Pain and suffering has long been recognized by South Carolina courts to be a compensable element of damages. Damages for pain and suffering are unliquidated and indeterminate in character and the assessment of unliquidated damages must rest in the sound discretion of the jury, controlled by the discretionary power of the trial judge. Pain and suffering have no market price. They are not capable of being exactly and accurately determined, and there is no fixed rule or standard whereby damages for them can be measured. Hence, the amount of damages to be awarded for pain and suffering must be left to the judgment of the jury, subject only to correction by the courts for abuse.
Damages for pain and suffering, which are the proximate cause of the defendant’s conduct, are awarded to a plaintiff as an element of actual damages and are compensatory in nature as opposed to exemplary or punitive. They are meant to compensate the plaintiff for physical discomfort and emotional response to the sensation of pain caused by the injury itself. A pain and suffering award may only be made for conscious pain and suffering. The plaintiff bears the burden of establishing he or she was conscious during the pain and suffering.
In deciding an award of damages for pain and suffering, the jury may include such damage for pain and suffering as it is reasonably certain will of necessity result in the future from the injury. There is no definite standard by which the jury must determine the amount of an award for pain and suffering. Drawing a comparison to prior awards for pain and suffering offers little guidance as any two cases are seldom, if ever alike. Thus, the jury has authority to award any amount it finds just and reasonable in light of the testimony and the evidence. The South Carolina Supreme Court has disallowed any jury instruction that suggests future pain and suffering does not have to be reasonably certain to occur. However, a liberal damages award will stand unless one can show it was out of caprice, passion, or prejudice.
The plaintiff’s attorney may use a per diem formula for illustrative purposes only to assist the jury in determining an award of pain and suffering. However, the personal injury attorney must be explicit in pointing out that only the jury can determine a monetary value for pain and suffering, and the attorney cannot merely state his or her opinion as to the proper amount of an award. Further, there must be some foundation in evidence to support the attorney’s per diem formula.
Federal courts dealing with the issue of whether pain and suffering awards should be discounted to present value have determined they should not be. While South Carolina courts have not discussed this issue, the district court in Rhodan v. United States predicted South Carolina courts would not discount future pain and suffering awards. Since that case was decided, state courts in South Carolina, without discussion, have routinely not discounted future pain and suffering awards to present value.
If you or someone you know has been injured and would like to know if you have a case for pain and suffering, please contact The Mace Firm to schedule a free consultation with one of our Myrtle Beach personal injury attorney. Our Myrtle Beach personal injury lawyers have experience with these types of cases; call today for a free consultation.
