C. Civil Conspiracy

• Library: South Carolina Business Torts (SCBar) (2021 Ed.)

C. CIVIL CONSPIRACY

A cause of action for civil conspiracy exists under South Carolina law. Although not originally recognized as a separate tort, civil conspiracy is applied to "hold one conspirator liable for the injury resulting from tortious conduct of another."⁸⁶ A civil conspiracy is "[a]n agreement between two or more persons to commit an unlawful act that causes damage to a person or property."⁸⁷ A conspiracy "may be inferred from the very nature of the acts done, the relationship of the parties, the interests of the alleged conspirators, and other circumstances."⁸⁸

Civil liability for conspiracy finds its origin in criminal law.⁸⁹ But South Carolina courts have consistently noted the importance of distinguishing between a civil conspiracy and a criminal conspiracy.⁹⁰ In a claim for civil conspiracy, the "gravamen of the tort" is the damage to the plaintiff resulting from "an overt act done pursuant to the common design" rather than the accomplishment of a criminal or unlawful objective, or simply the combination itself.⁹¹

Similarly, unlike a claim for criminal conspiracy, an action for civil conspiracy may be found when no unlawful means are used in furtherance of such.⁹² The court in Charles v. Texas Co., 199 S.C. 156, 18 S.E.2d 719 (1942), for example, endorsed the view that a lawful act may become actionable when there is a malicious motive and when the "object is to ruin or damage the business of another."⁹³

The modern trend concerning the overt act is to "expand the reliance on malicious motives rather than on the occurrence of unlawful acts."⁹⁴

1. Elements

Under South Carolina law, a cause of action for civil conspiracy consists of three elements, all of which are essential for a plaintiff to recover: (i) combination of two or more persons, (ii) the purpose of which is to injure the plaintiff, and (iii) which causes special damages to the plaintiff.⁹⁵

Further, a civil conspiracy claim only becomes tortious when acts occur and proximately cause damage to the plaintiff.⁹⁶ Thus, even though not expressly listed as an essential element, a claim for civil conspiracy must allege additional overt acts in furtherance of the conspiracy that are separate, independent, and distinct from acts alleged in other causes of action contained in the plaintiff's complaint.⁹⁷ As discussed above, an unlawful act is sufficient to meet this requirement; however, it is not a necessary element of the claim.⁹⁸

a. A Combination of Two or More Persons

Like all conspiracies, the combination of two or more persons is the threshold element that must be satisfied before analyzing the other elements. A claim for civil conspiracy will not be sufficient when the plaintiff cannot show that the defendant combined with other persons to willfully injure him.⁹⁹

Generally, this element is the easiest to satisfy. Evidence of the combination must be such that "a party may reasonably infer the joint assent of the minds of two or more parties" to complete the unlawful objective.¹⁰⁰ The combination "must be shown to exist by and among each defendant."¹⁰¹

In the corporate context, however, this element may be much more difficult to satisfy. The South Carolina Supreme Court has explicitly reaffirmed the intracorporate conspiracy exception, stating that a corporation, as a legal person, cannot conspire with itself.¹⁰² That is, that the employees or directors, sitting in their legal capacity, cannot conspire with the corporation.¹⁰³

In McMillan, the court acknowledged that a scope of employment analysis was relevant to the intracorporate conspiracy doctrine; thus, when agents are acting within the scope of their employment, a conspiracy cannot exist "absent the guilty knowledge of a third party."¹⁰⁴ The court went on to "hold that no conspiracy can exist if the conduct challenged is a single act by a single corporation acting exclusively through its own directors, officers, and employees, each acting within the scope of his employment."¹⁰⁵ Those agents, however, are capable, as individuals, of conspiring among themselves or with third parties.¹⁰⁶

b. For the Purpose of Injuring the Plaintiff

The plaintiff must then show that the defendant's "primary purpose or object of the combination [wa]s to injure the plaintiff."¹⁰⁷ The South Carolina Court of Appeals in Lee went so far as to consider this element the "essential consideration" of the claim.¹⁰⁸ "[I]t is not necessary for a plaintiff asserting a civil conspiracy cause of action to allege an unlawful act in order to state a cause of action, although a civil conspiracy may be furthered by an unlawful act."¹⁰⁹ Thus, if the plaintiff claims a lawful act was the act completed in furtherance of the conspiracy, that act "may become actionable . . . when the 'object is to ruin or damage the business of another.'"¹¹⁰

South Carolina courts have recognized that "injury to the plaintiff need not be the only purpose behind the tortfeasor's conduct" because "many conspiracies will be at least partly motivated by the tortfeasor's desire to protect or benefit the tortfeasor's own lot."¹¹¹ Thus, as long as the plaintiff claims that the defendant's primary purpose was to injure the plaintiff, he has successfully pled the element. In Lee, for example, a physician's assistant successfully pleaded that defendants conspired to limit his practicing privileges in order "to dominate the practice of medicine by licensed physicians" in the area.¹¹²

c. Causation and Special Damages

Civil conspiracy requires the tortious conduct alleged to cause special damages to the plaintiff.¹¹³ Similar to acts alleged in furtherance of the conspiracy, special damages must be separate and independent of others alleged, and they "must go beyond the damages alleged in other causes of action" "[b]ecause the quiddity of a civil conspiracy claim is the damage resulting to the plaintiff."¹¹⁴

The potential for double recovery prompts this requirement.¹¹⁵ South Carolina courts have consistently dismissed claims where a civil conspiracy plaintiff simply repeats the same damages sought in his other claims.¹¹⁶

While general damages are "inferred by the law itself, as they are the immediate, direct, and proximate result of the act complained of," special damages are considered to be the "natural, but not the necessary or usual, consequence of the defendant's conduct."¹¹⁷ Unlike general damages, special damages "are not implied at law because they do not necessarily result from the wrong."¹¹⁸ Thus, they must "be specifically alleged in the complaint to avoid surprise to the other party."¹¹⁹

2. Required Proof

In order to establish the existence of a civil conspiracy, a plaintiff must provide direct or circumstantial evidence "from which a party may reasonably infer the joint assent" of two or more persons in furtherance of the conspiracy.¹²⁰ Circumstantial evidence is treated as acceptable evidence because civil conspiracy is, "by its very nature[,] covert and clandestine and usually not susceptible of proof by direct...