affirmative defense in South Carolina

2026"The failure to plead an affirmative defense is deemed a waiver of the right to assert it." Earthscapes Unlimited, Inc. v. Ulbrich, 390 S.C. 609, 615 , 703 S.E.2d 221, 224 (2010) (quoting Whitehead v. State, 352 S.C. 215, 220 , 574 S.E.2d 200, 202 (2002)).

2026"The failure to plead an affirmative defense is deemed a waiver of the right to assert it." Earthscapes Unlimited, Inc. v. Ulbrich, 390 S.C. 609, 615 , 703 S.E.2d 221, 224 (2010) (quoting Whitehead v. State, 352 S.C. 215, 220 , 574 S.E.2d 200, 202 (2002)).

2017As to Issue 2: Renaissance Enters., 326 S.C. at 466 , 483 S.E.2d at 799 ("[O]ur [s]upreme [c]ourt [has] held the statutory interest rate under § 34-31-20(B) is applicable only in the absence of a written agreement between the parties fixing a different rate of interest." (emphasis added)); Turner, 272 S.C. at 292 , 251 S.E.2d at 740 ("If the parties agree that a higher rate of interest than the legal, or statutory rate is to be paid after maturity, the agreement of the parties controls."); Madren v. Bradford, 378 S.C. 187, 193 , 661 S.E.2d 390, 393 (Ct. App. 2008) ("Statutory prohibition is in

2017As to Issue 2: Renaissance Enters., 326 S.C. at 466 , 483 S.E.2d at 799 ("[O]ur [s]upreme [c]ourt [has] held the statutory interest rate under § 34-31-20(B) is applicable only in the absence of a written agreement between the parties fixing a different rate of interest." (emphasis added)); Turner, 272 S.C. at 292 , 251 S.E.2d at 740 ("If the parties agree that a higher rate of interest than the legal, or statutory rate is to be paid after maturity, the agreement of the parties controls."); Madren v. Bradford, 378 S.C. 187, 193 , 661 S.E.2d 390, 393 (Ct. App. 2008) ("Statutory prohibition is in

2018See id. at 484 , 514 S.E.2d at 134 ("In a defamation action, the defendant may assert the affirmative defense of conditional or qualified privilege."); Abofreka v. Alston Tobacco Co. , 288 S.C. 122 , 125, 341 S.E.2d 622 , 624 (1986) ("Whe[n] the defamation is made in good faith and with proper motives, a defendant may claim a qualified or conditional privilege.").

2018See id. at 484 , 514 S.E.2d at 134 ("In a defamation action, the defendant may assert the affirmative defense of conditional or qualified privilege."); Abofreka v. Alston Tobacco Co. , 288 S.C. 122 , 125, 341 S.E.2d 622 , 624 (1986) ("Whe[n] the defamation is made in good faith and with proper motives, a defendant may claim a qualified or conditional privilege.").

2026"The failure to plead an affirmative defense is deemed a waiver of the right to assert it." Earthscapes Unlimited, Inc. v. Ulbrich, 390 S.C. 609, 615 , 703 S.E.2d 221, 224 (2010) (quoting Whitehead v. State, 352 S.C. 215, 220 , 574 S.E.2d 200, 202 (2002)).

2026"The failure to plead an affirmative defense is deemed a waiver of the right to assert it." Earthscapes Unlimited, Inc. v. Ulbrich, 390 S.C. 609, 615 , 703 S.E.2d 221, 224 (2010) (quoting Whitehead v. State, 352 S.C. 215, 220 , 574 S.E.2d 200, 202 (2002)).

2022See O'Neal v. Carolina Farm Supply of Johnston, Inc., 279 S.C. 490, 494 , 309 S.E.2d 776, 779 (Ct. App. 1983) ("An affirmative defense conditionally admits the allegations of the complaint, but asserts new matter to bar the action."); Avoidance, Black's Law Dictionary 136 (6th ed. 1990) (defining "avoidance" as "the allegation or statement of new matter, in opposition to a former pleading, which, admitting the facts alleged in such former pleading, shows cause why they should not have their ordinary legal effect"); see e.g., Parker v. Spartanburg Sanitary Sewer Dist., 362 S.C. 276, 281 , 607 S

2022See O'Neal v. Carolina Farm Supply of Johnston, Inc., 279 S.C. 490, 494 , 309 S.E.2d 776, 779 (Ct. App. 1983) ("An affirmative defense conditionally admits the allegations of the complaint, but asserts new matter to bar the action."); Avoidance, Black's Law Dictionary 136 (6th ed. 1990) (defining "avoidance" as "the allegation or statement of new matter, in opposition to a former pleading, which, admitting the facts alleged in such former pleading, shows cause why they should not have their ordinary legal effect"); see e.g., Parker v. Spartanburg Sanitary Sewer Dist., 362 S.C. 276, 281 , 607 S

2024See Parrish v. Allison, 376 S.C. 308, 327 , 656 S.E.2d 382, 392 (Ct. App. 2007) 1 "Wear and tear" is originally referred to as "use and depreciation" by the trial court. ("Generally, affirmative defenses to a cause of action in any pleading must be asserted in a party's responsive pleading."); Hoffman v. Greenville County, 242 S.C. 34, 39 , 129 S.E.2d 757, 760 (1963) ("One who pleads an affirmative defense has the burden of proving it.").

2024See Parrish v. Allison, 376 S.C. 308, 327 , 656 S.E.2d 382, 392 (Ct. App. 2007) 1 "Wear and tear" is originally referred to as "use and depreciation" by the trial court. ("Generally, affirmative defenses to a cause of action in any pleading must be asserted in a party's responsive pleading."); Hoffman v. Greenville County, 242 S.C. 34, 39 , 129 S.E.2d 757, 760 (1963) ("One who pleads an affirmative defense has the burden of proving it.").

2021See Duncan, 392 S.C. at 410 , 709 S.E.2d at 665 ("[W]e find that, by using the words 'immune from criminal prosecution,' the legislature intended to create a true immunity, and not simply an affirmative defense."); id. ("We agree . . . that the legislature intended defendants be shielded from trial if they use deadly force as outlined under the Act.").

2021See Duncan, 392 S.C. at 410 , 709 S.E.2d at 665 ("[W]e find that, by using the words 'immune from criminal prosecution,' the legislature intended to create a true immunity, and not simply an affirmative defense."); id. ("We agree . . . that the legislature intended defendants be shielded from trial if they use deadly force as outlined under the Act.").

2024See Skydive Myrtle Beach, Inc. v. Horry Cnty., 426 S.C. 175, 182 , 826 S.E.2d 585, 588 (2019) ("A trial court has discretion to deny a motion to amend if the party opposing the amendment can show a valid reason for denying the motion."); id. at 182 , 826 S.E.2d at 588 ("In rare cases . . . a trial court may deny a motion to amend if the amendment would be clearly futile."); RIM Assocs. v. Blackwell, 359 S.C. 170, 182 , 597 S.E.2d 152, 159 (Ct. App. 2004) ("Res judicata is an affirmative defense that must be pled at trial in order to be pursued on appeal."); Stevens & Wilkinson of S.C., Inc. v.

2024See Skydive Myrtle Beach, Inc. v. Horry Cnty., 426 S.C. 175, 182 , 826 S.E.2d 585, 588 (2019) ("A trial court has discretion to deny a motion to amend if the party opposing the amendment can show a valid reason for denying the motion."); id. at 182 , 826 S.E.2d at 588 ("In rare cases . . . a trial court may deny a motion to amend if the amendment would be clearly futile."); RIM Assocs. v. Blackwell, 359 S.C. 170, 182 , 597 S.E.2d 152, 159 (Ct. App. 2004) ("Res judicata is an affirmative defense that must be pled at trial in order to be pursued on appeal."); Stevens & Wilkinson of S.C., Inc. v.

2021The privilege is not a matter of absolute right but lies within the discretion of the trial court in the light of all of the circumstances of the case."); James v. Lister, 331 S.C. 277, 283 , 500 S.E.2d 198, 201 (Ct. App. 1998) (stating South Carolina case law requires "pleading matters [that] may prejudice the opposing party by introducing issues [that] may affect the proof at trial"); Rule 8(c), SCRCP (requiring a party to set forth affirmatively the listed defenses "and any other matter constituting an avoidance or affirmative defense"); Plyler v. Burns, 373 S.C. 637, 648 , 647 S.E.2d 188,

2021The privilege is not a matter of absolute right but lies within the discretion of the trial court in the light of all of the circumstances of the case."); James v. Lister, 331 S.C. 277, 283 , 500 S.E.2d 198, 201 (Ct. App. 1998) (stating South Carolina case law requires "pleading matters [that] may prejudice the opposing party by introducing issues [that] may affect the proof at trial"); Rule 8(c), SCRCP (requiring a party to set forth affirmatively the listed defenses "and any other matter constituting an avoidance or affirmative defense"); Plyler v. Burns, 373 S.C. 637, 648 , 647 S.E.2d 188,

2022Code Ann. § 15-32-530 (B)–(C) (Supp. 2020) (requiring the trial court to determine whether an exception to the statutory cap applies); id. § 15-32-530(B) (providing the statutory cap on punitive damages may not be disclosed to the jury); cf. Broome v. Watts, 319 S.C. 337, 342 , 461 S.E.2d 46, 49 (1995) (holding the statutory right to setoff was not an affirmative defense falling within the residuary clause of Rule 8(c), SCRCP, because setoff was required by statute and was not an issue for the jury).

2022Code Ann. § 15-32-530 (B)–(C) (Supp. 2020) (requiring the trial court to determine whether an exception to the statutory cap applies); id. § 15-32-530(B) (providing the statutory cap on punitive damages may not be disclosed to the jury); cf. Broome v. Watts, 319 S.C. 337, 342 , 461 S.E.2d 46, 49 (1995) (holding the statutory right to setoff was not an affirmative defense falling within the residuary clause of Rule 8(c), SCRCP, because setoff was required by statute and was not an issue for the jury).

2025While our supreme court "effectively abolished the affirmative defense of assumption of the risk in Davenport v. Cotton Hope Plantation," 7 it held "a plaintiff[']s conduct in assuming a risk can be compared with the defendant's negligence." Davenport, 333 S.C. at 86 , 508 S.E.2d at 573 .

2025While our supreme court "effectively abolished the affirmative defense of assumption of the risk in Davenport v. Cotton Hope Plantation," 7 it held "a plaintiff[']s conduct in assuming a risk can be compared with the defendant's negligence." Davenport, 333 S.C. at 86 , 508 S.E.2d at 573 .

2018We affirm pursuant to Rule 220(b), SCACR, and the following authorities: As to issue 1: Jones v. Leagan, 384 S.C. 1, 10 , 681 S.E.2d 6, 11 (Ct. App. 2009) ("When it is asserted by the defendant, adverse possession is an affirmative defense."); Parrish v. Allison, 376 S.C. 308, 327 , 656 S.E.2d 382, 392 (Ct. App. 2007) ("Generally, affirmative defenses to a cause of action in any pleading must be asserted in a party's responsive pleading."); id. ("The failure to plead an affirmative defense is deemed a waiver of the right to assert it." (quoting Wright v. Craft, 372 S.C. 1, 21 , 640 S.E.2d 486,

2018We affirm pursuant to Rule 220(b), SCACR, and the following authorities: As to issue 1: Jones v. Leagan, 384 S.C. 1, 10 , 681 S.E.2d 6, 11 (Ct. App. 2009) ("When it is asserted by the defendant, adverse possession is an affirmative defense."); Parrish v. Allison, 376 S.C. 308, 327 , 656 S.E.2d 382, 392 (Ct. App. 2007) ("Generally, affirmative defenses to a cause of action in any pleading must be asserted in a party's responsive pleading."); id. ("The failure to plead an affirmative defense is deemed a waiver of the right to assert it." (quoting Wright v. Craft, 372 S.C. 1, 21 , 640 S.E.2d 486,

2014As to whether Plush was barred from raising the statute of limitations because he did not plead it as an affirmative defense in his answer: Wagner v. Wagner, 286 S.C. 489, 492 , 335 S.E.2d 246, 247-48 (Ct. App. 1985) (holding an affirmative defense was timely raised although it was not pled because the defense was not available at the time the answer was filed and it was promptly raised when it became available); Arant v. Kressler, 327 S.C. 225 , 228 n.1, 489 S.E.2d 206 , 208 n.1 (1997) (citing Wagner and holding a statute of limitations defense to a new claim amended at trial was "properly ra

2014As to whether Plush was barred from raising the statute of limitations because he did not plead it as an affirmative defense in his answer: Wagner v. Wagner, 286 S.C. 489, 492 , 335 S.E.2d 246, 247-48 (Ct. App. 1985) (holding an affirmative defense was timely raised although it was not pled because the defense was not available at the time the answer was filed and it was promptly raised when it became available); Arant v. Kressler, 327 S.C. 225 , 228 n.1, 489 S.E.2d 206 , 208 n.1 (1997) (citing Wagner and holding a statute of limitations defense to a new claim amended at trial was "properly ra

2003See Ross v. Paddy, 340 S.C. 428 , 532 S.E.2d 612 (Ct.App.2000) (holding the trial court erred in not charging the jury that a defendant had the burden of proving the affirmative defense of comparative negligence).

2003See Ross v. Paddy, 340 S.C. 428 , 532 S.E.2d 612 (Ct.App.2000) (holding the trial court erred in not charging the jury that a defendant had the burden of proving the affirmative defense of comparative negligence).

2006We disagree. “[E]ntrapment occurs: ‘(W)here one is instigated, induced or lured by an officer of the law or other person for the purpose of prosecution into the commission of a crime which he had otherwise no intention of committing.’” State v. Hayden , 268 S.C. 214, 219 , 232 S.E.2d 889, 891 (1977) (quoting State v. Haulcomb , 260 S.C. 260 , 195 S.E.2d 601 (1973)). “The affirmative defense of entrapment is available where there is the ‘conception and planning of an offense by an officer, and his procurement of its commission by one who would not have perpetrated it except for trickery, persua

2006We disagree. “[E]ntrapment occurs: ‘(W)here one is instigated, induced or lured by an officer of the law or other person for the purpose of prosecution into the commission of a crime which he had otherwise no intention of committing.’” State v. Hayden , 268 S.C. 214, 219 , 232 S.E.2d 889, 891 (1977) (quoting State v. Haulcomb , 260 S.C. 260 , 195 S.E.2d 601 (1973)). “The affirmative defense of entrapment is available where there is the ‘conception and planning of an offense by an officer, and his procurement of its commission by one who would not have perpetrated it except for trickery, persua

1985See Clifton v. Darlington Finance Co. , 231 S.C. 672 , 100 S.E. (2d) 404 (1957).

1985See Clifton v. Darlington Finance Co., 231 S. C. 672, 100 S. E. (2d) 404 (1957).

2024See Skydive Myrtle Beach, Inc. v. Horry Cnty., 426 S.C. 175, 182 , 826 S.E.2d 585, 588 (2019) ("A trial court has discretion to deny a motion to amend if the party opposing the amendment can show a valid reason for denying the motion."); id. at 182 , 826 S.E.2d at 588 ("In rare cases . . . a trial court may deny a motion to amend if the amendment would be clearly futile."); RIM Assocs. v. Blackwell, 359 S.C. 170, 182 , 597 S.E.2d 152, 159 (Ct. App. 2004) ("Res judicata is an affirmative defense that must be pled at trial in order to be pursued on appeal."); Stevens & Wilkinson of S.C., Inc. v.

2024See Skydive Myrtle Beach, Inc. v. Horry Cnty., 426 S.C. 175, 182 , 826 S.E.2d 585, 588 (2019) ("A trial court has discretion to deny a motion to amend if the party opposing the amendment can show a valid reason for denying the motion."); id. at 182 , 826 S.E.2d at 588 ("In rare cases . . . a trial court may deny a motion to amend if the amendment would be clearly futile."); RIM Assocs. v. Blackwell, 359 S.C. 170, 182 , 597 S.E.2d 152, 159 (Ct. App. 2004) ("Res judicata is an affirmative defense that must be pled at trial in order to be pursued on appeal."); Stevens & Wilkinson of S.C., Inc. v.

2024See Parrish v. Allison, 376 S.C. 308, 327 , 656 S.E.2d 382, 392 (Ct. App. 2007) 1 "Wear and tear" is originally referred to as "use and depreciation" by the trial court. ("Generally, affirmative defenses to a cause of action in any pleading must be asserted in a party's responsive pleading."); Hoffman v. Greenville County, 242 S.C. 34, 39 , 129 S.E.2d 757, 760 (1963) ("One who pleads an affirmative defense has the burden of proving it.").

2024See Parrish v. Allison, 376 S.C. 308, 327 , 656 S.E.2d 382, 392 (Ct. App. 2007) 1 "Wear and tear" is originally referred to as "use and depreciation" by the trial court. ("Generally, affirmative defenses to a cause of action in any pleading must be asserted in a party's responsive pleading."); Hoffman v. Greenville County, 242 S.C. 34, 39 , 129 S.E.2d 757, 760 (1963) ("One who pleads an affirmative defense has the burden of proving it.").

2024See Heins v. Heins, 344 S.C. 146, 152 , 543 S.E.2d 224, 227 (Ct. App. 2001) ("It is well settled that ordinarily[,] a party may not receive relief not contemplated in his or her pleadings."); Collins Ent., Inc. v. White, 363 S.C. 546, 563 , 611 S.E.2d 262, 270 (Ct. App. 2005) ("The failure to plead an affirmative defense is deemed a waiver of the right to assert it.").

2024See Heins v. Heins, 344 S.C. 146, 152 , 543 S.E.2d 224, 227 (Ct. App. 2001) ("It is well settled that ordinarily[,] a party may not receive relief not contemplated in his or her pleadings."); Collins Ent., Inc. v. White, 363 S.C. 546, 563 , 611 S.E.2d 262, 270 (Ct. App. 2005) ("The failure to plead an affirmative defense is deemed a waiver of the right to assert it.").

2023Code Ann. § 17-24-10 (A) (2014) (providing an affirmative defense of not guilty by reason of insanity for a defendant, who "at the time of the . . . offense, . . . as a result of mental disease or defect, lacked the capacity to distinguish moral or legal right from moral or legal wrong or to recognize the particular act charged as morally or legally wrong"); Lewis, 328 S.C. at 278 , 494 S.E.2d at 117 ("[T]he key to insanity is 'the power of the defendant to distinguish right from wrong in the act itself-to recognize the act complained of is either morally or legally wrong.'" (alteration in ori

2023Code Ann. § 17-24-10 (A) (2014) (providing an affirmative defense of not guilty by reason of insanity for a defendant, who "at the time of the . . . offense, . . . as a result of mental disease or defect, lacked the capacity to distinguish moral or legal right from moral or legal wrong or to recognize the particular act charged as morally or legally wrong"); Lewis, 328 S.C. at 278 , 494 S.E.2d at 117 ("[T]he key to insanity is 'the power of the defendant to distinguish right from wrong in the act itself-to recognize the act complained of is either morally or legally wrong.'" (alteration in ori

2023See Murray v. Holnam, Inc., 344 S.C. 129 , 139–40, 542 S.E.2d 743, 748 (Ct. App. 2001) ("In a defamation action, the defendant may assert the affirmative defense of conditional or qualified B.

2023See Murray v. Holnam, Inc., 344 S.C. 129 , 139–40, 542 S.E.2d 743, 748 (Ct. App. 2001) ("In a defamation action, the defendant may assert the affirmative defense of conditional or qualified B.

2021The privilege is not a matter of absolute right but lies within the discretion of the trial court in the light of all of the circumstances of the case."); James v. Lister, 331 S.C. 277, 283 , 500 S.E.2d 198, 201 (Ct. App. 1998) (stating South Carolina case law requires "pleading matters [that] may prejudice the opposing party by introducing issues [that] may affect the proof at trial"); Rule 8(c), SCRCP (requiring a party to set forth affirmatively the listed defenses "and any other matter constituting an avoidance or affirmative defense"); Plyler v. Burns, 373 S.C. 637, 648 , 647 S.E.2d 188,

2021The privilege is not a matter of absolute right but lies within the discretion of the trial court in the light of all of the circumstances of the case."); James v. Lister, 331 S.C. 277, 283 , 500 S.E.2d 198, 201 (Ct. App. 1998) (stating South Carolina case law requires "pleading matters [that] may prejudice the opposing party by introducing issues [that] may affect the proof at trial"); Rule 8(c), SCRCP (requiring a party to set forth affirmatively the listed defenses "and any other matter constituting an avoidance or affirmative defense"); Plyler v. Burns, 373 S.C. 637, 648 , 647 S.E.2d 188,

2006“The governmental entity bears the burden of establishing discretionary immunity as an affirmative defense.” Sabb v. South Carolina State Univ., 350 S.C. 416 , 428, 567 S.E.2d 231, 237 (2002).

2006“The governmental entity bears the burden of establishing discretionary immunity as an affirmative defense.” Sabb v. South Carolina State Univ., 350 S.C. 416 , 428, 567 S.E.2d 231, 237 (2002).

2021Code Ann § 15-78-40 (2005); ("The State, an agency, a political subdivision, and a governmental entity are liable for their torts in the same manner and to the same extent as a private individual under like circumstances, subject to the limitations upon liability and damages, and exemptions from liability and damages, contained herein."); Steinke, 336 S.C. at 393, 520 S.E.2d at 152. ("The burden of establishing a limitation upon liability or an exception to the waiver of immunity under the South Carolina Tort Claims Act is upon the governmental entity asserting it as an affirmative defense.");

2021Code Ann § 15-78-40 (2005); ("The State, an agency, a political subdivision, and a governmental entity are liable for their torts in the same manner and to the same extent as a private individual under like circumstances, subject to the limitations upon liability and damages, and exemptions from liability and damages, contained herein."); Steinke, 336 S.C. at 393, 520 S.E.2d at 152. ("The burden of establishing a limitation upon liability or an exception to the waiver of immunity under the South Carolina Tort Claims Act is upon the governmental entity asserting it as an affirmative defense.");

2021See Pike, 343 S.C. at 231 , 540 S.E.2d at 91 ; see also Webb, 370 P.3d at 1034 ("Because the sophisticated intermediary doctrine is an affirmative defense, the supplier bears the burden of proving that it adequately warned the intermediary, or knew the intermediary was aware or should have been aware of the specific hazard, and reasonably relied on the intermediary to transmit warnings.").

2021See Pike, 343 S.C. at 231 , 540 S.E.2d at 91 ; see also Webb, 370 P.3d at 1034 ("Because the sophisticated intermediary doctrine is an affirmative defense, the supplier bears the burden of proving that it adequately warned the intermediary, or knew the intermediary was aware or should have been aware of the specific hazard, and reasonably relied on the intermediary to transmit warnings.").

2022See O'Neal v. Carolina Farm Supply of Johnston, Inc., 279 S.C. 490, 494 , 309 S.E.2d 776, 779 (Ct. App. 1983) ("An affirmative defense conditionally admits the allegations of the complaint, but asserts new matter to bar the action."); Avoidance, Black's Law Dictionary 136 (6th ed. 1990) (defining "avoidance" as "the allegation or statement of new matter, in opposition to a former pleading, which, admitting the facts alleged in such former pleading, shows cause why they should not have their ordinary legal effect"); see e.g., Parker v. Spartanburg Sanitary Sewer Dist., 362 S.C. 276, 281 , 607 S

2022See O'Neal v. Carolina Farm Supply of Johnston, Inc., 279 S.C. 490, 494 , 309 S.E.2d 776, 779 (Ct. App. 1983) ("An affirmative defense conditionally admits the allegations of the complaint, but asserts new matter to bar the action."); Avoidance, Black's Law Dictionary 136 (6th ed. 1990) (defining "avoidance" as "the allegation or statement of new matter, in opposition to a former pleading, which, admitting the facts alleged in such former pleading, shows cause why they should not have their ordinary legal effect"); see e.g., Parker v. Spartanburg Sanitary Sewer Dist., 362 S.C. 276, 281 , 607 S

2022See Small v. Pioneer Mach., Inc., 316 S.C. 479, 489 , 450 S.E.2d 609, 615 (Ct. App. 1994) (stating the negligent intervening act of a third party is an affirmative defense to a negligence claim).

2022See Small v. Pioneer Mach., Inc., 316 S.C. 479, 489 , 450 S.E.2d 609, 615 (Ct. App. 1994) (stating the negligent intervening act of a third party is an affirmative defense to a negligence claim).