamination. See Babb v. Lee Cnty. Landfill SC, L.L.C., 405 S.C. 

129, 145, 153, 747 S.E.2d 468, 476, 481 (2013) (stating that a negligence claim 

"requires a plaintiff to establish physical injury or property damage," and that 

"recovery under a nuisance claim requires proof of actual and substantial injury by 

demonstrating that the defendant unreasonably interfered with his ownership or 

possession of land"); Clark v. Greenville Cnty., 313 S.C. 205, 437 S.E.2d 117 

(1993) (dismissing property owners' negligence and strict liability claims because 

there was no evidence of damages caused by the contamination). 

As to Appellants' negligence and strict liability claims, I would affirm the 

dismissal of both claims because Appellants did not allege facts indicating that 

their properties are either actually damaged,4

 or contaminated by TCE—a fact 

which Appellants concede. See Babb, 405 S.C. at 145, 747 S.E.2d at 476. Further, 

I agree with the majority's decision to affirm the dismissal of Appellants' 

nuisance claim, because Appellants failed to allege actual injury which interfered 

with the ownership of their properties.5 See id. at 153, 747 S.E.2d at 481. 

4

 The majority states that Appellants' negligence claim should survive because 

Appellants assert claims that their properties are "worthless," unable to be sold, and 

that their property has been "devalued" because of the nearby contamination. I 

view these assertions as relative to Appellants' stigma damages argument and as 

discussed, infra, South Carolina has not adopted stigma damages. 

5

 Appellants assert they "have shown that by owning adjoining property to 

contaminated property their enjoyment of their property has been affected." 

However, Appellants do not identify how the contamination has interfered with the 

use and enjoyment of their properties. Ravan v. Greenville Cnty., 315 S.C. 447, 

464, 434 S.E.2d 296, 306 (Ct. App. 1993) ("[A] nuisance [cause of action requires] 

a substantial and unreasonable interference with the plaintiff's use and enjoyment 
 

 

Into the equation, Appellants have introduced the concept of stigma damages 

as a possible vehicle for their recovery. However, as discussed below, this Court 

has not yet recognized stigma damages in South Carolina and I would decline to do 

so here. 

II. Stigma Damages 

Despite the lack of contamination on Appellants' properties, they claim that 

their properties are in such close proximity to the contaminated area that their 

property values have been "affected or devalued." Based on this allegation, they 

argue that this Court should recognize stigma damages. In the environmental 

context, stigma damages are defined as: 

the negative perceptions associated with property that is 

contaminated, that was once contaminated or that lies in proximity to 

contaminated or previously contaminated property. Stigma represents 

a loss in value apart from the cost of curing the contamination itself, 

and it can be based upon actual or perceived risks or fear, such as 

"possible public liability," "fear of additional health hazards" and 

"simple fear of the unknown." Additionally, stigma is based upon 

perceptions about risks and liabilities associated with owning, or 

holding property interests in, contaminated property. The perceptions 

on which society bases the stigma need not be reasonable or 

substantiated. 

E. Jean Johnson, Environmental Stigma Damages: Speculative Damages in 

Environmental Tort Cases, 15 UCLA J. Envtl. L. & Pol'y 185, 185 (1997) (internal 

footnotes omitted). Thus, stigma damages are not damages for actual physical 

contamination, but for negative perceptions associated with the contamination. Id. 

[of his property]."). Appellants do not allege, for instance, that the contamination 

prevents them from using their properties in any particular way, affects their dayto-day enjoyment of their properties, or interferes with their health. Instead, 

Appellants merely contend that because their properties are located in close 

proximity to the contamination, TCE has "affected" the enjoyment of their 

property. 
 

Some jurisdictions recognize stigma damages in limited circumstances;6 however, 

this Court has not permitted the recovery of stigma damages. 

Gray v. Southern Facilities, Inc., 256 S.C. 558, 183 S.E.2d 438 (1971), is 

the only South Carolina case that directly acknowledges stigma damages, albeit 

generally. See 256 S.C. at 567–71, 183 S.E.2d at 442–44. In Gray, the appellant 

alleged that a nearby fire caused his property to depreciate, even though the fire did 

not physically damage the property. Id. at 568, 183 S.E.2d at 443. The basis of the 

appellant's claim for damages was "predicated upon an asserted diminution in 

market value resulting, not from any physical injury, but from a psychological 

factor, in that prospective buyers allegedly would be reluctant to purchase the 

property due to the fear of a similar occurrence in the future." Id. at 569, 183 

S.E.2d at 443. This Court noted that "'injury to the reputation of . . . property has 

been held not to be a proper element of damages,'" but acknowledged that no 

general or firmly established rule had been developed at that point. Id. (quoting 22 

Am. Jur. 2d Damages § 136). 

Ultimately, this Court held that the appellant in Gray could not recover 

because his evidence as to the diminution of market value was speculative. Id. at 

571, 183 S.E.2d at 444. Therefore, the Court found it unnecessary to decide 

whether or not, or under what circumstances, stigma damages might be recovered. 

Id. at 570, 183 S.E.2d at 443. 

Like the appellant in Gray, Appellants pled no physical damage to their 

properties, but instead present speculative claims of a diminution in market value 

and damages to the reputation of their properties that may be realized if Appellants 

ever attempt to sell their properties. See id. at 571, 183 S.E.2d at 444. For 

example, in their complaint, Appellants state that because of the nearby TCE 

contamination, they are "unable to sell their homes/real property," "their property 

has now become distressed property," and their property has been devalued. 

Due to the speculative nature of their claims, Appellants have provided no 

reason for the Court to depart from the requirement of actual damage in claims 

involving environmental contamination. Although the majority defers a discussion 

6 See, e.g., In re Paoli R.R. Yard PCB Litig., 113 F.3d 444, 463 (3d Cir. 1997); 

Adams v. Star Enter., 51 F.3d 417, 424 (4th Cir. 1995) (applying Virginia law); 

Mercer v. Rockwell Int'l Corp., 24 F. Supp. 2d 735, 744–45 (W.D. Ky. 1998); 

Walker Drug Co. v. La Sol Oil Co., 972 P.2d 1238, 1246 (Utah 1998). 
 

on whether to adopt the doctrine of stigma damages under further factual 

developments, I would hereby decline Appellants' request to adopt stigma damages 

in any form as an appropriate measure of damages in South Carolina. 

III. Conclusion 

In sum, my conclusion is rooted in the simple fact that Appellants' properties 

have not been damaged by any contamination. The only injury Appellants allege 

in their complaint is the possible devaluation of their properties, i.e., stigma 

damages, which I would decline to recognize as a sufficient allegation of damages 

in South Carolina for purposes of negligence, strict liability, or nuisance claims. 

Therefore, I would affirm the circuit court's dismissal of Appellants' nuisance and 

strict liability claims, as well as the dismissal of Appellants' negligence claim. 

KITTREDGE, J., concurs.