STATE OF SOUTH CAROLINA RETAIL COMPENDIUM OF LAW

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1 STATE OF SOUTH CAROLINA RETAIL COMPENDIUM OF LAW Prepared by Mark S. Barrow, Esq. J. Eric Cavanaugh, Esq. Sweeny, Wingate and Barrow, P.A Lady Street Columbia, SC Tel: (803) USLAW Retail Compendium of Law

2 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 , 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 (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 (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 (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 (2008). A) Judicial selection. The South Carolina State Court System 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 (2008). 2

3 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 (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 (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, Re: Circuit Court Arbitration and Mediation and Family Court Mediation, No (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 (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 (2008). 3

4 Comparative Fault/Contributory Negligence General Negligence Principles 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, (2000). Contributory negligence is not applicable to South Carolina claims arising after July 1, 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, , 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 See McCaskey v. Daniel Intern. Corp., 442 F.Supp ((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 (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. 4

5 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 (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 (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 (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 (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 5

6 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). Slippery Surfaces cleaner, polish, and wax Specific Examples of Negligence Claims Slip and Fall type cases 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, , 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)). 6

7 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, (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 (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 (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 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, , 133 S.E. 205, (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 7

8 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). False Arrest and Imprisonment Claims Arising from the Wrongful Prevention of Thefts 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, (1965); 34 Am.Jur., Malicious Prosecution, Sec. 6, p 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 8

9 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, , 598 S.E.2d 717, (Ct. App. 2004). Food Poisoning The South Carolina Food and Cosmetics Act, S.C. CODE ANN 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 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 (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 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 of the South Carolina Code prohibits 9

10 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). Indemnification Claims Arising from Construction-Related Activities 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, (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. 10

11 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. ). Caps on Damages 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 (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 (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

12 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 (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, (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 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 B) Post-judgment interest. South Carolina provides for post-judgment interest by statute. See S.C. CODE ANN (B) (2008). 12

13 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 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 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 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 (2008). B) Settlements not in excess of $25, 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 13

14 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). 14

15 B) Insurability. Under the Title governing automobile insurance, damages is defined to mean both actual and punitive damages. S.C. CODE ANN (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 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. 15