D. Defenses

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

D. Defenses

The statute of limitation applicable to an action for inverse condemnation is three years.⁷⁷ Where the cause of the injury is abatable, each injury gives rise to a new cause of action that may be commenced within the limitations period.⁷⁸

The South Carolina Supreme Court acknowledged the possibility that assumption of the risk could be a defense to inverse condemnation. In Cutchin v. South Carolina Department of Highways and Public Transportation,⁷⁹ the government argued the property owners assumed the risk of flooding by purchasing a home in a flood plain. The court disagreed saying there was no evidence the property owners were aware their home was in a flood plain when they purchased it or that a culvert had been improperly designed. In discussing the substance of the defense, the court implicitly accepted its applicability. In general assumption of the risk is a defense that is recognized in South Carolina in two forms: express assumption and implied assumption.⁸⁰ Express assumption derives from an agreement to waive liability whereas implied assumption applies where the plaintiff voluntarily encounters a risk, understands and appreciates the nature and extent of a known danger created by the defendant, indicates a willingness to accept it, and freely and willingly exposes himself to it.⁸¹ A plaintiff in South Carolina is not barred from recovery by an implied assumption of the risk unless the degree of fault is greater than the negligence of the defendant.⁸²

Other possible defenses to an inverse condemnation action are found in the doctrines of "ripeness," "exhaustion of administrative remedies,"⁸³ and implied dedication to public use.⁸⁴ However, the South Carolina Tort Claims Acts should provide no defense as the action is not a tort.⁸⁵

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