Like all states, South Carolina has a set of statutes that apply to wrongful death claims. These laws permit a deceased person's survivors to file a lawsuit if the person died as a result of another party's accidental or intentional act. In this article, we'll examine some key parts of South Carolina's wrongful death laws, including how the state defines a "wrongful death," who is eligible to file the lawsuit, the different categories of damages available if a wrongful death claim is successful, and the time limit for filing this kind of case.
Under South Carolina law, a "wrongful death" is defined as one that is caused by the "wrongful act, neglect, or default" of another. The wrongful act, neglect, or default must be the type of action for which the person could have filed a personal injury lawsuit had he or she lived. (S.C. Code § 15-51-10 (2021).)
So it can be helpful to think of a wrongful death lawsuit as a personal injury case in which the injured person is no longer able to bring his or her own case to court. Instead, someone else must step in and file the lawsuit on behalf of the deceased person.
As with personal injury cases in general, many types of events can be the basis for a wrongful death claim, including:
As in all personal injury cases, the defendant's liability in a wrongful death case is expressed solely in terms of financial compensation ("damages"), which the court orders the defendant to pay to the decedent's survivors. This is one big difference between a wrongful death lawsuit and criminal homicide cases, where a conviction will be penalized with jail or prison time, probation, and other sanctions.
Another difference to note between criminal prosecutions for homicide and civil lawsuits for wrongful death: In a criminal case, the accused's guilt must be established "beyond a reasonable doubt," which is a very high bar for the prosecution to clear. In a civil lawsuit, the defendant's liability need only be shown "by a preponderance of the evidence," meaning it's more likely than not that the defendant is responsible for the decedent's death. It is possible, though, for a single act to result in criminal charges and a wrongful death claim: A defendant can be sued for wrongful death in civil court while facing criminal charges related to the same death. In fact, South Carolina law specifies that a wrongful death lawsuit can be filed even if the death was the result of a crime.
Read more about proving liability in a wrongful death case.
In some states, the deceased's surviving family can file the wrongful death lawsuit. In South Carolina, though, the executor or administrator of the deceased person's estate must file the wrongful death claim. (S.C. Code § 15-51-20 (2021).) If the deceased made a will, the executor will typically be named there. But if the deceased person has no estate plan, or if the named executor cannot or does not wish to serve, the court may name someone.
Although the executor or administrator is responsible for pursuing the wrongful death claim, any damages recovered (more on that, below) will go the deceased person's surviving family members. The family members who can recover damages in a South Carolina wrongful death case include:
If a wrongful death lawsuit is successful, the court will order the defendant to pay "damages"—or the plaintiff's claimed losses—to the deceased person's survivors, as discussed above. In South Carolina, damages can be awarded for a range of losses, including:
If the conduct that caused the death was deliberate or reckless, the court may also award exemplary damages. Unlike other types of damages, exemplary damages (also called "punitive damages") are not meant to compensate the family or estate for losses resulting from the death. Instead, exemplary damages are intended to punish wrongdoers and serve as a deterrent for others who might engage in similar behavior in the future. (S.C. Code § 15-51-40 (2021).)
Get more details on damages that might be available in a wrongful death case.
In all states, a wrongful death claim must be filed before the legal time limit, set by a law called a "statute of limitations," expires. In South Carolina, the statute of limitations that applies to wrongful death claims states that the lawsuit must be filed within three years of the date of the person's death. If the case is not filed within that three-year time period, the court will very likely refuse to hear the case at all. (S.C. Code § 15-3-530(6) (2021).)
Wrongful death cases can be complicated—and the law can change at any time. If you're thinking of filing a wrongful death lawsuit in South Carolina, it's a good idea to consult a personal injury attorney. An experienced lawyer can explain how the law might apply to your specific situation.