The Masters tournament may be over, but golf is still in the news here in the Deep South. An Ohio man, Jim Wiencek, has settled his suit against the Ocean Creek Golf Club in Fripp Island, South Carolina arising out of an alligator attack. According to the complaint in the matter, 80-year old Wiencek reached down to pick up his golf ball near a small lagoon on the 11th hole of the course when a gator emerged from the water and ripped off his right arm. The course allegedly did not warn him of the presence of the gator. Thereupon, Wiencek sued Fripp Island Resort and its affiliates, and, as noted above,  recently settled his claims for an undisclosed amount. The case is captioned Wiencek v. Fripp Island Resort, Inc, et al., No. 9:11-cv-127-MBS (D.S.C. 2011).

The accident obviously resulted in a horrific injury. Fripp’s liability, however, was questionable. Typically, property owners are not liable for wild animal attacks. But, the plaintiff contended this case was different in that Fripp was on notice of the gator’s presence and failed to warn others or take any measures to assure their safety. There apparently is no known precedent on the duty of golf courses to warn of the presence of alligators. Because the case settled prior to trial, we still do not know how the courts would handle the situation.

Whatever the case, we believe golfers should bear at least some of the responsibility in this situation. Even without warning signs, we would like to think golfers are aware of the presence of alligators in every pool of murky water in the low country. The fact that the dark and brackish condition of the water obscured visibility should be a sign that gators could be near. We recognize that the plaintiff is from the gator-free land of Ohio, but it doesn’t take an episode of Swamp People to be aware of an alligator habitat. The plaintiff was an avid golfer, playing on many of the world’s top courses, so we assume this wasn’t his first rodeo on the Carolina coastline.

To be fair, this case is not a situation in which the golfer attempted to retrieve his ball from the brackish water. The gator actually emerged from the water to initiate the attack. Nonetheless, Wiencek could have assumed the risk of an alligator encounter by going near the water. Admittedly, we here at Abnormal Use have the benefit of living in South Carolina. With that comes the knowledge of the local rule that any ball hit near the water garners a free drop in the fairway.

Every tort has elements established by either common or statutory law which must be proven in order for the plaintiff to prevail. For example, negligent conduct without resulting damages does not constitute an actionable negligence claim in the eyes of the law. Product liability claims are no different. Plaintiffs must show that they were injured by a product but also that the injuries were caused by a product in an unreasonably dangerous, defective condition. If one element is not proven, then the plaintiff cannot prevail. In cases involving complex, scientific issues, expert testimony is often necessary to prove the design defect. Recently, the South Carolina Supreme Court addressed the difficult burden plaintiffs face in proving these necessary legal elements.

In Graves v. CAS Medical Systems, Inc., Op. No. 27168 (S.C. Dec. 12, 2012), the plaintiffs filed suit against CAS Medical Systems following the death of their 6-month old daughter. The girl was one of three triplet daughters ordered to be connected to an in-home monitor manufactured by CAS to track breathing and heart patterns. By design, the monitor would sound a loud alarm if the girl stopped breathing or her heart rate slowed. Despite being monitored by the machine, the girl died one night of Sudden Infant Death Syndrome (SIDS). The plaintiffs allege that the monitor’s alarm never sounded.

Subsequently, the plaintiffs sued CAS, alleging that the monitor’s software design caused the monitor to fail. As an over-simplified summary of their theory, they alleged that the software was “jumbled,” causing the alarm signal to occassionally get lost on the way to its destination. There was no dispute that the harware functioned properly. To support their claim, the plaintiffs retained three software experts to testify that a defect caused an alarm failure. None of the experts did much actual testing of the hardware, relying instead on so-called differential diagnosis theory. Because the plaintiffs were not woken by the alarm, it must not have sounded, at least according to the experts. Because the hardware was not defective, then the software was to blame. Sounds like good logic.

At trial, CAS moved to have the experts’ testimony excluded on the grounds that it did not meet the reliability factors for scientific testimony. In turn, CAS moved for summary judgment because without the expert testimony, the plaintiffs could not prove a design defect. The Court agreed that the experts’ testimony was not reliable and granted CAS’ motion for summary judgment.

On appeal, the Supreme Court agreed with the trial court in finding that the experts’ testimony was unreliable. The Court indicated that when relying on differential diagnosis, the expert must provide a reasonable, objective explanation for the rejection of alternative causes. Apparently, the “because they said so” explanation was insufficient. As the Court noted, there was substantial evidence that complaint error was a real possibility. The monitor’s internal record keeping system noted that the alarm sounded. The girl’s pediatrician opined that the plaintiffs slept through the alarm due to the extreme exhaustion of raising triplet infants. Moreover, the monitor successfully recorded the girl’s declining heart rate and breathing cessation. None of this evidence appears to have been accounted for by the experts.

Without the expert testimony, the Court held that the plaintiffs’ could not prove the injury was caused by a defective condition – an essential element of a product liability claim. The plaintiffs had to offer some evidence beyond a potential failure to show that it was unreasonably dangerous. Because the allegations involved complex software issues, expert testimony was necessary. Without it, the plaintiffs could not support their claim.

We here at Abnormal Use know not whether the monitor’s software was in fact defective, but neither do those experts. There simply was not enough evidence. While some extenuated logic could deduce that the software was defective because the alarm was not heard, it doesn’t account for alternative explanations. Further, simply because something was not heard does not mean it didn’t sound. Expert testimony must still account for some objective criteria – or plaintiffs run the risk of overlooking essential elements of their claims.

Many states have some crazy, ancient laws on the books which no one would think of enforcing in the 21st century. For example, in Mississippi, cohabitation is punishable by a $500 fine and 6 months in prison. M.S. St. Section 97-29-1. South Carolina is no exception. Section 16-19-40 of the South Carolina Code, a modern version of a statute first enacted in 1802, makes playing cards in a “house used as a place of gaming” punishable by a $100 fine or 30 days in jail. With the increased popularity of poker, the statute could impose a problem if enforced.

But that would never happen, right?

Wrong. In South Carolina, we take our laws seriously.

In Town of Mt. Pleasant v. Chimento, No. 27197 (S.C. Nov. 21, 2012), the South Carolina Supreme Court was faced with a challenge to the constitutionality of the statute. The issue arose when the defendants were charged with violating the statute over a weekly Sunday night poker game among friends. Players would buy into the game for $5 and could purchase more chips as needed. The home owner would take a “rake” out of the pot to cover the costs of food and drinks. If the rake did not cover the expenses, then the “winners” would make a contribution to offset the costs. For reasons unspecified in the opinion, the authorities must have been alerted about this “gambling ring,” and the defendants charged. The defendants were convicted by the local magistrate. The circuit court, however, reversed the conviction, finding that it was not illegal to gamble on a game of skill and that a residence did not qualify as a “house used as a place of gaming.”

On appeal, the Supreme Court examined precedent and legislative history from the 1820’s and determined that a private residence could qualify as a house of gaming under the statute. Moreover, they disagreed with circuit court and found no distinction in the statutory text between games of skill and those of chance. In addition, the Court upheld the statute as the defendant lacked standing to challenge its constitutionality on void-for-vagueness grounds because their conduct “clearly” fell within its proscriptions.

While we here at Abnormal Use may abhor the statute, we must agree with the Court’s decision. The Court doesn’t write the laws, it interprets them. The legislature presumably had some legitimate purpose for crafting the statute (albeit 200 years ago), and it was the Court’s job to apply the statute to the facts of the case. Ridiculous law? Probably. Ridiculous result? Not based on the statutory language.

Seemingly outdated laws are on the books everywhere. It is the job of state legislatures – not the court – to repeal them when they are otherwise constitutional. In the meantime, check out the crazy laws in your state to avoid those potential hundred dollar fines.

We here at Abnormal Use are no strangers to the courtroom. Recently, we have tried a string of cases in magistrates court – South Carolina’s venue for litigating small claims. While the claims may be small (the jurisdictional limit is $7,500), the experience can produce just as many teachable moments as those in the circuit court. Accordingly, we have compiled a few tips for those navigating the perilous venue.

Prepare, then be prepared to toss it out.

Like any other trial, you fully prepare your case. Don’t think that because the claims are smaller you can just roll out of bed and be successful. You owe it to yourself and your client to treat all cases as if they are worthy of the Supreme Court.

With that said, be prepared to trash anything you planned after trial begins. In South Carolina, like many jurisdictions, there is no discovery in magistrate court. No interrogatories. No depositions. No pretrial disclosures. Most often, every witness or exhibit presented by the other side is of the “surprise” variety. You must rely on your own informal discovery, the main source of which is often your client.

When you discover that your client’s version of events may be different (and perhaps, wrong) than that of the plaintiff, you must be prepared to alter your trial strategy on the fly. This often means discarding those materials  you tirelessly prepared to counteract all of those unexpected surprises. No matter how much you prepared, something unexpected will arise. Be thankful you prepared enough to recognize it.

Manage the courtroom.

Often times, small claims court involves pro se plaintiffs. On the one hand, trying cases against pro se litigants is easier because they may not be as prepared to present their cases as seasoned lawyers. On the other, it adds a whole new set of unexpected difficulties. Judges may give pro se parties some slack, but sometimes, their generosity knows no bounds. If the pro se plaintiff answers all of your questions on cross-examination by asking you the same question, instruct her that you get to ask the questions. If someone from the peanut gallery tries to answer the questions for her, be prepared to instruct him on procedure – you may be the only person that can do it (particularly if the presiding judge is not a lawyer). Most of all, don’t be afraid to remind the judge that while the rules are relaxed, they haven’t been discarded altogether. Just because the pro se plaintiff forgot to introduce any of his evidence during trial, it does not mean that he should be allowed to hand deliver it to the jury during deliberations.

Expect the unexpected (sensing a theme here?).

The unexpected is not limited to an unknown witness or unanticipated testimony. The unexpected can also come from things unrelated to the trial itself. Don’t be surprised when you have to walk around a giant bag of pecans every time you return to your seat. When the pro se plaintiff’s father yells at the judge that he has to use the bathroom during your closing argument, just roll with it. After all, these unexpected happenings make for the best stories.

In my last two posts, I’ve been discussing the South Carolina Unfair Trade Practices Act, its overuse, and how that overusage can ironically—yet quite foreseeably—thwart the public interest the statute is designed to protect. The problem, specifically, is that the breadth of discovery in actions involving unfair trade practices claims provides a compelling disincentive for businesses to engage in thoughtful self-critical analysis to determine if their goods or services can be provided in a way that is safer or more effective in the hands of consumers. Chilling self-critical analysis is good for no one. The question becomes: How can we give businesses the latitude they need for self-improvement in a way that doesn’t punish them for being responsible corporate citizens? One way this can be accomplished is by the creation of a qualified privilege which would shield self-critical analyses from disclosure in the course of discovery.

Now before we go any further, let me confess that this is not-in any way, shape, or form-an original idea. I have never claimed to be original, and now is no time to start. The idea of a qualified privilege for self-critical analysis dates back at least 40 years, to Bredice v. Doctors Hospital, Inc., 50 F.R.D. 249 (D.D.C. 1970). Bredice was an action for medical malpractice. During discovery, the plaintiff sought information relating to the treatment of a particular patient (who was injured by the alleged malpractice) which had been disclosed to an internal committee comprised of health care providers, as well as the notes and records of the committee regarding the patient’s care. The committee existed for the purpose of monitoring the quality of patient care generally and, perhaps more importantly, for improving standards of health care delivery going forward. The court held that the discovery requested was privileged from disclosure precisely because of the need for health care providers to speak freely about the quality of patient care. The court identified four critical elements to the existence of the qualified privilege for self-critical analysis: (1) that the analysis had been performed by the party claiming the privilege; (2) that the analysis had been conducted under the expectation of confidentiality; (3) that the information sought through discovery would probably not have been prepared if it were discoverable; and (4) that the information prepared as a result of self-critical analysis promotes a significant public interest.

Since Bredice, many states have codified a qualified privilege for health care providers, including South Carolina. See S.C. Code § 40-71-10. However, as a matter of common law, courts have rarely recognized a qualified privilege for self-critical analysis, and almost never in circumstances other than health care. If any professional field deserves a privilege for discussion involving consumer deliverables, medicine is at the top of the list. But should medicine be the only field that deserves a privilege for self-critical analysis? Surely not. Any commercial actor who has the capacity to affect the health and welfare of consumers through the delivery of their products or services should have the benefit of discussing improvement in a venue that can be free from the reach of discovery. Yet the law has been terribly reluctant to embrace any type of general protection for self improvement.

A general qualified privilege, along the same lines expressed in Bredice, would be a welcome development in terms of corporate protection. Though there is no sign that such protection is forthcoming. However, in my next post, I’ll discuss how South Carolina may have already established a framework for reining in discovery of confidential, sensitive information in actions involving the Unfair Trade Practices Act.

Welcome back. In my last post, I was discussing how the South Carolina Unfair Trade Practices Act has become a standard tool for increasing the scope and expense of litigation. As if litigation needed to get any more expensive. In my concluding remarks, I offered an example of how SCUTPA can – and very often does – require defendants to become their own hangman. This is accomplished by the use of discovery to compel the disclosure of information a defendant may have in its possession relating to other similar claims, thereby providing the plaintiff with the playbook they may need to sustain an unfair trade practices claim that would otherwise be completely and utterly meritless. At the very least, it may substantially cut down the amount of legwork a plaintiff has to do for himself.

You may be thinking to yourself, Ok, if this is true, what company would be so silly as to keep records of other similar claims on file? Lots of them. And it’s not because they’re silly. It’s because they’re responsible. Regardless of whether we’re talking about the manufacturing of goods or the delivery of services, companies that are engaged in commerce responsibly keep track of how useful their goods or services are. And that’s measured by the number of complaints they may receive, as well as the type. Complaints about ineffective goods or services may be relevant to the quality control department; complaints about ineffective goods or services that hurt people may be relevant to quality control and risk management.

In any event, keeping records of claims/complaints is a good business practice. From the societal perspective, we want our businesses taking critical looks at themselves and their goods and services to figure out How can we make this better? How can we make this safer? That analysis is not done in a vacuum. It’s done in the crucible of the American market where only the strong survive.

And that’s why unfair trade practices acts – like SCUTPA – do more harm than good. If unfair trade practices acts can be used to expand discovery to include a company’s confidential information regarding other similar claims, especially in cases where the plaintiff is on a fishing expedition, that creates a strong disincentive – a chilling effect even – for companies to accumulate the information needed to perform the self-critical analyses we want them to do. The practical effect of this should be apparent. Goods and services are probably improved upon – in terms of effectiveness and safety – more slowly than they otherwise would be, if companies had the latitude to engage in self-critical analysis more freely without fear of having their own confidential information used against them in a court of law.

Certainly, there is a societal interest in allowing parties to engage in broad discovery against each other in the course of litigation. But that interest is not unlimited. And it should be more strictly limited in circumstances where more compelling societal interests – such as better, safer, more competitive goods and services – are at stake.  Ironically, one of the fundamental elements of an unfair trade practices claim is that the defendant’s business practice had an adverse impact on the public interest.  However, the law gives no consideration to the adverse public impact caused by unreasonably excessive discovery.

My next few posts will take a look at what could be done to make SCUTPA more equitable for plaintiffs and defendants, as well as what the South Carolina Supreme Court may have already done to rein in SCUTPA-related discovery abuses.

Prepare yourselves, faithful readers. This week’s post from Yours Truly actually offers substantive legal content. Or at least what passes for it under the Buckingham blog standard, which admittedly, is exceptionally low. This post addresses the South Carolina Unfair Trade Practices Act. It seems like almost every law suit I defend these days includes a SCUTPA cause of action. I don’t think it’s because there’s an onslaught of companies out there engaging in unfair or deceptive trade practices. No, I think it’s just because SCUTPA is overused. Extremely overused. To the point where I might be caught off guard if I got a complaint that didn’t assert a SCUTPA claim.

There’s a couple of reasons, I think, why the unfair trade practices act is tossed around so freely. The first two reasons are fairly obvious. Reason No. 1: The statute is one of the few vehicles through which a party can recover attorneys’ fees. Reason No. 2: The statute also authorizes treble damages. For those of you who are fortunate enough to live a life outside the legal profession, “treble” is more than just a musical clef. At law, “treble” means triple. Whatever damages you have, multiply it by three. By themselves, reasons 1 and 2 are incentive enough to bring a SCUTPA action. But wait! There’s more.

Reason No. 3: It’s easy to allege a violation of SCUTPA. All you have to do is claim that the defendant engaged in an unfair or deceptive trade practice (which is not clearly defined), that you were damaged by the practice, and that the practice had an adverse impact on the public interest. To allege that, you only have to claim that the practice was repeated, or that it is merely capable of being repeated. Add a pinch of righteous indignation and voila! You’ve tripled a defendant’s exposure! Whether you can actually prove unfair trade practices at trial, well, that’s a horse of a different color, one that you won’t have to ride for at least 18 months down the long road of litigation.

Theoretically, this is a tremendous advantage for plaintiffs. Settlement negotiations are based on a party’s risk. To the plaintiff, the risk is that trial will result in a defense verdict. To the defendant, the risk is that trial will result in a plaintiff’s verdict for the maximum amount of exposure. Therefore, by increasing a defendant’s amount of exposure, a plaintiff is also increasing the settlement range.

From the defense perspective, a frequently asked question is whether SCUTPA actions can be dismissed at an early stage of litigation. Regrettably, the answer is “maybe, but probably not.” Motions to dismiss are intended to test the legal sufficiency of pleadings. In other words, the court reviews whether the complaint uses the magic words needed to state a valid cause of action. As noted above, for SCUTPA claims, there are only a few magic words needed, and they’re not clearly defined. The statute doesn’t meaningfully define an “unfair or deceptive trade practice.” Furthermore, on a motion to dismiss, the deck is kind of stacked against defendants. The law requires courts to view the complaint in the light most favorable to plaintiffs. Also, plaintiffs needn’t offer proof in support of their allegations at the dismissal stage. Consequently, unless there’s some legal deficiency with the way a plaintiff has brought their SCUTPA action, the action is around to stay for awhile.

Which leads to Reason No. 4 of why SCUTPA actions are so prevalent these days: the long, arduous process of discovery. The scope of discovery is defined by the allegations of the complaint. Just as SCUTPA actions allow plaintiffs to increase the amount of a defendant’s exposure, they also allow plaintiffs to increase the scope of discoverable information. After all, a plaintiff must prove that a defendant engaged in other similar conduct, or that their policies make it likely that the defendant will engage in other similar conduct in the future. This information is critical to a plaintiff’s SCUTPA action, especially if he never previously had that information. And where better to obtain that information than from the defendants themselves? Consequently, SCUTPA is used as a tool for plaintiffs to embark upon fishing expeditions against defendants.

Let’s take this to a practical level. Suppose a person claims to have been injured by a defective product. They sue the manufacturer for negligence, strict liability, and breach of warranty – the holy trinity of products liability. Without a SCUTPA action, the plaintiff is limited ordinarily to discovery against the defendant on design and manufacturing issues. However, with SCUTPA, the plaintiff can arguably obtain discovery – from the defendant – on other similar claims that have been brought against it by other, unrelated individuals. Essentially, the law requires the defendant to become his own hangman. I’ll let you be the judge of how fair – or unfair – that is.

This post is already long enough. But there’s plenty more to talk about. In the coming weeks, I’m discuss why allowing such broad discovery is adverse to the public interest. Thereafter, I’ll suggest how SCUTPA can be fixed. Perhaps it goes without saying, but the opinions expressed in this post are just the thoughts of one simple lawyer. I certainly don’t have all the answers. But I know something’s broken when I see it. And I also know that there’s just not that much unfair and deceptive business going on in South Carolina.

I recently enjoyed a container of “Hand-Cooked Virginia Peanuts” made by a noted Virginia company with the word “peanut” prominently in its corporate name. Thus, on the container itself, easy to see and discern, there were two prominent references to “peanuts” – one in the product name, and one in the name of the manufacturer. Yet, while I was eating those yummy, yummy peanuts, I noticed this disclaimer written on the container: “CONTAINS PEANUTS.” Really?  I thought I was eating lima beans! Given that I had now seen the word “peanuts” written sideways, upside-down, and in six different languages, I decided to read further: “Manufactured on shared equipment in a facility that processes peanuts.” There it is again! Peanuts.  (By the way, with whom do they “share” their equipment?)

You know what this means? Sometime, somewhere, somebody ate some peanuts that he did not know were peanuts, became ill, and almost died. Then he hired a lawyer.  (Before you get all fired up about my insensitivity to peanut allergies, my own son is allergic to peanuts. Further, I had my own anaphylactic reaction to fire ants, which could be the subject of another whole blog post.). Whatever the case, I am reminded of how far we have come in the area of product safety warnings. Of course, consumers must be adequately informed of a product’s features and tendencies. But, come on, now! I really did know I was not eating lima beans.  I don’t even like lima beans.

In many states, including South Carolina, there are laws about adulterated or misbranded food. Indeed, in our state it is found at section 39-25-10 of the South Carolina Code, and titled “South Carolina Food and Cosmetic Act.” I suppose there’s some interesting legislative history which would explain why they combine food and cosmetics in the same statute. But that’s for another day. For good measure, we note this  statute does not include any commodity subject to packaging or labeling requirements imposed under the Federal Insecticide, Fungicide, and Rodenticide Act or the eighth paragraph of the “Bureau of Animal Industry” section of the Virus-Serum-Toxin Act. Who knew? The statute does prohibit the manufacture or sale of food or cosmetics that are adulterated or misbranded. A food is deemed to be adulterated if it contains any poisonous or deleterious substances which may render it injurious to health. Food is deemed misbranded if the labeling is false or misleading.  There is more to the statute, but I will leave the details for your late reading pleasure. Nothing on peanut warnings, mind you.

While I am not a regular consumer of cosmetics, perhaps some of our readers would be interested to know that the section on adulterated cosmetics “shall not apply to coal-tar hair dye, the label of which bears the following legend conspicuously displayed there on: ‘Caution-This product contains ingredients which may cause skin irritation on certain individuals and a preliminary test according to accompanying directions should first be made. This product must not be used for dying the eyelashes or eyebrows; to do so may cause blindness.’” Moreover, under this particular paragraph, the term “hair dye” shall not include eyelash dyes or eyebrow dyes.  Further, a cosmetic is deemed adulterated if it consists of “any filthy, putrid or decomposed substance”.  I am not making this up.

In the meantime, I think I’ll go back and have some more peanuts. But I better read the warning first to make certain.

Disclaimer: Consult the laws of your own state for regulations governing the adulteration or misbranding of products containing lima beans.

When I was a kid, my family owned a basset hound named “Trouble.”  He was a dog’s dog; he chased cats and dug up our neighbor’s flowers.  We loved him.  One day, he came home with a bullet hole in his floppy ear.  Perhaps he got a little too friendly with the cats?  Maybe he trampled too many tulips?  Whatever the case, someone did not love Trouble the way we did.

Sometime later, my dad, a dentist in our small hometown, received a visit from the local sheriff, also one of his patients.  The sheriff said our neighbor had sworn out a warrant for my dad’s arrest for disturbing the peace.  Trouble was in trouble!  The choice was simple: fence in the backyard or take Trouble back to his previous owner, a country farmer.  My dad refused to fence him in, and that weekend, we all piled into the yellow, wood-paneled station wagon to take Trouble to the country where he could roam freely, and be a dog. A dog boarding facility helps in such cases.

Do you own a dog?  If so, watch out!  While Trouble was never accused of biting anyone, it has recently been reported by USA Today that dog bites accounted for more than a third of homeowners’ liability insurance claims in 2011.  The cost?  Nearly $470 million.  According to the report, the cost of dog bite claims has risen 48 percent since 2003.  These statistics are probably the result of increased dog ownership, living closer to one another, and parents of children more likely to seek advanced medical care for their children after a bite.  According to this same article, the United States has 78.2 million dogs, or one dog for every four people in this country.  If you own what is referred to as a “vicious” dog, you should read your insurance policy, as there is probably an exclusion for the ownership of such dogs.  Many insurers exclude coverage for claims arising out of the ownership of particular dogs, including Pit Bulls, Rottweilers, German Shepherds, Huskies, Alaskan Malamutes, Doberman Pinschers, and Chow-Chows.

Under South Carolina law, the owner of a dog, and the person having a dog in his care or keeping, are strictly liable for damages suffered by a person who is bitten or attacked by a dog.  S.C. Code § 47-3-110.  The statute also provides that if a person “provokes a dog into attacking him, then the owner of the dog is not liable.”

By the way, Title 47 is titled “Animals, Livestock and Poultry.”  This section includes the definition of “dog” and “cat,” along with the penalty for allowing dogs or cats to “run at large.”  You will also find prohibitions for the keeping of sheep-killing dogs, the disposal of feral dogs, allowable methods of euthanasia, and penalties for taunting, tormenting or teasing a police dog or horse.

If you do get sued, it’s probably best if your basset hound is not named “Trouble.”

For many of us, an engagement ring is one of the first major purchases of our lives.    In 2011, the average engagement ring costs $5,392.  The common norm suggests spending three months salary on a ring.  Ouch.  The price is small when compared to the benefit of sharing your life with another, we suppose.  But what happens to the ring if the marriage ends in divorce?  Or, even worse, if the wedding never takes place?  The ring-purchaser can certainly think of a few other bills to pay with three months salary.

Recently, in Campbell v. Robinson, No. 4969 (S.C. Ct. App. May 9, 2011), the South Carolina Court of Appeals offered its thoughts on the age old former-relationship property dispute.  After their engagement was cancelled, Campbell sued his ex-fiance, Robinson, seeking a declaration that he owned an engagement ring he presented to her during the proposal.  In addition, he sought restitution for the benefit Robinson received while possessing the ring.  Robinson counterclaimed for breach of the promise to marry and sought recovery of her prenuptial expenditures.  We suspect there may have been some awkward depositions during this case. The trial court charged the jury that Campbell would receive the ring if Robinson was at-fault for ending the engagement and vice versa.  The jury found for Campbell on Robinson’s breach of the promise to marry claim.  However, the jury determined that Campbell was at-fault for ending the engagement and, thus, was not entitled to recover the ring.  On appeal, the Court of Appeals held that fault has no bearing in determining ownership of an engagement ring.  Rather, an engagement ring is conditioned on the marriage taking place.

Guess what? I myself had the pleasure of watching the trial of this case when I was in law school.  To sum it up nicely, the trial was equal parts property law lecture and soap opera.  Because this was a case of first impression in South Carolina, the arguments regarding the law took much longer than the trial itself.  Even as a law student, I can remember questioning the imposition of “fault” into basic gift law.  For starters, what does “fault” even mean in this context? Is the at-fault party the one whose conduct led to the demise of the relationship?  Or is the at-fault party the one who actually calls off the engagement?  The jury was never given any guidance.   You can imagine the helter skelter craziness that must have transpired in the deliberation room.

Once fault became an element, the trial became suitable for television.  With countless “he said, she said” arguments, the jury becomes the arbiter for choosing sides in a break-up – not resolving a property dispute.  Decisions like these are best left for Judge Judy.

At the end of the day, the Court of Appeals got this one right.  For now, the easiest way to resolve these disputes is by treating the ring as a conditional gift and applying gift law principles.  But in the future, these disputes could be easily eliminated if we required reciprocal gifts at the time of the engagement.  Who would sue for the return of a ring if it meant giving up your new set of golf clubs?  Not me.