Center for America

State Tort Law Profile

State List

 

South Carolina

Last Updated 08/25/2009

Analysis prepared for the Center for America by Shook, Hardy & Bacon L.L.P

Liability

Joint and Several

Economic Damages

Limited

Joint liability has been abolished for defendants found to be less than 50% at fault.

S.C. Code Ann. § 15-38-15(A).

Non-Economic Damages

Limited

See above.

 

May a Jury Allocate Fault Among All Persons Contributing to an Injury?

Uncertain

S.C. Code Ann. § 15-38-15(D) ("A defendant shall retain the right to assert that another potential tortfeasor, whether or not a party, contributed to the alleged injury or damages and/or may be liable for any or all of the damages alleged by any other party.").

 

Market Share Liability

No

 

Defenses

Comparative Negligence

Yes, modified

Plaintiff in negligence action may recover damages if his or her negligence is not greater than that of defendant, and amount of plaintiff's recovery shall be reduced in proportion to amount of his or her negligence;  if there is more than one defendant, plaintiff's negligence shall be compared to combined negligence of all defendants.

Nelson v. Concrete Supply Co., 399 S.E.2d 783 (S.C. 1991).

 

Assumption of Risk

Yes

Cole v. South Carolina Elec. & Gas, Inc., 584 S.E.2d 405 (S.C. Ct. App. 2003); see also S.C. Code Ann. § 15-73-20  (“If the user or consumer discovers the defect and is aware of the danger, and nevertheless proceeds unreasonably to make use of the product and is injured by it, he is barred from recovery.”).

Product Misuse

Yes

A defendant is liable only for foreseeable misuses of the product.  A manufacturer must anticipate the environment that is normal for the use of the product, and must anticipate the reasonably foreseeable uses in that environment.

Gardner v. Q.H.S., Inc., 448 F.2d 238 (4th Cir. 1971); Mickle v. Blackmon, 166 S.E.2d 173 (S.C. 1969).

 

Compliance With Government Standards

No

Compliance with a government safety standard may be relevant on the issue of negligence and may be admitted to show due care, but is not conclusive as to liability.  

Stonehocker v. General Motors Corp., 587 F.2d 151, 156 (4th Cir. 1978) (interpreting South Carolina law).

 

Statute of Repose

No, except for improvements to real property

8-year statute of repose after substantial completion of improvements to real property.

S.C. Code Ann. § 15-3-640; see also Capco of Summerville, Inc. v. J.H. Gayle Const. Co., 628 S.E. 2d 38 (S.C. 2006).

 

Extended Statute of Limitations in Asbestos Cases Yes The limitations period for any asbestos or silica claim shall not begin to run until the exposed person or claimant discovers, or through the exercise of reasonable diligence should have discovered, that the exposed
person or claimant is physically impaired by an asbestos or silica-related condition.

S.C. Code Ann. § 44-135-110(A).

 

Government Contractor Defense

Undecided

The United States Court of Appeals for the Fourth Circuit has accepted the defense.  

See, e.g., Dowd v. Textron Corp., 792 F.2d 409 (4th Cir. 1986), cert. denied, 487 U.S. 1233 (1988); Tozer v. LTV Corp., 792 F.2d 403 (4th Cir. 1986), cert. denied, 487 U.S. 1233 (1988).

 

McLawsuits Permitted?  Can a food manufacturer, distributor, seller, or retailer be sued based on an individual's weight gain, obesity, or obesity-related health condition?

No restriction

Compensatory Damages

Is there a statutory limit on economic damages?

No

 

Is there a statutory limit on non-economic damages?

No

 

Is recovery for medical monitoring permitted without physical injury?

Unlikely

Rosmer v. Pfizer, 2001 WL 34010613, at *5 (D.S.C. Mar. 30, 2001) (noting that South Carolina has not recognized such a claim).

 

Punitive 

Is there a statutory limit?

No

 

Is there any restriction on imposing multiple punitive damage awards for same conduct?

No

 

Does the state receive a portion of the punitive damage award?

No

 

What standard is used?

Clear and convincing evidence

S.C. Code Ann. § 15-33-135.

Procedures 

Venue

 

 

Conducive to Abuse - 
Does the statute permit forum shopping?

No

For a resident individual defendant, in the country where (1) defendant resides at the time the cause of action arose; or (2) most substantial part of the alleged act or omission giving rise to the cause of action occurred.

For a nonresident individual defendant, in the county where the (1) most substantial part of the alleged act or omission giving rise to the cause of action occurred; or (2) plaintiff resides at the time the cause of action arose, or if the plaintiff is a corporation, at its principal place of business at the time the cause of action arose.

For a domestic corporation, in the county where the: (1) corporation has its principal place of business at the time the cause of action arose; or (2) most substantial part of the alleged act or omission giving rise to the cause of action occurred.

For a foreign corporation required to possess and possessing a certificate of authority, in the county where the: (1) most substantial part of the alleged act or omission giving rise to the cause of action occurred; or (2) foreign corporation, has its principal place of business at the time the cause of action arose.

For a foreign corporation, except a foreign corporation described above, in the county where the: (1) most substantial part of the alleged act or omission giving rise to the cause of action occurred; (2) plaintiff resides at the time the cause of action arose, or if the plaintiff is a corporation, at its principal place of business at the time the cause of action arose; or (3)  foreign corporation has its principal place of business at the time the cause of action arose.

Owning property and transacting business in a county is insufficient in and of itself to establish the principal place of business for a corporation for venue purposes.

S.C. Code § 15-7-30; Whaley v. CSX Trans., Inc., 609 S.E.2d 286 (S.C. 2005).

 

Class Actions

 

 

Is there a right to an immediate appeal of class certification?

No

An order denying class certification is interlocutory and not immediately appealable unless it contains other appealable issues.

Eldridge v. City of Greenwood, 417 S.E.2d 532, 534 (S.C. 1992); Schein v. Lamar, 263 S.E.2d 383 (S.C. 1980).

 

Appeal Bonds

Does the amount of the required bond place undue pressure on the defendant to settle rather than appeal?

Yes

The appeal bond necessary to stay execution of a judgment must be double the appraised value of the property or double the amount of the judgment.

There is an automatic stay placed on appeals involving a signatory of the tobacco Master Settlement Agreement.

S.C. Code Ann. § 18-9-130.

 

Evidence

Has the state adopted Daubert, which requires the judge  to act as a "gatekeeper" against unreliable expert testimony in civil actions?

No, but similar

Under State v. Jones, 259 S.E.2d 120 (S.C. 1979), South Carolina courts look at several factors, including: (1) the publications and peer review of the technique; (2) prior application of the method to the type of evidence involved in the case; (3) the quality control procedures used to ensure reliability; and (4) the consistency of the method with recognized scientific laws and procedures.” 

See also State v. Ford, 392 S.E.2d 781 (S.C. 1990); State v. Council, 515 S.E.2d 508, 517 (S.C. 1999) (court declined to adopt Daubert analysis for determining admissibility of scientific evidence; under Rule 702, the trial judge must find the evidence will assist the trier of fact, the expert witness is qualified, and the underlying science is reliable), cert. denied, 528 U.S. 1050 (1999).

 

 Private Lawsuits Under Consumer Protection Statutes

Must each individual plaintiff show that he or she relied on the allegedly unfair or deceptive practice at issue?

Uncertain

There may be a violation if the conduct "tends to deceive."

What is the level of scienter (intent) required of a defendant?

None, for actual damages

S.C. Code Ann.§ 39-5-140(a).

Are class actions permitted?

No

S.C. Code Ann.§ 39-5-140(a).

Are statutory damages (an amount set by statute) provided for even if a plaintiff cannot show an actual economic injury?

No

Actual damages only.

S.C. Code Ann.§ 39-5-140(a).

Does the plaintiff automatically receive treble (triple) damages regardless of the intent of the defendant? 

No

Treble damages are mandatory if the violation was willful (knew or should have known) or knowing.

S.C. Code Ann.§ 39-5-140(a).

Does every prevailing plaintiff receive attorneys' fees and costs?

Yes

S.C. Code Ann.§ 39-5-140(a).

Is conduct authorized by or in compliance with a state or federal statute or regulation exempt from the act? 

Yes

“Nothing in this article shall apply to:  (a) Actions or transactions permitted under laws administered by any regulatory body or officer acting under statutory authority of this State or the United States or actions or transactions permitted by any other South Carolina State law … (d) Any challenged practices that are subject to, and comply with, statutes administered by the Federal Trade Commission and the rules, regulations and decisions interpreting such statutes.”

S.C. Code Ann.§ 39-5-40.

South Carolina law also provides:

“It is the intent of the legislature that ... courts will be guided by the interpretations given by the Federal Trade Commission and the Federal Courts to § 5(a) (1) of the Federal Trade Commission Act (15 U.S.C. § 45(a)(1)), as from time to time amended.”

S.C. Code Ann.§ 39-5-20(b).

 

 Jury Service

Automatic exemptions and disqualifications based on occupation eliminated?

No

South Carolina law automatically disqualifies clerks of the court, constables, sheriffs, probate judges, county commissioners, magistrates or other county officers, or any person employed in the courthouse from service.

S.C. Code Ann. § 14-7-820.

 

Are the grounds for obtaining an excuse from service closely defined?

No

South Carolina law authorizes the presiding judge to excuse “anyone from jury duty at any term of court if he considers it advisable,” including when “the person’s services are so essential to the operations of the business, commercial, or agricultural enterprise that the enterprise must close or cease to function if the person is required to perform jury duty.”

S.C. Code Ann. § 14-7-860.

Persons 65 years of age or older are exempt from service.

S.C. Code Ann. § 14-7-840.

 

May jurors automatically postpone and reschedule service?

Generally, no

Students and school employees may automatically postpone jury service. Other summoned jurors who have a conflict must show good cause to the court for an excuse.

S.C. Code Ann. § 14-7-845.

 

Is a juror's employment and leave time adequately protected during service?

No

South Carolina law prohibits an employer from dismissing or demoting an employee because he or she complies with a juror summons.  S.C. Code Ann. § 41-1-70.  The law does not explicitly prohibit other adverse actions not rising to level or dismissing or demoting, or prohibit explicitly employers from requiring employees to use annual, vacation, or sick leave time for time spent in jury service.

 

Is there a limit on the frequency of jury service?

Yes

A person may be called to serve no more than once every three years.

S.C. Code Ann. 14-7-850.

 

Is the length of service limited to no more than one day or one trial?

No

A summoned juror may be required to serve a one-week term.

S.C. Code  Ann. § 14-7-200.

Juror per diem

Varies by country from $2 to $12.50, plus mileage

S.C. Code Ann. § 14-7-1370. 

Is additional compensation available on lengthy trials?

No

Is the potential penalty for nonappearance sufficient to encourage participation?

No

Jurors who fail to appear are subject to a civil fine of no more than $100.

S.C. Code Ann. § 14-7-1390.

Problem Jurisdictions

None reported

 

Hampton County was listed as a Judicial Hellhole by the American Tort Reform Association in 2004 and given a "dishonorable mention" in 2003, but the county was removed from the list after venue reform addressed the primary problem in 2005.

 

 

This Analysis provides a brief overview of the law.  It is not a substitute for consulting with an attorney and is not intended to provide legal advice.  If you know of developments that are more recent than those reflected above, please send an email to LegalReform@lawexec.com.  Original material © 2009 Center for America.