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Damages

Negligence: Damages

This page will provide a brief overview of the types of damages which may be recovered in a successful personal injury claim.

Damages

The final element a plaintiff must prove to prevail in their negligence claim is damages. For a negligence action to be successful, the plaintiff must prove that the defendant’s breach of their duty of care caused harm that the jury can quantify into a monetary award.

The plaintiff does not have to prove what exact a specific monetary amount that they should receive. Rather, the plaintiff must provide evidence that will enable the jury to determine the amount of damages with reasonable accuracy. In South Carolina, a plaintiff can recover several forms of damages, including:

Nominal Damages

Nominal damages are a small amount given when a plaintiff was wronged but not injured. These damages are rare because a plaintiff generally must show some type of injury to prove a negligence case.

Compensatory Damages

Compensatory damages compensate the plaintiff for the injuries they actually suffered. Compensatory damages intend to return the plaintiff to the same place they were before they were harmed by the defendant’s negligent act. In South Carolina, they are broken down into two subcategories, tangible and intangible losses.

Tangible Losses

Tangible losses, because of their nature, can be easily quantified. Where bodily injury is involved, tangible losses generally include past, present and future medical expenses, lost wages and loss of wage earning capacity.

Plaintiffs can also recover for damage done to their property. There are several different ways to calculate damage to property. Generally, the plaintiff may recover the difference between the market value of their property before and after the injury. Where the market value of an item does not reflect its actual value to the plaintiff, the plaintiff may recover that actual value. Finally, plaintiffs can recover the value of the use of the property while it is being repaired or while the plaintiff waits for a replacement.

Intangible Losses

Intangible losses are not as easily quantified. In South Carolina, they include the mental health effects that result from an injury. They can include pain and suffering, mental anguish, emotional distress, and other harms that affect the plaintiff’s quality of life but do not have an obvious price tag.

The determination of the value of intangible losses is generally left to the jury. No fixed rule exists for determining their value. Attorneys may suggest methods that the jury can use to determine the value of intangible losses, but those suggestions do not have the force of law.

South Carolina has a statutory limit on noneconomic damages in medical malpractice cases. Recovery for noneconomic damages is limited in medical malpractice cases to $350,000 for each claimant, regardless of how many claims they may bring. If the claimant sues multiple health-care providers or institutions, their total recovery limit for noneconomic damages is $1,050,000.

These limits do not apply if the defendant was grossly negligent or reckless in their conduct, if the defendant engaged in fraud related to the claim, or if the defendant destroyed records with the purpose of avoiding a claim by the plaintiff.

Loss of Consortium

Loss of consortium is a claim made by an injured person’s spouse to compensate them for the loss of services, society, and companionship they suffer as the result of the injury to their spouse.

South Carolina courts state that recovery for loss of consortium is not based on the replacement costs of hiring a service provider to mow the lawn, raise the children, or clean their home. Rather, the jury determines the value based on their observations, experience, and knowledge.

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How Tangible and Intangible Losses are Linked

Traditionally, plaintiffs could not recover for intangible losses unless there were corresponding tangible losses. South Carolina courts, however, have gradually allowed plaintiffs to recover when they receive emotional trauma without physical injury or impact.

Now, in some situations, plaintiffs in South Carolina need not show physical injury or other injuries that they can objectively prove to recover for emotional distress damages.

Where a defendant acted intentionally, the plaintiff generally needs to show that their emotional distress was severe. No expert testimony or physical manifestations are required to prove their distress.

On the other hand, where the emotional distress is not severe, the plaintiff can only recover for those losses if they were physically harmed or threatened with physical harm.

Note that the recovery for only emotional distress may be limited by a defendant’s duty. Defendants have a duty to prevent direct infliction of emotional trauma. Their duty to prevent indirect emotional trauma is more limited.

Punitive Damages

Finally, in some circumstances, plaintiffs can recover punitive damages. These are recoverable only if the negligent actor’s conduct is willful, wanton or reckless. This means that the defendant’s actions were deliberate, or while not purposeful, so ignored the safety of others that they may as well have been purposeful. In South Carolina, juries must award punitive damages if they find a defendant reckless.

Punitive damages serve as a punishment to the current defendant and as a deterrent to others committing similar acts in the future. They do not compensate the plaintiff.

The amount of punitive damages depends on under which legal doctrine was the basis for the claim. Some South Carolina statutes mandate that punitive damages are triple of the plaintiff’s actual recovery.

In other situations, the determination is left to the jury. Under a relatively new state law—the South Carolina Fairness in Civil Justice Act of 2011— the jury generally should consider the following factors in assessing the value of punitive damages:

  • Defendant’s degree of culpability
  • Severity of the harm caused by the defendant
  • Extent that the plaintiff contributed to the harm
  • Duration of the conduct and the defendant’s awareness of it
  • Existence of similar past conduct by the defendant
  • Profitability of the conduct to the defendant
  • The defendant’s ability to pay
  • Likelihood that the award will deter the defendant in the future
  • Similar punitive damage awards in similar situations
  • Criminal penalties or civil fines already assessed against defendant for their conduct

Under the Act, punitive damages may not exceed the greater of three times the amount of compensatory damages or $500,000 unless the plaintiff can meet one of two exceptions:

The first exception has three requirements: unreasonable financial gain motivated the defendant’s conduct; the defendant knew of the conduct’s unreasonably dangerous nature; the defendant knew of the high likelihood that the conduct would cause an injury.

The second exception is that the defendant’s actions could result in a felony conviction.

Even if these exceptions are met, punitive damages are limited to the greater of quadruple the amount of compensatory damages or $2 million.

If the defendant acted intentionally, acted while under the influence of alcohol or drugs, or pled guilty to or been convicted of a felony arising of out of their actions, then there is no cap on punitive damages.

These limitations and exceptions do not apply to events and injuries that occurred before 2012.

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Kirk Morgan

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Billy Walker

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Will Walker

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Chuck Slaughter

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