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Legal Updates

September 2015

Partner Martin Driggers Jr. Was published in the DRI with an article titled, Seismic Changes for Liability Risk for Some Religious Organizations and Charities in the Wake of the Supreme Court's Obergefell Decision

"On June 26, 2015, the United States Supreme Court handed down its decision in Obergefell v. Hodges, 576 U.S. ___ (2015), holding that the Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State. While the direct impact of the decision will impact the state's that had enacted laws barring same-sex marriage, the impact on the liability risk for some religious organizations and charities could be far greater...[Read More]"

February 2014

In Rev. Proc. 2013-35, the IRS announced the annual inflation-adjusted values of the estate and gift tax limits. The unified estate tax credit equivalent amount has increased to $5,340,000 for individuals dying in 2014, and the gift tax annual exclusion amount has increased to $14,000 per person in 2014 ($28,000 for a married couple).

January 1, 2013

The South Carolina Probate Code ("SCPC") was comprehensively revised in 2013, and those revisions became effective on January 1, 2014. Key revisions to the SCPC involve elective share calculation and satisfaction, an exempt property increase, the creditors' claims process, and various duties of the personal representative. Because the revisions to the SCPC substantially altered the laws and procedures relating to estate administration, uniform probate court forms were either revised, deleted or created. Article 5 of the SCPC (which contains provisions of law on guardians, conservators and powers of attorney) was not revised, but a committee of judges and attorneys are continuing to work on possible revisions to that Article.

June 5, 2013

Richardson v. Piggly Wiggly Central, Inc., No. 5124, The Plaintiff slipped and fell on the concrete outside the Piggly Wiggly while it was raining. The Court of Appeals affirmed the Circuit Court, holding that a property owner has no duty to warn an invitee of a natural condition, "the peril of which was obvious" quoting the Supreme Court's holding in Meadows v. Heritage Village Church Missionary Fellowship. In Meadows, the court held that the property owner did not have a duty to warn about the danger of wet grass.

May 1, 2013

Castine v. Castine, No. 5120, In this defamation case, David Castine (David) appealed the circuit court's grant of summary judgment in favor of Frances Castine (Frances). The court affirmed, finding that David was not entitled to the truth defense as a matter of law, because he admitted the statement he made about Frances' improper credit card use was false; that the court did not err in finding David acted with malice; and, in light of David's admission of his intent to harm Frances and get her fired, the circuit court did not err in finding priviledge did not exist. Judge Short concurred in result only.

Gibson v. Wright, No. 5127, In this medical malpractice action, the court affirmed the decisions of the trial court, finding that the court did not abuse its discretion in allowing the timeline summary and that Gibson did not show he was prejudiced by it. Additionally, the trial court did not err in denying Gibson's motion for a mistrial, nor did the trial court err in excluding Dr. Wallace's deposition.

April 17, 2013

In Smith v. D.R. Horton, Inc., No. 5118, the court affirmed the circuit court's order denying Horton's motion to compel arbitration. Because the court affirmed the circuit court's finding of unconscionability and found that the arbitration clause should not be severed from the purchase agreement, the court declined to address Horton's remaining arguments regarding unequal bargaining power, lack of consideration and merger-by-deed.

April 12, 2013

In the Matter of Thomas S., No. 27241, The S.C. Supreme Court held that the Court of Appeals erred in affirming the trial court's decision to allow a lay witness to express an expert opinion. After finding the error was not harmless, the Court reversed the jury verdict and remanded for further proceedings.

August 8, 2012

Keeter v. Alpine Towers International, Inc., involved a trial in which $4.75 million was awarded to a high school senior and his family for being rendered a paraplegic based on a fall from a climbing tower at Fort Mill High School in 2006. There were separate awards against the manufacturer and installer of the tower for strict liability, negligence in design and negligence in training the faculty at the high school.

The trial court had made the plaintiff elect his remedies among the causes of action, but the Court of Appeals reversed, holding that, "[b]ecause Larry sought only one remedy [damages], the doctrine of election of remedies does not apply. 'As its name states, the doctrine applies to the election of 'remedies' not the election of 'verdicts,' citing Austin v. Stokes-Craven Holding Corp., 387 S.C. 22, 57,691 S.E.2d 135,153 (2010)."

May 14, 2012

The South Carolina General Assembly is considering a bill (S.772) to permit political subdivisions to establish a fund for settlement of tort claims. The bill also provides that the State Board of Economic Advisors aid in calculating the applicable liability limits.

The South Carolina General Assembly is considering a bill (S.1229) concerning the reciprocal licensure of insurance adjusters and providing exemptions for certain individuals who do not have to be licensed.

The South Carolina General Assembly is considering a bill (S.1225) requiring a claimant to serve written notice on a contractor at least ninety days before filing suit or being made a party to an existing action. The notice of claim must be issued by the claimant individually and not sent through a representative.

The South Carolina General Assembly is considering a proposal (H.4699) to create three new circuit judgeships elected by the legislature in an at-large capacity. The circuit court is South Carolina's trial court of general jurisdiction, hearing disputes greater than $7,500.00 and involving imprisonment of more than one year and is also an appellate body for the probate and magistrate courts.

The South Carolina General Assembly is considering a bill (H.5164) requiring long-term care facility residents or their representatives to give the facility administrator notice of intent to voluntarily relocate to another facility. The facility is also given the authority to charge the resident the equivalent of thirty days occupancy if he fails to provide the notice.

April 10, 2012

In a new case from the Supreme Court, 16 Jade St., LLC v. R. Design Const. Co., LLC, the Court held that a member of an LLC can be personally liable for negligent acts he committed while working for the LLC. The holding is to the effect that S.C. Code Ann. §33-44-303 was not intended by the legislature to provide a shield against personal liability.

March 28, 2012

The South Carolina Court of Appeals addressed setoffs in a recent decision, Smith v. Widener. The court points out that when actual and punitive damages are awarded for the same claim, a non-settling defendant is entitled to a setoff for both actuals and punitives.

In a case involving an employment agreement between South Carolina attorneys, Lucy v. Meyer, the South Carolina Court of Appeals unanimously reversed the trial court in ordering that an arbitration agreement was enforceable via the Federal Arbitration Act while the South Carolina Arbitration Act was not enforceable because of lack of notice. The key to the applicability of the FAA was that "interstate commerce is broadly construed for purposes of the FAA; thus, because the employment contract's named cases required out-of-state travel and work from Meyer, the contract involved interstate commerce."

March 14, 2012

Sweeny, Wingate and Barrow is following debate as the South Carolina General Assembly considers significant changes to the South Carolina Probate Code. The changes, if enacted, would affect the probate court's jurisdiction, intestate succession, executing and administering a will, local and foreign personal representatives, individuals with disabilities, nonprobate transfers, and the rule against perpetuities.

February 21, 2012

The 119th Session of the Legislature is entertaining a bill (S.1225) to revise the notice requirements when bringing an action against a contractor of subcontractor of a dwelling.

Also under consideration is a bill (S.80) which affects the closing of estates in probate court, allowing interested persons to waive the filing of an Accounting, Proposal for Distribution of Assets, or Notice of the right to demand a hearing.

February 15, 2012

The South Carolina Court of Appeals recently decided Magnolia North Property Owners Ass'n v. Heritage Communities, Inc. et al., a construction defect case. The Court addressed four primary issues: 1) the three situations in which the corporate form can be disregarded; 2) the admission of evidence regarding other projects developed by a builder; 3) accuracy standard for a jury charge; and 4) the duty of a jury to award punitive damages if the plaintiff shows that his rights have been "consciously, willfully and recklessly violated."

January 25, 2012

In the recent case of Ranucci v. Crain, Op. No. 4935 (S.C. Ct. App. Jan. 25, 2012), the Plaintiff filed her medical expert's affidavit 45 days after filing her Notice of Intent to File Suit. The circuit court dismissed the action because of this untimely filing. The Court of Appeals affirmed, explaining the interplay between S.C. Code Ann. § 15-79-125 and § 15-36-100. The majority does not, however, address the application of the statute of limitations, although C.J. Few, concurring, does address the topic.

October 19, 2011

In the recent Supreme Court case of Bass v. Gopal, the Court succinctly stated that a business owner's duty is to "take reasonable action to prevent its invitees against the foreseeable risk of physical harm." It addressed four approaches to that foreseeability, concluding that this State would now use a "balancing test," first adopted in California. "[T]he more foreseeable a crime, the more onerous is a business owner's duty 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."

June 20, 2011

In the case of Cole Vision Corporation v. Hobbs, the Court "decline[s] to adopt the tort of negligent spoliation [of evidence] in this state." There is no "independent tort for the negligent spoliation of evidence, third-party or otherwise." Spoliation can, however, be used as a defense; the Court specifically disclaimed its use as a counterclaim.

In the case Judy v. Judy, involving waste to real property, the court held that even though a party did not "delineate waste as a separate cause of action, the allegations in his pleadings set forth the elements of this tort [waste]." Therefore, a later claim was barred by res judicata. The Court reiterated that under res judicata- with the same parties and the claim arising from the same transaction/occurrence which was the basis for the earlier action, "a litigant is barred from raising any issues which were adjudicated in the former suit and any issues which might have been raised in the former suit."

April 13, 2011

In the case of Columbia/CSA-HS...v. South Carolina Medical Malpractice Liability Joint Underwriting Assoc., the Court of Appeals heard an appeal from the trial court's granting summary judgment to the JUA and a doctor in a claim for equitable subrogation. The decision hinges on the Appeals Court's holding that an action for equitable subrogation was an action for damages for injury to the person, rather than an action to recover settlement costs. Because it was an action for damages for injury to the person, the action for equitable subrogation had to be brought with the statute of repose for medical malpractice actions. That statute of repose, provided by S.C. CODE ANN. § 15-3-545 (A), is six years.

September 13, 2010

In the products liability case of Watson v. Ford, the Court observed that the trial court must make a substantive evaluation of the content of an expert's testimony. It also reiterates the point that for a plaintiff to succeed in a claim of a design defect, he must provide an alternative feasible design - and must provide evidence to support that the proposed design would have cured the defect and is economically feasible. Finally, the Court makes the point that for evidence of prior "similar" incidents to be admissible, a "plaintiff must present a factual foundation for the court to determine that the other accidents were substantially similar to the accident at issue."

August 16, 2010

In Branham v. Ford, the Court held that in a design defect claim, a plaintiff must show that the design caused the product to be unreasonably dangerous. The test to determine whether a product is unreasonably dangerous is the risk-utility test, articulated in the Restatement (Third) of Torts: Product Liability §26 as follows: A product...is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe. The Plaintiff must present evidence of a reasonable alternative design. The need for an alternative, and the alternative itself, must be based available on information available to the manufacturer when the product in question was made (pp.8-10).