C. Elements Defined

C. Elements Defined

1. A Duty of Care Owed by the Defendant to the Decedent

If the plaintiff is unable to establish that the defendant owed duty of care to him or her, the plaintiff cannot prevail.¹¹ The duty of care owed to a decedent by a defendant in a wrongful death case will be determined by the nature of the action: e.g., medical malpractice; premises liability; automobile negligence. The duty might also be based on statute.¹² The South Carolina Supreme Court has said that in order to show a duty of care based on a statute, the plaintiff must show: "(1) that the essential purpose of the statute is to protect from the kind of harm the plaintiff has suffered; and (2) that he is a member of the class of persons the statute is intended to protect."¹³ Generally a duty of care is "that standard of conduct the law requires of an actor in order to protect others against the risk of harm from his actions. It embodies the principle that the plaintiff should not be called to suffer a harm to his person or property which is foreseeable and which can be avoided by the defendant's exercise of reasonable care."¹⁴

2. A Breach of that Duty by a Negligent Act or Omission

The plaintiff must show the defendant breached the duty of care.¹⁵ Generally a breach of duty exists when it is foreseeable that conduct may likely injure a person to whom a duty is owed.¹⁶ For example, in a medical malpractice case the plaintiff must show that the defendant departed from the recognized and generally accepted standards, practices and procedures.¹⁷ If the plaintiff shows a duty arising from a statute¹⁸ and that the defendant violated the statute, the element is met by proof of negligence per se.¹⁹ A violation of an administrative regulation may also constitute negligence per se.²⁰

3. Damages Proximately Resulting from the Breach

The plaintiff must show the breach of duty was the proximate cause of the injury.²¹ The South Carolina Supreme Court has said:

Proximate cause requires proof of: (1) causation in fact and (2) legal cause.
Causation in fact is proved by establishing the injury would not have occurred "but for" the defendant's negligence. [citation omitted] Legal cause is proved by establishing foreseeability. [citation omitted] Although foreseeability of some injury from an act or omission is a prerequisite to establishing proximate cause, the plaintiff need not prove that the actor should have contemplated the particular event which occurred. The defendant may be held liable for anything which appears to have been a natural and probable consequence of his negligence. [citation omitted] A plaintiff therefore proves legal cause by establishing the injury in question occurred as a natural and probable consequence of the defendant's negligence.²²

Unless the evidence shows reasonable persons could not disagree, the...