In a previous post I discussed HB 467, a bill that would limit nuisance damages in claims against agricultural and forestry operations. One of my complaints was the fact that the proposed limits would apply to pending litigation. Since then, the bill has been changed so that it only applies to future litigation, which is certainly an improvement, but I still have some concerns.

Tort litigation abuse—including the kind of mass tort litigation we see in the swine farm nuisance cases—is a real problem, and it’s one the General Assembly should address. But it should be addressed carefully, systematically, and in a manner that fully respects the rights of North Carolina property owners. The Manhattan Institute and others have been working on the problem for some time, and there’s a lot of information out there that could guide the GA. (See, e.g., this recent MI report.)

Instead of making an ad hoc response to a specific instance of mass tort abuse the way HB 467 does, legislators could consider procedural reforms like, for example, a “loser pays” rule, that would protect businesses from abusive litigation without compromising common law property rights. It should also be noted that, while the legislature can, if it wishes, override the common law, the right to the quiet enjoyment of one’s property is, arguably, guaranteed by the Law of the Land clause of the NC Constitution. It’s far from clear that limits on damages like the ones proposed in HB 467 would withstand a constitutional challenge. (For further discussion, see this Legal Update.)

In addition to concerns about protecting property rights under the common law and the NC Constitution, there appears to be a need for clarification about the impact of HB 467 limits on damages when it comes to seasonal, recurring nuisances. If damages are limited to the reduction in fair rental value, does the bill contemplate that damages will be calculated to include recurring losses incurred indefinitely into the future? If not, doesn’t this imply that the landowner must make recurring claims? And, in that case, why should succeeding owners be barred from recovery as they appear to be by the language at 1(b)?

Regardless of the answers to these questions, the larger point remains. It’s important to protect agricultural businesses—and, indeed, all businesses—from abusive tort claims. However, we must—and we can—provide that protection without violating North Carolinians’ fundamental property rights.