D. Defenses

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

D. Defenses

The most common defense to an action for assault and/or battery is self-defense.¹⁶ If a defendant acts in justifiable self-defense, he or she may not be held responsible for damages in an action for assault and battery.¹⁷ The South Carolina Supreme Court has said that "[o]ne acting in self-defense to repel an unlawful attack is not guilty of assault; he may repel force with force and continue his self-defense as long as the danger apparently continues."¹⁸ Provocation which does not amount in law to justification is not a defense to assault and battery.¹⁹ Thus, statements made by the plaintiff a few days before the incident at issue provided no legal justification for the defendant's conduct.²⁰ And, where the plaintiff said "hit me" to the defendant shortly before the latter struck the former, the absence of an offer of physical violence negated any justification.²¹

The right to use reasonable force does not ordinarily include the use of a deadly weapon, but may where the conduct of the plaintiff produces in the mind of a person of "reasonable prudence and courage" apprehension of assault involving serious bodily harm.²² The defendant in his or her own place of business, or abode, is generally not required to retreat in the face of an assault in order to claim self-defense.²³

In Nauful v. Milligan,²⁴ the South Carolina Supreme Court said that assuming mutual combat would constitute a defense to a civil action for assault and battery, it was unavailable where the defendant testified he struck blows solely in response to derogatory comments made about his children. The court said for mutual combat to exist there must be a mutual intent and willingness to fight.²⁵ In criminal cases, the court has said that self-defense is generally unavailable to one who kills another in mutual combat.²⁶ If, however, the party first withdraws and makes a good faith attempt to communicate by word or act a refusal to engage in further conflict, the right to self-defense is restored.²⁷

A police officer who uses reasonable force in effecting a lawful arrest is not liable for assault or battery.²⁸ Sovereign immunity may apply where an officer considered an "arm of the state" is acting in his or her official capacity.²⁹

While intent is not a necessary element of an action for assault, a federal court dismissed a claim against a city because under the South Carolina Tort Claims Act,³⁰ immunity for intentional torts has not been waived,³¹ and therefore, the city had "immunity for the claims made against it for the intentional tort" of assault.³²

Contributory negligence is a defense in a negligence action, not for what is generally considered an intentional tort such as assault. However, there is authority for application of contributory negligence where liability for assault in based on negligence.³³ If contributory negligence is available as a defense it requires that the defendant show the plaintiff was negligent³⁴ and that the negligence was the proximate cause of the injuries.³⁵ 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.³⁶ Punitive damages, however, are not reduced by the proportion of the plaintiff's negligence under comparative negligence.³⁷

A defendant who enters a guilty plea — including an Alford plea³⁸ — in a criminal proceeding is collaterally estopped from litigating the issue in a subsequent civil action based on the same facts underlying the plea.³⁹

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.⁴⁰ 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.⁴¹

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Notes:

^[16] State v. Day, 341 S.C. 410, 416, 535 S.E.2d 431, 434 (2000). In Day, a criminal prosecution, the court said the elements of self-defense were: "(1) the defendant must be without fault in bringing on the difficulty; (2) the defendant must have been in actual imminent danger of losing his life or sustaining serious bodily injury, or he must have actually believed he was in imminent danger of losing his life or sustaining serious bodily injury; (3) if his defense is based upon his...