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This page is a compilation of some of the recent developments in our firm’s Practice Areas. To check for updates in your area of interest, simply click on the Practice Area to your left.

Personal Injury

Jones v. Enterprise Leasing Co.-Southeast, 383 S.C. 259, 678 S.E.2d 819 (Ct. App. 2009).
Opinion No. 4548, decided May 18, 2009.

The plaintiff suffered serious brain damages and incurred medical expenses of approximately $1 million after her vehicle crashed as a result of being struck from behind by a leased vehicle. Through her guardian ad litem, the plaintiff filed this action against the company which leased the vehicle to the negligent driver, as well as its parent company. The plaintiff alleged that the defendants had negligently entrusted the vehicle to an incompetent, reckless, and otherwise unfit driver. The parent company moved for summary judgment, which the trial court granted. On appeal, the South Carolina Court of Appeals affirmed. The court found that the plaintiff could not establish ownership or control, a key element of negligent entrustment, by the parent company because the vehicle was titled in the name of the subsidiary. Moreover, the parent company was not liable as the alter ego of the subsidiary because the subsidiary was viable on its own and the parent company did not exercise the requisite dominance over the subsidiary.

Harris v. Anderson County Sheriff’s Office, 381 S.C. 357, 673 S.E.2d 423 (2009).
Opinion No. 26596, decided February 9, 2009.

A police dog attacked a veterinary clinic employee while it was kenneled at the clinic. The employee brought suit against the sheriff’s department under the dog bite statute, S.C. Code Ann. § 47-3-110, which provides that a dog bite victim may recover damages from “the owner of the dog or other person having the dog in his care or keeping.” The trial court granted summary judgment to the sheriff’s department, holding that when a dog is in the “care or keeping” of some “other person,” the owner cannot be held liable under the statute. However, the South Carolina Supreme Court reversed, holding that both the owner and the “other person having the dog in his care or keeping” are liable when a dog bites a third party. The court found that the Legislature intended to hold dog owners strictly liable for dog bites and therefore that temporarily relinquishing control of the dog does not absolve the owner of liability.

Turner v. Milliman, 381 S.C. 101, 671 S.E.2d 636 (Ct. App. 2009).
Opinion No. 4478, decided January 12, 2009.

Two insureds filed suit against their health insurer and its agent asserting fraud and negligent misrepresentation after the insurer increased its premiums to the point where the insureds could no longer afford the coverage. The insureds alleged that the agent had represented to them that the premiums on the group policy they purchased would not increase as dramatically as the premiums on individual insurance plans. The defendants moved for summary judgment on several grounds, including that the insureds claims were barred by the three-year statute of limitations and that in any event the agent’s alleged representations were insufficient to support claims for fraud or negligent misrepresentation. The trial court granted the motion and the South Carolina Court of Appeals affirmed. The court held that whether the statute of limitations had run was a factual question and that summary judgment should not have been granted on that issue. Nevertheless, the insured’s claims were not actionable even if true because the agent’s alleged representations were nothing more than his opinion about future events.

Hartfield v. McDonald, 381 S.C. 1, 671 S.E.2d 380 (Ct. App. 2008).
Opinion No. 4469, decided December 17, 2008.

The plaintiff sustained severe injuries when the vehicle in which he was traveling as a passenger was struck by a drunk driver. The plaintiff filed this lawsuit against multiple drinking establishments, alleging dram shop liability. The first establishment the drunk driver visited on the night of the accident was granted a directed verdict. On appeal, the South Carolina Court of Appeals affirmed because the plaintiff failed to produce any evidence that the drunk driver was actually served alcohol by the establishment. Indeed, all of the testimony from witnesses who observed the drunk driver on the night of the accident indicated that the drunk driver was neither visibly intoxicated nor served alcohol while at the establishment.

Corbett v. Weaver, 380 S.C. 288, 669 S.E.2d 615 (Ct. App. 2008).
Opinion No. 4440, decided October 7, 2008.

The plaintiff was severely injured in an automobile accident. He brought this action against the at-fault driver, a teenager, and his father. The claim against the father was based on the alleged applicability of the family purpose doctrine. At trial, the plaintiff moved for a directed verdict that the family purpose doctrine applied, but the trial court denied the motion and submitted the issue to the jury, which determined that the doctrine did not apply and awarded no damages against the father. The trial court also denied the plaintiff’s motion for a new trial. On appeal, the South Carolina Court of Appeals affirmed both of the trial court’s rulings, holding that sufficient evidence existed regarding the ownership of the vehicle the teenager was driving and whether the vehicle was for the general use and convenience of the family, both to create a jury issue and to support the jury’s finding that the family purpose doctrine did not apply.

Wogan v. Kunze, 379 S.C. 581, 666 S.E.2d 901 (2008).
Opinion No. 26542, decided September 8, 2008.

A widow filed suit against a gastroenterologist alleging several causes of action, including negligence and breach of fiduciary duty, based on the doctor’s alleged failure to file Medicare claims for her deceased husband. The circuit court granted partial summary judgment on those causes of action, and the South Carolina Supreme Court affirmed. The court held that even though the widow characterized her claims as state common law claims, they were “inextricably intertwined” with the doctor’s alleged failure to comply with the federal Medicare Act. Therefore, because the federal law did not allow a private right of action, the widow’s claim was not cognizable on state common law grounds.

Colleton Preparatory Academy, Inc. v. Hoover Universal, Inc., 379 S.C. 181, 666 S.E.2d 247 (2008).
Opinion No. 26535, decided August 25, 2008.

Under the “economic loss rule,” there is generally no tort liability for a defective product if the product damages only itself. South Carolina has rejected this rule in the residential home building context, holding that if a homebuilder violates a legal duty aside from his contractual duties, he may be held liable in tort even if the loss is solely economic (i.e. no person has been injured because the damage is to the home itself). In this case, answering a certified question from a federal district court, the South Carolina Supreme Court extended this exception to the economic loss rule to protect commercial parties in addition to home buyers. Therefore, a manufacturer may now be held liable in tort if its products pose a “serious threat of physical harm,” even if no physical harm has actually been sustained and the damage has been limited to the product itself. In order to provide direction as to when the exception applies, the court adopted a balancing test, holding that the nature of the damage threatened and the probability that the damage would occur should be examined to determine whether there is a “clear, serious, and unreasonable risk of death or personal injury.” The court also held that a remote user of a product may maintain a claim under the South Carolina Unfair Trade Practices Act against a manufacturer despite the lack of privity.

CACI Premier Technology, Inc. v. Rhodes, 536 F.3d 280 (4th Cir. 2008).
Docket No. 06-2140, decided August 5, 2008.

The plaintiff, a federal government contractor that provides intelligence services to the military, filed this defamation action against a radio talk show host and multiple other defendants. The plaintiff claimed that the talk show host falsely blamed it for the abuses which took place at Abu Ghraib prison in Iraq. The district court granted summary judgment in favor of the defendants on the grounds that the plaintiff—an admitted public figure—could not show constitutional actual malice on the part of the talk show host, that the talk show host’s statements were not demonstrably false, and that many of the allegedly defamatory statements did not assert actual facts about the plaintiff. On appeal, the United States Court of Appeals for the Fourth Circuit conducted a thorough examination of the Abu Ghraib scandal, the military investigations regarding the scandal, and the talk show host’s allegedly defamatory statements. The court concluded that the statements either were not made with reckless disregard for the truth or that that they did not state actual facts about the plaintiff. Therefore, the court held that the statements were protected by the First Amendment and affirmed the district court’s grant of summary judgment to the defendants.

Williams v. Watkins, 379 S.C. 530, 665 S.E.2d 243 (Ct. App. 2008).
Opinion No. 4429, decided July 23, 2008.

The plaintiffs operated a foster care home and community training home through a contract with Babcock Center, a state contractor which provides program for vulnerable adults. A client of the plaintiffs’ foster care home reported allegations of sexual abuse to Babcock Center’s administrator, who reported the allegations to the Department of Social Services and ultimately terminated Babcock Center’s contract with the plaintiffs. The plaintiffs filed this action against the administrator and Babcock Center, alleging defamation and infliction of emotional distress, but the trial court granted summary judgment to the defendants, holding that the Omnibus Adult Protection Act shielded them from liability. On appeal, the South Carolina Court of Appeals affirmed, finding that the client was a “vulnerable adult” under the Act, that the administrator was required under the Act to reported suspected abuse of the client, and that the defendants were therefore shielded from liability absent evidence that the administrator’s report was not in good faith.

Hatfill v. The New York Times Co., 532 F.3d 312 (4th Cir. 2008).
Docket No. 07-1124, decided July 14, 2008.

The plaintiff, a prominent bio-defense research scientist, filed this defamation action against a national newspaper. The plaintiff claimed that several columns published in the newspaper suggested that he was responsible for the mailing of anthrax spores to several members of Congress and news organizations in late 2001. The district court granted summary judgment in favor of the newspaper on the grounds that the plaintiff was either a public figure or a limited-purpose public figure and that he had failed to meet his requisite burden of showing constitutional actual malice on the part of the newspaper by clear and convincing evidence. On appeal, the United States Court of Appeals for the Fourth Circuit affirmed, holding that the plaintiff was a public figure for the limited purpose of the controversy regarding the threat to national security posed by bioterrorism. Therefore, the plaintiff was required to show that the newspaper made the alleged defamatory statements with knowledge of their falsity or with reckless disregard of their falsity, which the court held the plaintiff failed to do.

Snavely v. AMISUB of South Carolina, Inc., 379 S.C. 386, 665 S.E.2d 222 (Ct. App. 2008).
Opinion No. 4413, decided June 12, 2008.

A patient filed this action against a hospital and emergency room physician, alleging that the defendants violated patient-physician confidentiality by revealing diagnosis information to the patient’s brother and sister-in-law. The trial court granted summary judgment to both defendants, finding that the patient had voluntarily involved her brother and sister-in-law in every stage of her examinations and diagnosis, and therefore that she had tacitly consented to disclosure of her medical condition. On appeal, the South Carolina Court of Appeals affirmed, holding that the trial court had not erred in finding that the patient had consented to disclosure. Furthermore, the court rejected the patient’s arguments that the hospital was contributorily negligent, that there were factual discrepancies in the record, and that publication of her medical condition was an invasion of privacy.

Swicegood v. Lott, 379 S.C. 346, 665 S.E.2d 211 (Ct. App. 2008).
Opinion No. 4405, decided June 6, 2008.

A former officer brought suit against the Richland County Sheriff in his official capacity. The officer alleged multiple causes of action, but all except the abuse of process claim were dismissed on a summary judgment motion. A jury awarded the officer $150,000 and the sheriff appealed, arguing that his motions for directed verdict, judgment notwithstanding the verdict, and a new trial were wrongly denied. The South Carolina Court of Appeals affirmed, holding that: 1) the tort of abuse of process does not require a finding of actual malice or intent to harm, and therefore the sheriff was not entitled to sovereign immunity under the South Carolina Tort Claims Act; (2) the primary purpose of the sheriff’s tortious actions was to coerce or extort testimony from the officer, and therefore the sheriff was not entitled to assert the defense that the process was carried to its authorized conclusion; (3) the trial court was correct in finding that a jury question existed on the issue of proximate causation of damages; and (4) the trial court had not abused its discretion in refusing to grant a new trial.

Cobin v. Hearst-Argyle Television, Inc., 561 F.Supp.2d 546 (D.S.C. 2008).
Decided June 2, 2008.

The plaintiff filed a defamation action against multiple news organizations, alleging that they published defamatory articles, broadcasts, and reports concerning him. The defendants moved to dismiss the claims on the grounds that their reports were protected by the fair report privilege, which shields news organizations from defamation claims for publishing information originally based upon government reports or actions. Because the articles, broadcasts, and reports in question were substantially accurate summaries of a police report, the United States Court for the District of South Carolina granted the motion to dismiss.

Platt v. S.C. Dep’t of Transportation, 379 S.C. 249, 665 S.E.2d 631 (Ct. App. 2008).
Opinion No. 4394, decided May 20, 2008.

Several individuals were injured or killed when the vehicle in which they were traveling was struck by a train at a railroad crossing. The guardian of the sole survivor of the collision filed this action against the South Carolina Department of Transportation (SCDOT), alleging that it had a duty to protect the “traveling public” from malfunctioning railroad crossing arms. The trial court granted summary judgment to SCDOT, and the South Carolina Court of Appeals affirmed. The court held that under the public duty rule, SCDOT had no special duty to the plaintiff and that its only duty regarding railroad crossings was to the public at large. Therefore, SCDOT could not be found liable to an individual who may have been incidentally injured by its failure to perform the duty. The court also found that the state statute regarding malfunctioning railroad crossing signals was pre-empted by federal regulations which imposed the duty to maintain crossings upon the railroad company. Finally, the court found that there was no issue of material fact regarding the question of whether allegedly malfunctioning traffic signals were a proximate cause of the collision because all of the evidence showed that the collision was the result of malfunction railroad crossing arms.

Collins v. Frasier, 378 S.C. 249, 662 S.E.2d 464 (Ct. App. 2008).
Opinion No. 4385, decided May 6, 2008.

The defendant’s vehicle crossed the center line of a roadway and struck the plaintiff’s vehicle. The plaintiff and his wife sued the defendant for injuries sustained in the accident. The defendant asserted that he could not be charged with negligence because he suffered a sudden, unforeseen incapacity to operate his vehicle attributable to hypoglycemia. The jury returned a verdict for the defendant, and the South Carolina Court of Appeals upheld the verdict, finding that the defendant’s testimony combined with his doctor’s testimony as to the possible cause of the accident was sufficient to support the jury’s findings.

Mellen v. Lane, 377 S.C. 261, 659 S.E.2d 236 (Ct. App. 2008).
Opinion No. 4354, decided March 11, 2008.

The plaintiff was injured in a brawl outside of a bar and sued the defendant for assault and battery. The trial judge found in the plaintiff’s favor and awarded actual damages of $200,000.00 but denied punitive damages. On appeal, the South Carolina Court of Appeals extensively reviewed case law pertaining to assault and battery, proximate causation, intervening causes, actual damages, and punitive damages and upheld the trial judge’s orders. The court found sufficient evidence to justify a finding that the defendant’s conduct proximately caused the plaintiff’s injuries and held that the trial judge did not abuse his discretion in refusing to award punitive damages.

Austin v. Beaufort County Sheriff’s Office, 377 S.C. 31, 659 S.E.2d 122 (2008).
Opinion No. 26452, decided March 10, 2008.

The plaintiff filed suit against a sheriff’s office alleging that its destruction of evidence in a death case impaired her ability to bring a wrongful death action. The circuit court granted summary judgment to the sheriff’s office, and on appeal the plaintiff urged the South Carolina Supreme Court to adopt the tort of third party spoliation of evidence and allow the case to proceed. The court declined to do so under the facts of this case because even if it were to do so the plaintiff would be unable to prove the required elements because the sheriff’s office had no knowledge of a potential civil action, the sheriff’s office had no duty to preserve the evidence after it had completed its criminal investigation, and the plaintiff could not show that the destroyed evidence was vital to her ability to prevail in the potential civil action.

James v. Kelly Trucking Co., 377 S.C. 628, 661 S.E.2d 329 (2008).
Opinion No. 26447, decided March 10, 2008.

The plaintiffs were injured when a tractor-trailer driver failed to stop for a red light and struck their vehicle. They filed suit in federal court, asserting separate causes of action against the trucking company for negligence under the doctrine of vicarious liability and negligent hiring, training, and supervision of the driver. The trucking company stipulated that it was vicariously liable for the negligence of its driver and moved for partial summary judgment on the negligent hiring, training, and supervision claims, arguing that the admission of evidence which must be offered to prove such claims would be highly prejudicial if combined with its stipulation of vicarious liability for the driver’s negligence. The district court certified to the South Carolina Supreme Court the question of whether a plaintiff in South Carolina is precluded, as a general matter, from maintaining a cause of action for negligent hiring, training, supervision, or entrustment after an employer stipulates that it is vicariously liable for its employee’s negligence. The court answered the question in the negative, finding that to entirely preclude certain causes of action in order to protect the jury from considering potentially prejudicial evidence would deprive plaintiffs of their right to bring and attempt to prove multiple causes of action and give impermissibly short-shrift to the trial court’s ability to judge the admission of evidence and to protect the integrity of trial.

Parrish v. Allison, 376 S.C. 308, 656 S.E.2d 382 (Ct. App. 2007).
Opinion No. 4322, decided December 19, 2007.

At a public county council meeting, the defendant used the word “con” to describe certain actions of the plaintiff. The plaintiff alleged that the defendant’s statements were slander per se and moved for a directed verdict and judgment notwithstanding the verdict on that basis. The trial court denied both motions, and the South Carolina Court of Appeals upheld the denial because the word “con” is susceptible of different meanings and therefore it was up to the jury to decide if the defendant’s use of the word constituted slander per se. However, the court found that the trial court erred when it allowed the defendant to assert the truth of his statements at trial. Truth is an affirmative defense to a defamation action which must be pled in the answer, and even a liberal reading of the defendant’s answer did not persuade the court that the defendant had affirmatively pled truth as a defense.

Hansson v. Scalise Builders of South Carolina, 374 S.C. 352, 650 S.E.2d 68 (2007).
Opinion No. 26369, decided August 13, 2007.

The plaintiff alleged various causes of action against a former employer, including intentional infliction of emotional distress, for demeaning remarks made during his employment regarding his homosexuality. The South Carolina Supreme Court held that when ruling on summary judgment motions, a court must consider whether the plaintiff has established a prima facie case as to each element of a claim for intentional infliction of emotional distress. Therefore, the court upheld summary judgment because even if reasonable minds could differ as to whether the defendant’s conduct was “extreme or outrageous,” the plaintiff failed to show that he suffered “severe” emotional distress.

Gadson v. ECO Services of South Carolina, Inc., 374 S.C. 171, 648 S.E.2d 585 (2007).
Opinion No. 26357, decided July 16, 2007.

The plaintiff was injured in a car accident and brought claims for negligent entrustment against the corporate owner of the car and the employee to whom it had provided the car. The plaintiff claimed that both defendants knew that the driver of the car presented an unreasonable risk to others and therefore were negligent in allowing him to drive. The South Carolina Supreme Court reiterated that our courts do not follow the Restatement of Torts with respect to negligent entrustment, but instead require the plaintiff to prove three elements in a negligent entrustment case: (1) knowledge of or knowledge imputable to the owner that the driver was either addicted to intoxicants or had the habit of drinking; (2) the owner knew or had imputable knowledge that the driver was likely to drive while intoxicated; and (3) under these circumstances, the entrustment of a vehicle by the owner to such a driver. The court found that the plaintiff failed to produce evidence establishing the first element as to either defendant.

Dropkin v. Beachwalk Villas Condominium Ass’n, Inc., 373 S.C. 360, 644 S.E.2d 808 (Ct. App. 2007).
Opinion No. 4236, decided April 16, 2007.

The plaintiff was injured when she fell down a staircase outside of a condominium unit owned by the defendant. She claimed she was entitled to a directed verdict because the defendant was negligent per se when it failed to comply with standard building codes regarding staircase handrails. The South Carolina Court of Appeals upheld the denial of the directed verdict because the defendant’s violation of the building codes did not end the negligence analysis; the violation must also have proximately caused the plaintiff’s injury. Because there was sufficient evidence to support a finding that the violation of the building codes did not proximately cause the plaintiff’s injury, it upheld the jury’s defense verdict.

Cummins Atlantic, Inc. v. Sonny’s Camp-N-Travel Mart, Inc., 481 F.Supp.2d 531 (D.S.C. 2007).
Decided March 21, 2007.

Several people were poisoned by carbon monoxide due to a defect in the exhaust system of a generator installed on a recreational vehicle by the plaintiff. After those who had been injured obtained judgments against the plaintiff, the plaintiff sued the defendant for contribution, alleging that because the defendant changed the oil on the generator and did not discover the exhaust defect, it too had violated a duty of care to the injured. The United States District Court for the District of South Carolina granted summary judgment to the defendant because the plaintiff failed to satisfy his burden of proving that the defendant had a duty to inspect the generator’s exhaust system.

Fickling v. City of Charleston, 372 S.C. 597, 643 S.E.2d 110 (Ct. App. 2007).
Opinion No. 4217, decided March 12, 2007.

The plaintiff was severely injured when she tripped and fell due to a hole in a city sidewalk. In her suit against the city, the South Carolina Court of Appeals held that a statute requiring cities to maintain streets and sidewalks in good repair did not create a private right of action by individuals against cities. However, the court held that a directed verdict for the city was inappropriate because the jury could have found that the city owed a common law duty to the plaintiff based on its control over the maintenance of the sidewalk or that the city owed a duty to the plaintiff based on its voluntarily undertaking to repair and maintain city sidewalks.

Marcum v. Bowden, 372 S.C. 452, 643 S.E.2d 85 (2007).
Opinion No. 26259, decided February 5, 2007.

In this case, the South Carolina Supreme Court reversed course with regard to social host liability for the service of alcohol to underage persons. The court announced a new common law rule that an adult social host who knowingly and intentionally serves or causes to be served an alcoholic beverage to a person he knows or reasonably should know is between the ages of 18 and 20 is liable to the person served and to any other person for damages proximately resulting from the host’s service of alcohol.

 

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