49 Wrongful Death
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49 Wrongful Death
A. Definition
Wrongful death is a tort action governed by statute.1 At common law the liability and cause of action for wrongful killing "died with the injured person,"2 and thus only through legislation do statutorily designated beneficiaries gain a cause of action for their losses.3The statute provides for a civil action to recover damages for the wrongful death of a "person."4 The action is brought by the administrator of the decedent's estate on behalf of the statutory beneficiaries.
Because the statute limits the action to "persons," the South Carolina Supreme Court has held that a nonviable stillborn fetus may not maintain a wrongful death action and, therefore, an action may not be brought on behalf of the nonviable fetus.5
B. Elements
A wrongful death may be the result of an intentional tort.6 The cause of action might also be based on products liability or breach of warranty,7 although more usually it will be brought as a negligence action.8 In order to recover in a wrongful death action based on negligence, the plaintiff must show:
(1) a duty of care owed by the defendant to the decedent
(2) a breach of that duty by a negligent act or omission
(3) damages proximately resulting from the breach.9
C. Elements Defined
1. A Duty of Care Owed by the Defendant to the Decedent
If the plaintiff is unable to establish that the defendant owed duty of care to him or her, the plaintiff cannot prevail.10 The duty of care owed to a decedent by a defendant in a wrongful death case will be determined by the nature of the action: e.g., medical malpractice; premises liability; automobile negligence. The duty might also be based on statute.11 The South Carolina Supreme Court has said that in order to show a duty of care based on a statute, the plaintiff must show: "(1) that the essential purpose of the statute is to protect from the kind of harm the plaintiff has suffered; and (2) that he is a member of the class of persons the statute is intended to protect."12 Generally a duty of care is "that standard of conduct the law requires of an actor in order to protect others against the risk of harm from his actions. It embodies the principle that the plaintiff should not be called to suffer a harm to his person or property which is foreseeable and which can be avoided by the defendant's exercise of reasonable care."13
2. A Breach of That Duty by a Negligent Act or Omission
The plaintiff must show the defendant breached the duty of care.14 Generally a breach of duty exists when it is foreseeable that conduct may likely injure a person to whom a duty is owed.15 For example, in a medical malpractice case the plaintiff must show that the defendant departed from the recognized and generally accepted standards, practices and procedures.16 If the plaintiff shows a duty arising from a statute17 and that the defendant violated the statute, the element is met by proof of negligence per se.18 A violation of an administrative regulation may also constitute negligence per se.19
3. Damages Proximately Resulting from the Breach
The plaintiff must show the breach of duty was the proximate cause of the injury.20 The South Carolina Supreme Court has said:
Proximate cause requires proof of: (1) causation in fact and (2) legal cause.
Causation in fact is proved by establishing the injury would not have occurred "but for" the defendant's negligence. [citation omitted] Legal cause is proved by establishing foreseeability. [citation omitted] Although foreseeability of some injury from an act or omission is a prerequisite to establishing proximate cause, the plaintiff need not prove that the actor should have contemplated the particular event which occurred. The defendant may be held liable for anything which appears to have been a natural and probable consequence of his negligence. [citation omitted] A plaintiff therefore proves legal cause by establishing the injury in question occurred as a natural and probable consequence of the defendant's negligence.21
Unless the evidence shows reasonable persons could not disagree, the question of proximate cause is one for the jury.22
D. Defenses
Defenses to a wrongful death action include contributory negligence of either the decedent or beneficiaries, the statute of limitations, the Tort Claims Act limitations, and charitable immunity. 23
Contributory negligence is a defense requiring the defendant to show the plaintiff was negligent24 and that the negligence was the proximate cause of the injuries.25 Traditionally, contributory negligence was a total defense to the cause of action; however, South Carolina has adopted comparative negligence under which the plaintiff may recover if his or her negligence is not greater than the defendant's in which case the plaintiff's recovery is reduced in proportion to his or her negligence.26 Punitive damages, however, are not reduced by the proportion of the plaintiff's negligence under comparative negligence27 The contributory negligence may be that of the decedent,28 or of a beneficiary.29 The negligence of a beneficiary affects only that beneficiary's claim.30
The applicable statute of limitations is three years from the death.31 Because an estate may maintain an action only when the decedent would have been entitled to maintain one had he or she survived, if a person had a known claim and failed to file suit within the statute of limitations and that person subsequently dies as a result of the injury, the estate is barred from maintaining a wrongful death claim. The wrongful death statute of limitations does not revive a previously barred claim, rather it is triggered only when it is first established that the decedent had a right of recovery at the time of death in which case the wrongful death action must be filed within three years of that death.32 The tolling provisions of the statute are inapplicable to suits brought on behalf of minor beneficiaries.33
Because wrongful death actions are to recover damages for injury to the person, the health care provider statute of limitations is applicable to wrongful death actions.34
The South Carolina Tort Claims Act35 waives the immunity of the State, its agencies, political subdivisions, and governmental entities from liability in tort. The Act is the exclusive and sole remedy for any tort committed by an employee of a governmental entity while acting within the scope of his or her official duty and must be liberally construed in favor of limiting the liability of the governmental entity.36 The Act specifically provides for wrongful death claims.37 It contains, however, many limitations on liability and damages which may preclude or restrict a plaintiffs cause of action.38 For example, the Act provides for a two year statute of limitations unless a claimant first filed a claim pursuant to the Act, in which case the limitation is three years.39 Where an action is against a physician or dentist, there are additional important considerations.40
While common law charitable immunity was eliminated by the South Carolina Supreme Court in 1981,41 there is a statutory limitation on liability for charitable organizations.42 A "charitable organization" is any organization, institution, association, society, or corporation which is exempt from taxation pursuant to 26 U.S.C. § 501(c)(3) or (d).43 A person "sustaining injury or dying"44 as a result of a tortious act of commission or omission by an employee45 of a charitable organization acting within the scope of his or her employment, may recover no more than the liability imposed under the Tort Claims Act46 for actual damages sustained. Unless it is proved that the employee acted recklessly, willfully, or in gross negligence, an action against the charitable organization is a complete bar to recovery against the employee.47 Where a defendant is both a governmental and charitable organization, the Tort Claims Act provides the exclusive remedy, and the action is governed by it rather than the charitable immunity statute.48
E. Damages
Damages in a wrongful death case are not determined by the value of the life lost, but by the damages suffered by the beneficiaries.49 The beneficiaries may recover:
... all damages, present and prospective, which are naturally the proximate consequence of the wrongful act including: (1) pecuniary loss, (2) mental shock and suffering, (3) wounded feelings, (4) grief and sorrow, (5) loss of companionship, and (6) deprivation of the use and comfort of the intestate's society including the loss of his experience, knowledge, and judgment in managing the affairs of himself and his beneficiaries.50
The plaintiff must show evidence of any pecuniary loss to recover it as an element of damages, but where there is no pecuniary loss, other damages are still recoverable.51Punitive damages may be awarded in a wrongful death action.52
The court has held that evidence of remarriage of a surviving spouse or separation prior to death and subsequent remarriage are inadmissible on the issue of damages.53 By statute, damages to parents of a deceased child may be denied or limited where it is determined that a parent failed to reasonably provide support for the decedent and did not otherwise provide for the child's needs during his or her minority.54
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Notes:
[1] S.C. Code §§ 15-51-10 et seq.
[2] Grainger v. Greenville, Spartanburg & Anderson Ry., 101 S.C. 399, 85 S.E. 968 (1915); Tollerson v. Atlantic Coast Line R.R., 188 S.C. 67, 198 S.E. 164 (1938).
[3] 3. Hubbard & Felix, The South Carolina Law of Torts, p. 681 (4 ed. South Carolina Bar, CLE Division 2011).
[4] Crosby v. Glasscock Trucking Co., 340 S.C. 626, 532 S.E.2d 856 (S.C. 2000).
[5] Crosby v. Glasscock Trucking Co., 340 S.C. 626, 532 S.E.2d 856 (S.C. 2000) (wrongful death statute created new cause of action in derogation of common law and statute creating cause of action in derogation of common law must be strictly construed and its application must not be extended beyond clear intent of...
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