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South Carolina
Judicial Department
South Carolina Bench Book for Summary Court Judges - Civil Section

Elements of Common Tort Actions

1. Generally

A tort is defined as a private wrong or injury done to person or property for which a legal remedy is afforded. A tort arises where there is 1) a duty of due care; 2) a breach of that duty--i.e. negligence; 3) a legally protected injury; and 4) a causal relationship between that injury and the negligence such that the negligence "proximately caused" the injury. A wrongful act may be a breach of a contract, a crime punishable by law and a tort. A tort compensates victims, while criminal law punishes wrongdoers.

For example, if a person assaults and injures another person, the injured party may institute two separate and distinct actions, one civil and one criminal. The civil action designated as a tort will be for a money judgment against the defendant seeking to be compensated for his damages. Damages may include hospital bills, compensation for lost income if the injury prevented a return to work, and in some instances, compensation for the injured party's pain and suffering.

A criminal action may also be instituted for assault and battery. In this action, the theory is that the defendant has committed a wrong against society.

Whether the defendant breached his duty of due care (or some other related duty) and proximately caused the plaintiff's injury is a mixed question of law and fact to be determined at trial. The judge should provide a proper charge and direct a verdict only where there is no evidence upon which a reasonable juror could decide otherwise.

A tort may be inflicted either negligently or intentionally. The legal definition of negligence is conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm. In judging whether conduct is negligent, the law applies objective standards of reasonableness. The question is what would a reasonable person have done under the same circumstances.

An intentional tort is an act committed with a particular state of mind. Intent is defined as the desire to cause certain immediate consequences. Certainty of the harmful consequences is what distinguishes intentional torts from negligent or reckless ones. Common intentional torts include Battery, Assault, False Imprisonment, Intentional Infliction of Emotional Distress, and Trespass to Land.