South Carolina Court of Appeals Rejects Pre-Impact Fear Recovery

Personal representatives in South Carolina cannot recover damages for those last few seconds of life when their decedent knew for a fact that they would die. Last week, the South Carolina Court of Appeals rejected a Plaintiff’s ability to recover damages for “pre-impact fear.” See Rutland v. South Carolina Dep’t of Transp., No. 4721 (S.C. Aug. 4, 2010).

That case involved a wrongful death action brought by the personal representative of the estate of a passenger killed following a highway automobile accident during a heavy rain storm. The Plaintiff sued various defendants, but all but the Department of Transportation settled out before the trial. (It’s unclear from the facts of the opinion what the Plaintiff’s theory of recovery was against the State.). The jury awarded the Plaintiff $300,000, but the trial court granted the Department’s post trial motion for set-off and reduced the verdict to zero.

The Plaintiff appealed. In its opinion, the Court of Appeals addressed various appellate points, but it is the Plaintiff’s second appellate point that is of interest. The Plaintiff had argued that “pre-impact” fear was recoverable in a South Carolina survival action “when the decedent suffered mental trauma before actual physical injury resulting in the decedent’s death.”

Citing some recent federal authority, and distinguishing an 80 year old case the Plaintiff had invoked in support of his theory, the Court of Appeals disagreed, noting as follows:

South Carolina does not recognize “pre-impact fear” as a compensable cause of action. See Hoskins v. King, 676 F. Supp. 2d 441, 451 (D.S.C. 2009) (concluding South Carolina law does not permit recovery for pre-impact fright). Also, we decline to extend the holding in [Spaugh v. Atlantic Coast Line Railroad. Co., 158 S.C. 25, 155 S.E. 145 (1930)] for the proposition that “pre-impact fear” is recoverable in this State.

In Hoskins, a case involving a cyclist killed after an automobile accident, Judge Joseph F. Anderson, Jr. had found that there was no support in South Carolina law for the recovery of such damages:

However, in addition to seeking the more established post-impact survival damages, Hoskins seeks damages for the split-second between when the rear tire of the bicycle touched the front bumper of the Pacifica and the impact of Thomas Hoskins on the windshield. However, this position does not find support under South Carolina law. Hoskins has cited many cases, from other jurisdictions which recognize recovery for pre-impact fright. In nearly all of these cases the victims knew they were going to die for a period of at least some seconds, not fractions of a second. Moreover, there was evidence in almost all of the cases that the victim saw their ending coming and there was no question that the victim consciously perceived the cause of his or her death-such as a car crashing in to the back of a tractor trailer, an imminent plane crash, or a pedestrian trapped on roadway.

In this case the King’s car closed from the rear at a high rate of speed, causing a tremendous impact-throwing Thomas Hoskins seventy-five feet in the air-and instantly killing him. A survival claim requires that the deceased consciously endure pain and suffering. Due to the severity of the impact, the court finds that the evidence does not demonstrate that the decedent had time to consciously perceive the means of his death, much less consciously suffer pain.

Further, the Court of Appeals had distinguished Hough as a case involving “a woman who became physically ill after experiencing a nervous breakdown when she was stranded by a train company” and that in that case the South Carolina Supreme Court had determined that there was sufficient evidence to conclude that the plaintiff had actually suffered “bodily injury.”

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