A. Wrongful Death

• Library: The South Carolina Law of Torts (SCBar) (2023 Ed.)

A. Wrongful Death

South Carolina's statutory scheme establishing an action for wrongful death is set forth in Sections 15-51-10 to -60 of the South Carolina Code.¹³ Section 15-51-10 provides:

Whenever the death of a person shall be caused by the wrongful act, neglect or default of another and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, the person who would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, although the death shall have been caused under such circumstances as make the killing in law a felony. In the event of the death of the wrongdoer, such cause of action shall survive against his personal representative.¹⁴

The other sections below define beneficiaries, address damages questions, and set forth various procedural matters.

1. Parties

a. The Administrator of the Estate

A wrongful death action shall be brought by or in the name of the deceased's personal representative.¹⁵ Thus, the right of action lies only with the probate-court-appointed¹⁶ personal representative of the estate of the deceased.¹⁷

A personal representative can be appointed solely for the purpose of bringing a wrongful death action.¹⁸ An action cannot be brought by one who is not the personal representative or whose appointment as personal representative is null and void.¹⁹

The personal representative is, of course, merely a conduit through which the court's award passes to the statutory beneficiaries. The "cause of action is vested in [the personal representative] not as representative of the estate of the deceased person or for the benefit of the creditors of the estate, but as the representative of the statutory beneficiaries, for whom he [or she] is by virtue of the statute a trustee."²⁰ If the personal representative fails in his or her trust responsibility, the beneficiaries can enforce the cause of action.²¹

b. The Statutory Beneficiaries

Although a personal representative is the nominal plaintiff, the wrongful death action is brought for the benefit of the statutory beneficiaries. The persons who may claim as beneficiaries are listed in Code Section 15-51-20, which provides as follows:

Every such action shall be for the benefit of the wife or husband and child or children of the person whose death shall have been so caused, and, if there be no such wife, husband, child or children, then for the benefit of the parent or parents, and if there be none such, then for the benefit of the heirs of the person whose death shall have been so caused. Every such action shall be brought by or in the name of the executor or administrator of such person.

In those cases in which the statutory beneficiaries are the "heirs," it is necessary to consult the South Carolina Probate Code.²² Unless, at the time of the decedent's death, there are one or more statutory beneficiaries, the action cannot be maintained.²³

The special problems of illegitimate children are treated in Code Section 15-51-30, which provides:

In the event of the death of an illegitimate child or the mother of an illegitimate child by the wrongful or negligent act of another, such illegitimate child or the mother or father or the heirs at law or the distributees of such illegitimate child shall have the same rights and remedies in regard to such wrongful or negligent act as though such illegitimate child had been born in lawful wedlock.

Section 15-51-30 includes a 1986 amendment that made the father of an illegitimate child a legal beneficiary and broadened the class of beneficiaries.²⁴ However, the amended statute does not expressly authorize recovery by the illegitimate child for the father's death. Several United States Supreme Court decisions suggest that this lack may be unconstitutional.²⁵

If an adoption is valid under state law, benefits will accrue to the adopted child just as to a natural child.²⁶ However, upon adoption, the child will cease to inherit through his or her natural parents, except in the case of inheritance by will.²⁷

Problems may arise in construing the statutory hierarchy of beneficiaries, as, for example, when a potential beneficiary of a wrongful death action dies before an action is actually commenced. In Rushton v. Smith,²⁸ the benefits of a wrongful death action belonged to the surviving husband of the deceased; however, upon his death prior to institution of the suit, the benefits did not pass to the husband's heirs. Instead, the benefits went to the next class of statutory beneficiaries, the deceased's parents. Thus, as long as a statutory beneficiary exists, the action may be carried on for the benefit of such person.²⁹

A noncustodial parent may recover for the death of a child, but the court may limit or deny recovery to a parent who has not reasonably provided for the decedent.³⁰

In an older case involving the simultaneous death of spouses, the court held it was reasonably inferable that there was no survivor.³¹ However, the Uniform Simultaneous Death Act³² adopted in 1986 provides that "the property of each person shall be disposed of as if he had survived."³³ The Act should control over the common law rule to resolve doubts where spouses die under circumstances in which one cannot determine which spouse died first.³⁴

2. The Cause of Action

The Wrongful Death Act does not change the requirements for a cause of action in tort; the Act only extends damages to those who have suffered from a death resulting from tortious conduct.³⁵ Thus, the familiar elements of a tort must be established: duty, breach, proximate causation, and damages.³⁶ Further, to prevail on a wrongful death action, the plaintiff must establish that (1) his death (2) was caused (3) by the act, neglect, or default of another.³⁷ These elements must be shown in order for the statutory beneficiaries to recover for their pecuniary loss, mental shock and suffering, wounded feelings, grief, sorrow, loss of society, and companionship.³⁸

No wrongful death action will lie for the wrongful death of a fetus³⁹ unless the fetus was viable at the time of injury.⁴⁰ Similarly, an action will lie for pre-birth injury causing death where the child is born alive and viable.⁴¹

3. Compromise and Settlement

If the decedent compromised his claim with the wrongdoer or executed a release for valuable consideration, no wrongful death action will lie for the beneficiaries.⁴² A release procured by fraud will be ineffectual to bar the action,⁴³ and given the impossibility of testimony by the decedent, courts have allowed much latitude as to proof of fraud concerning the release of claims.⁴⁴

This bar to suit is said to be the necessary implication of the rule that an action under the Wrongful Death Act will not lie unless it could have been maintained by the decedent if he had not died.⁴⁵ This reasoning has been criticized as improperly entangling the concepts of wrongful death and survival. This criticism is based on the view that a release should be effective against a survival action but not against a wrongful death action, since in the latter case the decedent is bargaining away a cause of action that does not accrue to him, but only to his beneficiaries upon his death.⁴⁶ In a survival action his bargain would be effective, since it is the decedent's cause of action that is being "passed down," and nothing else.⁴⁷ However, only a beneficiary's release may fairly be held to bar a wrongful death action.⁴⁸

A decedent's settlement with an insurance company may not necessarily result in a bar to suit. In Wallace v. Nationwide Mutual Insurance Co.,⁴⁹ the decedent had conditionally settled with the insurance company for $1,500 for bodily injuries and property damage under an uninsured motorist provision. The trial court ruled that the administratrix, in filing an action for wrongful death, was limited to that $1,500. The South Carolina Supreme Court, in a 3-2 decision, reversed the lower court, stating that the agreement did not modify the carrier's contractual obligation with respect to this claim, which was founded upon a judgment for damages for wrongful death.

After the action has been instituted, only the personal representative, who has the exclusive right to bring the action,⁵⁰ may compromise or settle the action or give consent to do so.⁵¹ A probate or circuit court or United States district judge must approve the settlement.⁵²

However, any settlement by a beneficiary before the institution of the action will bar a subsequent action on behalf of that beneficiary.⁵³ The effect of this rule can be overcome by fraud, as occurred, for example, in Ellenberg v. Arthur,⁵⁴ in which the administratrix, a woman falsely claiming to be decedent's wife, settled the action. There, the court held that the administratrix who took her place could institute proceedings despite the dubious earlier settlement.

4. Defenses

a. Conduct of the Decedent

Defenses to a wrongful death action include the same defenses that are available to any negligence claim. For example, the limits of the South Carolina Tort Claims Act apply to a wrongful death action,⁵⁵ and the decedent's comparative negligence bars or reduces recovery in a wrongful death action based on negligence.⁵⁶ In the case of a child's death, the child's capacity for comparative negligence may be an issue.⁵⁷ Such defenses are discussed in Section D of Chapter 2. The following subsections address some of the special features that arise in wrongful death actions.

b. Conduct of the Beneficiaries

A beneficiary's conduct that constitutes a defense to the underlying cause of action will bar that beneficiary's claim.⁵⁸ For example, if the parents of a child were negligent in their supervision of the child, such comparative negligence can bar their claim for the wrongful death of the child.⁵⁹ Although several cases have addressed the bar of potential...