C. Elements Defined

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

C. Elements Defined

1. A Duty of Care Owed by the Defendant to the Plaintiff

A duty of care is "that standard of conduct the law requires of an actor in order to protect others against the risk of harm from his actions. It embodies the principle that the plaintiff should not be called to suffer a harm to his person or property which is foreseeable and which can be avoided by the defendant's exercise of reasonable care."⁴ The duty to act may arise from statute, contract,⁵ relationship,⁶ status, property interest, or some other special circumstance.⁷ In order for there to be a duty of care based on a statute, the plaintiff must show: "(1) that the essential purpose of the statute is to protect from the kind of harm the plaintiff has suffered; and (2) that he is a member of the class of persons the statute is intended to protect."⁸ For example, dram shop liability is based on statutory duties imposed on establishments licensed to sell alcoholic beverages that prohibit them from serving minors or intoxicated persons.⁹ Other duties arise from the relationship between the parties as in negligent misrepresentation where the defendant possesses expertise or special knowledge that would ordinarily make it reasonable for the plaintiff to rely on the defendant,¹⁰ and the defendant has a pecuniary interest in a transaction between the parties.¹¹ Premises liability is a tort in which the duty is dependent on the status of the plaintiff. A defendant, for example owes an invitee¹² a duty of due care to discover risks and take safety precautions to warn of or eliminate unreasonable risks¹³ within the area of invitation.¹⁴ The duty owed to a licensee¹⁵ is to use reasonable care to discover and avoid injury to him or her and to use reasonable care to warn against any concealed dangerous conditions or activities known to the possessor, or any change in the condition of the premises which may be dangerous, and which the licensee may reasonably be not expected to discover.¹⁶ A possessor of property owes no duty to a trespasser¹⁷ except to do no wilful or wanton injury.¹⁸

Even if there is no duty to act, the defendant who acts voluntarily assumes a duty to use due care.¹⁹ In South Carolina jurisprudence, recognition of a voluntarily assumed duty is, according to the state's highest court, rooted in the Restatement of Torts.²⁰ It provides that "[o]ne who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if (a) his failure to exercise such care increases the risk of such harm, or (b) the harm is suffered because of the other's reliance upon the undertaking."²¹ The South Carolina Supreme Court has explained that a voluntary undertaking does not create a duty of care unless the failure to exercise reasonable care increases the risk of harm to the plaintiff or the plaintiff suffers harm because he or she relied on the undertaking.

2. A Breach of that Duty by a Negligent Act or Omission

Generally in a negligence action the plaintiff must show the defendant did not use the amount of care one ordinarily would have under the circumstances.²² Negligence cannot be presumed from injury because South Carolina does not recognize the doctrine of res ipsa loquitur.²³ If the plaintiff shows a duty arising from a statute²⁴ and that the defendant violated a statute, the element is met by proof of negligence per se.²⁵ A violation of an administrative regulation may also constitute negligence per se.²⁶ In a medical malpractice action, the plaintiff must show that the defendant departed from the recognized and generally accepted standards, practices and procedures.²⁷ The defendant's failure to conform to that standard must generally be shown by expert testimony unless the subject matter is within common knowledge and experience.²⁸

For a plaintiff to recover for injuries caused by a dangerous or defective condition on the defendant's premises it must be shown that:

(1) a specific act of the defendant created the condition;
(2) the defendant had actual knowledge of the condition; or
(3) the defendant had constructive knowledge of the condition.²⁹

In "slip and fall cases," which many premises liability actions are, constructive notice is shown by proving a foreign substance had been on the floor for a sufficient time to be discovered and removed in the exercise of ordinary care.³⁰

3. Damages Proximately Resulting from the Breach

The plaintiff must show the breach of duty was the proximate cause of the injury. A plaintiff is not, however, required to prove that the defendant's negligence was the sole proximate cause of the injury.³¹ The South Carolina Supreme Court has said:

Proximate cause requires proof of: (1) causation in fact and (2) legal cause.
Causation in fact is proved by establishing the injury would not have occurred "but for" the defendant's negligence. [citation omitted] Legal cause is proved by establishing foreseeability. [citation omitted] Although foreseeability of some injury from an act or omission is a prerequisite to establishing proximate cause, the plaintiff need not prove that the actor should have contemplated the particular event which occurred. The defendant may be held liable for anything which appears to have been a natural and probable consequence of his negligence. [citation omitted] A plaintiff therefore proves legal cause by establishing the injury in question occurred as a natural and probable consequence of the defendant's negligence.³²

Unless the evidence shows reasonable persons could not disagree, the question of proximate cause is one for the jury.³³

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Notes:

^[4] Snow v. City of Columbia, 305 S.C. 544, 409 S.E.2d 797 (Ct. App. 1991).

^[5] See, e.g., McCullough v. Goodrich & Pennington Mortg. Fund, Inc., 373 S.C. 43, 644 S.E.2d 43 (S.C. 2007) (no contractual duty giving rise to claim by secured creditor against third party for negligent impairment of collateral). See also Fisher v. Shipyard Vill. Council of Co-Owners, Inc., 409 S.C. 164, 178, 760 S.E.2d 121, 129 (Ct. App. 2014) , aff'd as modified, 415 S.C. 256, 781 S.E.2d 903 (S.C. 2016) (when master deeds and bylaws show homeowner's association has obligation to maintain common elements, it has duty to pursue recovery for any alleged construction defects in common elements). Lack of privity between the plaintiff and the defendant does not preclude the imposition of a duty under a contract. Shaw v. Psychemedics Corp., 426 S.C. 194, 826 S.E.2d 281 (S.C. 2019) (drug testing laboratory that had contract with employer to conduct and evaluate drug tests owed duty of care to employees subject to that testing).

^[6] See, e.g., Huggins v. Citibank, N.A., 355 S.C. 329, 585 S.E.2d 275 (S.C. 2003) ("relationship" between credit card issuers and potential victims of identity theft is far too attenuated to rise to level of duty between them; though it is foreseeable that injury may arise from negligent issuance of credit card, foreseeability alone does not give rise to duty); Roe v. Bibby, 410 S.C. 287, 763 S.E.2d 645 (Ct. App. 2014) (no special relationship where there was no evidence defendant's wife had ability to monitor, supervise, or control conduct of her husband who sexually abused plaintiff's children in defendants' home as wife worked full-time outside home and was not always present when plaintiff's children were visiting; record contained no evidence wife had knowledge of specific threat of harm to specific individual; noting case did not involve commercial child care situation or other commercial arrangement). See generally Clemency, Child Abuse Law: Criminal and Civil Liability for Failure to Report Suspected Child Abuse in South Carolina, 68 S.C. L. Rev. 893 (2017); Johnson, Cybersecurity, Identity Theft, and the Limits of Tort Liability, 57 S.C. L. Rev. 255 (2005).

^[7] Carson v. Adgar, 326 S.C. 212, 486 S.E.2d 3 (1997); Burns v. South Carolina Commission for the Blind, 323 S.C. 77, 448 S.E.2d 589 (Ct. App. 1994); Rayfield v. South Carolina Dept. of Corrections, 297 S.C. 95, 374 S.E.2d 910 (Ct. App. 1988), cert. denied, 298 S.C. 204, 379 S.E.2d 133 (1989); Hubbard v. Taylor, 339 S.C. 582, 529 S.E.2d 549 (Ct. App. 2000). See also Edwards v. Lexington County Sheriff's Dep't, 386 S.C. 285, 688 S.E.2d 125 (S.C. 2010) (where department employee urged plaintiff to attend bond revocation hearing even though plaintiff expressed fears for her safety and department provided no security at hearing, it owed plaintiff duty solely as result of unique facts — special circumstances — as department created situation that it knew or should have known posed substantial risk of injury to plaintiff); Peterson v. Porter, 389 S.C. 148, 697 S.E.2d 656 (Ct. App. 2010) (plaintiff who was injured in fall while working on defendants' property claimed defendants had duty to supervise and warn him of any dangers because of his impaired mental capacity; finding plaintiff's mental capacity did not require close supervision or special instruction); Schmidt v. Courtney, 357 S.C. 310, 592 S.E.2d 326 (Ct. App. 2003) (rejecting argument of defendant golf course owner that it owed no duty to plaintiff struck by golf ball while working on roof near course on principle that golf courses are not liable to those injured by errant golf shots as long as course is not unreasonably unsafe); Hardee v. Bio-Medical Applications of S.C., Inc., 370 S.C. 511, 636 S.E.2d 629 (S.C. 2006) (medical provider who knows treatment may have detrimental effects on patient's capacities and abilities owes duty to prevent harm to patient and to reasonably foreseeable third parties by warning patient of attendant risks and effects before administering treatment). While generally there is no duty to control the conduct of another or to warn third persons or potential...