preparing for a wrongful death lawsuit in South CarolinaA wrongful death lawsuit in South Carolina is governed by the South Carolina Code. Like most states, South Carolina has its own set of statutes that govern wrongful death lawsuits. The South Carolina wrongful death statutes can be found at Title 15, Chapter 51 of the South Carolina Code.

In this article, we’re going to focus on the basics of filing a wrongful death lawsuit in South Carolina. Namely, we’re going to talk about wrongful death claims in South Carolina, including the wrongful death statute of limitations, who can file the wrongful death lawsuit, and who can recover damages. We’re also going to talk about what types of damages are recoverable in a SC wrongful death lawsuit.

Definition of Wrongful Death in South Carolina

Under South Carolina law, a “wrongful death” is a death caused by the wrongful act of another, the neglect of another, or the default of another. Furthermore, the Code provides that the wrongful act, the neglect, or the default must be the type of act or omission that the deceased person could have filed a personal injury lawsuit for if the deceased person had survived. Therefore, a wrongful death lawsuit in South Carolina can be thought of as a personal injury claim brought about by the decedent’s estate.

South Carolina Wrongful Death Statute of Limitations

One of the first questions to ask in an personal injury claim, whether it’s a car accident, truck accident, boat accident, or medical malpractice, is this: How long do I have before the statute of limitations runs? The statute of limitations sets a time limit within which a claim must be filed. A wrongful death lawsuit in South Carolina must be filed within 3 years of the date of the deceased person’s death.

The Plaintiff in a Wrongful Death Lawsuit in South Carolina

Under South Carolina law, the estate administrator, sometimes called the “executor” or “personal representative,” is the person responsible for filing the wrongful death lawsuit in South Carolina. Where the deceased person had a will, the will typically provides who the deceased named as the administrator. However, if the named administrator cannot serve or does not wish to serve, the court may be forced to appoint an administrator of the estate. Similarly, if the deceased person died without a will, the court will have to appoint an administrator. This process can take several weeks or several months, depending on the circumstances. However, once the court has appointed an administrator of the estate, the administrator may file the wrongful death lawsuit on behalf of the deceased person's estate.

Beneficiaries of a Wrongful Death Lawsuit in South Carolina

The estate administrator is not the typical plaintiff in that he or she will not likely receive the benefits of a wrongful death lawsuit in South Carolina. Instead, the Code provides that the damages recovered in a wrongful death lawsuit in South Carolina will be distributed as follows:

  • To the deceased person’s spouse;
  • If there’s no living spouse, to the deceased person’s children;
  • If there are no living children, to the deceased person’s parents;
  • If there are no living parents, to the deceased person’s heirs.

Damages Recoverable in a Wrongful Death Lawsuit in South Carolina

If the executor settles or wins a wrongful death lawsuit in South Carolina on behalf of the deceased person’s estate, the defendant will have to pay money to the estate. The amount of money damages will be determined by the type and severity of the compensable losses, which typically include some of the following:

  • Funeral expenses;
  • Burial expenses;
  • Medical bills;
  • Emergency room bills;
  • Lost work wages;
  • Loss of support from the deceased person;
  • Loss of knowledge and wisdom from the deceased person;
  • Loss of companionship and care from the deceased person;
  • The deceased person’s pain and suffering between fatal injuries and death; and
  • The surviving family’s pain and suffering.

Punitive damages may also be available. Whereas the above damages are meant to compensate for loss, punitive damages may be awarded in a wrongful death lawsuit in South Carolina purely to punish a defendant. The South Carolina Code only allows punitive damages in very specific circumstances, such as where the defendant’s behavior is wilful, wanton, or reckless.

How is Wrongful Death Different from Homicide?

People often ask us what the difference is between wrongful death and homicide or wrongful death and negligent homicide. Here, the distinction is the civil system versus the criminal system. The main differences worth noting are the liabilities involved (what happens if the defendant loses?) and the burden of proof (what does the plaintiff or prosecutor have to show to win the case?).

In a personal injury or wrongful death case, the defendant’s liability is money only. In a criminal case, the defendant’s liability is often the defendant’s freedom or rights. In other words, a defendant in a wrongful death case may have to pay with money, whereas a defendant in a homicide case may have to pay with jail time or probation.

The burden of proof in the civil system is different than in the criminal system. That makes sense, right? We are less worried about forcing a defendant to pay money than we are about taking a person’s rights and freedoms away. Thus, in the civil system, the burden of proof is “preponderance of the evidence,” whereas, in the criminal system, the burden of proof is “beyond a reasonable doubt.” The preponderance of the evidence can be thought of as more likely than not, or over 50%. Beyond a reasonable doubt, however, requires more certainty and is somewhere closer to 97% or 99%.

Elements of a Wrongful Death Lawsuit in South Carolina

As we mentioned above, a wrongful death lawsuit in South Carolina is similar to a personal injury claim. The difference is really about who is bringing the claim; everything else is very similar. When we’re talking about negligence, we’re usually talking about the following elements:

  • Damages. Here, we’re talking about injuries, lost wages, medical bills, and pain and suffering. If there are no damages, there is no reason to bring a lawsuit. Therefore, this element is typically easy to prove. In a wrongful death lawsuit in South Carolina, somebody died, and so we are dealing with the most serious and heartbreaking type of injury.
  • Duty. To prove duty, the plaintiff must prove, by a preponderance of the evidence, that the defendant owed the plaintiff a duty of care. This is typically that the defendant owed the plaintiff a duty to act as a reasonable person would act under the circumstances. For example, in a trucking accident case, the plaintiff must prove that the trucker had a duty to follow the rules of the Federal Motor Carrier Safety Administration. In a boating accident case, the plaintiff must prove that the captain had a duty to follow the applicable rules of the water.
  • Breach. To prove breach, the plaintiff must prove, by a preponderance of the evidence, that the defendant breached its duty to the plaintiff. This is where many cases are fought. Back to our examples from above. The plaintiff in a trucking accident case may show that the trucker breached its duty by driving too many hours in a row without stopping. Similarly, the plaintiff in a boating accident case may prove that the captain breached its duty by operating the boat while under the influence of alcohol.
  • Causation. The plaintiff in a wrongful death lawsuit in South Carolina must prove, by a preponderance of the evidence, that the defendant’s breach of its duty was the actual cause and the proximate cause of the decedent’s death. In our trucking accident example, the plaintiff must show that the defendant driver's beach of duty caused the decedent’s death. The defendant, however, will argue that something else caused the decedent’s death. For example, the defendant may point to the decedent’s vehicle and say that it was the decedent’s brake failure or something else that killed the decedent, anything but the defendant.

South Carolina Wrongful Death Lawyer

If you have lost a loved one due to the careless actions of another, you should get a South Carolina wrongful death lawyer that will fight for you like family. When you trust us with your case, you’ll get an attorney that will be there for you every step of your wrongful death case. We do not stick our clients with paralegals or non-attorney staff. We give our wrongful death clients our cell phone numbers, and we keep them updated every step of the way. Contact us today for a free legal consultation with a South Carolina wrongful death lawyer. You can call us at (843) 638-6590 to schedule your free consultation today.