CASE STUDY

Phantom Midges Cause Real Damage

BACKGROUND

The problem, in this case, was an unusual one. Every year between spring and fall for a full 15 years, the swarm of flying insects would come. Called phantom midges, they would descend upon the homes of three neighbors living in Florence County—the Pigates, the Wilsons and Ms. McNeil—making it impossible for them to use and enjoy their homes. Blown by the prevailing winds or flying on their own accord, the midges would overtake the homes’ walls and get inside through crevices in the doors and windows. After repeated attempts to get the town to address the problem, the Pigates, Wilsons and Ms. McNeil engaged Richard D. Bybee to bring the inverse condemnation claim on their behalf.

CHALLENGES

Inverse condemnation claims are self-executing, constitutional ones based on the premise that a governmental body cannot take or cause damage to real property without the payment of just compensation. The claims are typically made in instances of flooding caused by the damning of surface waters or the collection and casting of surface waters from roads onto adjacent property. The elements of the cause of action include affirmative acts on the part of the government and resulting damage to real property. Once the damage is inflicted a property owner is entitled to bring an action against the government affirmatively causing the damage, without a formal condemnation action being filed by the government. The application of the legal theory to the facts in this case was novel and unique, but the damage and loss of the use and enjoyment of the property were real and compelling.

STRATEGY

The homeowners’ claims were premised upon the continuing invasion of flying insects called phantom midges. The insects were breeding in the Timmonsville Wastewater Treatment Plant, which was built after each of the residents had established their homes. Evidence introduced at trial showed that, contrary to the Town’s long-held position, the Wastewater Treatment plant was the source of the midge and that the midges in the homeowner’s yards were of the same genus of midge.

RESULTS

It took the jury less than two hours, including lunch, to render the verdict after a five day trial. The court and jury were persuaded that the continued operation of the plant over such a long period of time was an affirmative act causing damage. The Pigates, Wilsons and Ms. McNeil were awarded almost $600,000 for diminution in their homes’ property value in this unusual inverse condemnation claim.

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