Tort Law

Oct. 2014 - Jan. 2015

Third-Party Beneficiaries
The Court recognized a cause of action, in both tort and contract, by a third-party beneficiary of an existing will or estate planning document against a lawyer whose drafting error defeats or diminishes the client’s interest. Recovery under either cause of action is limited to persons who are named in the estate planning document or otherwise identified in the instrument by their status. Where the claim sounds in both tort and contract, the plaintiff may elect a recovery.
Fabian v. Lindsay, Op. No. 27460 (S.C. Sup. Ct. filed October 29, 2014) (Shearouse Adv. Sh. No. 43 at 30).

Dec. 2013 - Feb. 2014

Assault and battery
A police officer may be held liable for assault and battery for making an unlawful arrest even in the absence of excessive force allegations.
Horton v. City of Columbia, Op. No. 5200 (S.C. Ct. App. filed February 26, 2014) (Shearouse Adv. Sh. No. 8 at 79).

Sept. - Nov. 2013

Products liability
The term “user” in S.C. Code Section 15-73-10 includes persons who could foreseeably come into contact with the dangerous nature of a product.
Lawing v. Trinity Manufacturing Inc.
, Op. No. 5166 (S.C. Ct. App. filed August 21, 2013) (Shearouse Adv. Sh. No. 37 at 26).

June - Sept. 2013

For a negligence claim based on offensive odors to be possible, the claim must satisfy all the elements of negligence, like any other negligence claim.
Babb v. Lee County Landfill, SC, LLC, Op. No. 27299 (S.C. Sup. Ct. filed August 14, 2013) (Shearouse Adv. Sh. No. 36 at 65).

Tort Reform Act
Failure to complete the mediation conference in a timely manner pursuant to S.C. Code Section 15-79-125 does not divest the trial court of subject matter jurisdiction and dismissal is not mandated.
Ross v. Waccamaw Community Hospital, Op. No. 27276 (S.C. Sup. Ct. filed June 26, 2013) (Shearouse Adv. Sh. No. 28 at 24).

A trespass exists only when an intrusion is made by a physical, tangible thing. The damages recoverable for a temporary trespass or nuisance claim are limited to the lost rental value of the property. Damages recoverable for a permanent trespass or nuisance claim are limited to the full market value of the property.
Babb v. Lee County Landfill, SC, LLC, Op. No. 27299 (S.C. Sup. Ct. filed August 14, 2013) (Shearouse Adv. Sh. No. 36 at 65).

April - June 2013

Punitive damages
Punitive damages cannot be awarded under the family purpose doctrine.
Gause v. Smithers, Op. No. 27261 (S.C. Sup. Ct. filed June 5, 2013) (Shearouse Adv. Sh. No. 25 at 14).

Subcontractors’ and Suppliers’ Payment Protection Act (SPPA)
The SPPA does not provide for a tort cause of action against a governmental entity.
Shirley’s Iron Works v. City of Union, Op. No. 27256 (S.C. Sup. Ct. filed May 29, 2013) (Shearouse Adv. Sh. No. 24 at 14).

Dec. 2012 - Feb. 2013

Statutory interpretation
An ambulance in route to a structure fire does not constitute engaging in “fire protection” pursuant to Section 15-78-60(6) of the S.C. Tort Claims Act.
Curiel v. Hampton Cnty. E.M.S., No. 5065 (S.C. Ct. App., Dec. 19, 2012) (Shearouse Adv. Sh. No. 46).

May - June 2012

When actions are foreseeable, they do not break the chain of causation required to recover on a product liability claim.
Keeter v. Alpine Towers Int’l, Inc., No. 4995 (S.C. Ct. App. June 27, 2012) (Shearouse Adv. Sh. No. 22)

Punitive damages
For product liability claims, if there is evidence to support a jury finding that the manufacturer was reckless, punitive damages are appropriate.
Keeter v. Alpine Towers Int’l, Inc., No. 4995 (S.C. Ct. App. June 27, 2012) (Shearouse Adv. Sh. No. 22)

S.C. Torts Claims Act
Under the S.C. Torts Claims Act, in a claim against the city, to recover for an injury on city property, there must be evidence that the city had constructive notice of the condition causing the injury.
Major v. Hartsville, No. 4979 (S.C. Ct. App. June 6, 2012) (Shearouse Adv. Sh. No. 19)

March - May 2012

Where a plaintiff seeks actual and punitive damages arising out of the same injury by joint tortfeasors, a non-settling defendant is entitled to setoff for the amount the settling defendant paid.
Smith v. Widener, No. 4959 (S.C. Ct. App., Mar. 28, 2012) (Shearouse Adv. Sh. No. 11)

Intervening negligence of a third party
Where there is evidence of a third party’s negligent behavior, a jury should be charged on the intervening negligence of a third party to allow the jury to properly evaluate proximate cause and resulting damages.
Fairchild v. SCDOT, No. 27112 (S.C. Sup. Ct., Apr. 11, 2012) (Shearouse Adv. Sh. No. 13)

Punitive damages
A claim for punitive damages should be submitted to the jury when there is evidence that creates a factual question as to whether there was reckless activity.
Fairchild v. SCDOT, No. 27112 (S.C. Sup. Ct., Apr. 11, 2012) (Shearouse Adv. Sh. No. 13)

Oct. 2011 - Jan. 2012

Premises liability 
The Court adopted the balancing approach to determining foreseeability in the context of whether a business owner has a duty to protect its invitees from criminal acts of third parties. The more foreseeable a crime, the more onerous is a business owner's burden of providing security. Under this test, the presence or absence of prior criminal incidents is a significant factor in determining the amount of security required of a business owner, but their absence does not foreclose the duty to provide some level of security if other factors support a heightened risk.
Bass v. GOPAL, Inc., No. 27054 (S.C. Sup. Ct., Oct. 10, 2011) (Shearouse Adv. Sh. No. 35).

Assumption of risk 
A party assumes all the risks that are integral to a particular sport by playing that sport. The risk of someone violating a rule of the game is one of the risks taken when engaging in a sport. This holding is limited to recklessness committed within the scope of the game and does not include intentional conduct by a co-participant of a sport or conduct so reckless as to be outside the scope of the game.
Cole v. Boy Scouts of Am., No. 27072 (S.C. Sup. Ct., Dec. 5, 2011) (Shearouse Adv. Sh. No. 43).

July - Oct. 2011

Products liability
When the plaintiff in a product liability case bears the burden of proof as to any issue within a subject matter beyond the common knowledge and understanding of lay jurors, that plaintiff must present expert witness testimony in order to meet its burden. Thus, not presenting evidence resulted in a directed verdict for the defendant.
5 Star, Inc. v. Ford Motor Co., No. 4862 (S.C. Ct. App., Aug. 10, 2011) (Shearouse Adv. Sh. No. 27).