B. Survival Actions

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

B. Survival Actions

At common law, the question of whether actions survived the death of the injured party was governed by the maxim "actio personalis moritur cum persona,"¹³⁶ which means "a personal right of action dies with the person."¹³⁷ The common law rule, therefore, was that "personal actions ex delicto die with the person . . . [and] unless a statute specifically provides for survival of an action for personal injury, it does not lie after the injured person's death."¹³⁸

"This common law rule has been amended by legislative act . . . to cover certain designated actions for tort."¹³⁹ The survival statute has existed in some form in South Carolina for more than a hundred years.¹⁴⁰ The current statute, Section 15-5-90, provides:

Causes of action for and in respect to any and all injuries and trespasses to and upon real estate and any and all injuries to the person or to personal property shall survive both to and against the personal or real representative, as the case may be, of a deceased person and the legal representative of an insolvent person or a defunct or insolvent corporation, any law or rule to the contrary notwithstanding.

Thus, a survival claim may only be filed by administrator personal representative of an estate who has been appointed by the probate court prior to the filing of the claim.¹⁴¹ Any settlement of a survival claim must be approved by a state probate or circuit court or by a federal district court.¹⁴²

The Survival Act is remedial, and, therefore, it should be accorded a liberal construction.¹⁴³ Consistent with this construction, "the general rule [is] that any cause of action which could have been brought by the deceased in his lifetime survives to his representative under the Survival Act. . . ."¹⁴⁴

In interpreting the Survival Act and determining which actions survive, note that the Act "adds to but does not curtail those actions which survive at common law."¹⁴⁵ It is "the nature and substance of the cause of action, rather than the form of the remedy [that] determines its ability to survive."¹⁴⁶ For example, at common law the rule that personal actions die with the person was not applied in equity cases; therefore, cases brought in equity still survive regardless of the lack of statutory provisions to that effect.¹⁴⁷

1. Limitations on Actions that Survive

As indicated above, the statute is limited to "injuries and trespasses to . . . real estate and . . . injuries to the person or to personal property."¹⁴⁸ As a result, suits for other types of injury do not survive.¹⁴⁹ In Schneider v. Allstate Insurance Co.,¹⁵⁰ Judge Blattt of the United States District Court outlined the South Carolina law of survivability of actions. He noted that, while "survivability" is the rule, South Carolina courts have recognized three limitations or exceptions under the statutory language:

The Supreme Court in Brewer v. Graydon, 233 S.C. 124, 103 S.E.2d 767, 67 A.L.R.2d 524 (1958), recited the three exceptions to survivability under the Survival Statute, namely, malicious prosecution, (Brown v. Bailey, 215 S.C. 175, 54 S.E.2d 769 (1949)); [libel and] slander, (Carver v. Morrow, [213 S.C. 199, 48 S.E.2d 814 (1948)]); and fraud and deceit, (Mattison v. Palmetto State Life Insurance Company, 197 S.C. 256, 15 S.E.2d 117 (1941)). In the more than eighty-five years that the Survival Statute has been in existence, no other exceptions have been created. Thus, it may be inferred, as noted by the Fourth Circuit Court of Appeals in Dean v. Shirer, 547 F.2d 227, 229 (1976), and by the distinguished present Chief Judge of the District of South Carolina in Belcher v. S.C. Board of Corrections, 460 F. Supp. 805, 807-08 (1978), that these are the exclusive exceptions under the law of South Carolina.¹⁵¹

Under ordinary circumstances, the Probate Code grants the personal representative the exclusive authority to bring civil actions—including a survival action—on behalf of an estate. However, under the Probate Code, there will be circumstances when a general personal representative cannot or should not act, in which case the Probate Code provides "a special administrator may be appointed." Thus, when the personal representative may be a potential defendant in the action and therefore cannot or should not act, a special administrator may be appointed.¹⁵²

Also, Code Section 15-5-90 provides that "[c]auses of action for and in respect to . . . any and all injuries to the person or to the personal property shall survive both to and against the personal or real representative . . . of a deceased person . . . any law or rule to the contrary notwithstanding." As noted in Schneider, South Carolina recognizes several exceptions to the survivability of a claim, including an exception for fraud.¹⁵³ However, an individual claim as beneficiary for aiding and abetting breach of fiduciary duty so that the fact that the beneficiaries' mother may have been a victim of defendants' fraud and deceit did not impact the viability of the beneficiaries' claims. That is, their individual claims did not derive from damage sustained by their mother during her lifetime, but rather from damage they must prove they individually sustained as residual beneficiaries. Thus, the mother's death did not abate their claims.¹⁵⁴

2. Specific Examples

a. Right to Work Act

Layne v. International Brotherhood of Electrical Workers¹⁵⁵ noted that "[i]t is settled that a cause of action sounding in tort may arise from conduct violating South Carolina's Right to Work Law"¹⁵⁶ and held that the plaintiff's action for wrongful expulsion from a union survived his death.¹⁵⁷

b. Infants

Hall v. Murphy¹⁵⁸ involved actions brought under the Survival Act and for wrongful death of an infant who lived only four hours after her premature birth, which was alleged to have been caused by the defendant's wrongdoing. The South Carolina Supreme Court stated the issue as "whether a child who, while viable and capable of existing independently of its mother, suffers a prenatal injury through the alleged negligence of another, may after its birth maintain a cause of action against such other for damages on account of the injury sustained."¹⁵⁹ The court concluded that "a fetus having reached that period of prenatal maturity where it is capable of independent life apart from its mother is a person and if such a child is injured, it may after birth maintain an action for such injuries."¹⁶⁰ The court held that because the child could have maintained the actions for prenatal injuries had she lived, her administrator could properly sue after her death.¹⁶¹

c. Insurance

Also held to survive is an action in tort against an insurer for negligent, willful, or bad faith failure to settle, which action arises when the obligation to pay an excess judgment recovered against the insured causes actual or potential pecuniary loss to his estate.¹⁶²

d. Actions Under Federal Law

There is no federal survival statute; the survivability of claims against the federal government under the Federal Tort Claims Act is determined by state law, that is, the law of the state where the cause of action arose.¹⁶³ Since the only exceptions to survivability under the Survival Act are malicious prosecution, libel and slander, and fraud and deceit,¹⁶⁴ a variety of civil rights claims have been held to survive. Thus, a civil rights action involving allegations analogous to the survivable claim of false imprisonment or assault has been permitted.¹⁶⁵ A civil rights action arising out of the death of an inmate in a prison fire has been held to survive for the benefit of the inmate's estate.¹⁶⁶ Denial of due process is an injury to the person that survives to the personal representative.¹⁶⁷ A civil claim under the federal Racketeer Influenced and Corrupt Organization Act also survives.¹⁶⁸

3. Suits Against State Government

None of the exceptions to the waiver of sovereign immunity in S.C. Code § 15-78-60 prohibit or limit survival actions, including claims for conscious pain and suffering and medical expenses. Thus, when a person injured by the negligence of a state agency dies, a survival action against the state may be maintained because a private person could be found similarly liable pursuant to the general survival statute.¹⁶⁹

4. Defenses

Defenses in a survival action are like those in any tort since the action is premised on the decedent's right to recover if he had survived.¹⁷⁰ In addition, survival actions are like wrongful death actions¹⁷¹ in that some types of misconduct by a beneficiary defeat recovery of damages for that beneficiary in a survival action because such conduct is deemed to relinquish the right to a distributive share.¹⁷² However, remarriage of a spouse is irrelevant to damages.¹⁷³

Adoption of the South Carolina Probate Code¹⁷⁴ has altered the analysis of statutes of limitations for survival:

The running of any statute of limitations on a cause of action belonging to a decedent which had not been barred as of the date of his death is suspended during the eight months following the decedent's death but resumes thereafter unless otherwise tolled.¹⁷⁵

For actions against the estate of a deceased tortfeasor, two types of provisions in the Probate Code are relevant. First, provisions set forth in Section 62-3-802 of the South Carolina Code that, in effect, "toll" the statute of limitations for eight months after the decedent's death.¹⁷⁶ Second, the Code contains provisions concerning the time limit in which claims against the estate must be presented.¹⁷⁷

5. Damages

As noted earlier, the general rule is that the survival statute allows any cause of action the deceased could have brought in his or her life.¹⁷⁸ The recovery of damages is for the benefit of the decedent's estate,¹⁷⁹ not the decedent's family as in wrongful death.¹⁸⁰ Thus, for example, "[m]edical, surgical, and hospital bills, being such expenses as might have been recovered by deceased had he survived injury, may be recovered by...