D. Defenses

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

D. Defenses

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. ³⁴ 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.³⁵

Contributory negligence is a defense in a negligence action that requires the defendant show the plaintiff was negligent³⁶ and that the negligence was the proximate cause of the injuries.³⁷ 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.³⁸ Punitive damages, however, are not reduced by the proportion of the plaintiff's negligence under comparative negligence³⁹

The South Carolina Supreme Court has held that "... comparative negligence encompasses the comparison of ordinary negligence with heightened forms of misconduct such as recklessness, willfulness, and wantonness ..." and that under the comparative negligence system "... all forms of conduct amounting to negligence in any form, including, but not limited to, ordinary negligence, gross negligence, and reckless, willful, or wanton conduct, may be compared to and offset by any conduct that falls short of conduct intended to cause injury or damage."⁴⁰

A federal court found comparative negligence is not a viable defense in a case in which a child drowned in the defendant's swimming pool and refused to allow the defendant to argue that the parents or caretakers of the child were negligent in failing to supervise him and that their negligence caused his death.⁴¹

The "unforeseeable incapacity" defense may protect a defendant from liability in some cases.⁴²

The South Carolina Tort Claims Act waives the immunity of the State, its agencies, political subdivisions, and governmental entities from liability in tort.⁴³ It contains, however, many limitations on liability⁴⁴ and damages⁴⁵ which may preclude or restrict a plaintiff's cause of action.⁴⁶ 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.⁴⁷ Another limitation is that governmental entities⁴⁸ 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 ...".⁴⁹ 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.⁵⁰ If the employee is named as a defendant, the name of the appropriate governmental entity must be substituted.⁵¹ These provisions:

... in no way shall limit or modify the liability of a licensed physician or dentist, acting within the scope of his profession, with respect to any action or claim brought hereunder which involved services for which the physician or dentist was paid, should have been paid, or expected to be paid at the time of the rendering of the services from any source other than salary appropriated by the governmental entity or fees received from any practice plan authorized by the employer ...⁵²

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.⁵³ In Padgett v. Colleton County,⁵⁴ the plaintiff was injured when he stepped into a hole on the County Courthouse grounds. The trial court held the county could not be liable for his injury because the person who created the dangerous condition was an independent contractor. The plaintiff argued the county was ultimately responsible for ensuring that caution tape was used where active landscaping was taking place, regardless of who was supposed to put it up. The appellate court agreed and said that while under the Tort Claims Act, a governmental entity is not liable for a loss resulting from an act of or omission of someone other than an employee,⁵⁵ that limitation would not exonerate a governmental entity of liability for its own conduct.⁵⁶ Since the county facilities director would have been responsible for placement and removal of caution tape and the courthouse was a place of public accommodation, the evidence, when construed in the plaintiff's favor, could have supported a jury finding that even if the county was not liable for any act of omission a non-employee, it was negligent in discharging its own duties to adequately maintain the premises.

The public duty rule is a negative defense that denies the existence of a duty of care to an individual plaintiff. Under the rule public officials are generally not liable to individuals for negligence in the discharge of their public duties because the duty is owed to the public at large and not to any single individual.⁵⁷ The public duty rule only applies when the plaintiff relies on a statute, rather than common law, to create a duty.⁵⁸

Assumption of the risk is a defense to negligence that is recognized in South Carolina in two forms: express assumption and implied assumption.⁵⁹ Express assumption derives from an agreement to waive liability⁶⁰ 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.⁶¹ A plaintiff 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.⁶²

While common law charitable immunity was eliminated by the South Carolina Supreme Court in 1981,⁶³ the decision does not have retroactive application.⁶⁴ There is a statutory limitation on liability for charitable organizations.⁶⁵ 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).⁶⁶ A person "sustaining injury or dying"⁶⁷ as a result of a tortious act of commission or omission by an employee⁶⁸ 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 Act⁶⁹ 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.⁷⁰ 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.⁷¹

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Notes:

^[34] S.C. Code § 15-3-530(5). Note, S.C. Code § 15-3-640(2): "No actions to recover damages based upon or arising out of the defective or unsafe condition of an improvement to real property may be brought more than eight years after substantial completion of the improvement ... an action based upon or arising out of the defective or unsafe condition of an improvement to real property includes: an action to recover damages for the negligent construction or repair of an improvement to real property ...".

^[35] S.C. Code § 15-3-535.

^[36]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...