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If Your Case Qualifies for Punitive Damages, These Are the Factors South Carolina Law Uses to Determine the Amount, Plus the “X” Factor That Can Make the Difference in Your Case

For accident and injury cases, whether it’s a car or motorcycle accident, semi-trailer trucking wreck, slip or trip and fall, medical malpractice, or any other type of case, if your case is eligible for punitive damages, the question becomes, “How much can you get in punitive damages?” 

The first thing to know is that punitive damages are hard to prove. You’ve got to prove your right to punitive damages by clear and convincing evidence. That’s less than “beyond a reasonable doubt” needed to win a criminal conviction, but it’s more than the “preponderance of the evidence” needed to prove your right to a settlement for actual or compensatory damages.

Then, to prove the amount of the punitive damages award, you’ve got to deal with a legion of legal factors under South Carolina law—12 in all. Some help you, and some don’t. And then, you might have to construct arguments to overcome South Carolina legal limits on punitve damages.

That’s why you’ll likely be lost without guidance from the “X-factor” of an experienced South Carolina accident injury attorney who knows how to find evidence and use what helps while neutralizing what hurts.

Now let’s look at the punitive damage award factors presented by South Carolina Code Section 15-32-520(E).

1. The Defendant’s Degree of Culpability

The question you answer here is, how easily could the defendant have prevented this, or how many chances did they have to fix it? For example:

  • A drunk driving accident could have easily been prevented by getting a designated driver or an Uber.
  • When a trucking company forces a trucker to drive in excess of federal driving time limits and his exhaustion leads to a crash, all they had to do was follow the law to prevent the accident.
  • A business may get several complaints about falls from a slip or tripping hazard but fail to fix it.
  • Breaking the law, which includes traffic laws like speeding, or following too closely, or failure to yield the right of way, is a common cause of accidents.
  • A company might have violated its own safety policies, like one prohibiting the placement of a damaged or curled up floor mat that someone falls on.
  • A doctor may have repeatedly failed to properly diagnose a patient or refer the patient to a specialist.

2. The Severity of the Harm Caused by the Defendant

This requires us to look at the physical harm caused by injuries—wrongful death weighs the heaviest here, followed by severe traumatic brain injury, or spinal injuries like disc herniations or paralysis, then broken bones and long term care.

3. Whether Your Conduct Contributed to the Harm

This is where the law can hurt you. I call this factor “attribution” because it attributes fault to you, the injured victim. It can reduce verdicts generally, whether your attribution to your injuries is real or imagined. That’s why it’s so important to go to the doctor and do what she says. It’s why in slip or trip and fall cases, we address why you didn’t look where you were going. In the best case, the victim is totally faultless, which is often the case.

4. The Duration of the Conduct, the Defendant’s Awareness of It, and Any Concealment of It

Let’s break that down:

  • Duration. Longer is stronger, especially since it ties into the defendant’s awareness— whether they knew or should have known about the situation.
  • Concealment is fraud. “A little fraud goes a long way.” Falsified trucker driving records, buried complaints and incident reports, or even denied fault in the face of clear evidence can amount to concealment.

5. Similar Past Conduct

If the defendant has done this repeatedly and hurts people, it shows they don’t care. You can bet no one will volunteer to share this evidence with you. It’s critical to have an attorney who knows how to get evidence in discovery, which often requires a fight. And once you get that evidence, you’ve got to know how to make it admissible in court, which can be tricky. And then you’ve got to know how to use it.

6. The Profitability of the Conduct to the Defendant

You may need an expert to prove this—if it even can be proven. For example, you might have a trucking company allowing its trucker to exceed federal driving time limits so they can complete more routes to increase profits. Or a doctor gives useless, expensive medical tests while missing a diagnosis.

7. The Defendant’s Ability to Pay

This factor isn’t that important. Punitive damages can still be ordered even if the defendant has no money. In reality, insurance usually pays. But if the defendant is a business or a giant corporation, you need an attorney who knows how to get evidence of its “net worth,” and you may need an expert accountant or economist to prove that amount. Those experts can also describe the impact of the punitive damage award on the company, which can actually help you. Again, you won’t get this evidence without a fight.

8. The Likelihood the Award Will Deter the Defendant or Others From Similar Conduct

A major purpose of punitive damages is so people and businesses will “learn their lesson” to keep others safe. This is where a skilled attorney can craft an effective argument using human factors—a lawyer’s “spidey sense”—to appeal to jurors’ humanity and sense of rightness that a punitive damage award won’t teach anyone anything unless it’s a substantial amount.

9. Punitive Damages Against the Defendant in Any Other Lawsuit Alleging Harm From the Same or Similar Conduct

This evidence proves the defendant just doesn’t care about hurting people. Do you know how to find it? An experienced accident injury attorney will. He’ll also know how to make it admissible and use it to help you.

10. Criminal Penalties Imposed on the Defendant as a Result of the Defendant's Conduct 

The impact of this factor can be surprising. Hurting people by committing a crime or breaking the law should support punitive damages, but you need a skilled personal injury lawyer to prevent this from actually hurting your case. There are two ways that can happen:

  • Crimes and intentional conduct are often excluded from insurance coverage. That’s what pays most settlements. You need to make sure nothing in your case prevents a settlement or award from being paid.
  • Criminal penalties can lead the jury to give little to no punitive damages award because they believe the defendant’s “paid for it enough.”  A talented injury attorney can create an argument to help the jury realize you haven’t found full justice yet, but they can deliver it.

11. Civil Fines Against the Defendant as a Result of the Defendant’s Conduct

These are government fines for legal violations that aren’t crimes. They need to be handled carefully, much like criminal penalties.

12. The Wild Card: Any Other Relevant Evidence

There’s a magic phrase introducing the evidence a jury can consider. Section 15-32-520(E) tells the specific factors above can be considered, but also states the jury can consider “all relevant evidence” that’s “not limited to” those specific factors. That means a creative lawyer can help you attempt to maximize a punitive damages award amount with evidence that’s unique to your case.

It’s a Lot. That’s Why You Need a Professional to Manage it for You.

In the proper case, punitive damages are right, good, and they need to be obtained. But it takes a lot of work—and it’s worth it to us because as Spartanburg personal injury attorneys, we are invested in the success of your case.

Get your questions answered. If your case involves a car or motorcycle accident, download my FREE BOOK on crash cases.

Call us toll-free at 888-230-1841 or fill out a Get Help Now form. You can always come to see us for a FREE, EASY strategy session.

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Rob Usry
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Rob is a Spartanburg personal injury lawyer. Rob also practices as a criminal defense attorney.