C. Proof Required for Recovery of Damages

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

C. Proof Required for Recovery of Damages

1. Actual Damages

A successful plaintiff is entitled to recover the "actual damages" proximately caused by a defendant's negligence. For tort cases, actual damages should be awarded in the amount needed to restore an injured party, as nearly as possible through the payment of money, to the same position he or she was in before the wrongful injury occurred.²⁴ For property damage cases, the actual damages will generally be the diminution in the market value of the property following the injury.²⁵

In contract cases, the plaintiff may generally receive as actual damages the out-of-pocket costs actually incurred as a result of the contract and the gain above costs that would have been realized had the contract been performed.²⁶

In each of these situations, the actual damages are designed to compensate the plaintiff in an attempt to make the plaintiff whole. This Treatise will elaborate on these damages substantively in later chapters.

In tort cases, the plaintiff will generally have to carry the burden of proof with respect to establishing these damages.²⁷ One notable exception is that general damages for an actionable per se defamation claim will be presumed and need not be proven by the plaintiff.²⁸ For a tort claim, the plaintiff will bear the burden of showing the value of both economic and non-economic damages. Even in cases where the defendant defaults on liability, the plaintiff still is required to prove by competent evidence (and by a preponderance of the evidence) the amount of his damages.²⁹

Because the plaintiff is responsible for putting forth evidence regarding the value of the damages suffered, courts allow great latitude in the introduction of evidence concerning alleged damages.³⁰

As a general rule, the court will allow "any evidence which tends to establish the nature, character, and extent of injuries which are the natural and proximate consequences of defendant's acts" if otherwise competent.³¹

Furthermore, South Carolina courts have recognized that no set formula can be used for the measurement of actual damages in a personal injury case.³²

Likewise, in property damage cases a plaintiff is not required to prove the diminution in value to his property to a degree of mathematical certainty.³³

The plaintiff also bears the burden of proving damages for a breach of a contract claim.³⁴

Where a plaintiff seeks special damages for a breach of contract in addition to his general damages, the plaintiff must also plead and prove both the fact of special damages and the amount of those damages.³⁵

For contracts with a liquidated damages provision, the burden of proof on the plaintiff is significantly different. If the contract has a provision for liquidated damages, the plaintiff merely has to prove a violation of the contract by the defendant.³⁶ The plaintiff will not have the burden of proving that an exact amount of damage was actually sustained.

The burden of proof requires a plaintiff to show that the actual damages claimed are "certain" and not "speculative." For damages accrued to date, the plaintiff must show the injury was the proximate result of the defendant's act and that the damages were reasonably certain to follow as a consequence of the defendant's actions.³⁷

If the plaintiff can...