C. The Process of Tort Litigation

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

C. The Process of Tort Litigation

1. The Jury

Given the central role of the jury, it is not surprising that much of the doctrine about process focuses on structuring and checking the power of the jury.¹⁴² Certain specific concerns have particular relevance to tort law—for example, the need to bifurcate a trial where evidence relevant to issues in the second phase may cause prejudice in the first phase.¹⁴³ Perhaps the most important concern is the control of jury verdicts by the courts.¹⁴⁴ The need for judicial control of verdicts also arises in two other contexts of interest to tort law: (1) inconsistent verdicts; and (2) general verdicts based on two different claims.

a. Inconsistent Verdicts

An initial problem with an alleged inconsistency in verdicts is determining whether the verdicts are inconsistent in the first place.¹⁴⁵ For example, where an injured party's tort claim for recovery is combined with his or her spouse's claim for loss of consortium, it may not be clear whether verdicts in favor of the injured party and against the spouse are inconsistent.¹⁴⁶ The determination must be based on the evidence presented at trial.¹⁴⁷ A party's failure to object on the ground of inconsistency prior to discharge of the jury can result in a waiver of the right to challenge the verdict on this ground.¹⁴⁸

b. General Verdicts and the "Two Issue Rule"

It is common to submit cases to the jury with an instruction to submit a general verdict in favor of either of the parties. This simple approach has advantages, but can present difficulties where, for example: (1) the plaintiff has two alternative claims,¹⁴⁹ and (2) it is determined that it was error to grant recovery for one claim but not for the other. How is a court to determine the basis for the jury's general verdict?

South Carolina courts address this question by the use of the "two issue" rule.¹⁵⁰ "[W]here a jury returns a general verdict involving two or more issues and its verdict is supported on at least one issue the verdict will not be reversed on appeal."¹⁵¹ The federal courts follow a different approach and reverse a general verdict where at least one basis for the verdict is erroneous.¹⁵² The difficulties raised by the general verdict can be avoided by use of special verdicts or interrogatories.¹⁵³ The use of such procedures is especially advisable in complex cases.¹⁵⁴

c. Miscellaneous

Other issues concerning the fairness of jury verdicts include the following:

(1) Juries must be "representative," and peremptory challenges cannot be used to exclude jurors on the basis of race or gender.¹⁵⁵

(2) Juries must not have any bias in favor of parties.¹⁵⁶

(3) Juries should not be presented with improper inflammatory arguments by counsel or with appeals to bias.¹⁵⁷

(4) The trial judge has discretion to allow questioning by jurors.¹⁵⁸

(5) The trial judge has discretion to urge a jury to engage in further deliberation where the jury has had difficulty in reaching a unanimous verdict—for example, where it indicates that it is deadlocked.¹⁵⁹

2. The Adversarial Process and Responsibilities of Attorneys

a. Pleading Affirmative Defenses

A list of affirmative defenses is set forth in Rule 8(c) of the Rules of Civil Procedure. Affirmative defenses include "any other matter constituting an avoidance or affirmative defense." Thus, a defendant must raise as an affirmative defense any matter which "conditionally admits the allegations of the complaint but asserts new matter to bar the action."¹⁶⁰

b. Settlements and Releases

Settlements raise numerous practical problems. For example, there are problems involved where not all of the defendants settle with the plaintiff. These problems are discussed below within the context of joint tortfeasors.¹⁶¹ Problems can also arise in some situations because a settlement agreement, like any agreement between counsel, is not binding unless the terms of the settlement are "reduced to the form of a consent order or written stipulation signed by counsel and entered in the record, or unless made in open court and noted upon the record."¹⁶² Sealing of settlement agreements is severely limited by Rule 41.1, SCRCP,¹⁶³ and prohibited by Rule 5.03(c) of the Local Rules of the United States District Court for the District of South Carolina. The trial court has the discretionary power of civil compensatory contempt to enforce a settlement order.¹⁶⁴

Though there are potential problems with the approach, parties may, by contract, agree to settle any matter confidentially and have the matter voluntarily dismissed under Rule 41(a)(1), SCRCP without court involvement.¹⁶⁵ The content, nature, and enforceability of the release will present questions in many instances.¹⁶⁶ Since a release is a contractual relinquishment of a right or claim, it is governed by the same general principles as other contracts.

The construction of a written instrument is, in the first instance, a question of law for the court. In construing a written agreement, the court seeks to ascertain and give effect to the intention of the parties. In determining the nature of the release, we look first to the instrument itself.¹⁶⁷

A fraudulently obtained release will not bar plaintiff from recovering damages on the underlying tort.¹⁶⁸

In a "tort reform" act adopted in 2005, the South Carolina General Assembly adopted S.C. Code Ann. § 15-35-400. This section, along with Rule 68 of the South Carolina Rules of Civil Procedure, allows a party to make an "offer of judgment" and imposes consequences if the other party does not accept the offer and the offering party obtains a determination or verdict as least as favorable as the rejected offer.

c. Election of Remedies

A party which has alternative claims giving rise to alternative remedies is required to make an election of remedies. If the claims are different types or the remedies are complementary rather than conflicting, a party is not required to make such an election.¹⁶⁹

Election of remedies involves a choice between different forms of redress afforded by law for the same injury or different forms of proceeding on the same cause of action. It is the act of choosing between inconsistent remedies allowed by a law on the same set of facts. Its purpose is to prevent double recovery for a single wrong. . . . Election of remedies is not applicable where there are two separate causes of action, each based on different facts.¹⁷⁰
A defendant may raise the issue of election of remedies at any stage of the case. Indeed, to carry out the doctrine's purpose, the trial judge should on his or her own motion require election if both causes of action go to the jury.¹⁷¹

The timing of the election varies. For example, it is generally permissible to request alternative claims and remedies in the complaint;¹⁷² and, except where the choice of remedy may affect the right to trial by jury,¹⁷³ it is often permissible to postpone election until after the jury verdict.¹⁷⁴ However, it is important to note: (1) acceptance of a remedy under one claim¹⁷⁵ or proceeding on only one type of claim¹⁷⁶ can constitute an election and thus bar suit for another claim; (2) failing to raise an alternative remedy in the complaint or at trial constitutes an election not to seek that remedy;¹⁷⁷ and (3) denial of the right to jury trial must be appealed immediately or it is waived. ¹⁷⁸

d. Limitations of Actions

The role of statutory limitations on actions as a defense to particular torts is addressed in the discussion of individual torts. However, it is important to consider certain aspects of limitations that are applicable generally.

A statute of limitations and a statute of repose¹⁷⁹ are affirmative defenses which must be raised in the answer.¹⁸⁰ Shortened statutes of limitation may properly be applied retroactively so long as parties are given a reasonable time to bring claims.¹⁸¹ A claim is commenced by the filing and service of the summons and complaint.¹⁸² Typically, a statute of limitations requires that the claim be filed within a stated period from the time plaintiff knew or should have known of the claim.¹⁸³

Statutes of repose generally have a different measure.¹⁸⁴ For example, S.C. Code Ann. §§ 15-3-640 et seq. establish an eight-year period from the point of substantial completion of an improvement to real property.¹⁸⁵ As a result of this approach, a claim can be barred under a statute of repose even though, for example, a person is not injured until after the time period has run. These statutes also provide a variety of exceptions where the statute of limitations is tolled¹⁸⁶ —for example, during minority.¹⁸⁷ Statutes of repose, however, are not usually subject to tolling.¹⁸⁸ Waiver and equitable estoppel can also have the effect of tolling the statute.¹⁸⁹

The statute may also be tolled by fraud in some circumstances.¹⁹⁰ In some cases, a federal statute may be controlling.¹⁹¹

Special statutory provisions with different time periods and conditions have been enacted for some injuries.¹⁹² Though such special treatment has been held unconstitutional in some instances,¹⁹³ other special rules have also been held not to deny equal protection.¹⁹⁴

Though perhaps not technically statutes of limitation, it should be noted that there are special, very short time limitations governing tort claims against entities such as utilities and common carriers,¹⁹⁵ estates,¹⁹⁶ and corporations in the process of being dissolved.¹⁹⁷

Where a suit is filed within the time of the statute of limitations, amendments made later will relate back so long as the original pleading gave notice of the matter to be litigated.¹⁹⁸ Generally, an amendment adding a party cannot be made after the statute of limitations,¹⁹⁹ but there are exceptions where the same transaction is involved and notice to the defendant is provided within the time period of the statute of limitations.²⁰⁰

3. Federalism

Federal law and/or regulations affects South Carolina tort law in a number of ways. For example:

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