D. Defenses

LibraryElements of Civil Causes of Action (SCBar) (2021 Ed.)

D. Defenses23

The statute of limitations applicable to injuries to the person or rights of another is three years for actions arising on or after April 5, 1988, and six years for those arising before that date.24 Actions initiated under the provision must be commenced within three years after the plaintiff knew, or by the exercise of reasonable diligence should have known, that a cause of action existed.25 The right of action for loss of consortium does not accrue until the loss of the services, society and companionship of the spouse has actually occurred, and that has been defined as when the spouse sustained the injuries.26

Apparently, the contributory negligence of the injured spouse may bar the other spouse's claim for loss of consortium.27 Ordinarily, however, the defense requires the defendant show the plaintiff was negligent,28 and that the negligence was the proximate cause of the injuries.29 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.30 In Lee v. Bunch,31 the parties were involved in a motor vehicle accident. The jury returned a verdict assigning seventy percent (70%) of the fault to Lee and thirty percent (30%) to Bunch and a verdict in favor of Bunch on Mrs. Lee's loss of consortium claim. The trial court concluded the verdicts were inconsistent because Mrs. Lee was entitled to recover damages since the jury found Bunch was partially negligent. The South Carolina Supreme Court, however, said that it is not inconsistent for a jury to return a verdict for an injured spouse on the primary claim and for the defendant on a loss of consortium claim. It reversed the trial court and held the original verdicts in favor of Bunch on both the primary negligence and loss of consortium claims were not inconsistent.

The South Carolina Tort Claims Act waives the immunity of the State, its agencies, political subdivisions, and governmental entities from liability in tort.32 The Act has been specifically applied to a loss of consortium claim.33 It contains, however, many limitations on liability and damages34 which may preclude or restrict a plaintiff's cause of action.35 One is the statute of limitations which is two years, unless the claimant first files a claim pursuant to the act, in which case the limitation is three years.36 Another limitation is that governmental entities37 are not liable for a loss resulting from "employee conduct ... which constitutes actual fraud, actual malice, intent to harm, or a crime involving moral turpitude ...".38 Ordinarily, only the governmental entity may be named as a party defendant, and the employee committing a tort while acting within the scope of his or her official duties is not personally liable unless the conduct in question constituted actual fraud, actual malice, intent to harm, or was a crime of moral turpitude. 39 If the employee is named as a defendant, the name of the appropriate governmental entity must be substituted.40 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.41

In theory, collateral estoppel could be a defense. The South Carolina case law on loss of consortium and collateral estoppel has been described as "long and somewhat confusing,"42 as indeed it is. Nonetheless, it does appear that neither collateral estoppel43 nor res judicata44 will operate to bar an action for consortium.45 Other possible defenses are a release46 and recovery under the Wrongful Death Act.47


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Notes:

[23] Note, Arant v. Stover, 307 F. Supp. 144 (D.S.C. 1969). The plaintiff assigned a 1/100th interest in the action. The defendant questioned whether an action for loss of consortium could be assigned. The court decided it could be.

[24] S.C. Code § 15-3-530(5) ("action for ... any injury to the person or rights of another, not arising on contract and not enumerated by law, and those provided for in Section 15-3-545" concerning medical malpractice). Brown v. Finger, 240 S.C. 102, 124 S.E.2d 781 (S.C. 1962) applied the predecessor of § 15-3-530(5), § 10-143(5), 1952 Code of Laws. It considered when the right to sue for loss of the services, society and companionship of a spouse wife accrued, and said it would appear that the right of action does not accrue until the loss of the services, society and companionship has actually occurred, which in the case before it was when the wife became addicted to the use of narcotic drugs. In Sossamon v. Nationwide Mut. Ins. Co., 243 S.C. 552, 135 S.E.2d 87 (S.C. 1964) the South Carolina Supreme Court noted that numerous cases have held that a loss of consortium is a "personal injury" within a liability policy insuring against loss from liability imposed because of personal injuries.

[25] S.C. Code § 15-3-535.

[26] Preer v. Mims, 323 S.C. 516, 476 S.E.2d 472 (S.C. 1996).

[27] The cases seem to suggest that the negligence of the injured spouse is a defense to the other spouse's consortium claim. See Brown v. Finger, 240 S.C. 102, 124 S.E.2d 781 (S.C. 1962) (contributory negligence by wife is ordinarily good defense in husband's action for loss of consortium but was not pleaded, and not having been pleaded was not at issue). See also Gillespie v. Ford, 225 S.C. 104, 81 S.E.2d 44 (S.C. 1954); Cook v. Atlantic Coast Line R.R. Co., 196 S.C. 230, 13...

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