D. Defenses

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

D. Defenses

The statute of limitations applicable to negligence actions is three years for actions arising on or after April 5, 1988, and six years for those arising before that date.⁴³

Contributory negligence is applicable to a cause of action for negligent misrepresentation⁴⁴ and is defense in a negligence action that requires the defendant show the plaintiff was negligent⁴⁵ and that the negligence was the proximate cause of the injuries.⁴⁶ 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.⁴⁷ Punitive damages, however, are not reduced by the proportion of the plaintiff's negligence under comparative negligence.⁴⁸

Assumption of the risk is a defense to negligence which is recognized in South Carolina in two forms: express assumption and implied assumption.⁴⁹ Express assumption derives from an agreement to waive liability⁵⁰ 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.⁵¹ 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.⁵²

The South Carolina Tort Claims Act⁵³ 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.⁵⁴ It contains, however, many limitations on liability and damages which may preclude or restrict a plaintiff's cause of action.⁵⁵ One limitation is that governmental entities⁵⁶ are not liable for a loss resulting from "employee conduct ... which constitutes actual fraud ...".⁵⁷ It would seem, therefore, that a governmental entity could argue an employee's statement was fraudulent rather than merely negligent.

Because negligent misrepresentation involves a contract or business transaction,⁵⁸ it is important to differentiate contractual obligations from the negligence duty of care owed by the defendant. Where the defendant owes the plaintiff no duty apart from a contract, breach of the duty does not create a cause of action for negligent conduct.⁵⁹

Despite the fact that negligent misrepresentation ordinarily involves a contract, the Supreme Court refused to apply either the parol evidence rule or a merger or integration clause to prevent a counterclaim for misrepresentation.⁶⁰

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Notes:

^[43] S.C. Code §§ 15-3-530(5), 15-3-535. See Walbeck v. I'On Co., LLC, 426 S.C. 494, 827 S.E.2d 348 (Ct. App. 2018).

^[44] Gruber v. Santee Frozen Foods, Inc., 309 S.C. 13, 419 S.E.2d 795, 800 (Ct. App. 1992). See also Private Mortgage Investment Services, Inc. v. Hotel and Club Associates, Inc., 296 F.3d 308 (4th Cir. 2002) (jury award of $57,500 reduced to $28,750 where jury determined parties were equally at fault in causing damages).

^[45] 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 (...