STATE OF SOUTH CAROLINA
RETAIL COMPENDIUM OF LAW
Prepared by
Mark S. Barrow, Esq.
J. Eric Cavanaugh, Esq.
Sweeny, Wingate and Barrow, P.A.
1515 Lady Street
Columbia, SC 29211
Tel: (803) 256-2233
Email: [email protected]
Email: [email protected]
www.swblaw.com
2016 USLAW Retail Compendium of Law
Introduction
The South Carolina Rules of Civil Procedure are based on the Federal Rules. In interpreting those
rules, where there is no South Carolina law, the Courts “look to the construction placed on the
Federal Rules of Civil Procedure.” Gardner v. Newsome Chevrolet-Buick, Inc., 304 S.C. 328, 330,
404 S.E.2d 200, 201 (1991). It should be noted, however that the South Carolina Rules of Civil
Procedure are not identical to the Federal Rules. For example, S.C. R. CIV. P. 23 concerning class
actions varies notably from FED. R. CIV. P. 23. Therefore, the South Carolina Rules of Civil
Procedure should always be consulted.
Venue Rules
Venue is determined at the time the cause of action arose, not at the time the action is commenced.
S.C. CODE ANN. § 15-7-10, et seq. (2008).
A)
Real property. Actions for the recovery of real property, injuries to real property, for
partition of real property, for foreclosure of mortgage or real property, and for recovery of
personal property distrained for any cause, must be tried in the county in which the subject
of the action or some part thereof is situated. See S.C. CODE ANN. § 15-7-10 (2008).
B)
Statutory penalty or forfeiture. Actions for the recovery of a penalty or forfeiture
imposed by statute; and actions against a public officer or person specially appointed to
execute his duties (or his agent) for acts of office must be tried where the cause of action
arose. See S.C. CODE ANN. § 15-7-20 (2008).
C)
Penalty of forfeiture on water. When an action for the recovery of a penalty or forfeiture
imposed by statute is for an offense committed on a lake, river or other stream of water
situated in two or more counties, the action may be brought in any county bordering on
that body of water and opposite to the place where the offense was committed. See S.C.
CODE ANN. § 15-7-20 (2008).
D)
County where defendant resides. All other actions must be tried in the county where the
defendant resides or where the most substantial part of the alleged act giving rise to the
cause of action occurred. If there is more than one defendant and each resides in a different
county, any county where a defendant resides is proper. A corporation’s place of residence
is its principal place of business. See S.C. CODE ANN. § 15-7-30 (2008).
The South Carolina State Court System
A)
Judicial selection.
1)
Supreme Court justices. Supreme Court justices are elected by the General
Assembly (state legislators) and serve ten year terms. S.C. CONST. art. V, § 3; S.C.
CODE ANN. § 14-3-10 (2008).
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2)
Court of Appeals judges. The Court of Appeals is South Carolina’s intermediate
appellate court. Each member of the Court of Appeals is elected for a term of six
years by a joint public vote of the General Assembly. S.C. CONST. art. V, § 8; S.C.
CODE ANN. § 14-8-20 (2008).
3)
Circuit Court. The Circuit Court is composed of the Court of Common Pleas (civil
matters) and the Court of General Session (criminal matters). Judges are elected
by the General Assembly for six-year terms. Family Court Judges are similarly
elected. See S.C. CONST. art. V, § 27.
B)
Structure. South Carolina’s unified judicial system encompasses the following courts: (1)
The Supreme Court, (2) The Court of Appeals, (3) Circuit Courts (including courts of
common pleas and courts of general sessions), (4) Court of the Master-in-Equity, (5) Family
Court, (6) Probate Courts, (7) magistrate’s court; and (8) municipal courts. See generally
South Carolina Judicial Department, available at http://www.judicial.state.sc.us/ (last visited
Feb. 15, 2016).
C)
Mandatory ADR (Arbitration and Mediation). By order dated February 1, 2006, the
Supreme Court of South Carolina adopted “Court-Annexed Alternative Dispute Resolution
(ADR) Rules”, which govern court-annexed ADR processes in South Carolina Circuit Courts
in civil suits, and in South Carolina Family Courts in domestic relations actions in counties
designated by the Court for mandatory ADR or as required by statute. This program is
operational in all counties as of January 1, 2016. Re: Circuit Court Arbitration and
Mediation and Family Court Mediation, No. 2015-11-12-04 (Nov. 12, 2015).
Negligence Statute of Limitations
Personal injury. The statute of limitations for personal injury is three (3) years after the person
knew or by the exercise of reasonable diligence should have known that he had a cause of action.
See S.C. CODE ANN. § 15-3-530 (2008).
Statute of Repose
“No actions to recover damages based upon or arising out of the defective or unsafe condition of
an improvement to real property may be brought more than eight years after substantial completion
of the improvement.” S.C. CODE ANN. § 15-3-640 (2008).
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General Negligence Principles
Comparative Fault/Contributory Negligence
Under South Carolina’s doctrine of comparative negligence, a plaintiff may recover
damages only if his own negligence is not greater than that of the
defendant. Ordinarily, comparison of the plaintiff’s negligence with that of the
defendant is a question of fact for the jury to decide. In a comparative negligence
case, the trial court should determine judgment as a matter of law only if the sole
reasonable inference that may be drawn from the evidence is that the plaintiff’s
negligence exceeded fifty percent.
Bloom v. Ravoira, 339 S.C. 417, 422, 529 S.E.2d 710, 712-13 (2000).
Contributory negligence is not applicable to South Carolina claims arising after July 1, 1991.
Exclusive Remedy – Workers’ Compensation Protections
Under the “exclusivity rule,” workers’ compensation is the exclusive remedy for personal injury
to an employee arising out of and in the course of employment. Fuller v. Blanchard, 358 S.C. 536,
595 S.E.2d 831, 833 (2004)In most situations, a tort action by an employee against an employer
or against a co-employee is barred, and exclusive jurisdiction rests with the Workers’
Compensation Commission. Edens v. Bellini, 359 S.C. 433, 441-42, 597 S.E.2d 863, 867 (Ct.
App. 2004).This is a defense to a tort suit that is waived if it is not raised in the defendant’s answer
or by a S.C. R. CIV. P. 12(b)(6) motion to dismiss. F. PATRICK HUBBARD & ROBERT L. FELIZ,
SOUTH CAROLINA LAW OF TORTS 212 (3d ed. 1990). In most cases, a contractor is considered the
statutory employer of the employee of a subcontractor, and benefits from the exclusivity provision
provided by S.C. CODE ANN. § 42-1-540. See McCaskey v. Daniel Intern. Corp., 442 F.Supp.
1360 ((D.S.C. 1977).
Indemnification
South Carolina has long recognized the principle of equitable indemnification. Indemnity
is that form of compensation in which a first party is liable to pay a second party for a loss
or damage the second party incurs to a third party. A right to indemnity may arise by
contract (express or implied) or by operation of law as a matter of equity between the first
and second party.
Toomer v. Norfolk S. Ry., 344 S.C. 486, 490, 544 S.E.2d 634, 636 (S.C. Ct. App. 2001):
Joint and Several Liability
South Carolina provides for the apportionment of damages under S.C. CODE ANN. § 15-38-15
(2008), also known as the Uniform Contribution Among Tortfeasors Act (“the Act”). Under the
Act a defendant who is found to be less than 50% at fault as compared to the total fault for damages
(including any fault of the plaintiff), will only be liable for its percentage of the damages as
determined by a jury or trier of fact. Id.
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A)
Percentage fault. Where there are two or more defendants, a defendant may make a motion to
specify the percentage of liability attributable to each defendant. Id. A defendant may also argue
that a non-party had liability for the alleged injury. Id. Upon such a motion, the court will after the
initial verdict awarding damages but before the special verdict on percentages of liability is
rendered, allow each defendant time for oral argument on the determination of percentage of
attributable fault. Id. No additional evidence may be entered. The jury will then apportion
damages among the defendants.
Therefore, if a jury finds that there were $100,000 in damages, but the plaintiff was 35% at fault,
the overall verdict against Defendants A and B would of course then be reduced to $65,000.
Defendant A or B may then make a motion to specify the percentage of liability as to each
defendant. Each defendant will then have the opportunity to make an oral argument after which
the jury will make the apportionment of liability.
In determining the percentage of fault between the defendants, the plaintiff’s fault should be
considered as well so that the total percentage of fault is 100%. As the plaintiff has already been
found 35% negligent, the jury must apportion the remaining 65 percent. If the jury finds that
Defendant A is 10% at fault, that leaves Defendant B as 55% at fault. Under S.C. CODE ANN. §
15-38-15(A), Defendant A could only be held responsible for its 10% or $10,000, not the entire
$65,000 owed to the plaintiff. However Defendant B, having more than 50% of the liability
apportioned to it, is jointly and severally liable for the entire $65,000.
Strict Liability
A)
Products. South Carolina law provides for the strict liability of one who is engaged in the
business of selling a product if he sells that product in a defective condition unreasonably
dangerous to the user or consumer, for physical harm caused to the ultimate user or
consumer or to his property, if the product is expected to and does reach the user or
consumer without substantial change in the condition in which it is sold. See S.C. CODE
ANN. § 15-73-10 (2008).
B)
Property. South Carolina law also imposes strict liability on adjoining landowners
engaged in blasting and/or trespassing. Wallace v. A.H. Guion & Co., 237 S.C. 349, 117
S.E.2d 359 (1960); Wood v. Pacolet Mfg. Co., 80 S.C. 47, 61 S.E. 95 (1908).
C)
Dogs and aircraft. Dog owners and those caring for or keeping a dog are held strictly
liable for damages suffered when their dog bites someone. S.C. CODE ANN. § 47-3-110
(2008). Aircraft owners are strictly liable for injuries to persons or property on land
beneath their aircraft for damages caused by ascent, descent, flight of the aircraft, or the
dropping of any object, S.C. CODE ANN. § 55-3-60 (2008).
Willful and Wanton Conduct
The terms reckless, willfulness and wantonness are synonymous. See Berberich v. Jack, 392 S.C.
278, 288, 709 S.E.2d 607, 612 (2011) Gross negligence is defined as “the failure to exercise slight
care.” Doe v. Greenville County Sch. Dist., 375 S.C. 63, 71, 651 S.E.2d 305, 309 (2007). It has
also been defined as “the intentional, conscious failure to do something which it is incumbent upon
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one to do or the doing of a thing intentionally that one ought not to do.” Id. Gross negligence “is
a relative term, and means the absence of care that is necessary under the circumstances.” Id. “In
order for a plaintiff to recover punitive damages, there must be evidence the defendant's conduct
was willful, wanton, or in reckless disregard of the plaintiff's rights.” Taylor v. Medenica, 324
S.C. 200, 221, 479 S.E.2d 35, 46 (1996).
Elements of a Cause of Action of Negligence
“To prevail in an action founded in negligence, the plaintiff must establish three essential elements:
(1) a duty of care owed by the defendant to the plaintiff; (2) a breach of that duty by a negligent
act or omission; and (3) damage proximately caused by a breach of duty.” Vinson v. Hartley, 324
S.C. 389, 399, 477 S.E.2d 715, 720 (Ct.App.1996).
Specific Examples of Negligence Claims
“Slip and Fall” type cases
Slippery Surfaces—cleaner, polish, and wax
In South Carolina, a plaintiff must show: a merchant negligently used unsafe materials or
the merchant’s application method created an unsafe condition; the condition constituted the
proximate cause of the injury; and the injury could not have been avoided by the plaintiff
exercising ordinary care. See Lowrimore v. Fast Fare Stores, Inc., 299 S.C. 418, 423, 385 S.E.2d
218, 221 (Ct. App. 1989). Proving a merchant’s floor is slick is not sufficient to establish
negligence. Instead, a plaintiff must present testimony or evidence the floor was so slippery it
constituted an unsafe condition. See Howard v. K-Mart Discount Stores, 293 S.C. 134, 137-38,
359 S.E.2d 81, 83 (Ct. App. 1987).
Defenses
The mere fact that a slip and fall occurred does not constitute evidence of negligence or
result in a property owner or lessee liability. See Smith v. Wal-Mart Stores, 311 S.C. 122, 125,
427 S.E.2d 712, 714 (Ct. App. 1993), rev’d on other grounds, 314 S.C. 248, 442 S.E.2d 606 (1994).
South Carolina courts recognize some defenses depending upon the nature of the alleged defect.
Victim’s Negligence
South Carolina has “essentially a comparative fault system, but comparative negligence is the term
most often used in this state, and we recognize the terms as equivalent.” Berberich v. Jack, 392
S.C. 278, 292, 709 S.E.2d 607, 614 (2011). To establish the defense of comparative negligence, a
defendant must prove the plaintiff was negligent and the plaintiff’s negligence was a proximate
cause of the plaintiff’s injuries. F. PATRICK HUBBARD & ROBERT L. FELIX, SOUTH CAROLINA LAW
OF TORTS 202 (4th ed. 2011). Additionally, the “tests of negligence and causation are the same as
those used for analyzing the defendant’s conduct.” Id. A plaintiff may not recover damages if the
plaintiff’s negligence is greater than the defendant’s negligence and if the plaintiff’s negligence is
less than the defendant’s negligence the plaintiff’s compensatory damages are reduced
proportionally by the amount of the plaintiff’s negligence. Id. at 204 (citing Nelson v. Concrete
Supply Co., 303 S.C. 243, 399 S.E.2d 783 (1991)).
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Assumption of Risk
Assumption of risk by the plaintiff is another affirmative defense available to defendants and in
South Carolina “[s]uch an assumption may be implied by the facts or may be based on an express
agreement to waive liability for some risk.” F. PATRICK HUBBARD & ROBERT L. FELIX, SOUTH
CAROLINA LAW OF TORTS 212 (4th ed. 2011). While an implied assumption is usually not an
absolute bar to recovery and is incorporated into the comparative negligence analysis, an express
assumption of risk is normally considered a total bar to recovery. Id. at 214 (citing Davenport v.
Cotton Hope Plantation Horizontal Prop. Regime, 333 S.C. 71, 79-80, 508 S.E.2d 565, 569-70
(1998)).
Statute of Limitations
Generally, a victim of an accident arising on or after April 5, 1988 has three years from the time
the victim knew or should have known of their cause of action. F. PATRICK HUBBARD & ROBERT
L. FELIX, SOUTH CAROLINA LAW OF TORTS 220-21 (4th ed. 2011). For a negligence action arising
prior to April 5, 1988 the statute of limitations is six years. Dean v. Ruscon Corp., 321 S.C. 360,
363, 468 S.E.2d 645, 647 (1996); S.C.CODE ANN. § 15-3-530(3) (1976).
Subsequent Remedial Measures
The South Carolina rule for subsequent remedial measures is identical to the Federal Rule. See
Note, S.C. R. EVID. 407. Rule 407 states:
When, after an event, measures are taken which, if taken previously, would have made the event
less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or
culpable conduct in connection with the event. This rule does not require the exclusion of evidence
of subsequent measures when offered for another purpose, such as proving ownership, control, or
feasibility of precautionary measures, if controverted, or impeachment.
Liability for Violent Crime
“The balancing approach acknowledges that duty is a flexible concept, and seeks to balance
the degree of foreseeability of harm against the burden of the duty imposed.” McClung, 937
S.W.2d at 901 (citing Ann M., 25 Cal.Rptr.2d 137, 863 P.2d at 215). As such, the more foreseeable
a crime, the more onerous is a business owner's burden of providing security. McClung, 937
S.W.2d at 901. Under this test, the presence or absence of prior criminal incidents is a significant
factor in determining the amount of security required of a business owner, but their absence does
not foreclose the duty to provide some level of security if other factors support a heightened risk.
Bass v. Gopal, Inc., 395 S.C. 129, 138, 716 S.E.2d 910, 915 (2011)
The doctrine of respondeat superior provides that the employer, as the employee's master,
is called to answer for the tortious acts of his servant, the employee, when those acts occur in the
course and scope of the employee's employment. Sams v. Arthur, 135 S.C. 123, 128–131, 133 S.E.
205, 207–08 (1926). Such liability is not predicated on the negligence of the employer, but upon
the acts of the employee, whether those acts occurred while the employee was going about the
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employer's business, and the agency principles that characterize the employer-employee
relationship. Id.
Joint and Several Liability
Under this rule, if A is ten percent negligent and B is ninety percent negligent, and together they
combine to injure C, they are both liable to C. C can recover one hundred percent of his or her
damages from either one. Without question, the rule of joint and several liability favors plaintiffs
since the aggregate wealth of the defendants stands behind the judgment regardless of the
proportionate responsibility of the defendants individually for the loss. W. Page Keeton et al.,
Prosser and Keeton on the Law of Torts § 67, at 475 (5th ed. 1984). Joint and several liability
continues to exist under South Carolina’s doctrine of comparative negligence. Fay v. Grand
Strand Reg'l Med. Ctr., LLC, 412 S.C. 185, 202, 771 S.E.2d 639, 649 (Ct. App. 2015).
Claims Arising from the Wrongful Prevention of Thefts
False Arrest and Imprisonment
“The essence of the tort of false imprisonment consists of depriving a person of his liberty
without lawful justification.” Jones v. City of Columbia, 301 S.C. 62, 64, 389 S.E.2d 662, 663
(1990). To prevail on a claim for false imprisonment, the plaintiff must establish: (1) the defendant
restrained the plaintiff, (2) the restraint was intentional, and (3) the restraint was unlawful. Gist v.
Berkeley County Sheriff's Dep't, 336 S.C. 611, 521 S.E.2d 163 (Ct. App.1999); Jones by Robinson
v. Winn–Dixie Greenville, Inc., 318 S.C. 171, 456 S.E.2d 429 (Ct. App.1995); Caldwell v. K–Mart
Corp., 306 S.C. 27, 410 S.E.2d 21 (Ct. App.1991).
Malicious Prosecution
To maintain an action for malicious prosecution, plaintiff must show (1) the institution or
continuation of original judicial proceedings, either civil or criminal; (2) by, or at the instance of,
the defendant; (3) termination of such proceeding in plaintiff's favor; (4) malice in instituting such
proceedings; (5) want of probable cause, and (6) resulting injury or damage. Prosser v. Parsons,
245 S.C. 493, 501, 141 S.E.2d 342, 346-47 (1965); 34 Am.Jur., Malicious Prosecution, Sec. 6, p.
706.
Defamation
“The tort of defamation allows a plaintiff to recover for injury to her reputation as the result
of the defendant's communication to others of a false message about the plaintiff. Slander is a
spoken defamation while libel is a written defamation or one accomplished by actions or conduct.”
Holtzscheiter v. Thomson Newspapers, Inc., 332 S.C. 502, 508, 506 S.E.2d 497, 501 (1998).
Negligent Hiring, Retention, or Supervision of Employees
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Under certain circumstances, an employer is under a duty to exercise reasonable care to
control an employee acting outside the scope of his employment. An employer may be liable for
negligent supervision if the employee intentionally harms another when:
(a) the employee
(i) is upon the premises in possession of the employer or upon which the employee
is privileged to enter only as his employee, or
(ii) is using a chattel of the employer, and
(b) the employer
(i) knows or should know that he has the ability to control his employee, and
(ii) knows or should know of the necessity and opportunity for exercising such
control.
Charleston S.C. Registry for Golf and Tourism, Inc. v. Young Clement Rivers & Tisdale, 359 S.C.
635, 644-45, 598 S.E.2d 717, 722-23 (Ct. App. 2004).
Food Poisoning
The South Carolina Food and Cosmetics Act , S.C. CODE ANN. § 39-25-10 et seq., details
the law surrounding adulterated food. A food shall be deemed to be adulterated if it bears or
contains any poisonous or deleterious substance which may render it injurious to health S.C. CODE
ANN. § 39-25-100. Proof of a violation of the South Carolina Food and Cosmetic Act constitutes
negligence per se and supports recovery of damages if the violation proximately caused or
contributed to the plaintiff's injury. Coward v. Borden Foods, Inc., 267 S.C. 423, 229 S.E.2d 262
(1976), Fowler v. Coastal Coca-Cola Bottling Company, Inc., 252 S.C. 579, 167 S.E.2d 572
(1969).
Dram Shop Liability
“Dram Shop Acts” are statutes that impose civil liability on bars, taverns, or liquor stores
for injuries a customer causes to third parties when they knew, or should have known, that the
customer was intoxicated when they served him. South Carolina does not have a specific Dram
Shop Statute, but does recognize Dram Shop claims. Dram Shop actions are negligence actions
and thus must be brought under the three-year statute of limitations. S.C. CODE ANN. § 15-3-530
(2008). South Carolina does not allow the intoxicated patron to bring a claim against the bar that
served her under Dram Shop Liability. Tobias v. Sports Club, Inc., 332 S.C. 90, 91, 504 S.E.2d
318, 319 (1998).
S.C. CODE ANN. § 61-6-2220 provides: “A person or establishment licensed to sell
alcoholic liquors or liquor by the drink pursuant to this article may not sell these beverages to
persons in an intoxicated condition; these sales are considered violations of the provisions thereof
and subject to the penalties contained herein.” The individual does not have to be visibly
intoxicated for liability to attach, only that the seller knowingly, or should have known, sell alcohol
to an intoxicated person. Hartfield v. Getaway Lounge & Grill, Inc., 388 S.C. 407, 418, 697 S.E.2d
558, 564 (2010). Additionally, S.C. CODE ANN. § 61–4–580 of the South Carolina Code prohibits
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the sale of beer or wine to an intoxicated or underage person. Violations of these statutes allow a
plaintiff to make a negligence per se claim and entitle a plaintiff to a punitives damages charge.
A plaintiff who proves a violation of the statute has established negligence per se, however
certain defenses which break the causal chain may still be asserted by the defendant. Tobias v.
Sports Club, Inc., 323 S.C. 345, 353, 474 S.E.2d 450, 454 (Ct. App. 1996) aff'd as modified, 332
S.C. 90, 504 S.E.2d 318 (1998). The sale of alcoholic beverages to a minor or intoxicated patron
does not render the vendor strictly liable for every ensuing act. Even if the sale constitutes
negligence per se, the plaintiff must still show a causal connection between the defendant's
negligence and his own injury to recover damages. See Scott v. Greenville Pharmacy, Inc., 212
S.C. 485, 48 S.E.2d 324 (1948); Steele v. Rogers, 306 S.C. 546, 549, 413 S.E.2d 329, 331 (Ct.
App. 1992).
Claims Arising from Construction-Related Activities
Indemnification
South Carolina has long recognized the principle of equitable indemnification. See Stuck
v. Pioneer Logging Machinery, Inc., 279 S.C. 22, 301 S.E.2d 552 (1983); Addy v. Bolton, 257 S.C.
28, 183 S.E.2d 708 (1971). “Indemnity is that form of compensation in which a first party is liable
to pay a second party for a loss or damage the second party incurs to a third party. A right to
indemnity may arise by contract (express or implied) or by operation of law as a matter of equity
between the first and second party.” Town of Winnsboro v. Wiedeman-Singleton, Inc. (Winnsboro
I ), 303 S.C. 52, 56, 398 S.E.2d 500, 502 (Ct.App.1990), aff'd, 307 S.C. 128, 414 S.E.2d 118 (1992)
(Winnsboro II ) (citation omitted).
“We hold that the cost of settling a case is recoverable under the rule [of equitable indemnification]
(1) if the settlement is bona fide, with no fraud or collusion by the parties; (2) if, in the
circumstances, the decision to settle is a reasonable means of protecting the innocent party's
interest; and (3) if the amount of the settlement is reasonable in light of the third party's estimated
damages and the risk and extent of defendant's exposure if the case is tried.”Vermeer Carolina's,
Inc. v. Wood/Chuck Chipper Corp., 336 S.C. 53, 62, 518 S.E.2d 301, 306 (S.C. Ct. App. 1999)
Under South Carolina law, there can be no indemnity among mere joint tortfeasors. Scott v.
Fruehauf Corp., 302 S.C. 364, 370, 396 S.E.2d 354, 357-58 (1990); Stuck v. Pioneer Logging
Machinery, Inc., 279 S.C. 22, 301 S.E.2d 552 (1983); Atlantic Coast Line R.R. v. Whetstone, 243
S.C. 61, 132 S.E.2d 172 (1963). Parties that have no legal relation to one another and who owe the
same duty of care to the injured party share a common liability and are joint tortfeasors without a
right of indemnity between them. Scott, 302 S.C. at 371, 396 S.E.2d at 358.
The Duty to Defend
In South Carolina, the duty to defend is triggered under the potentiality rule and based on the
complaint’s allegations. Although case law generally limits this duty as to whether the allegations
in a Complaint are sufficient to bring the claims within the coverage of an insurance policy, an
insurer's duty to defend is not strictly controlled by the allegations in Complaint. Instead, the duty
to defend may also be determined by facts outside of the complaint that are known by the insurer.
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See BP Oil Co. v. Federated Mut. Ins. Co., 329 S.C. 631, 638, 496 S.E.2d 35, 39 (Ct.App.1998)
(“Although the determination of an insurer's duty to defend is based upon the allegations in a
complaint ... in some jurisdictions, the duty to defend will be measured by facts outside of the
complaint that are known by the insurer.”).
Damages
Caps on Damages
There is no broad cap on damages although there are exceptions. Two exceptions are for
governments and officials which allow for limited actual damages but not punitive damages,
exemplary damages, or prejudgment interest (S.C. CODE ANN. § 15-78-120 (2008), also known as
the Tort Claims Act, currently set at $300,000 per person or $600,000 per occurrence); for charities
under S.C. CODE ANN. § 33-56-180(A) which limits recovery against charitable organizations to
the same limit as those imposed by the Tort Claims Act.
Calculation of Damages
The amount of damages is generally a factual matter for the jury. The jury’s discretion is subject
to the supervision and check of the Court. F. PATRICK HUBBARD & ROBERT L. FELIX, S. C. LAW
OF TORTS 550 (3d ed. 1990).
Available Items of Personal Injury Damages
A)
Past medical bills. A plaintiff is entitled to recover for past medical expenses proximately
caused by the defendant’s tort. See Pearson v. Bridges, 344 S.C. 366, 544 S.E.2d 617
(2001).
B)
Future medical bills. A plaintiff is entitled to recover for future medical expenses
proximately caused by the defendant’s tort. See id.
C)
Increased risk of harm. There is no South Carolina case that directly deals with increased
risk of harm. However, in general a plaintiff may recover both tangible and intangible
losses. F. PATRICK HUBBARD & ROBERT L. FELIX, S.C. LAW OF TORTS 570 (3d ed. 1990).
D)
Disfigurement. Disfigurement is an element of damages that is recoverable and may
involve both tangible and intangible aspects. Id. at 571.
E)
Loss of normal life/hedonic damages. “Loss of enjoyment of life” is compensable as an
element of damages, separate from pain and suffering, deserving a distinct charge to the
jury. Boan v. Blackwell, 343 S.C. 498, 501, 541 S.E.2d 242, 244 (2001).
F)
Disability. Disability is an element of damages that is recoverable and may involve both
tangible and intangible aspects. HUBBARD, supra., at 571.
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G)
Past Pain and Suffering, Future Pain and Suffering. Pain and suffering, both past and
present, is a proper element of damages where it is the proximate consequence of actionable
misconduct. Id.
H)
Loss of society. S.C. CODE ANN. § 15-75-20 (2008) provides: “Any person may maintain
an action for damages arising from an intentional or tortious violation of the right to the
companionship, aid, society and services of his or her spouse. Provided, that such action
shall not include any damages recovered prior thereto by the injured spouse.”
I)
Lost income, wages, earnings. Loss or impairment of earning capacity caused by personal
injury is a proper element of compensation. HUBBARD, supra, at 577.
Lost Opportunity Doctrine
An injured party may recover lost profits for a failed new business or enterprise if the lost profits
are: (1) the natural consequence of the breach, (2) foreseeable by the breaching party, and (3)
determinable with reasonable certainty. Drews Co., Inc. v. Ledwith-Wolfe Assocs., Inc., 296 S.C.
207, 213, 371 S.E.2d 532, 535-36 (1988).
Mitigation
Generally, an injured party has a duty to mitigate damages. F. PATRICK HUBBARD & ROBERT L.
FELIX, SOUTH CAROLINA LAW OF TORTS 563 (3d ed. 1990). The plaintiff may not recover for the
aggravation of his own loss and is bound to exercise reasonable care to avoid or reduce damages
after a legal wrong committed by the defendant. Id. Mitigation only applies where the injured
party is able to mitigate or minimize damages through due diligence. Id.
Recovery and Pre- and Post-Judgment Interest
A)
Prejudgment interest. Prejudgment interest is not usually recoverable on an unliquidated
claim in the absence of an agreement or statute providing such recovery. F. PATRICK
HUBBARD & ROBERT L. FELIX, S.C. LAW OF TORTS 566 (3d ed. 1990). However, where
the amount is liquidated (reducible to a precise, certain figure), prejudgment interest is a
proper element of damages. Id. at 566-67. Interest is generally not recoverable for bodily
injury and emotional distress or for lost profits or similar consequential loss, but is
recoverable for loss of or damage to property. Id. at 567. Interest has been held recoverable
in an action for damages to land caused by the ponding of waters above a dam erected and
owned by the defendant. Id. Comparably, prejudgment interest has been awarded from
the date of loss in claims against insurance companies for bad faith refusal to pay. Id. In
claims of conversion, the measure of damages may include prejudgment interest on the
value of the property converted. Id. at 567-68.
B)
Post-judgment interest. South Carolina provides for post-judgment interest by statute.
See S.C. CODE ANN. § 34-31-20(B) (2008).
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C)
Legal Rate of Interest. On the first business day of every year, the Supreme Court issues
an Order prescribing the legal rate of interest for that year. For 2016, the legal rate of
interest is 7.50% compounded annually.
Recovery of Attorneys Fees
A)
Attorneys’ fees are not generally awarded in the absence of a statutory, contractual, or
equitable basis. F. PATRICK HUBBARD & ROBERT L. FELIX, S.C. LAW OF TORTS 564 (3d
ed. 1990).
1)
Statutes. Id. at 565-66 states:
The following are examples of statutory provisions for awarding attorneys fees in
actions bearing directly or indirectly on tort law: (1) South Carolina Code § 1577-300 provides that the court may allow the prevailing party to recover
‘reasonable attorney’s fees to be taxed as court costs against the appropriate
agency’ in any civil action brought by the State, except in certain specified
proceedings; (2) the South Carolina Unfair Trade Practices Act provides the court
shall award reasonable attorney’s fees and costs to the person establishing a
violation under the act; (3) under the statutory regulation of manufacturers,
distributors, and dealers of automobiles, a specialized kind of Unfair Trade
Practices Act, a party injured by anything forbidden by the statute; “shall recover
. . . the cost of suit, including a reasonable attorney’s fee; (4) suits against insurers
where failure to pay was ‘without reasonable cause or in bad faith,’ and (5) various
acts and rules that address frivolous actions or other litigation misconduct and
authorize attorney fees as a sanction for improper litigation of litigation
misconduct.
B)
Exception. Attorneys’ fees are sometimes awardable in the absence of a statute, contract,
or equitable principle. For example, “a plaintiff may recover attorney’s fees and court costs
that are part of the damages incurred in defending prior tortuous proceedings, such as
malicious prosecution or abuse of process, or in defending suits that are a foreseeable result
of defendant’s conduct.” Id. at 564-65.
Settlement Involving Minors
A)
Settlements in excess of $25,000. For settlements involving minors in claims that exceed
$25,000, the petitioner must file with the court a verified petition setting forth all pertinent
facts concerning claim, payment, attorneys’ fees and expenses, and why in the opinion of
the petitioner the settlement should be approved. The court may require a hearing on the
matter, after which an order will be issued. If settlement requires the payment of money
or delivery of personal property for the benefit of the minor, the order must require that
payment or delivery be made through a conservator, upon which a proper receipt and
release or covenant not to sue will be executed, which will be binding on the minor. S.C.
CODE ANN. § 62-5-433 (2008).
B)
Settlements not in excess of $25,000.00. For settlements that do not exceed $25,000, if a
conservator has been appointed he may settle the claim without court authorization or
confirmation. The conservator shall receive the payment or delivery of money and/or
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property and execute a proper receipt and release or covenant not to sue which is binding
on the minor. If no conservator has been appointed the guardian (ad litem) must petition
the court for approval as if the settlement were for more than $25,000 and there was no
conservator yet appointed. Id.
The settlement of a claim not exceeding $2,500 may be effected by a minor’s parent/guardian
without court approval and without appointment of a conservator. The parent shall receive any
payment or delivery of money and or property and execute a proper receipt and release or covenant
not to sue which is binding on the minor. Id.
Taxation of Costs
Taxable costs include: (1) costs authorized by statute and sanctions imposed in favor of the
prevailing party; (2) all filing and recording fees charged by the clerk of court; (3) fees of the
sheriff; (4) fees incurred in service of process; (5) witnesses’ fees; and (6) fees for exemplification
and copies of papers necessarily obtained for trial. S.C. R. CIV. P. 54(e) (2008).
The taxing of costs under S.C. R. CIV. P. 54 is a function of the clerk. See id.
Actual Damages
Actual damages are used to compensate the plaintiff and to make him or her whole. See
Payne v. Holiday Towers, Inc., 283 S. C. 210, 216, 321 S. E. 2d 179, 182 (Ct. App. 1984) (contract
case) (citing Laird v. Nationwide Ins. Co., 243 S. C. 388, 134 S. E. 2d 206 (1964) (tort case)). See
also Wade v. Columbia Electric Street R. L. & P. Co., 51 S. C. 296, 29 S. E. 233 (1898). Actual
damages are proven by a preponderance of the evidence. Howard v. Holiday Inns, Inc., 271 S.C.
238, 240, 246 S.E.2d 880, 881 (1978). There are two main types of actual damages in South
Carolina: Special and General.
General Damages
General damages are generally averred in the complaint. They do not have to be pled to a specific
dollar amount. Examples include hedonistic damages, pain and suffering, and loss of consortium.
See Sheek v. Lee, 289 S.C. 327, 329, 345 S.E.2d 496, 497 (1986).
Special Damages
Special damages must be especially proven in order to be awarded. A plaintiff must show evidence
for out of pocket costs, and he or she must liquidate damages to a dollar amount. See Id.
Punitive Damages
A)
When may be brought. A Plaintiff may recover if the defendant’s violation of the
plaintiff’s rights was reckless, willful, wanton, or malicious. Gilbert v. Duke Power Co.,
255 S.C. 495, 500, 179 S.E.2d 720, 723 (1971).
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B)
Insurability. Under the Title governing automobile insurance, “damages” is defined to
mean both actual and punitive damages. S.C. CODE ANN. § 38-77-30(4) (2008). Punitive
damages are insurable and the Supreme Court has held that a policy which provided that:
“The Fund will pay on behalf of the insured all sums which the insured shall become legally
obligated to pay as damages,” and that did not define damages covered punitive damages.
S.C. State Budget & Control Bd., Div. of Gen. Servs., Ins. Reserve Fund v. Prince, 304 S.C.
241, 249, 403 S.E.2d 643, 648 (1991).
Wrongful Death
In South Carolina, wrongful death is governed by statute. The wrongful death action is brought
by the estate for the benefit of the decedent’s heirs. S.C. CODE Ann. § 15-51-10 states:
Whenever the death of a person shall be caused by the wrongful act, neglect or
default of another and the act, neglect or default is such as would, if death had not
ensued, have entitled the party injured to maintain an action and recover damages
in respect thereof, the person who would have been liable, if death had not ensued,
shall be liable to an action for damages, notwithstanding the death of the person
injured, although the death shall have been caused under such circumstances as
make the killing in law a felony. In the event of the death of the wrongdoer, such
cause of action shall survive against his personal representative.
This Compendium outline contains a brief overview of certain laws concerning various
litigation and legal topics. The compendium provides a simple synopsis of current law and
is not intended to explore lengthy analysis of legal issues. This compendium is provided for
general information and educational purposes only. It does not solicit, establish, or continue
an attorney-client relationship with any attorney or law firm identified as an author, editor
or contributor. The contents should not be construed as legal advice or opinion. While every
effort has been made to be accurate, the contents should not be relied upon in any specific
factual situation. These materials are not intended to provide legal advice or to cover all laws
or regulations that may be applicable to a specific factual situation. If you have matters or
questions to be resolved for which legal advice may be indicated, you are encouraged to
contact a lawyer authorized to practice law in the state for which you are investigating and/or
seeking legal advice.
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