B. Elements

• Library: Elements of Civil Causes of Action (SCBar) (2021 Ed.)

B. Elements

(1) a violation of the Act
(2) proximate cause
(3) damages¹¹

The certified question was:

Under South Carolina law, can Plaintiffs in a residential construction defects case sue Defendant builder, seller and developer under the South Carolina Unfair Trade Practices Act if Plaintiffs did not purchase their residences from Defendant but from the original homeowner more than three years after the initial sale?¹³

The court said there was no specific provision in SCUTPA that limits a cause of action to an immediate purchaser, but answered the certified question in the negative, and observed that subsequent purchasers are not without remedies including actions in tort, negligence, and implied warranties. A dissenting justice said that the majority construed SCUTPA to impose a privity requirement, but that a plain reading of the statute revealed no such requirement and had "... the legislature intended to impose a limitation on the operation of the SCUTPA by imposing a privity requirement, it could easily have done so."¹⁴

A federal court read Reynolds to impose the privity requirement only in the home builder/buyer context, but acknowledged doubt. It also observed that the defendant in the case before it contended Reynolds did not involve privity, but instead the causation element of SCUTPA and simply reiterated that plaintiffs must suffer injury as a result of a SCUTPA violation to recover. In Colleton Preparatory Acad., Inc. v. Hoover Universal, Inc.,¹⁵ the court was again asked to address the privity issue when a federal court inquired if a plaintiff who used but did not purchase a product directly from the defendant and suffered a loss as a result of the defendant's unfair or deceptive acts could obtain relief under the SCUTPA...