D. Defenses

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

D. Defenses

Defenses to a wrongful death action include contributory negligence of either the decedent or beneficiaries, the statute of limitations, the Tort Claims Act limitations, and charitable immunity.²⁴

Contributory negligence is a defense requiring the defendant to show the plaintiff was negligent²⁵ and that the negligence was the proximate cause of the injuries.²⁶ Traditionally, contributory negligence was a total defense to the cause of action; however, South Carolina has adopted comparative negligence under which the plaintiff may recover if his or her negligence is not greater than the defendant's in which case the plaintiff's recovery is reduced in proportion to his or her negligence.²⁷ Punitive damages, however, are not reduced by the proportion of the plaintiff's negligence under comparative negligence²⁸ The contributory negligence may be that of the decedent,²⁹ or of a beneficiary.³⁰ The negligence of a beneficiary affects only that beneficiary's claim.³¹

The applicable statute of limitations is three years from the death.³² Because an estate may maintain an action only when the decedent would have been entitled to maintain one had he or she survived, if a person had a known claim and failed to file suit within the statute of limitations and that person subsequently dies as a result of the injury, the estate is barred from maintaining a wrongful death claim. The wrongful death statute of limitations does not revive a previously barred claim, rather it is triggered only when it is first established that the decedent had a right of recovery at the time of death in which case the wrongful death action must be filed within three years of that death.³³ The tolling provisions of the statute are inapplicable to suits brought on behalf of minor beneficiaries.³⁴

Because wrongful death actions are to recover damages for injury to the person, the health care provider statute of limitations is applicable to wrongful death actions.³⁵

The South Carolina Tort Claims Act³⁶ waives the immunity of the State, its agencies, political subdivisions, and governmental entities from liability in tort. The Act is the exclusive and sole remedy for any tort committed by an employee of a governmental entity while acting within the scope of his or her official duty and must be liberally construed in favor of limiting the liability of the governmental entity.³⁷ The Act specifically provides for wrongful death claims.³⁸ It contains, however, many limitations on liability and damages which may preclude or restrict a plaintiffs cause of action.³⁹ For example, the Act provides for a two year statute of limitations unless a claimant first filed a claim pursuant to the Act, in which case the limitation is three years.⁴⁰ Where an action is against a physician or dentist, there are additional important considerations.⁴¹

While common law charitable immunity was eliminated by the South Carolina Supreme Court in 1981,⁴² there is a statutory limitation on liability for charitable organizations.⁴³ A "charitable organization" is any organization, institution, association, society, or corporation which is exempt from taxation pursuant to 26 U.S.C. § 501(c)(3) or (d).⁴⁴ A person "sustaining injury or dying"⁴⁵ as a result of a tortious act of commission or omission by an employee⁴⁶ of a charitable organization acting within the scope of his or her employment, may recover no more than the liability imposed under the Tort Claims Act⁴⁷ for actual damages sustained. Unless it is proved that the employee acted recklessly, willfully, or in gross negligence, an action against the charitable organization is a complete bar to recovery against the employee.⁴⁸ Where a defendant is both a governmental and charitable organization, the Tort Claims Act provides the exclusive remedy, and the action is governed by it rather than the charitable immunity statute.⁴⁹

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Notes:

^[24] Preemption may also be a defense. See, e.g., Jamison v. Ford Motor Co., 373 S.C. 248, 644 S.E.2d 755 (Ct. App. 2007) (holding that federal law prohibited state common law tort action based on choice of design of passive vehicle passenger restraint system, but action would be permitted if premised on defects in design and/or implementation of chosen restraint system).

^[25] Taylor v. Bryant, 274 S.C. 509, 265 S.E.2d 514, 516 (1980) (contributory negligence generally means plaintiff's negligence contributed to injury as proximate cause without which injury would not have occurred); Pinkstar v. Morrall, 236 S.C. 601, 115 S.E.2d 286 (1960); South Carolina Insurance Co. v. James C. Greene and Co., 290 S.C. 171, 348 S.E.2d 617 (Ct. App. 1986) (contributory negligence is lack of ordinary care on part of person injured by negligence of another; if in exercise of ordinary care plaintiff might have avoided consequences of defendant's negligence, plaintiff is, in eyes of law, author of his own injury).

^[26] Taylor v. Bryant, 274 S.C. 509, 265 S.E.2d 514 (1980); Odom v. Steigerwald, 260 S.C. 422, 196 S.E.2d 635...