Legislative Changes to Punitive Damages in South Carolina- Miller|Conway Goose Creek Personal Injury Lawyers

Recently legislation effective January 1, 2012 has affected South Carolina litigation in a few significant ways. The full statute, S.C. Code § 15-32-510, can be found here. Firstly, and perhaps most significantly, in order to receive punitive damages in a personal injury claim, it must be specifically prayed for in the complaint. It is not necessary for the plaintiff to specifically plead the amount requested; however, if a plaintiff fails to ask for punitive damages in the complaint, he or she will be barred for recovering them at trial.

If the plaintiff requests punitive damages then a defendant may request two separate verdicts regarding,  damages, one for compensatory damages and one for punitive, called a bifurcated trial. If a defendant requests for a bifurcated trial, the trial must be conducted in two stages. Firstly, the jury must determine whether or not compensatory or nominal damages are appropriate. Then, if compensatory or nominal damages are awarded, the jury must determine whether punitive damages are appropriate. Punitive damages may be awarded only if only if “the plaintiff proves by clear and convincing evidence that his harm was the result of the defendant’s wilful, wanton, or reckless conduct.” But, how much can a jury award in a non-medical malpractice action?

The answer is the a favorite among lawyers: it depends. If a jury finds that punitive damages are appropriate, it can award an amount up to three (3) times the amount awarded during the compensatory damages determination, or $500,000, whichever is greater. However, if the jury finds that either:

“1) the wrongful conduct proven under this section was motivated primarily by unreasonable financial gain and determines that the unreasonably dangerous nature of the conduct, together with the high likelihood of injury resulting from the conduct, was known or approved by the managing agent, director, officer, or the person responsible for making policy decisions on behalf of the defendant; or (2), the defendant’s actions could subject the defendant to conviction of a felony and that act or course of conduct is a proximate cause of the plaintiff’s damages” the jury may award four (4) times the amount of compensatory damages, or $2 million, whichever is greater.

However, that’s not it. The cap becomes even more illusory. If the court finds that if any of the following apply, the cap will be waived entirely:

“(1) at the time of injury the defendant had an intent to harm and determines that the defendant’s conduct did in fact harm the claimant; or

(2) the defendant has pled guilty to or been convicted of a felony arising out of the same act or course of conduct complained of by the plaintiff and that act or course of conduct is a proximate cause of the plaintiff’s damages; or

(3) the defendant acted or failed to act while under the influence of alcohol, drugs, other than lawfully prescribed drugs administered in accordance with a prescription, or any intentionally consumed glue, aerosol, or other toxic vapor to the degree that the defendant’s judgment is substantially impaired.”

The good news for claimants is that the standard set forth eliminating the cap enumerated above in paragraph 1 essentially means willful and wanton. If the defendant intended to harm and actually did harm the plaintiff, then there is no cap to punitive damages. If the defendant was drunk or under the intentional influence of non-prescription illicit drugs, then there is no cap. Or if defendant’s actions led to a felony conviction there is no cap.

If the compensatory damages are high, the punitive damages can be high regardless. A similar award to the $25 million punitive damages in Florida award could be upheld in South Carolina under the current legislation.

If you or someone you know has been injured in an accident, please contact one of our attorneys at Miller|Conway at +843.764.3334. We are a Charleston  Area law firm located in Goose Creek handling personal injury cases throughout the Greater South Carolina area and we are here for you when you need us.

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