B. Injuries Arising from Breaches of Common-law Duties Owed by a Possessor of Land and from Negligence: Actual Damages for Personal Injury

• Library: South Carolina Damages (SCBar) (2009 Ed.)

B. Injuries Arising From Breaches of Common-Law Duties Owed by a Possessor of Land and From Negligence: Actual Damages for Personal Injury

1. Generally

When a personal injury claim arises from premises liability and is based either upon a breach of a common-law duty owed by one in possession of land or upon a negligence cause of action, all damages proximately flowing from the defendant's wrong are recoverable. This includes past, present, and future damages arising from the defendant's wrongs. When the defendant knew or should have known that he was acting wrongfully and consciously continued to act wrongfully, he may be liable for punitive damages. Punitive, or exemplary, damages are discussed in another chapter of this book and thus will not be addressed here, except briefly.

Actual damages are designed to compensate the injured plaintiff -- to put her, as nearly as possible, in the same position that she was in before the injury occurred. In other words, actual damages include all losses and expenses that the plaintiff has suffered because of the defendant's carelessness. "Compensatory" damages are simply another way of describing actual damages and are synonymous with actual damages.

There is no standard or fixed formula for determining actual damages in a personal injury case. Whenever warranted, the law permits the plaintiff to recover for the following losses:⁴

• Pain and suffering;
• Medical expenses, including those arising from hospital or physicians' treatment, physical therapy, prosthetic devices, and transportation expenses to and from such treatment;
• Lost income and lost earning capacity, whether from self-employment or lost wages, and to the extent proved, pre-judgment interest.⁵ Be aware that the statutory interest rate applicable to judgments in the state courts is far higher than those permitted in the United States courts;
• Psychiatric, psychological, or other such trauma, including mental anguish and mental distress, apprehension, anxiety, depression, sexual dysfunction, and loss of enjoyment of life. Mental anguish rises above the level of mere disappointment, worry, resentment, embarrassment, or anger, but it may include all of these;⁶mental anguish does include the mental sensation of pain arising from emotions such as severe disappointment, grief, wounded pride, indignation, shame, humiliation, and despair, as well as terror or shock.⁷
• Disfigurement;
• Alteration of the plaintiff's lifestyle; and

Loss of consortium. Loss of consortium may include support, services, and income supplied by the other spouse, love and companionship, affection and society, sexual relations, comfort, solace, and guidance.⁸

The plaintiff may recover for past, present, and future damages so long as such damages are the direct and proximate result of the defendant's conduct. Future damages must be reasonably certain to occur and may not be speculative,⁹ but then again ex aequo et bono they need not be proved to a mathematical certainty. Future damages must be discounted to present value. The burden of determining how future damages are discounted to present value typically is given to the jury by way of a charge, but rarely are the jurors given any guidance by the attorneys on how this is to be done. The issue of determining the plaintiff's damages is usually a decision for the jury, and rarely will a court take the question of such damages away from them.

2. Duty to Mitigate Damages

The law imposes upon an injured plaintiff a duty to mitigate damages.¹⁰ This involves making all reasonable attempts to minimize and reduce damages arising from the defendant's wrongful acts. If the plaintiff could have reasonably avoided damages, he will be unable to recover them in a lawsuit. The duty to mitigate does not apply in all cases, however, and merely because the damage caused by the defendant's negligence is not yet repaired by the time of trial does not necessarily mean that this rule has been breached. By way of analogy, if an automobile were damaged but not repaired before trial, and the failure to repair it did not increase or extend the plaintiff's damages, the duty to mitigate would not apply to reduce her verdict.¹¹ When evidence is conflicting as to whether a party reasonably mitigated damages, the jury must decide the issue. Although in most other jurisdictions mitigation must be pleaded, South Carolina has not yet addressed this issue.

3. Pre-Existing Condition

A plaintiff is entitled to recover all damages proximately resulting from the negligent acts of the defendant, including the aggravation of a pre-existing condition.¹² Merely because the plaintiff is more susceptible to an injury because of the pre-existing condition is immaterial. This is a restatement of the venerable doctrine first learned in law school that the defendant takes the plaintiff as he finds him. There is no liability for the actual preexisting condition itself or for its natural worsening.

4. Nominal Damages for Violations of Legal Rights, De Minimus Non Curat Lex, and Punitive Damages as They Relate to Nominal Damages

There is good news and bad news regarding nominal damages. The bad news is the amount of nominal damages itself. When no actual damages capable of pecuniary estimation have been suffered by the plaintiff, but her legal rights have been violated by the defendant's wrongs, the jurors may award "nominal damages, [such] as one dollar, one cent, or other inconsiderable amount, to vindicate [violation of the] plaintiff's legal right[s]."¹³ Clemson Coach Frank Howard once compared a tied football game to a kiss from his sister. Nominal damages also could fit this description and, unless attorney's fees are permitted, nominal damages will constitute a pyrrhic victory for the plaintiff. It is a win of sorts, just not much of one.

Some jurisdictions recognize that some claims are so trivial, so minor, that to tie up the court for such an adjudication would be a miscarriage of justice and a waste of valuable judicial time. This mind set is expressed in the doctrine de minimus non curat lex, meaning that the law does not care about or take notice of very small or trifling matters. This doctrine certainly is not limited to trivial cases brought by inmates regarding their living conditions in prisons, although the courts view such suits with jaundiced eyes. In Harper v. Kemp,¹⁴ Judge Fitzpatrick of the Middle District of Georgia noted as follows:

There must be ...some category of "rights" that are so insignificant that they must give way to the demands of a court system that is burgeoning with cases that do involve significant violations of the Constitution and other important matters involving large sums of money. Surely some better system than a full fledged lawsuit in federal court can be devised to account for dealing with lost blue jeans, confiscated magazines or availability of preferred musical programming. This is not an isolated case; there have been others and there will be more unless some needed changes can be made in the procedure.¹⁵

This doctrine was echoed by Judge Alex Sanders in his concurring opinion in Beraho v. South Carolina State College:¹⁶

I concur [also] for these additional reasons. Mr. Beraho

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