D. Defenses

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

D. Defenses

Defenses to premises liability include contributory negligence, assumption of the risk, and the statute of limitations.

Contributory negligence is a defense in a negligence action that requires the defendant show the plaintiff was negligent⁵⁹ and that the negligence was the proximate cause of the injuries.⁶⁰ 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.⁶¹ Punitive damages, however, are not reduced by the proportion of the plaintiff's negligence under comparative negligence.⁶²

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.⁶³

Assumption of the risk is a defense to negligence that is recognized in South Carolina in two forms: express assumption and implied assumption.⁶⁴ 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.⁶⁵ 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.⁶⁶

The South Carolina Tort Claims Act⁶⁷ waives the immunity of the State, its agencies, political subdivisions, and governmental entities from liability in tort. It contains, however, many limitations on liability and damages that may preclude or restrict a plaintiff's cause of action.⁶⁸ 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.⁶⁹ The Act does not make a governmental entity liable for an injury occurring on its property caused by someone who is not an employee of the defendant government.⁷⁰

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.⁷¹ 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.⁷²

Generally, by the "Recreational Use Statute"⁷³ an owner⁷⁴ of land⁷⁵ owes no duty of care to keep premises safe or to give any warning of a dangerous condition, use, structure, or activity with regard to persons⁷⁶ who have sought and obtained the owner's permission to use the land for recreational purposes.⁷⁷ The statute's application is not limited to rural and undeveloped areas-as opposed to semi-rural and urban ones.⁷⁸ The statute does not provide that a landowner is required to open the land to everyone to benefit from the statute's protections, rather it limits the liability of landowners who open their land to anyone having "sought and obtained" permission to enter for recreational purposes.⁷⁹

The statutory limitation does not apply to "grossly negligent, willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity."⁸⁰ It is also inapplicable where the owner charges⁸¹ persons who enter the land for recreational purposes.⁸²

The South Carolina Tort Claims Act⁸³ waives the immunity of the State, its agencies, political subdivisions, and governmental entities from liability in tort. It contains, however, many limitations on liability and damages that may preclude or restrict a plaintiff's cause of action.⁸⁴ 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.⁸⁵ In Padgett v. Colleton County,⁸⁶ 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,⁸⁷ that limitation would not exonerate a governmental entity of liability for its own conduct. Since the county facilities director would have been responsible for...