THE STATE OF SOUTH CAROLINA 

In The Supreme Court 

Carla Denise Garrison and Clint Garrison, PetitionersRespondents, 

v. 

Target Corporation, Respondent-Petitioner. 

Appellate Case No. 2020-000523 

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS 

Appeal From Anderson County 

R. Keith Kelly, Circuit Court Judge 

Opinion No. 28080 

Heard May 26, 2021 – Filed January 26, 2022 

AFFIRMED AS MODIFIED IN PART, REVERSED 

IN PART, AND REMANDED 

Joshua Thomas Hawkins and Helena LeeAnn Jedziniak, 

both of Hawkins & Jedziniak, LLC, of Greenville; and 

John B. Howell, III, of Jackson, Tullos & Rogers, PLLC, 

of Hattiesburg, Mississippi, all for PetitionersRespondents. 

Lewis F. Powell, III and George P. Sibley, III, both of 

Hunton Andrews Kurth LLP, of Richmond, Virginia; John 

Carroll Moylan, III, Henry L. Parr, Jr., and Wallace K. 

Lightsey, all of Wyche, P.A., of Columbia; and Knox L. 
 

 

 

 

 

 

 

 

 

 

 

Haynsworth, III, of Brown, Massey, Evans, McLeod & 

Haynsworth, LLC, of Greenville, all for RespondentPetitioner. 

Brooks Roberts Fudenberg, of Law Offices of Brooks R. 

Fudenberg, LLC, and C. Steven Moskos, of C. Steven 

Moskos, P.A., both of Charleston, for Amici Curiae Daniel 

O'Shields and Roger W. Whitley. 

William Grayson Lambert, of Burr & Forman, LLP, of 

Columbia, for Amici Curiae Chambers of Commerce and 

Industry Groups. 

CHIEF JUSTICE BEATTY: We granted cross-petitions for a writ of 

certiorari to review Garrison v. Target Corporation, 429 S.C. 324, 838 S.E.2d 18 

(Ct. App. 2020) and determine whether the court of appeals erred in (1) affirming 

the trial court's denial of Target's motion for a judgment notwithstanding the verdict 

(JNOV) as to liability based on a theory of constructive notice; (2) holding the 

statutory cap on punitive damages pursuant to section 15-32-530 of the South 

Carolina Code (Supp. 2020) is an affirmative defense; (3) instructing the trial court 

to consider on remand the potential harm caused by Target's conduct in evaluating 

the constitutionality of the amount of punitive damages; and (4) refusing to award 

interest on punitive damages under Rule 68, SCRCP. We affirm as modified in part, 

reverse in part, and remand this matter to the trial court for further proceedings 

consistent with this opinion. 

I. FACTS 

On the evening of May 21, 2014, Denise Garrison went to Target in Anderson, 

South Carolina with her eight-year-old daughter. Upon her arrival at the store, 

Denise parked her car in Target's parking lot, and she and her daughter exited the 

vehicle. Before entering the store, however, Denise retrieved her coupon book from 

her car, placed it on the hood, and proceeded to examine it. Suddenly, holding what 

appeared to be a hypodermic needle in her hand, her daughter showed the object to 

Denise and asked, "Mommy, what is this?" Denise responded instinctively by 

swatting the syringe out of her daughter's hand. 

Immediately, Denise noticed the syringe had punctured the palm of her hand, 

as a bead of blood started to form, and she and her daughter rushed into the store's 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

bathroom where she washed her hands repeatedly, four or five times. Denise and 

her daughter both became very upset at what had just occurred, and Denise called 

her husband, Clint, to tell him what happened. He told her to notify a Target 

employee of the incident so the syringe could be removed from the parking lot. 

Denise informed Target's store manager, who apologized for what happened. In 

fact, Denise believed the manager assured her that her medical bills would be paid, 

testifying that the manager said "bring us the bill." The manager completed a guest 

incident report, detailing Denise's description of the incident and listing the cause as 

a needle in the parking lot. She also accompanied Denise to the parking lot to 

retrieve the syringe, and in her testimony, described it as "dirty and dingy" and that 

it looked like it had "some wear on it." Nevertheless, the manager indicated in an 

investigation report that she did not see a needle in the syringe. 

The next day, Denise visited the emergency room, where she was treated for 

a needle prick/stick. However, the ER nurse told Denise there was nothing further 

they could do and referred her to an infectious disease specialist, Dr. Potts. The 

doctor prescribed Denise several medications to prevent her from developing HIV 

or hepatitis. The medications caused her to feel dizzy, lose her balance, have an 

upset stomach, have vivid night terrors, and put her into a "zombie-like state." 

Denise also had to undergo blood draws every three months for a year to confirm 

she had not been infected with a disease. 

Soon after Denise began taking the medications, she received a phone call 

from Target's investigator, who asked if she thought Target was responsible for her 

injury. Denise told him she thought they were supposed to take care of the parking 

lot and that she just wanted her medical bills and lab work paid. However, despite 

Denise's belief that Target would cover her medical costs, Target refused to do so. 

Subsequently, Denise filed an action against Target seeking damages for negligence, 

including punitive damages. Shortly thereafter, Denise submitted to Target a 

$12,000 offer of judgment, which Target did not accept. Denise, along with her 

husband, proceeded to file a second action against Target, asserting causes of action 

for negligence and loss of consortium. Target moved for summary judgment on all 

claims, which the court denied. The case proceeded to a jury trial from September 

6-8, 2016, following consolidation of the two actions. 

At trial, Target's store manager testified the store did not have a formal policy 

regarding regular cleaning and maintenance of the parking lot but noted that cart 

attendants keep a lookout for dangers when they retrieve carts from the parking lot. 

She also testified that Target employs a property maintenance technician who walks 

the property in the mornings, but he only works until 2:30 p.m. In addition, the 

manager explained that after she took possession of the syringe on the night of the 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

incident, she thought a co-worker had disposed of it but later learned that it was still 

at the store. However, the syringe became lost again and was not available at trial. 

Nevertheless, the parties were able to show the jury photographs of the syringe. 

Because of the loss of the syringe, the trial court gave a jury instruction, without 

objection, on the doctrine of spoliation of evidence. 

Target's property maintenance technician testified regarding his "walk the 

vibe" inspections of the premises and submitted a two-page log demonstrating 

several dates on which he completed this task. However, the log contained 

noticeable errors, such as classifying two consecutive dates as being a Monday. 

Significantly, he testified that a cleaning truck comes to Target on Thursday 

evenings to clean the parking lot but could not recall the name of the company that 

Target employs for the service. He also indicated they do not keep any records 

confirming that a company cleans Target's premises. Instead, he walks the property 

to make sure that large debris has been removed and the sidewalks have been cleared. 

He also testified he was not aware of any video evidence capturing the incident or 

confirming that the parking lot is regularly cleaned and maintained. 

In addition, Clint Garrison testified that on one occasion, after Denise's injury, 

a bolt had come loose from a shopping cart corral and had fallen onto the ground in 

the parking lot. On several subsequent occasions, he returned to the same location 

and found the bolt was still in the parking lot over four months later. At one point, 

he thought the entire corral was in such poor condition that it was about to fall down. 

He also testified to finding a spring and rod laying in the grass on the curb near the 

area where Denise was injured and that both objects remained there in the parking 

lot for at least thirteen days. Further, Clint was questioned about photographs 

depicting the syringe and surrounding area from the day of the incident and testified 

that he believed the syringe had been on the ground for more than two hours, two 

days, or even two weeks. He also noted a piece of twine located near the syringe 

was discolored and appeared to have been run over by a vehicle, and a nearby 

cigarette butt was weathered, leading him to believe the syringe had also been there 

awhile. Upon learning that Target employs a cleaning truck to sweep the parking 

lot on Thursday evenings, Clint decided to stay up all night on one particular 

Thursday to see if it was true. He arrived at Target at approximately 11:45 p.m. and 

stayed until 5:30 a.m. the next morning, but no cleaning truck ever came to clean the 

parking lot.1 

1 The evidence the Garrisons presented at trial was admitted without objection. See 

Cantrell v. Carruth, 250 S.C. 415, 421, 158 S.E.2d 208, 211 (1967) (noting when 
 

 

 

 

 

 

 

 

 

At the close of the Garrisons' case, both parties moved for a directed verdict, 

which the court denied. Other than cross-examining the Garrisons' witnesses, Target 

did not put on a case-in-chief. Ultimately, the jury found Target was negligent and 

awarded Denise $100,000 in compensatory damages and $4.51 million in punitive 

damages. The jury also awarded Clint $3,500 for lost wages and $5,000 for loss of 

consortium. Following trial, Target moved for a JNOV as to liability and punitive 

damages, requesting in the alternative that a new trial absolute or new trial nisi 

remittitur be granted. Target also moved for a reduction of the punitive damages 

award to the statutory maximum pursuant to section 15-32-530 of the South Carolina 

Code (Supp. 2020). In addition, the Garrisons moved to tax costs and interest against 

Target pursuant to Rules 54 and 68, SCRCP. 

Following a hearing on the parties' post-trial motions, the trial court denied 

Target's motion for a JNOV as to liability, granted Target's motion for a JNOV as to 

punitive damages, denied the Garrisons' motion to tax costs, and granted the 

Garrisons' motion for interest. Upon review of the Garrisons' motion for 

reconsideration, the trial court granted their motion to tax costs and interest in full, 

including the award of eight percent interest under Rule 68, SCRCP, on Denise's 

compensatory damages only, since the court had struck the jury's punitive damages 

award. Regarding Target's motion for a JNOV as to liability, the trial court held: 

[A]lthough there was no direct evidence as to the exact length of time 

the syringe has been in the parking lot, witnesses testified the syringe 

was "dingy, dirty and gross," and bore a "weathered" look similar to 

other items of trash in the parking lot. That testimony, when viewed in 

the light most favorable to Plaintiffs, leads to the reasonable inference 

that the syringe was in Target's parking lot long enough to impute 

constructive knowledge. Thus, judgment as a matter of law is not 

appropriate on the constructive knowledge issue. 

Regarding punitive damages, the trial court determined the evidence did not justify 

the jury's award. Nevertheless, the court analyzed the constitutionality of the amount 

of punitive damages awarded but failed to consider the potential harm to Denise and 

other customers. See Mitchell, Jr. v. Fortis Ins. Co., 385 S.C. 570, 587–88, 686 

S.E.2d 176, 185 (2009) (noting "the court should consider the disparity between the 

testimony is "received, without objection, it becomes competent and cannot be 

disregarded upon a motion for a nonsuit or directed verdict, but its sufficiency must 

be left to the jury"). 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

actual or potential harm suffered by the plaintiff and the amount of the punitive 

damages award"). 

Thereafter, the parties cross-appealed to the court of appeals, which affirmed 

in part, reversed in part, and remanded to the trial court. Garrison v. Target Corp., 

429 S.C. 324, 838 S.E.2d 18 (Ct. App. 2020). Specifically, the court held there was 

sufficient evidence of constructive notice to allow the jury to resolve the question of 

Target's liability. Id. at 343, 838 S.E.2d at 28. The court relied on witness testimony 

regarding the "old, dirty, and nasty" and "weathered" appearance of the syringe and 

surrounding debris. Id. at 341, 838 S.E.2d at 27. The court also held there was 

sufficient evidence to support the jury's award for punitive damages and reinstated 

the award but agreed with the trial court that the amount awarded violated due 

process. Id. at 349, 355–56, 838 S.E.2d at 31, 34–35. Nonetheless, the court 

determined the trial court erred in failing to consider the potential harm to Denise 

and other customers in evaluating the constitutionality of the amount of punitive 

damages and remanded the case for further analysis and a remittitur. Id. at 354–56, 

838 S.E.2d at 34–35. 

Moreover, the court of appeals held the statutory cap on punitive damages 

pursuant to section 15-32-530 constituted an affirmative defense that must be pled 

or else waived, and because Target failed to plead the cap, the court held its 

application was waived in this case. Id. at 373, 838 S.E.2d at 44. Specifically, the 

court found the criteria of subsections (B) and (C) of the statute require special 

findings that "affect [the] proof at trial," and in order to prevent unfair surprise to the 

Garrisons, the court deemed application of the cap waived. Id. at 363–64, 372–73, 

838 S.E.2d at 39, 43–44 (quoting James v. Lister, 331 S.C. 277, 284, 500 S.E.2d 

198, 202 (Ct. App. 1998)). However, the dissenting opinion opined that nothing in 

the statute requires pleading, and the cap does not have any of the characteristics of 

an affirmative defense or avoidance because it does not affect liability or require 

new matter to be asserted. Id. at 380–81, 838 S.E.2d at 48 (Hill, J., dissenting). 

Lastly, the court of appeals interpreted Rule 68, SCRCP, to hold Denise was 

not entitled to interest on the jury's punitive damages award, finding the purpose of 

prejudgment interest is to compensate the plaintiff, while the purpose of punitive 

damages is to punish the defendant. Id. at 377–79, 838 S.E.2d at 46–47 (majority 

opinion) (relying on cases from the Supreme Courts of Alaska and Nevada to 

distinguish these purposes). The parties filed cross-petitions for a writ of certiorari 

requesting this Court to review the court of appeals' decision, and we granted both 

petitions in their entirety. 

II. STANDARD OF REVIEW 
"When reviewing the trial court's ruling on a motion for a directed verdict or 

a JNOV, this Court must apply the same standard as the trial court by viewing the 

evidence and all reasonable inferences in the light most favorable to the nonmoving 

party." RFT Mgmt. Co. v. Tinsley & Adams L.L.P., 399 S.C. 322, 331–32, 732 

S.E.2d 166, 171 (2012). In these cases, "we reverse only when there is no evidence 

to support the ruling or when the ruling is governed by an error of law." Austin v. 

Stokes-Craven Holding Corp., 387 S.C. 22, 42, 691 S.E.2d 135, 145 (2010). "The 

motions should be denied when either the evidence yields more than one inference 

or its inference is in doubt." Gadson ex rel. Gadson v. ECO Servs. of S.C., Inc., 374 

S.C. 171, 176, 648 S.E.2d 585, 588 (2007). However, "neither the trial court nor the 

appellate court has authority to decide credibility issues or to resolve conflicts in the 

testimony or evidence." Erickson v. Jones St. Publishers, LLC, 368 S.C. 444, 463, 

629 S.E.2d 653, 663 (2006). 

"Determining the proper interpretation of a statute is a question of law, which 

this Court reviews de novo." Ferguson Fire & Fabrication, Inc. v. Preferred Fire 

Prot., L.L.C., 409 S.C. 331, 339, 762 S.E.2d 561, 565 (2014). Thus, we may 

interpret statutes "without any deference to the court below." Brock v. Town of Mt. 

Pleasant, 415 S.C. 625, 628, 785 S.E.2d 198, 200 (2016) (quoting CFRE, LLC v. 

Greenville Cty. Assessor, 395 S.C. 67, 74, 716 S.E.2d 877, 881 (2011)). Similarly, 

"[i]n interpreting the meaning of the South Carolina Rules of Civil Procedure, the 

Court applies the same rules of construction used to interpret statutes." S.C. Human 

Affairs Comm'n v. Chen, 430 S.C. 509, 519, 846 S.E.2d 861, 866 (2020) (alteration 

in original) (quoting Farnsworth v. Davis Heating & Air Conditioning, Inc., 367 

S.C. 634, 638, 627 S.E.2d 724, 726 (2006)). 

III. DISCUSSION 

A. Constructive Notice 

Target argues the court of appeals erred in affirming the trial court's denial of 

its JNOV motion as to liability for Denise's injury because the Garrisons presented 

insufficient evidence to prove Target had constructive notice of a dangerous 

condition on its premises. Specifically, Target claims there was no evidence 

presented to demonstrate how long the syringe had been in the parking lot prior to 

Denise's injury such that Target should have discovered and removed it. Instead, in 

Target's view, the jury was left to speculate based on the weathered and damaged 

condition of the syringe and photographs of other trash and debris located in the area 

where the syringe was found. In addition, Target asserts the court of appeals 

erroneously relied on witness testimony regarding the appearance of the syringe to 

establish the length of time it had been in the parking lot. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

In order for a plaintiff to recover damages for injuries sustained as a result of 

a dangerous or defective condition on a storekeeper's premises, "the plaintiff must 

show either (1) that the injury was caused by a specific act of the defendant which 

created the dangerous condition; or (2) that the defendant had actual or constructive 

knowledge of the dangerous condition and failed to remedy it." Wintersteen v. Food 

Lion, Inc., 344 S.C. 32, 35, 542 S.E.2d 728, 729 (2001). A storekeeper "will be 

charged with constructive notice whenever it appears that the condition has existed 

for such length of time prior to the injury that, under existing circumstances, he 

should have discovered and remedied it in the exercise of due care[.]" Anderson v. 

Winn-Dixie Greenville, Inc., 257 S.C. 75, 77, 184 S.E.2d 77, 77 (1971). However, 

"[t]he jury should not be permitted to speculate that [a dangerous condition has 

existed] for such a length of time as to infer that [the] defendant was negligent in 

failing to detect and remove it." Wimberly v. Winn-Dixie Greenville Inc., 252 S.C. 

117, 122, 165 S.E.2d 627, 629 (1969). 

We find there was sufficient evidence to support the trial court's decision. See 

Curcio v. Caterpillar, Inc., 355 S.C. 316, 320, 585 S.E.2d 272, 274 (2003) ("In 

considering a JNOV, the trial judge is concerned with the existence of evidence, not 

its weight."); see also RFT Mgmt. Co., 399 S.C. at 331–32, 732 S.E.2d at 171 

("When reviewing the trial court's ruling on a motion for a directed verdict or a 

JNOV, this Court must apply the same standard as the trial court by viewing the 

evidence and all reasonable inferences in the light most favorable to the nonmoving 

party."). Not only did the Garrisons present witness testimony and photographs 

regarding the damaged, weathered appearance of the syringe at the time of the 

incident, but they also demonstrated Target's troubling lack of cleaning and 

inspection procedures resulting in a failure to uphold its duty to keep the parking lot 

in a reasonably safe condition for its customers. See Henderson v. St. Francis Cmty. 

Hosp., 303 S.C. 177, 180, 399 S.E.2d 767, 768 (1990) ("Although the operator of a 

parking lot is not an insurer of the safety of those who use the lot, reasonable care 

must be used by the operator to keep the premises used by invitees in a reasonably 

safe condition."). 

When questioned about Target's cleaning standards and protocols, the store's 

manager and property maintenance technician were often unable to provide any 

meaningful information regarding Target's efforts to ensure the parking lot is 

regularly cleaned and maintained. For example, they testified there is no specific 

cleaning policy in place, and they do not keep any records indicating that 

maintenance has been performed. Although Target's store manager explained that 

cart attendants inspect for hazards in the parking lot when returning carts to the store, 

she testified that they do not do so on any regular or routine basis. Notably, the 
 

 

 

 

 

 

 

 

 

witnesses claimed that a third-party cleaning company was hired to sweep the 

parking lot on Thursday evenings, but they could not recall the name of the company 

Target employed nor was there any invoice or other documentation presented which 

confirmed such a company actually performs this service. Based on this evidence, 

the jury could reasonably find the syringe had been in the parking lot long enough 

for Target to discover and remove it in the exercise of due care. 

We further hold the spoliation of the syringe while in Target's possession 

supports the jury's finding of constructive notice. Indeed, the trial court gave a jury 

instruction, without objection, on the doctrine of spoliation of evidence. See 

Kershaw Cty. Bd. of Educ. v. U.S. Gypsum Co., 302 S.C. 390, 394, 396 S.E.2d 369, 

372 (1990) ("[W]hen evidence is lost or destroyed by a party an inference may be 

drawn by the jury that the evidence which was lost or destroyed by that party would 

have been adverse to that party."). At oral argument, counsel for the Garrisons 

provided several examples of actions that could have been taken to derive additional 

evidence in support of their constructive notice theory, had the syringe been 

available at trial: the discovery of a batch or serial number on the syringe tracing 

back to Target or its purchaser who could have been identified and deposed; testing 

for fingerprints on the syringe to identify the purchaser or user; and the procurement 

of expert testimony, and associated testing of the syringe, to approximate how long 

it would have taken for the syringe to acquire its dirty, dingy appearance. 

B. Statutory Cap on Punitive Damages 

Target contends the court of appeals erred in holding it was required to plead 

the statutory cap on punitive damages pursuant to section 15-32-530 as an 

affirmative defense, and because Target did not do so, application of the damages 

cap was waived in this case. We agree. 

Section 15-32-530 provides in relevant part: 

(A) Except as provided in subsections (B) and (C), an award of punitive 

damages may not exceed the greater of three times the amount of 

compensatory damages awarded to each claimant entitled thereto 

or the sum of five hundred thousand dollars. 

(B) The limitation provided in subsection (A) may not be disclosed to 

the jury. If the jury returns a verdict for punitive damages in excess 

of the maximum amount specified in subsection (A), the trial court 

should first determine whether: 
 

 

 

 

 

 

 

 

 

 

 

(1) the wrongful conduct proven under this section was 

motivated primarily by unreasonable financial gain 

and determines that the unreasonably dangerous nature 

of the conduct, together with the high likelihood of 

injury resulting from the conduct, was known or 

approved by the managing agent, director, officer, or 

the person responsible for making policy decisions on 

behalf of the defendant; or 

(2) the defendant's actions could subject the defendant to 

conviction of a felony and that act or course of conduct 

is a proximate cause of the plaintiff's damages; 

If the trial court determines that either item (1) or (2) apply, then 

punitive damages must not exceed the greater of four times the amount 

of compensatory damages awarded to each claimant entitled thereto or 

the sum of two million dollars and, if necessary, the trial court shall 

reduce the award and enter judgment for punitive damages in the 

maximum amount allowed by this subsection. If the trial court 

determines that neither item (1) or (2) apply, then the award of punitive 

damages shall be subject to the maximum amount provided by 

subsection (A) and the trial court shall reduce the award and enter 

judgment for punitive damages in the maximum amount allowed by 

subsection (A). 

(C) However, when the trial court determines one of the following 

apply, there shall be no cap on punitive damages: 

(1) at the time of injury the defendant had an intent to harm 

and determines that the defendant's conduct did in fact 

harm the claimant; or 

(2) the defendant has pled guilty to or been convicted of a 

felony arising out of the same act or course of conduct 

complained of by the plaintiff and that act or course of 

conduct is a proximate cause of the plaintiff's damages; 

or 

(3) the defendant acted or failed to act while under the 

influence of alcohol, drugs, other than lawfully 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

prescribed drugs administered in accordance with a 

prescription, or any intentionally consumed glue, 

aerosol, or other toxic vapor to the degree that the 

defendant's judgment is substantially impaired. 

S.C. Code Ann. § 15-32-530(A)–(C) (Supp. 2020). We find the language of 

subsection (A) unambiguously reveals the legislature's intent to require trial courts 

to reduce punitive damages awards in excess of "the greater of three times the 

amount of compensatory damages . . . or the sum of five hundred thousand dollars," 

unless exempt under subsection (B) or (C). Id. § 15-32-530(A); see Media Gen. 

Commc'ns, Inc. v. S.C. Dep't of Revenue, 388 S.C. 138, 148, 694 S.E.2d 525, 530 

(2010) ("Where the statute's language is plain and unambiguous, and conveys a clear 

and definite meaning, the rules of statutory interpretation are not needed and the 

court has no right to impose another meaning." (quoting Hodges v. Rainey, 341 S.C. 

79, 85, 533 S.E.2d 578, 581 (2000))); Ventures S.C., LLC v. S.C. Dep't of Revenue, 

378 S.C. 5, 8–9, 661 S.E.2d 339, 341 (2008) ("The statute's language is considered 

the best evidence of legislative intent."). 

Subsection (A) begins by stating "[e]xcept as provided in subsections (B) and 

(C)," indicating that the statute applies to all cases not specifically excluded by those 

subsections. S.C. Code Ann. § 15-32-530(A); see Hodges, 341 S.C. at 87, 533 

S.E.2d at 582 ("The enumeration of exclusions from the operation of a statute 

indicates that the statute should apply to all cases not specifically excluded." 

(quoting Norman J. Singer, Sutherland Statutory Construction § 47.23, at 227 (5th 

ed. 1992))). In addition, subsection (A) further provides "an award of punitive 

damages may not exceed" a particular sum of money, and the legislature's use of the 

phrase "may not" is generally construed as mandatory. S.C. Code Ann. § 15-32-

530(A) (emphasis added); see 82 C.J.S. Statutes § 494, at 648 (2009) ("Negative or 

prohibitory words used in statutory provisions generally are construed as mandatory 

. . . ."). Moreover, the paragraph at the end of subsection (B) reiterates the 

legislature's mandatory directive for trial courts to limit punitive damages awards to 

the amount outlined in subsection (A) if it finds that items (1) and (2) are not 

applicable. See S.C. Code Ann. § 15-32-530(B) (stating "the trial court shall reduce 

the award and enter judgment for punitive damages in the maximum amount allowed 

by subsection (A)" (emphasis added)); Wigfall v. Tideland Utils., Inc., 354 S.C. 100, 

111, 580 S.E.2d 100, 105 (2003) ("The term 'shall' in a statute means that the action 

is mandatory."). In fact, the only circumstance in which the legislature allows no 

cap on punitive damages is when the trial court determines that subsection (C) 

applies. See S.C. Code Ann. § 15-32-530(C) (providing three situations in which 

"there shall be no cap on punitive damages"). 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

We further find the statutory cap on punitive damages is neither an affirmative 

defense nor an avoidance because it does not affect liability or require new matter to 

be asserted but instead limits the amount of damages a plaintiff can recover. See 

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.E.2d 711, 714 (Ct. App. 2005) (noting the statutory damages 

cap under the Tort Claims Act "limits the amount of damages recoverable for any 

claim"). 

We are not persuaded by the court of appeals' reference to opinions from other 

jurisdictions in support of its holding that the statutory cap on punitive damages falls 

within the residuary clause of Rule 8(c), SCRCP. Indeed, the cap lacks a common 

characteristic of the enumerated affirmative defenses—barring liability for the cause 

of action—and the inquiry required to be conducted by the trial court in subsections 

(B) and (C) of the statute does not affect the proof at trial. But see James v. Lister, 

331 S.C. 277, 283, 500 S.E.2d 198, 201 (Ct. App. 1998) (recognizing a "requirement 

of pleading matters which may prejudice the opposing party by introducing issues 

which may affect the proof at trial"). Unlike the additional procedural requirements 

at issue in James—a special finding of gross negligence by the jury and joinder of 

additional parties—which fundamentally affected both the parties and the proof at 

trial, no such requirements are involved here. Id. at 282, 500 S.E.2d at 201. Instead, 

the statute requires the trial court to determine whether subsections (B) and (C) are 

applicable and does not create any issue for the jury to resolve. See S.C. Code 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). 

Moreover, affirmative defenses generally shift the burden of proof to the 

defendant, and we do not believe the legislature intended for section 15-32-530 to 

shift the burden to Target to prove the applicability of the statutory cap on punitive 

damages in this case. See Pike v. S.C. Dep't of Transp., 343 S.C. 224, 231, 540 

S.E.2d 87, 91 (2000) (acknowledging "the well-established rule that the party 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

pleading an affirmative defense 'has the burden of proving it'" (quoting Hoffman v. 

Greenville Cty., 242 S.C. 34, 39, 129 S.E.2d 757, 760 (1963))). The plain language 

of the statute does not impose a burden on the defendant to prove the cap applies. 

Rather, the legislature only directs trial courts to determine which level of the cap 

must be applied in a particular case. Therefore, we hold the statutory cap on punitive 

damages pursuant to section 15-32-530 must be applied by the trial court where the 

jury has rendered a verdict for punitive damages exceeding the amount outlined in 

subsection (A), and in such cases, the trial court is required to conduct the inquiry 

set forth in subsections (B) and (C), as applicable. Accordingly, we remand this case 

to the trial court to determine whether the Garrisons' punitive damages award must 

be reduced.2 

C. Consideration of Potential Harm in Reviewing the Constitutionality of a 

Punitive Damages Award 

Target claims the court of appeals erred in instructing the trial court to 

consider on remand Denise's potential harm under Mitchell, Jr. v. Fortis Insurance 

Company, 385 S.C. 570, 686 S.E.2d 176 (2009) because the Garrisons presented no 

evidence supporting any potential harm and instead relied solely on the harm Denise 

could have suffered had she in fact become infected with a disease. Unlike the 

plaintiff in Mitchell, who presented testimony from a medical expert regarding his 

potential harm had he not been treated and the minimum expected costs it would 

take to care for him throughout his life, Target argues the Garrisons did not present 

any similar testimony, and as a result, the trial court properly refused to consider 

potential harm in evaluating the constitutionality of their punitive damages award. 

See id. at 581–82, 686 S.E.2d at 182. We disagree. 

2 The Garrisons argue that if the statutory cap on punitive damages must be applied, 

they are entitled to a reduction of the award to two million dollars pursuant to 

subsection 15-32-530(B)(1) because Target's conduct was "motivated primarily by 

unreasonable financial gain" and "was known or approved by . . . the person 

responsible for making policy decisions on behalf of the defendant." S.C. Code Ann. 

§ 15-32-530(B)(1) (Supp. 2020). Indeed, the Garrisons arguably presented evidence 

to support this claim during direct examination of Target's property maintenance 

technician when they questioned him regarding Target's practice of letting 

employees leave work early to save payroll following a change in CEO in 2008. 

Consequently, there is evidence in the record the trial court may consider on remand 

to determine whether the Garrisons qualify for this reduction. We, however, express 

no opinion as to the merits of this argument. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

In Mitchell, we noted that in analyzing the constitutionality of punitive 

damages awards under Gamble v. Stephenson, 305 S.C. 104, 111–12, 406 S.E.2d 

350, 354 (1991) and BMW of North America v. Gore, 517 U.S. 559, 574–75 (1996), 

"the court should consider the disparity between the actual or potential harm suffered 

by the plaintiff and the amount of the punitive damages award." Id. at 587–88, 686 

S.E.2d at 185. In reversing the trial court, the court of appeals in this case relied on 

the United States Supreme Court's decision in TXO Production Corporation v. 

Alliance Resources Corporation, 509 U.S. 443, 460 (1993), which noted, "[i]t is 

appropriate to consider the magnitude of the potential harm that the defendant's 

conduct would have caused to its intended victim if the wrongful plan had 

succeeded, as well as the possible harm to other victims that might have resulted if 

similar future behavior were not deterred." (emphasis in original). In reaching this 

conclusion, the TXO Court reviewed its holding in Pacific Mutual Life Insurance 

Company v. Haslip, 499 U.S. 1 (1991), which expressly addressed the standard for 

evaluating the potential harm component of punitive damages. Specifically, the 

Court stated: 

In [Haslip] we endorsed the standards that the Alabama Supreme Court 

had previously announced, one of which was "whether there is a 

reasonable relationship between the punitive damages award and the 

harm likely to result from the defendant’s conduct as well as the harm 

that actually has occurred[.]" 

TXO, 509 U.S. at 460 (emphasis added by the TXO Court (quoting Haslip, 499 U.S. 

at 21)). 

Although Denise did not ultimately contract a disease from the syringe, the 

trial court erred in failing to consider any potential harm in the ratio calculation, 

including the harm likely to result to other customers due to Target's failure to 

maintain the parking lot in a reasonably safe condition. Accordingly, we remand the 

case to the trial court to conduct a thorough review of the constitutionality of the 

amount of the jury's punitive damages award, which includes consideration of 

potential harm. 

D. Award of Interest on Punitive Damages Under Rule 68, SCRCP 

Denise Garrison argues the court of appeals erred in holding she is not entitled 

to eight percent interest on the entirety of her damages, including punitive damages, 

because both Rule 68, SCRCP, and section 15-35-400 (Supp. 2020), which govern 

the award of interest in the offer of judgment context, specifically state the plaintiff 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

is entitled to eight percent interest "on the amount of the verdict or award" from the 

date of the offer to the entry of judgment. We agree. 

Rule 68(b), SCRCP, provides in relevant part: 

If an offer of judgment is not accepted and the offeror obtains a verdict 

or determination at least as favorable as the rejected offer, the offeror 

shall recover from the offeree: . . . (2) if the offeror is a plaintiff, eight 

percent interest computed on the amount of the verdict or award from 

the date of the offer to the entry of judgment . . . . 

Similarly, section 15-35-400(B) states: 

If an offer of judgment is not accepted and the offeror obtains a verdict 

or determination at least as favorable as the rejected offer, the offeror 

shall be allowed to recover from the offeree: . . . (2) if the offeror is a 

plaintiff, eight percent interest computed on the amount of the verdict 

or award from the date of the offer . . . . 

S.C. Code Ann. § 15-35-400(B) (Supp. 2020). We find the language of both the rule 

and the statute clearly and unambiguously provides that Denise is entitled to eight 

percent interest on the entire amount of the verdict, including punitive damages. See 

Sonoco Prods. Co. v. S.C. Dep't of Revenue, 378 S.C. 385, 391, 662 S.E.2d 599, 602 

(2008) ("The court should give words their plain and ordinary meaning, without 

resort to subtle or forced construction to limit or expand the statute's operation."). 

Indeed, we do not perceive any restriction in the rule or statute which prohibits the 

award of interest on punitive damages, and we refuse to impose such limitation here. 

See Hodges v. Rainey, 341 S.C. 79, 87, 533 S.E.2d 578, 582 (2000) ("When the 

language of a statute is clear and explicit, a court cannot rewrite the statute and inject 

matters into it which are not in the legislature's language, and there is no need to 

resort to statutory interpretation or legislative intent to determine its meaning."); id. 

at 85, 533 S.E.2d at 581 ("Under the plain meaning rule, it is not the court's place to 

change the meaning of a clear and unambiguous statute."). 

We are not an outlier in reaching this conclusion. The court of appeals 

acknowledged that Connecticut also permits the award of interest on punitive 

damages in the offer of judgment context. See Kregos v. Stone, 872 A.2d 901, 906 

(Conn. App. Ct. 2005) (holding the lower court "properly interpreted the word 

'recovered' [in Connecticut's offer of judgment statute] to include the entire verdict, 

both punitive and compensatory damages"). Like Connecticut, we have both a 

prejudgment interest statute and a separate statute awarding interest in the offer of 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

judgment context. See Boulevard Assocs. v. Sovereign Hotels, Inc., 861 F.Supp. 

1132, 1141 (D. Conn. 1994) (distinguishing between section 37-3a, Connecticut's 

prejudgment interest statute, and section 52-192a(b), its offer of judgment interest 

statute). Compare S.C. Code Ann. § 34-31-20(A) (2020) ("In all cases of accounts 

stated and in all cases wherein any sum or sums of money shall be ascertained and, 

being due, shall draw interest according to law, the legal interest shall be at the rate 

of eight and three-fourths percent per annum."), with S.C. Code Ann. § 15-35-400(B) 

(Supp. 2020) (providing that when a plaintiff's offer of judgment is not accepted and 

she obtains a verdict or determination at least as favorable as her offer, she is entitled 

to receive eight percent interest on the amount of the verdict or award from the date 

of the offer). In Boulevard Associates, the United States District Court for the 

District of Connecticut recognized that the award of interest under an offer of 

judgment statute serves the purpose "of promoting 'fair and reasonable compromise 

of litigation without trial.'" 861 F.Supp. at 1141 (quoting Crowther v. Gerber 

Garment Tech., Inc., 513 A.2d 144, 151 (Conn. App. Ct. 1986)); see also 

Majorowicz v. Allied Mut. Ins. Co., 569 N.W.2d 472, 481 (Wis. Ct. App. 1997) ("The 

objective of [Wisconsin's offer of settlement interest statute] is to encourage pretrial 

settlement and avoid delays."). 

Here, however, the court of appeals relied on two cases from the Supreme 

Courts of Alaska and Nevada to hold the purpose of prejudgment interest is to 

compensate the plaintiff, while the purpose of punitive damages is to punish the 

defendant. See Haskins v. Shelden, 558 P.2d 487, 494 (Alaska 1976) ("Prejudgment 

interest is in the nature of compensation for use by defendant of money to which 

plaintiff is entitled from the time the cause of action accrues until the time of 

judgment. It is not meant to be an additional penalty."); Ramada Inns, Inc. v. Sharp, 

711 P.2d 1, 2 (Nev. 1985) ("Prejudgment interest is viewed as compensation for use 

by defendant of money to which plaintiff is entitled from the time the cause of action 

accrues until the time of judgment; it is not designed as a penalty."). We find those 

cases are distinguishable because they considered prejudgment interest rather than 

interest awarded in the offer of judgment context. Therefore, we hold Denise is 

entitled to eight percent interest on the entirety of her damages award, including 

punitive damages, pursuant to Rule 68, SCRCP. 

IV. CONCLUSION 

Based on the foregoing, we hold there was sufficient evidence upon which the 

jury could reasonably find that Target had constructive notice of the syringe in its 

parking lot and failed to discover and remove it in the exercise of due care. In 

addition, we hold the statutory cap on punitive damages pursuant to section 15-32-

530 is not required to be pled by the defendant as an affirmative defense in order to 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

apply in a particular case. Instead, the cap must be applied by the trial court where 

the jury has rendered a verdict for punitive damages exceeding the amount outlined 

in subsection (A), and in such cases, the trial court is required to conduct the inquiry 

set forth in subsections (B) and (C), as applicable.3 We further hold the court of 

appeals properly instructed the trial court to consider on remand the potential harm 

caused by Target's conduct in evaluating the constitutionality of the amount of the 

Garrisons' punitive damages award. Lastly, we hold Denise is entitled to eight 

percent interest on the entirety of her damages award, including punitive damages, 

pursuant to Rule 68, SCRCP. Accordingly, we affirm as modified in part, reverse 

in part, and remand this matter to the trial court. 

On remand, because the jury's $4.51 million punitive damages award exceeds 

the amount provided in subsection 15-32-530(A), the trial court shall determine 

whether the award must be reduced by conducting the inquiry set forth in subsections 

(B) and (C) of the statute, as applicable. The trial court shall also consider potential 

harm in evaluating the constitutionality of the amount of the punitive damages 

3 The Garrisons also challenge the constitutionality of the statutory cap on punitive 

damages pursuant to section 15-32-530. However, we find this issue is not preserved 

for our review. Notably, the Garrisons failed to raise the issue to the court of appeals 

in their petition for rehearing. See Rule 242(d)(2), SCACR ("Only those questions 

raised in the Court of Appeals and in the petition for rehearing shall be included in 

the petition for writ of certiorari as a question presented to the Supreme Court."). In 

addition, it appears the Garrisons first raised the issue to the trial court in their 

response to Target's motion for a JNOV, and the trial court did not address the issue 

in its order because it granted Target's motion, striking the jury's punitive damages 

award in its entirety. Subsequently, the Garrisons filed an expedited motion for 

reconsideration but did not request the trial court to make a ruling on the issue. See 

Foster v. Foster, 393 S.C. 95, 99, 711 S.E.2d 878, 880 (2011) ("In order to preserve 

an issue for appellate review, a party must both raise that issue to the trial court and 

obtain a ruling."); I'On, L.L.C. v. Town of Mt. Pleasant, 338 S.C. 406, 422, 526 

S.E.2d 716, 724 (2000) ("If the losing party has raised an issue in the lower court, 

but the court fails to rule upon it, the party must file a motion to alter or amend the 

judgment in order to preserve the issue for appellate review."). For these reasons, 

we find the issue is unpreserved. Regardless, we decline to address constitutional 

issues where it is unnecessary to the resolution of the case. See In re McCracken, 

346 S.C. 87, 92, 551 S.E.2d 235, 238 (2001) ("[I]t is this Court's firm policy to 

decline to rule on constitutional issues unless such a ruling is required."). 
award. Finally, the trial court shall award eight percent interest on the entirety of 

Denise's damages award, including punitive damages. 

AFFIRMED AS MODIFIED IN PART, REVERSED IN PART, AND 

REMANDED. 

KITTREDGE, HEARN, FEW and JAMES, JJ., concur.