Ark. Farmers May Smell Trouble From N. Carolina Lawsuit

August 28, 2018


By Robert W. George

Arkansas’ Right-to-Farm statute, first adopted in 1985 and last amended in 2005, is generally believed to protect farmers, especially poultry and swine farmers, from lawsuits by neighbors seeking damages for the sounds, sights and smells naturally produced from confined animal feeding operations (CAFO.) 

However, the Arkansas Legislature may need to consider revisiting and possibly amending our Right-to-Farm law in light of the $473 Million verdict delivered against Smithfield Foods by a jury in a recently completed trial in federal court in North Carolina. That case involved complaints by six North Carolina residents challenging allegedly offensive odors emitted from farms where Smithfield hogs were raised. Because North Carolina has enforceable caps on punitive damage awards, the payout from this case should be reduced to around $94 Million — still a large sum, particularly in light of the fact that there are 25 more cases pending against Smithfield in the same courthouse involving residents represented by the same lawyers.  

Why should Arkansas agricultural producers care about Smithfield’s misfortune in North Carolina? Because that verdict is, to a large degree, the result of a legal ruling which lawyers could argue exposes a gap in our state’s Right-to-Farm law. The federal judge presiding over the Smithfield case ruled that North Carolina’s statute did not shield Smithfield from liability because that law only applied to claims that a farm became a nuisance due to changes in the surrounding area after the farm was built. The court reasoned that the statute only protected farmers from nuisance claims arising from the encroachment of urban areas on traditionally agricultural communities. Based on the language of North Carolina’s statute, the judge ruled that farmers were protected from suits by residents moving into newly constructed homes built on nearby pastures converted into subdivisions but not from lawsuits by neighbors living in homes that were already there when the farm was built.  

The language of Arkansas’ Right-to-Farm statute, codified at Arkansas Code Annotated § 2-4-107, is similar to the North Carolina statute considered by the judge in the Smithfield case. And, to make matters worse, our legislature’s attempt to place caps on punitive damages similar to the ones under which the North Carolina verdict against Smithfield will be greatly reduced has been held unconstitutional by the Arkansas Supreme Court. North Carolina acted earlier this year to close the litigation loophole exposed in its Right-to-Farm law, but Arkansas’ law has not been changed.  These circumstances, coupled with the large number of CAFOs located in Arkansas, could make our state an attractive venue for the next wave of high stakes odor nuisance lawsuits unless our Legislature acts promptly to bolster our Right-to-Farm statute.  

Of course, the Right-to-Farm statute is only one of several defenses available to farmers in these types of cases.  Should you find yourself on the receiving end of an odor nuisance lawsuit, our firm would welcome the opportunity to assist you in evaluating all your defense options. 

The information provided above is created by Attorney Robert George of Friday, Eldredge & Clark, LLP. This is not a substitute for legal advice and should be considered for general guidance only. For more information or if you have further questions, please contact one of our Agriculture Attorneys.