E. Damages

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

E. Damages

Actual damages may be awarded in a legal malpractice action,⁷¹ and the usual measure is the amount of loss actually sustained as a result of the negligence.⁷² Recovery of damages for emotional distress is problematic, with most authorities concluding such damages are not recoverable.⁷³

Whether punitive damages may be recovered in a legal-malpractice action depends, the Restatement notes, on the generally applicable law of a jurisdiction.⁷⁴ In South Carolina punitive damages are now governed by the Fairness in Civil Justice Act of 2011.⁷⁵ Under the Act, punitive damages may be considered if compensatory or nominal damages have been awarded, but may be awarded only if the plaintiff proves by clear and convincing evidence that his or her harm was the result of willful, wanton, or reckless conduct by the defendant.⁷⁶ Factors to be considered are set out in the Act.⁷⁷ The Act also prescribes caps on the amount that may be awarded,⁷⁸ but provides for certain instances in which no cap applies.⁷⁹ For example, there is no cap if, at the time of injury, the defendant had an intent to harm and the court determines that the defendant's conduct did in fact harm the claimant.⁸⁰

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Notes:

^[71] See, e.g., Mali v. Odom, 295 S.C. 78, 367 S.E.2d 166 (Ct. App. 1988) ($65,000 actual damages).

^[72]Misery, Malpractice, and Mail Fraud: Lawyers' Professional Liability in the 90s, 29 (American Law Institute 1991). See also Restatement (Third) of the Law Governing...