What’s Lef Post-Paradis?, 0122 SCBJ, SC Lawyer, January 2022, #24

• Author: By Andrew M. Connor
• Position: Vol. 33 Issue 4 Pg. 24

What’s Lef Post-Paradis?

No. Vol. 33 Issue 4 Pg. 24

South Carolina BAR Journal

January, 2022

Civil Conspiracy Claims After the Demise of Special Damages

By Andrew M. Connor

In Paradis v. Charleston County School District,^[1] the Supreme Court of South Carolina reexamined, revised, and reiterated the elements of civil conspiracy claims in this state. Before Paradis, civil conspiracy required “(1) the combination of two or more people, (2) for the purpose of injuring the plaintiff, (3) which causes special damages.”^[2] Special damages were required to be separate and distinct from the damages alleged in other causes of action.^[3]

In deciding Paradis, however, the Supreme Court overruled 40 years of precedent and abolished the requirement of special damages. As a result, the Paradis decision represents a sea-change in the pleading requirements for this cause of action in South Carolina and, for many practitioners, removes an insuperable obstacle to properly alleging a civil conspiracy claim.

Now that special damages are no longer required, the question becomes, “What’s left?” Indeed, in the wake of the Paradis decision, sorting through the remnants of overruled court opinions to decipher what remains of our state’s civil conspiracy jurisprudence seems no easy task. Nevertheless, this article attempts to lighten the practitioner’s load in answering the question, “What’s left?” The answer, of course, is, “Almost everything else.”

The Paradis decision restated the elements of civil conspiracy as “(1) the combination or agreement of two or more persons, (2) to commit an unlawful act or a lawful act by unlawful means, (3) together with the commission of an overt act in furtherance of the agreement, and (4) damages proximately resulting to the plaintiff.”^[4] While this seems a complete reformulation of the claim, the Supreme Court noted that its opinion overruled previous cases only “to the extent they impose or appear to impose a requirement of pleading (and proving) special damages.”^[5] Taken at face value, Paradis’s holding is much narrower than it seems at first glance and leaves prior case law mostly intact. Upon closer examination, however, the restated elements also appear to result in a conflict that implicitly overrules previous cases on another issue.

Civil conspiracy likely continues to require evidence of agreement.

In the formulation of civil conspiracy set out in Paradis, the first element requires “a combination or agreement of two or more persons.”^[6] This first element is substantially the same as the first element set out in pre-Paradis opinions requiring “a combination of two or more persons.”^[7] This requirement remains unchanged along with the evidentiary requirement of showing some agreement.

In order to prove such a combination or agreement, pre-Paradis decisions required direct or circumstantial evidence “from which a party may reasonably infer the joint assent of the minds of two or more parties to the prosecution of the unlawful enterprise.”^[8] Recognizing the “covert and clandestine” nature of civil conspiracy, these cases allowed an agreement to “be inferred from the very nature of the acts done, the relationship of the parties, the interests of the alleged conspirators, and other cir-cumstances.”^[9] Where the evidence pointed only to acts done independently, courts found plaintiffs had failed to meet their burden.^[10] These pre-Paradis principles likely...