B. Compensatory Damages for Personal Injury and Death

• Library: The South Carolina Law of Torts (SCBar) (2023 Ed.)

B. Compensatory Damages for Personal Injury and Death

A plaintiff in a personal injury case is entitled to recover all damages proximately resulting from a defendant's actionable conduct.¹³³ The loss compensable in a personal injury action includes such elements as pain and suffering, disfigurement, medical expenses, and lost earning capacity. Plaintiff may recover for injuries prior to trial and for any future injuries resulting from the tortious conduct.¹³⁴ These damages are traditionally categorized as "tangible" or "intangible" losses.¹³⁵

Tangible losses include loss of income and incurred medical expenses; intangible losses include pain and suffering, mental distress and loss of enjoyment of life.¹³⁶ Both tangible and intangible losses are "real," actual injuries even though there is no marketplace value on intangible losses.¹³⁷ Pain and suffering and emotional distress are intangible losses, yet no one denies their reality; nor can sadists "buy" the right to inflict pain.

1. Intangible Losses

Intangible losses embrace a wide range of harms including not only physical pain but also such things as "fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation, indignity, embarrassment, apprehension, terror, or ordeal."¹³⁸ Although categorization of intangible injuries can be difficult in some cases,¹³⁹ it is common to distinguish "pain and suffering," which is the physiological experience resulting from bodily harm,¹⁴⁰ from mental or emotional distress, which is the psychological response to an injury or a threatened injury.¹⁴¹ Since "pain and suffering" and mental distress are both experiential, there is no recovery for these damages in a survival action unless it is shown that the decedent was conscious and thus able to experience these harms.¹⁴²

Recovery for intangible losses against "healthcare providers" may be subject to dollar limitations by South Carolina "Tort Reform" legislation.¹⁴³

a. Disfigurement and Disability

Permanent disfigurement and disability are elements of damages and may involve both tangible and intangible aspects. "Disfigurement" generally means that "which impairs or injures the beauty, symmetry or appearance of a person or thing; that which renders unsightly, misshapen or imperfect or deforms in some manner."¹⁴⁴ "The award for this element of damage must evaluate in monetary terms the compensation due [the] plaintiff for permanent physical, mental and emotional disabilities and disfigurements adduced at trial . . . ."¹⁴⁵

b. Pain and Suffering

Pain and suffering, both past and future, is a proper element of damages where it is the proximate consequence of actionable misconduct.¹⁴⁶ In arriving at a verdict, "the jury may include such damage for physical pain and suffering as it is reasonably certain will of necessity, result in the future from the injury."¹⁴⁷ "Loss of enjoyment of life" is compensable as an element of damages, separate from pain and suffering, deserving a distinct charge to the jury.¹⁴⁸

No fixed rule exists for the measurement of damages for mental anguish, pain and suffering.¹⁴⁹ Lacking a market value and being indeterminate in character, the assessment of such loss rests in the sound discretion of the finder of fact.¹⁵⁰

To aid in the computation of items which are incapable of reduction to precise valuation in money, such as pain and suffering, it has been argued that a sum should be based on projected time units (days, hours, minutes) of past or future suffering.¹⁵¹ Most courts allow some latitude in arguments in these terms.¹⁵² In South Carolina, such argument is improper where it is not clearly labeled as the attorney's argument or where the argument lacks a reasonable factual basis in evidence.¹⁵³ Where, however, it is clearly presented as only argument and a proper foundation has been laid for plaintiff's entitlement to damages for pain and suffering, the court will allow such argument.¹⁵⁴

c. Emotional Distress

Defendant's wrongful conduct may inflict emotional distress directly on one's senses or indirectly due to tortious injury to one's property or to another person. Though courts traditionally have been concerned about the reliability of such claims, particularly where the distress was not caused by direct physical trauma to the plaintiff,¹⁵⁵ there has been a gradual expansion of liability for such loss. It is now generally accepted that physical injury or physical impact is not a requirement for recovery of mental trauma.¹⁵⁶

The federal district court summarized this expansion in Phillips v. United States,¹⁵⁷an action under the Federal Tort Claims Act for medical malpractice incident to the "wrongful birth"¹⁵⁸ of a Down Syndrome child. In upholding the award of damages, Judge Blatt summarized the applicable South Carolina law as follows:

The decisional law of South Carolina concerning damages for emotional distress reflects considerable expansion of this element of compensatory damages over the past three decades. In Padgett v. Colonial Wholesale Distributing Co., 232 S.C. 593, 103 S.E.2d 265 (1958), the South Carolina Supreme Court "affirmed recovery of damages for shock, fright, and emotional upset despite the absence of any physical impact between the plaintiff and defendant." Ford v. Hutson, 276 S.C. 157, 160-61, 276 S.E.2d 776, 778 (1981). Under Padgett, the only pertinent question is whether plaintiff's emotional distress was manifested in physical symptoms; that is, "whether . . . [plaintiff] had sustained physical or bodily injury as a consequence of the shock, fright and emotional upset experienced by him." Padgett v. Colonial Wholesale Distributing Co., 232 S.C. 593, 103 S.E.2d 265, 272 (1958). This requirement of "'objective symptomatology,'" Ford v. Hutson, 276 S.C. 157, 162, 276 S.E.2d 776, 779 (1981), quoting Vicnire v. Ford Motor Co., 401 A.2d 148 (Me. 1979), has gradually been diminished as an absolute prerequisite to recovery for emotional distress damages. Ford v. Hutson, 276 S.C. 157, 162, 276 S.E.2d 776, 778-79 (1981). E.g., Restatement (Second) of Torts § 46, Comment [k] (1965).
Moreover, it is important to note that the line of cases culminating in Ford v. Hutson, see, e.g., Hudson v. Zenith Engraving Co., Inc., 273 S.C. 766, 259 S.E.2d 812 (1979); Bellamy v. General Motors Acceptance Corp., 269 S.C. 578, 239 S.E.2d 73 (1977); Rhodes v. Security Finance Corp. of Landrum, 268 S.C. 300, 233 S.E.2d 105 (1977); Turner v. ABC Jalousie Co. of N.C., 251 S.C. 92, 160 S.E.2d 528 (1968), concern "'tortious action[s] in which the sole damages alleged are those of mental anguish . . . .'" Ford v. Hutson, 276 S.C. 157, 161, 276 S.E.2d 776, 778 (1981), quoting Hudson v. Zenith Engraving Co., Inc., 273 S.C. 766, 259 S.E.2d 812, 814 (1979). . . .¹⁵⁹

The recovery of damages for mental distress is often affected by rules limiting duty as opposed to rules concerning damages. As indicated in Chapter 2, there is generally a duty in negligence to protect from "direct" infliction of emotional distress.¹⁶⁰ However, where "indirect" emotional trauma results from injury to another, the right to recover is very limited.¹⁶¹ Thus, for example, in Kinard v. Augusta Sash & Door Co.,¹⁶²the court recognized a right of a bystander to recover for negligent infliction of emotional distress, but imposed very narrow limits on this right.

Where "intentional" misconduct is involved, this balance has been shaped by the increased culpability of the defendant's actions because the extent of liability generally expands with increased wrongdoing.¹⁶³ For example, one basic requirement of the tort of intentional infliction of emotional distress, or "outrage," is that the defendant engage in atrocious behavior and have the intent to inflict emotional distress or act with reckless disregard that the distress will occur.¹⁶⁴ Where such atrocious intentional misconduct is involved, the plaintiff need not prove physical manifestations or offer expert testimony.¹⁶⁵ Instead, he need only show that "the emotional distress suffered by the plaintiff was so severe that no reasonable man could be expected to endure it."¹⁶⁶

However, even with intentional conduct, minor humiliation and embarrassment, although caused by outrageous conduct, are not compensable if there is no physical harm or threat of physical harm.¹⁶⁷ This approach reflects the view that plaintiff should be allowed to recover for injury from outrageous conduct, but only where the average person would experience mental suffering significant enough to require redress.¹⁶⁸

A similar reliance on the culpability of the defendant and on the emotional reactions of an ordinary reasonable person is utilized in the area of privacy. For example, mental distress is recoverable for the intentional "intrusion into one's activities in such a manner as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities."¹⁶⁹

2. Tangible Losses

a. Medical Expenses

Plaintiff is allowed to recover for past and future medical expenses proximately caused by defendant's tort.¹⁷⁰

In the case of an injury to a minor child, economic damages for medical expenses on behalf of the injured child may be awarded to the parents,¹⁷¹ including extraordinary expenses necessitated by the child's condition.¹⁷² The "real party in interest" who may recover medical expenses depends upon the nature of the expenses claimed and the capacity the parent occupies in the suit. In Patton v. Miller,¹⁷³the South Carolina Supreme Court set forth the applicable rules as follows: (1) the parent, in a representative capacity, is the real party in interest with respect to future medical expenses that the minor would incur after the minor reached age of majority; (2) the parent, in an individual capacity, is the real party in interest with respect to future medical expenses that would be incurred while the child is still a minor (i.e., between time of trial and minor's eighteenth birthday); and (3) the parent, in an...