Individual States 

SOUTH CAROLINA

ASSUMPTION OF RISK

In a strict liability action, assumption of risk will bar recovery if the plaintiff's continued use of the product after discovering the defect was unreasonable.

In a negligence action, the defense of assumption of risk is no longer an absolute bar to recovery, but is included as part of the comparative negligence analysis. Nevertheless, a defendant must still plead assumption of the risk as an affirmative defense. Davenport v. Cotton Hope Plantation Horizontal Prop. Regime, 333 S.C. 71 (S.C. 1998) .

CAPS ON NONECONOMIC DAMAGES

There are no exclusive Products Liability statutes under this category.

COLLATERAL SOURCE RULE

South Carolina has long followed the collateral source rule that compensation received by an injured party from a source wholly independent of the wrongdoer should not be deducted from the amount of damages owed by the wrongdoer to the injured party. This rule applies to insurance proceeds; including accident insurance proceeds for personal injury, property insurance proceeds for damage to automobile, and insurance proceeds for fire damage losses. Estate of Rattenni v. Grainger, 298 S.C. 276 (1989) .

COMPARATIVE FAULT

The defense of contributory negligence is not a defense to a strict liability claim. However, if the user or consumer discovers the defect and is aware of the danger, and nevertheless proceeds unreasonably to make use of the product and is injured by it, he is barred from recovery. S.C. Code Ann. §15-73-20 .

A plaintiff in a negligence action may recover damages if the negligence is not greater than that of the defendant, and shall be reduced proportionally. Nelson v. Concrete Supply Co., 399 S.E. 2d 783 (S.C. 1991) .

(In strict liability, knowledge of the condition of the product will be imputed to the manufacturer, whereas in negligence, these elements must be proven). Bragg v. Hi-Ranger, Inc., 462 S.E.2d 321 (S.C. Ct. App. 1995) .

ECONOMIC LOSS

There is no tort liability for a product defect if the damage suffered by plaintiff is only to the product itself. Kershaw County Bd. of Ed. v. U.S. Gypsum Co., 396 S.E.2d 369 (S.C.1990) .

While the economic loss rule generally does not apply when "other property" damage is proven, this exception is not met if the damage to the "other property" was, or should have been, contemplated by the contract. Myrtle Beach Pipeline Corp. v. Emerson Elec. Co., 843 F.Supp. 1027 (D.S.C. 1993) (applying South Carolina law).

JOINT & SEVERAL LIABILITY

Joint tortfeasors are jointly and severally liable to the plaintiff. A plaintiff can choose to sue one, some, or all of the joint tortfeasors, and each joint tortfeasor is individually liable for the full amount of the plaintiff's loss. Furthermore, the plaintiff may sue them jointly in one suit, or individually in separate suits. F. Patrick Hubbard & Robert L. Felix, The South Carolina Law of Torts, 283 (2d ed. 1997) .

Under South Carolina law, there can be no indemnity among mere joint tortfeasors. Parties that have no legal relation to one another and who owe the same duty of care to the injured party share a common liability and are joint tortfeasors without a right of indemnity between them. S.C. Code Ann. §15-38-10 .

Common law indemnification does not apply among joint tortfeasors in strict liability. Scott by McClure v. Fruehauf Corp., 302 S.C. 364 (S.C. 1990) .

PUNITIVE DAMAGES

In any civil action where punitive damages are claimed, the plaintiff has the burden of proving such damages by clear and convincing evidence. S.C. Code Ann. §15-33-135 .

Punitive damages are recoverable in a negligence cause of action when the defendant's conduct rises to the level of a willful, wanton, or malicious violation of the plaintiff's rights. A conscious failure to exercise due care constitutes willfulness. McCourt v. Abernathy, 457 S.E.2d 603 (S.C. 1995) .

Punitive damages are not reduced by the proportion of plaintiff's negligence under comparative negligence. Clark v. Cantrell, 529 S.E.2d 528 (S.C. 2000) .

Recovery of punitive damages is not allowed under a cause of action based solely upon the South Carolina strict liability statute or on a warranty theory. Barnwell v. Barber-Colman Co., 301 S.C. 534 (S.C. 1989) .

RIGHT TO CONTRIBUTION

Where two or more persons become jointly or severally liable in tort for the same injury to person or property or for the same wrongful death, there is a right of contribution among them even though judgment has not been recovered against all or any of them. S.C. Code Ann. §15-38-20 (A) .

The right of contribution exists only in favor of a tortfeasor who has paid more than his pro rata share of the common liability and his total recovery is limited to the amount paid by him in excess of his pro rata share. S.C. Code Ann. §15-38-20 .

If there is no judgment for the injury or wrongful death against the tortfeasor seeking contribution, his right of contribution is barred unless he has agreed while action is pending against him to discharge the common liability and has within one year after the agreement paid the liability and commenced his action for contribution. (Under the statute, "common liability," rather than joint negligence, determines the right to contribution.) S.C. Code Ann. §15-38-40(D)(2) .

SPECIAL DEFENSES

Scope of strict liability does not apply to negligent installation of non-defective products. DeLoach v. Whitney, 275 S.C. 543 (S.C. 1981) .

STATUTE OF LIMITATION

Actions for personal injury, property damage, and wrongful death shall be brought within three years. S.C. Code Ann. §15-3-530 .

Action for breach of warranty shall be commenced within six years of time the breach should have been discovered. S.C. Code Ann. §15-73-10 .

STATUTES OF REPOSE

There is no statute of repose for product liability actions in South Carolina.

STRUCTURED SETTLEMENT

There are no exclusive Products Liability statutes under this category.