THE STATE OF SOUTH CAROLINA 

In The Supreme Court 

Leisel Paradis, Petitioner, 

v. 

Charleston County School District, James Island Charter 

High School, and Robert Bohnstengel and Stephanie 

Spann, in their individual capacities, Respondents. 

Appellate Case No. 2018-002025 

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS 

Appeal from Charleston County 

J.C. Nicholson Jr., Circuit Court Judge 

Opinion No. 28030 

Heard December 12, 2019 – Filed May 19, 2021 

REVERSED AND REMANDED 

J. Lewis Cromer and J. Paul Porter, both of Cromer Babb 

Porter & Hicks, LLC, of Columbia, for Petitioner. 

Rene Stuhr Dukes, of Rosen Rosen & Hagood, LLC, of 

Charleston, for Respondent Robert Bohnstengel; and 

Caroline Cleveland, Bob J. Conley, and Emmanuel Joseph 

Ferguson, all of Cleveland & Conley, LLC, of Charleston, 

for Respondent Stephanie Spann. 
 

 

CHIEF JUSTICE BEATTY: A civil conspiracy claim brought by Leisel 

Paradis ("Petitioner") was dismissed by the circuit court for failing to plead special 

damages, and the dismissal was upheld by the court of appeals. We granted a 

petition for a writ of certiorari to consider the narrow question whether South 

Carolina's requirement of pleading special damages should be abolished. We 

conclude that it should. South Carolina is the only state with this unique requirement 

as an element, and we find it resulted from a misinterpretation of law. We overrule 

precedent that requires the pleading of special damages and return to the traditional 

definition of civil conspiracy in this state. Consequently, we reverse the decision of 

the court of appeals and remand the matter to the circuit court for proceedings 

consistent with this opinion. 

I. FACTS 

Petitioner, a teacher, filed a complaint asserting a defamation claim against 

the Charleston County School District and James Island Charter High School 

(respectively, "the District" and "the High School"). In addition, Petitioner asserted 

a civil conspiracy claim against the High School's principal and assistant principal, 

Robert Bohnstengel and Stephanie Spann ("Respondents"), 1 in their individual 

capacities. Petitioner alleged Respondents targeted her for an unwarranted and 

invasive performance evaluation because they were unhappy with her desire to 

report a student's misconduct to the police, causing her to be blacklisted and 

ostracized and, ultimately, terminated from her teaching position. 

The circuit court dismissed both the defamation and the civil conspiracy 

claims. The circuit court ruled, inter alia, that Petitioner failed to plead special 

damages as required to advance her civil conspiracy claim. The court of appeals 

affirmed. Paradis v. Charleston Cty. Sch. Dist., 424 S.C. 603, 819 S.E.2d 147 (Ct. 

App. 2018). Petitioner sought a writ of certiorari, raising several issues regarding 

the civil conspiracy claim. This Court granted the petition for a writ of certiorari as 

to Petitioner's first question, which asks the Court to abolish the rule imposing a 

special pleading requirement for civil conspiracy claims—i.e., requiring a plaintiff 

to plead special damages—which evolved after the Court's decision in Todd v. South 

1 The District and the High School participated in the appeal below and filed a 

response to the petition for a writ of certiorari. However, they did not file briefs with 

this Court, presumably because they were not parties to the civil conspiracy action 

that is the subject of the appeal to this Court. As a result, "Respondents" shall be 

used to refer to the individual parties who submitted briefs, Bohnstengel and Spann. 
 

 

 

 

Carolina Farm Bureau Mutual Insurance Co., 276 S.C. 284, 278 S.E.2d 607 (1981). 

This pleading requirement has been informally referred to as the Todd rule. 

II. DISCUSSION 

Petitioner contends this Court should overrule precedent requiring the 

pleading of special damages for civil conspiracy claims, which arose after the 

issuance of the Todd decision in 1981. We agree. 

Civil conspiracy has long given rise to uncertainty as to its elements and 

proper application. See 4 James Lockhart, Cause of Action for Civil Conspiracy, 

Causes of Action § 4, at 530 (2d ed. 1994) ("The elements of civil conspiracy are 

not always defined in exactly the same way."). Over 100 years ago, a law professor 

analyzed the emerging action, noting its varying definitions and the distinction 

between civil and criminal conspiracy, and he distilled the following core principles: 

A combination between two or more persons to 

accomplish a criminal or unlawful purpose, or some 

purpose not in itself criminal or unlawful by criminal or 

unlawful means, subjects the confederates to criminal 

prosecution; and, if injury ensues to an individual 

therefrom, it subjects them to a civil action by their victim. 

Francis M. Burdick, Conspiracy as a Crime, and as a Tort, 7 Colum. L. Rev. 229, 

246 (1907). 

South Carolina employed similar language in defining civil conspiracy. In an 

early case involving motions to strike and to make the pleadings for civil conspiracy 

more definite and certain, this Court stated: 

[A] definition of conspiracy has been given as the 

conspiring together to do an unlawful act to the detriment 

of another or the doing of a lawful act in an unlawful way 

to the detriment of another. 

Charles v. Texas Co., 192 S.C. 82, 101, 5 S.E.2d 464, 472 (1939) (Charles I). 

The Court reiterated this description in the appeal from the verdict in the same 

case, finding no error in a jury charge defining a civil conspiracy in these terms. See 

Charles v. Texas Co., 199 S.C. 156, 176, 18 S.E.2d 719, 727 (1942) (Charles II) 
 

 

 

("Ordinarily a conspiracy is where two or more persons combine or agree to do 

something to the detriment or hurt of another. If they agree to do an unlawful thing 

for the detriment or hurt of another or if they agree to do a lawful thing but agree to 

do it in an unlawful manner that would be a conspiracy."); cf. Hosp. Care Corp. v. 

Commercial Cas. Ins. Co., 194 S.C. 370, 387, 9 S.E.2d 796, 803–04 (1940) 

(observing "the second cause of action [failed to] allege the required elements of a 

conspiracy to accomplish an unlawful purpose or a lawful purpose unlawfully").

 In Charles II, the Court pointed out the "well known principle" that resulting 

damages are the gist of any civil conspiracy action and an unexecuted conspiracy 

does not give rise to a civil cause of action. 199 S.C. at 177, 18 S.E.2d at 727. Thus, 

the Court emphasized that proof of an overt act and resulting damages were also 

fundamental elements to sustain a civil claim, and it found these points were 

adequately conveyed in the trial judge's instructions. The Court further explained, 

"Each conspirator is liable for all damages naturally resulting from any wrongful act 

of a co-conspirator in exercising the joint enterprise," and "[w]hether the damages 

proximately resulted from the wrongful act of the conspirators is ordinarily a 

question for the jury." Id. at 174, 18 S.E.2d at 726 (citation omitted). 

Appeals involving civil conspiracy were somewhat infrequent immediately 

following Charles I and Charles II, but the two decisions were recognized as 

authoritative, even when later cases did not fully articulate all of the requisite 

elements. See, e.g., Lakewood Water Co. v. Garden Water Co., 222 S.C. 450, 453, 

73 S.E.2d 720, 721 (1952) ("The two decisions of Charles v. Texas Company, 192 

S.C. 82, 5 S.E.2d 464, and Id., 199 S.C. 156, 18 S.E.2d 719, rather fully enunciate 

the principles which govern civil actions for conspiracy and they need not be 

repeated here."). 

The definition of civil conspiracy approved in Charles I and Charles II is also 

fairly universal in contemporary tort law.2 See generally 16 Am. Jur. 2d Conspiracy 

§ 53 (2020) ("Although stated variously from jurisdiction to jurisdiction, the basic 

elements of a civil conspiracy are (1) an agreement between two or more individuals, 

2 Most states provide by common law for the claim, and a few states have also 

enacted statutes in this regard. See 54 James L. Buchwalter, Cause of Action for 

Civil Conspiracy, Causes of Action § 2, at 603 (2d ed. 2012) ("Civil conspiracy is a 

claim recognized under the common law of most states. A civil conspiracy may also 

be actionable under state statutes specifically forbidding various types of concerted 

action for certain purposes." (citation omitted)). 
 

 

(2) to do an unlawful act or to do a lawful act in an unlawful way, (3) resulting in 

injury to [the] plaintiff inflicted by one or more of the conspirators, and (4) pursuant 

to a common scheme."); 15A C.J.S. Conspiracy § 4 (2012) ("The requisite elements 

[for civil conspiracy] are: (1) a combination between two or more persons; (2) to do 

a criminal or an unlawful act, or a lawful act by criminal or unlawful means; (3) an 

act done by one or more of the conspirators pursuant to the scheme and in furtherance 

of the object; (4) which act results in damage to the plaintiff."). 

In 1981, however, the Court issued the Todd decision, which has been 

interpreted as creating a new element for civil conspiracy claims in South Carolina— 

a requirement that a plaintiff plead special damages. In Todd, the plaintiff alleged 

five causes of action stemming from the termination of his employment, and each 

cause of action incorporated all of the prior allegations: "(1) intentional interference 

with contractual relations, (2) extreme and outrageous conduct, (3) bad faith 

termination of the employment contract, (4) invasion of privacy, and (5) conspiracy 

to so damage the plaintiff." Todd v. S.C. Farm Bureau Mut. Ins. Co., 276 S.C. 284, 

287, 278 S.E.2d 607, 608 (1981). One of the issues considered by the Court was 

whether Todd's fifth cause of action stated a claim for civil conspiracy. Id. at 292, 

278 S.E.2d at 610. 

The Todd Court began by citing, inter alia, Charles I, and stating: 

"Conspiracy is the conspiring or combining together to do an unlawful act to the 

detriment of another or the doing of a lawful act in an unlawful way to the detriment 

of another." Id. at 292, 278 S.E.2d at 611. The Court generally observed the 

difference between a criminal conspiracy and a civil conspiracy is that the agreement 

is the gravamen of the offense of criminal conspiracy, whereas "the gravamen of the 

tort [of civil conspiracy is] the damage resulting to [the] plaintiff from an overt act 

done pursuant to the common design." Id. (citing a former version of Corpus Juris 

Secundum).3 The Court reiterated that a civil conspiracy becomes actionable only 

once overt acts occur that proximately cause damage to the plaintiff; therefore, 

"conspiracy in and of itself is not a civil wrong." Id. (citation omitted). 

The Court found Todd did not plead overt acts in furtherance of the 

conspiracy, so the complaint failed to state a claim for civil conspiracy as a matter 

of law: 

3 Similar language is in the updated version. See 15A C.J.S. Conspiracy § 104 

(2012) (distinguishing civil and criminal conspiracy). 
 

 

As noted, the fifth cause of action does no more than 

incorporate the prior allegations and then allege the 

existence of a civil conspiracy and pray for damages 

resulting from the conspiracy. No additional acts in 

furtherance of the conspiracy are plead. The only alleged 

wrongful acts plead are those for which damages have 

already been sought. . . . 

The trial judge erred by overruling the demurrer to 

the conspiracy cause of action in the complaint, since 

Todd can recover no additional damages for the alleged 

fifth cause of action. The rule applicable to these 

pleadings is stated at 15A C.J.S. Conspiracy § 33, at 718. 

"Where the particular acts charged as a 

conspiracy are the same as those relied on as 

the tortious act or actionable wrong, plaintiff 

cannot recover damages for such act or 

wrong, and recover likewise on the 

conspiracy to do the act or wrong." 

Todd seeks damages in his first four causes of action 

for the same acts incorporated by the fifth cause. He is 

therefore precluded from seeking damages for the same 

acts yet again. As such, the fifth cause fails to state an 

action. 

Id. at 293, 278 S.E.2d at 611 (emphasis added). Although Todd ostensibly spoke in 

terms of the failure to plead additional acts to support the civil conspiracy claim and 

not allowing duplicative recoveries for the same acts, cases after Todd began 

enumerating three required elements to assert an allegation of civil conspiracy, 

including the element of pleading "special damage": 

A civil conspiracy . . . consists of three elements: (1) a 

combination of two or more persons, (2) for the purpose 

of injuring the plaintiff, (3) which causes him special 

damage. 

Lee v. Chesterfield Gen. Hosp., Inc., 289 S.C. 6, 10, 344 S.E.2d 379, 382 (Ct. App. 

1986); accord Island Car Wash, Inc. v. Norris, 292 S.C. 595, 600, 358 S.E.2d 150, 
 

 

 

 

 

152 (Ct. App. 1987) (citing Lee and its three-part definition of civil conspiracy); 

Yaeger v. Murphy, 291 S.C. 485, 487, 354 S.E.2d 393, 394 (Ct. App. 1987) (citing 

the definition in Lee). 

While the requirement of pleading special damages became known as the 

Todd rule, notably none of the foregoing cases (Lee, Island Car Wash, and Yaeger) 

specifically cited Todd for the three-part definition of civil conspiracy incorporating 

this element. Island Car Wash and Yaeger relied solely on the definition in Lee and 

did not cite Todd for any legal proposition. Lee did cite Todd, but it was in the 

context of distinguishing civil and criminal conspiracy and reiterating the need to 

show an overt act and resulting damage for a civil claim.

 In Lee, the court of appeals indicated the parties had confused civil and 

criminal conspiracy. 289 S.C. at 10, 344 S.E.2d at 381. The court stated the 

definition involving an agreement to undertake "an unlawful act or a lawful act by 

unlawful means" defined only a criminal conspiracy, and instead enumerated a 

three-part test for a civil action—"(1) a combination of two or more persons, (2) for 

the purpose of injuring the plaintiff, (3) which causes him special damage." Id. at 

10, 344 S.E.2d at 382. In doing so, it cited this Court's decision in Charles I, along 

with a 1915 Tennessee decision and several United Kingdom cases.4 Id. 

We note this Court's precedent demonstrates the definitional elements of civil 

conspiracy actually parallel the elements of criminal conspiracy.5 See Bradley v. 

Kelley Bros. Contractors, 117 So. 3d 331, 339 (Miss. Ct. App. 2013) (observing the 

elements of criminal conspiracy and civil conspiracy "are quite similar" and noting 

4 While the United Kingdom cases have some efficacy, we do not find them 

determinative of South Carolina law. In particular, we note some of the decisions 

consist of a collection of individual determinations, with each individual expressing 

his own, singular opinion. Although such decisions reach one ultimate result, they 

are not all in agreement in their reasoning. 

5 See S.C. Code Ann. § 16-17-410 (2015) ("The common law crime known as 

'conspiracy' is defined as a combination between two or more persons for the purpose 

of accomplishing an unlawful object or lawful object by unlawful means."); see also 

State v. Davis, 88 S.C. 229, 232, 70 S.E. 811, 812–13 (1911) ("[T]he description 

which seems to have the widest recognition and approval by the authorities declare 

a criminal conspiracy to consist of a combination between two or more persons for 

the purpose of accomplishing a criminal or unlawful object, or an object neither 

criminal nor unlawful by criminal or unlawful means." (citation omitted)). 
 

 

civil conspiracy turns on the existence of damages). The similarity is logical because 

the major difference between civil and criminal conspiracy is a plaintiff's need to 

additionally prove an overt act and resulting damages to obtain a civil recovery. See 

16 Am. Jur. 2d Conspiracy § 53 (2020) ("The elements of civil conspiracy are quite 

similar to those required of a criminal conspiracy, with the distinguishing factor 

being that an agreement is the essence of a criminal conspiracy, while damages are 

the essence of a civil conspiracy."); id. § 55 ("The gist of a civil conspiracy is not 

the unlawful agreement or combination but the damage caused by the acts committed 

in pursuance of the formed conspiracy." (emphasis added)); see also 15A C.J.S. 

Conspiracy § 7 (2012) ("Although criminal and civil conspiracy have similar 

elements, the distinguishing factor between the two is that damages are the essence 

of a civil conspiracy, and the agreement is the essence of a criminal conspiracy.").6 

Later cases began reciting Lee's three-part test for civil conspiracy that 

developed post-Todd and which included the requirement of pleading special 

damages. See LaMotte v. Punch Line of Columbia, Inc., 296 S.C. 66, 370 S.E.2d 

711 (1988); see also Pye v. Estate of Fox, 369 S.C. 555, 633 S.E.2d 505 (2006); 

McMillan v. Oconee Mem'l Hosp., Inc., 367 S.C. 559, 626 S.E.2d 884 (2006); 

Lawson v. S.C. Dep't of Corr., 340 S.C. 346, 532 S.E.2d 259 (2000); Future Group 

II v. NationsBank, 324 S.C. 89, 478 S.E.2d 45 (1996); Hackworth v. Greywood at 

Hammett, LLC, 385 S.C. 110, 682 S.E.2d 871 (Ct. App. 2009). Inexplicably, this 

new requirement for special damages was labeled the Todd rule. 

Although the Court did not mention "special damages" in Todd, several years 

after Todd a few cases, such as Lee, 289 S.C. at 10, 344 S.E.2d at 382, recited the 

three-part test for civil conspiracy that appeared to contain the pleading requirement 

as an element of the claim. This definition, in turn, was then quoted repeatedly by 

our appellate courts. This pleading requirement became known as the Todd rule. 

6 In a case discussing criminal conspiracy, this Court has observed that "unlawful" 

merely means "contrary to law" and is not limited to criminal conduct. State v. 

Davis, 88 S.C. 229, 233, 70 S.E. 811, 813 (1911) ("It is enough if the acts agreed to 

be done, although not criminal, are wrongful; that is amount to a civil wrong." 

(citations omitted)). As for civil conspiracy, early English law has noted that, "[i]n 

view of the infinite variations of oppressive misconduct[,] no definition [of 

"unlawful means"] can be given which is at once satisfactory and exhaustive." Pratt 

v. Brit. Med. Ass'n, [1919] 1 K.B. 244, 260 (1918). However, Pratt stated precedent 

recognized that violence or threats of physical violence, threats not involving 

physical harm, nuisance, and fraud, are readily encompassed, although they are not 

the only examples. See id. at 260–61. 
 

 

 

See, e.g., Vaught, 300 S.C. at 209, 387 S.E.2d at 95 ("hold[ing] the conspiracy action 

is barred under Todd" where special damages were not properly alleged). However, 

the pleading requirement's relationship to Todd is rendered somewhat tenuous 

because, as previously noted, the earliest cases did not specifically cite Todd for this 

requirement. See, e.g., Island Car Wash, 292 S.C. at 600, 358 S.E.2d at 152; Yaeger, 

291 S.C. at 487, 354 S.E.2d at 394. 

This test resulted in the dismissal of civil conspiracy actions that did not 

expressly plead special damages on the basis they failed to adequately allege a cause 

of action. South Carolina courts held that, because special damages are a required 

element of a civil conspiracy claim, a plaintiff must plead special damages that go 

beyond the damages alleged in other claims to state a cause of action. Those cases 

further stated that, if a plaintiff merely repeated the damages from another claim 

without specifically listing special damages as part of the civil conspiracy allegation, 

then the civil conspiracy action must be dismissed. See, e.g., Hackworth, 385 S.C. 

at 117, 682 S.E.2d at 875 ("If a plaintiff merely repeats the damages from another 

claim instead of specifically listing special damages as part of their civil conspiracy 

claim, their conspiracy claim should be dismissed." (emphasis added)); Vaught v. 

Waites, 300 S.C. 201, 209, 387 S.E.2d 91, 95 (Ct. App. 1989) ("The damages sought 

in the conspiracy cause of action are the same as those sought in the breach of 

contract cause of action. Because no special damages are alleged aside from the 

breach of contract damages, we hold the conspiracy action is barred under Todd.").7 

We granted Petitioner's motion to argue against the Todd rule in the current 

case, where her civil conspiracy claim was dismissed at the pleadings stage for the 

failure to plead special damages.8 Petitioner contends the requirement of pleading 

special damages for civil conspiracy should be abandoned because it resulted from, 

7 The law requiring the dismissal of a civil conspiracy claim for failing to plead 

special damages has also been cited in federal courts applying South Carolina law. 

See, e.g., Callum v. CVS Health Corp., 137 F. Supp. 3d 817 (D.S.C. 2015); Alonso 

v. McAllister Towing of Charleston, Inc., 595 F. Supp. 2d 645 (D.S.C. 2009). 

8

 The Todd rule requiring the pleading of special damages was previously called into 

question in another case before this Court, but we declined to abandon the rule at 

that time because a trial had been held some twelve years prior in that matter, and 

there was concern that it would be unfair to change the requirements for pleadings 

and proof upon remand, given the age of the case. See Allegro, Inc. v. Scully, 418 

S.C. 24, 34 n.3, 791 S.E.2d 140, 145 n.3 (2016). 
 

inter alia, a misreading of Corpus Juris Secundum. We agree the Todd rule should 

be abolished. 

In Todd the Court cited 15A C.J.S Conspiracy § 33 and held a plaintiff in a 

civil conspiracy action must allege acts in furtherance of the conspiracy. The Court 

noted the only wrongful acts alleged were those for which damages had already been 

sought, so the claim failed as a matter of law. This was taken in cases after Todd as 

imposing a requirement of pleading (and proving) special damages for a civil 

conspiracy claim. We find this section of Corpus Juris Secundum simply addressed 

a prohibition on duplicative recoveries; it did not establish a requirement of pleading 

special damages for civil conspiracy claims. The plaintiff in Todd failed to plead 

any overt acts in furtherance of the conspiracy. Thus, the Court correctly concluded 

the civil conspiracy claim failed as a matter of law. In that situation, the Court noted, 

the plaintiff's repetition of the same acts as the prior claims was insufficient to 

salvage the claim. 

We note that, in addition to perhaps resulting from a misinterpretation of 

Corpus Juris Secundum and Todd, the pleading requirement for civil conspiracy also 

perhaps resulted, at least in part, from differing interpretations of the term "special 

damages." Traditionally, general damages are implied by law and can be alleged 

without particularity because they are the proximate and foreseeable consequences 

of the defendant's conduct. Special damages, in contrast, are those that might be the 

natural result of an injury, but not the necessary or usual consequences of the 

defendant's conduct, and they typically are unique to a particular case. See 5A 

Charles Alan Wright, Arthur R. Miller & A. Benjamin Spencer, Federal Practice 

and Procedure § 1310 (4th ed. 2018) (distinguishing general and special damages). 

Under the South Carolina Rules of Civil Procedure ("SCRCP") and under the federal 

procedural rules, special damages must be specifically pled to avoid surprise and 

give notice to the opposing party. See, e.g., Rule 9(g), SCRCP. 

In this context, however, it seems South Carolina precedent has varied in what 

it considers "special damages." See generally Michael G. Sullivan, Elements of Civil 

Causes of Action 89–90 (5th ed. 2015, Douglas MacGregor, ed.) ("The requirement 

that the plaintiff plead special damages means essentially this - that the complaint 

must describe damages that occurred as a result of the conspiracy in addition to any 

alleged as a result of other claims."). But see Hackworth, 385 S.C. at 116–17, 682 

S.E.2d at 875 ("Special damages are those elements of damages that are the natural, 

but not the necessary or usual, consequence of the defendant's conduct. . . . Special 

damages . . . are not implied at law because they do not necessarily result from the 

wrong. Special damages must, therefore, be specifically alleged in the complaint to 
 

avoid surprise to the other party." (internal citation omitted)). We further note the 

SCRCP, which require that special damages be specifically pled, were not in effect 

at the time Todd was decided. 

The essential principle Todd intended to address was the need to plead an 

overt act in furtherance of the agreement, not special damages. As a result, we 

overrule Todd and cases relying on Todd or other precedent, such as Lee, to the 

extent they impose or appear to impose a requirement of pleading (and proving) 

special damages. South Carolina's position in this regard was an outlier, as our 

research indicates South Carolina was the only state to require the pleading of special 

damages. 

In light of our decision today, we are returning to our long-standing precedent 

pre-Todd and for clarification specifically state a plaintiff asserting a civil conspiracy 

claim must establish (1) the combination or agreement of two or more persons, (2) to 

commit an unlawful act or a lawful act by unlawful means, (3) together with the 

commission of an overt act in furtherance of the agreement, and (4) damages 

proximately resulting to the plaintiff. See Charles II, 199 S.C. at 176, 18 S.E.2d at 

727; Charles I, 192 S.C. at 101, 5 S.E.2d at 472; see also 16 Am. Jur. 2d Conspiracy 

§ 53 (2020) (enumerating the prevailing elements of a claim for civil conspiracy 

recognized in most jurisdictions); 15A C.J.S. Conspiracy § 4 (2012) (same). By 

doing so, we are returning not only to our historical roots, but also to the traditional 

elements of a civil conspiracy claim as they have been similarly defined by the 

majority of jurisdictions.9 

9 Most states incorporate the elements of an agreement to do an unlawful act or a 

lawful act by unlawful means (or the common variation of an unlawful purpose or a 

lawful purpose by unlawful means). See, e.g., Harp v. King, 835 A.2d 953, 972 

(Conn. 2003); Mustaqeem-Graydon v. SunTrust Bank, 573 S.E.2d 455, 461 (Ga. Ct. 

App. 2002); Yoneji v. Yoneji, 354 P.3d 1160, 1168 (Haw. Ct. App. 2015); Hall v. 

Shaw, 147 N.E.3d 394, 407–08 (Ind. Ct. App. 2020); Coghlan v. Beck, 984 N.E.2d 

132, 151 (Ill. App. Ct. 2013); Peoples Bank of N. Ky., Inc. v. Crowe Chizek & Co., 

277 S.W.3d 255, 260–61 (Ky. Ct. App. 2008); Franklin v. Erickson, 146 A. 437, 

438 (Me. 1929); Shenker v. Laureate Educ., Inc., 983 A.2d 408, 428 (Md. 2009); 

Swain v. Morse, No. 346850, 2020 WL 3107696, at *7 (Mich. Ct. App. June 11, 

2020); Bradley v. Kelley Bros. Contractors, 117 So. 3d 331, 339 (Miss. Ct. App. 

2013); Envirotech, Inc. v. Thomas, 259 S.W.3d 577, 586 (Mo. Ct. App. 2008); 

George Clift Enters., Inc. v. Oshkosh Feedyard Corp., 947 N.W.2d 510, 537 (Neb. 

2020); Jay Edwards, Inc. v. Baker, 534 A.2d 706, 709 (N.H. 1987); Banco Popular 

N. Am. v. Gandi, 876 A.2d 253, 263 (N.J. 2005); In re Fifth Third Bank, N.A., 719 
 

We disagree with the concurring/dissenting opinion to the extent it goes 

beyond the sole question accepted by this Court—which asks, "Should the Court 

reverse the special damages pleading requirement on civil conspiracy claims arising 

from Todd v. S.C. Farm Bureau Mut. Ins. Co.?"— and appears to consider a point 

raised by Respondents in their brief. Namely, whether civil conspiracy itself should 

be "abolished" as an independent claim in this state and should, instead, always be 

dependent on an underlying actionable wrong or tort. Respondents have not crossappealed in this matter, and we reject Respondents' attempt to advance this issue for 

the first time on appeal. Any further arguments potentially affecting the viability of 

Petitioner's claim, whether they arise from this Court's decision or otherwise, are 

properly raised upon remand to the circuit court, in the first instance, particularly 

where the case was halted at the pleadings stage. 

We note a few jurisdictions recognize two forms of civil conspiracy. The first, 

which is the general rule, requires an underlying actionable wrong or tort, and 

liability is imposed on an individual for the tort of another. A second form, also 

described as an exception to the general rule, exists when the conduct complained 

of would not be actionable if done by one person, but where by force of numbers or 

other exceptional circumstances, the defendants possess a peculiar power of 

coercion that gives rise to an independent tort of civil conspiracy (often referred to 

as the "force of numbers" or "economic boycott" exception). See Am. Diversified 

Ins. Servs., Inc. v. Union Fid. Life Ins. Co., 439 So. 2d 904 (Fla. Dist. Ct. App. 1983); 

Baker v. Wilmer Cutler Pickering Hale & Dorr LLP, 81 N.E.3d 782 (Mass. App. Ct. 

2017); see also Schmitt v. MeritCare Health Sys., 834 N.W.2d 627, 635 (N.D. 2013) 

(observing "[s]ome courts have applied an 'economic boycott' or 'force of numbers' 

exception to the general rule that the basis for a civil conspiracy must be an 

independent wrong or tort," but not deciding whether to adopt the exception in that 

state because it would not be applicable, in any event). Early South Carolina law 

pre-Todd appeared to reference similar concepts. See, e.g., Howle v. Mountain Ice 

Co., 167 S.C. 41, 58, 165 S.E. 724, 729 (1932); Charles II, 199 S.C. at 170, 18 

S.E.2d at 724. However, to rule on whether this Court has or ever will recognize an 

exception to the general rule would require the Court to issue an advisory opinion 

on a distinct subject that has not yet been disputed in this case. 

S.E.2d 171, 181 (N.C. Ct. App. 2011); Schmitt v. MeritCare Health Sys., 834 

N.W.2d 627, 635 (N.D. 2013); Phillips v. Selig, 959 A.2d 420, 437 (Pa. Super. Ct. 

2008); Trau-Med of Am., Inc. v. Allstate Ins. Co., 71 S.W.3d 691, 703 (Tenn. 2002); 

Pohl, Inc. of Am. v. Webelhuth, 201 P.3d 944, 954–55 (Utah 2008); Wilson v. State, 

929 P.2d 448, 459 (Wash. Ct. App. 1996); N. Highland Inc. v. Jefferson Mach. & 

Tool, Inc., 898 N.W.2d 741, 747 (Wis. 2017). 
 

 

 

III. CONCLUSION 

Because the court of appeals upheld the dismissal of Petitioner's civil 

conspiracy claim based on the failure to plead special damages, we reverse and 

remand the matter to the circuit court for further proceedings on Petitioner's claim 

for civil conspiracy. Our decision in Petitioner's case is based solely on the narrow 

question before the Court regarding the abolishment of the Todd rule, and we do not 

reach any other issue concerning the viability or merits of Petitioner's claim. Any 

other cases on appeal that have already been tried under the Todd framework shall 

be decided using the Todd analysis. 

REVERSED AND REMANDED. 

HEARN and JAMES, JJ., concur. KITTREDGE, J., concurring in result in a 

separate opinion. FEW, J., concurring in part and dissenting in part in a 

separate opinion. 
 

I 

JUSTICE KITTREDGE: I concur in result. In overruling the so-called "special 

damages" requirement of Todd v. South Carolina Farm Bureau Mutual Insurance 

Co.,

10 the Court must necessarily examine the elements of civil conspiracy. 

commend Chief Justice Beatty for his excellent opinion, which tracks this Court's 

meandering civil conspiracy jurisprudence and properly restores the elements of a 

civil conspiracy claim to its original understanding. As a result of today's opinion, 

it is again settled that a civil conspiracy claim requires proof of (1) the combination 

or agreement of two or more persons, (2) to commit an unlawful act or a lawful act 

by unlawful means, (3) together with the commission of an overt act in furtherance 

of the agreement, and (4) damages proximately resulting to the plaintiff. Stated 

differently, we have abandoned the standardless formulation that required only (1) a 

combination of two or more persons, (2) for the purpose of injuring the plaintiff, and 

(3) which caused the plaintiff special damage. I write separately to address the effect 

of Todd on the election of remedies and note my support for the concurrence of 

Justice Few. 

First, in my judgment, Todd is more properly viewed as an election of remedies case, 

not a pleading case. Todd created a fiction that special damages caused by the civil 

conspiracy were somehow different than the damages caused by the underlying 

unlawful conduct. That misunderstanding, in turn, led to a misapplication of our 

election of remedies law. Because a civil conspiracy claim was purportedly 

supported by special damages, some trial courts would avoid an election of remedies 

and permit a double recovery. Today's rejection of a special damages requirement 

should restore a proper approach to election of remedies. For one wrong, there is 

one recovery. 

Next, I view Justice Few's concurrence as well within the question accepted by this 

Court for review. The misguided pleading rule that grew out of Todd spawned a 

series of cases that further separated civil conspiracy from its original moorings. 

Justice Few compellingly frames the amorphous nature of the civil conspiracy cause 

of action that resulted from Todd and its progeny. It is the second element—to 

commit an unlawful act or a lawful act by unlawful means—that restores an 

objective legal standard to this cause of action. When the appellate courts of this 

state approved of an analytical framework that allowed one's personal sense of 

fairness and right and wrong to be sufficient for a civil conspiracy claim, we created 

a rudderless cause of action. Justice Few correctly observes that the post-Todd 

10 276 S.C. 284, 278 S.E.2d 607 (1981). 
 

sanctioned civil conspiracy claim "permit[ted] the court and jury to impose liability 

for lawful, non-tortious conduct based on a court or juror's sense of fairness or 

responsibility." I do not construe Justice Few's concurrence as "abolishing" civil 

conspiracy. Rather, by restoring the traditional elements of a civil conspiracy claim 

and overruling Todd's so-called special damages pleading requirement, this Court 

returns civil conspiracy to its historical roots. Because the Court has reset the 

elements of civil conspiracy and restored an objective standard, I would apply 

today's decision prospectively with one exception: for those cases that were tried 

under the Todd rubric and are on appeal now, I would evaluate the merits of the 

appeal under the Todd framework. 
JUSTICE FEW: I agree with the majority that the requirement of pleading and 

proving special damages in a civil conspiracy action is based on a misunderstanding 

of law, and the requirement must be eliminated. To that extent, I concur in the 

majority opinion. However, the special damages requirement we now hold legally 

invalid previously served the valid practical purpose of restraining the use of the 

undefined civil conspiracy cause of action. In almost all legitimate civil actions, 

there are no "special damages" as that term was used in civil conspiracy. In other 

words, it was hardly ever possible to allege or prove "damages that go beyond the 

damages alleged in other causes of action." As a practical matter, therefore, the 

requirement of special damages prevented civil conspiracy from being a significant 

cause of action in civil litigation. Now, any plaintiff may bring a civil conspiracy 

action against any defendant—even for lawful, non-tortious conduct—and the law 

imposes no meaningful standards on courts and juries by which they must judge the 

defendant's conduct. I disagree with the majority that we should unleash this stillundefined and now-unrestrained menace on the public as an independent tort. To 

that extent, I respectfully dissent. 

Certainly, civil conspiracy is a proper cause of action in its derivative form. If two 

people conspire to commit fraud, for example, but the actual fraudulent conduct is 

carried out by only one of them, the injured plaintiff should be able to sue both of 

them. The law imposes specific requirements a plaintiff must meet for a fraud cause 

of action, and those requirements provide standards by which courts and juries must 

judge the conduct of both defendants. The same is true for defamation, one of the 

plaintiff's theories of recovery in this case. If one defendant who did not personally 

commit defamatory acts conspired with another who did defame the plaintiff, the 

legal elements the plaintiff must establish in a defamation case—along with the legal 

requirements for conspiracy—guide the court and the jury in deciding whether the 

conspirator should also be liable for defamation. 

As an independent tort, however, the undefined theory of civil conspiracy leaves 

courts and juries free to determine civil liability—both of the alleged tortfeasor and 

the supposed conspirator—not based on the law, but by using the individual judge 

or juror's sense of fairness or responsibility. Imagine in a fraud case that the dispute 

arose out of business competition between the plaintiff and the defendant. The 

defendant intentionally made a false statement to the plaintiff for the purpose of 

gaining competitive advantage. Imagine further the plaintiff's fraud cause of action 

fails because the court or the jury finds—applying the law—the plaintiff had no right 

to rely on the false statements. The defendant's conduct might have been unfair or 
 

irresponsible, but the plaintiff loses on the fraud claim—rightfully—because the law 

does not support the claim. 

If, however, the plaintiff's lawyer thought to add a cause of action for civil 

conspiracy, the plaintiff might nevertheless prevail because the independent tort of 

civil conspiracy has no specific requirements, elements, or standards to guide the 

court and jury. Civil conspiracy—as the majority "return[s] . . . to our historical 

roots"—permits the court and jury to impose liability for lawful, non-tortious 

conduct. 

We need not imagine how a defamation claim could unfold; we can turn to the 

plaintiff's allegations in this case. The plaintiff alleged in her complaint the principal 

of the school where she taught became angry when she asked him to report a student 

to the police for disruptive behavior in her classroom. She claimed the principal 

retaliated against her by placing her into a formal job evaluation process she did not 

deserve and her conduct did not warrant. By the time the evaluation results were 

reported, the principal was no longer involved, both because he did not participate 

in the evaluations and because he was no longer employed at the school. She 

claimed statements made about her during the evaluation process—not by the 

principal—defamed her as being a bad teacher. On a derivative claim for conspiracy 

to commit defamation, the principal would have the defenses of truth, fair reporting 

privilege, the two-year statute of limitations for defamation,11 and perhaps others. If 

the statements made by those conducting the evaluation were true or fair, or if the 

claim was brought outside the limitations period, the principal—like those who made 

the defamatory remarks—would rightfully benefit from those legally defined 

defenses. 

11 See S.C. Code § 15-3-550(1) (2005) (requiring "an action for libel [or] slander" 

be brought "[w]ithin two years"). The General Assembly, in enacting subsection 

15-3-550(1), made a policy judgment that defamation actions must be brought in a 

shorter time than the general limitations period of three years set forth in section 

15-3-530 of the South Carolina Code (2005). In this case, the defendants prevailed 

on the statute of limitations defense as to the plaintiff's defamation claims. By now 

permitting the plaintiff to sue for the very same conduct—defamation—outside the 

limitations period for defamation cases—simply because the defamation claim is 

labeled as civil conspiracy—the majority frustrates the General Assembly's intent 

to require defamation cases be brought within two years. 
The plaintiff's lawyer in this case did think to add a cause of action for civil 

conspiracy. Thus, on the majority's remand for trial, the plaintiff might nevertheless 

prevail because the independent tort of civil conspiracy has no specific requirements, 

elements, or standards to guide the court and jury. Defamation defenses do not apply 

to civil conspiracy, which—as confirmed by the majority to be an independent tort— 

permits the court and jury to impose liability for lawful, non-tortious conduct based 

on a court or juror's sense of fairness or responsibility. In other words, the civil 

conspiracy claim we remand for trial permits a court and jury to impose liability for 

defamation despite the fact the law provides valid defenses that prevent liability. 

My point is illustrated by a case I tried years ago when I was a circuit judge. I have 

modified the facts slightly for simplicity. In an aging twenty-four unit condominium 

building in a beachfront city here in South Carolina, owners could sell individual 

units for an average of $250,000. A real estate developer believed he could renovate 

the building and sharply increase the value of each unit. The developer offered to 

purchase each unit for $400,000 on the condition that each of the twenty-four owners 

must sell. The owners realized their units were undervalued; they predicted that 

even this offer was less than full value; and they decided to seek competing offers 

from other developers. After receiving a superior offer from a second developer, 

and a counter offer from the first, the owners voted to accept the offer from the 

second developer. Twenty-three of them entered contracts to sell their units to the 

second developer. 

The first developer—understandably—did not give up. He had figured out a way to 

bring a combined financial benefit of $3.6 million ($150,000 each) to the twentyfour unit owners, to renovate an aging building in the city, to employ quite a few 

people in the renovation and resale process, and to make a considerable profit for 

himself. He knew the condominium owners' association by-laws did not permit a 

sale or renovation of the entire building on less than a unanimous vote. Thus, he 

knew the second developer could not complete the deal without successfully 

purchasing all twenty-four units. So, the first developer approached one of the unit 

owners and purchased that individual unit for $600,000. By doing so, he placed 

himself back in control of the deal he had conceived. 

Everybody was furious with the first developer, and they all sued him on every 

conceivable cause of action. The breach of contract claim failed because the 

developer had no contract with anyone except the one owner who sold to him. The 

breach of fiduciary duty claim failed because the developer owed no such duty. The 
fraud and slander of title claims failed because the developer made no false 

statement. The intentional interference with a contract claim failed because the 

developer was justified in purchasing real estate to further his own financial 

interests. The interference with prospective contractual rights claim failed because 

the unit owners had a contract to sell to the second developer, not prospective 

contractual rights. I dismissed each of those claims because—applying the law— 

the plaintiffs had no right to recover from the developer. Nothing was left, except 

civil conspiracy. 

In a hearing on the developer's motion for a directed verdict, the plaintiffs 

acknowledged the developer's actions were lawful. Quoting, however, from this 

Court's opinion in LaMotte v. Punch Line of Columbia, Inc., 296 S.C. 66, 70, 370 

S.E.2d 711, 713 (1988), the plaintiffs argued "lawful acts may become actionable as 

a civil conspiracy when the 'object is to ruin or damage the business of another,'" 

and, "An action for civil conspiracy may exist even though respondents committed 

no unlawful act and no unlawful means were used." 

The plaintiffs' arguments were facially correct. The first developer intentionally 

conspired with the owner of one unit for the purpose of preventing the other twentythree owners from realizing the extra value in their units, and for the purpose of 

preventing the second developer from profiting from renovation of the building and 

resale of the renovated units. Yet, I granted a directed verdict on the civil conspiracy 

claim. I did so because the law should never permit a court or a jury to impose civil 

liability for lawful, non-tortious conduct. Without specific requirements, elements, 

or standards, the decision maker is left with nothing but its own sense of what is fair 

or responsible. That is neither fair nor responsible. 

In our free-enterprise economy, we encourage entrepreneurs to use aggressive tactics 

to seize competitive advantage, create jobs for our people, and build value for our 

communities. For these efforts, entrepreneurs rightfully expect to earn handsome 

profits. Participants in this healthy competition use every lawful tactic at their 

disposal. Those who lose out are understandably envious, and often angry. But, 

actions that conform to the law—even when motivated by anger or an intent to 

harm—must not be the basis of civil liability. As the Supreme Court of the United 

States admonished 160 years ago, 

An act legal in itself, and violating no right, cannot be 

made actionable on account of the motive which 

superinduced it. It is the province of ethics to consider of 
actions in their relation to motives, but jurisprudence deals 

with actions in their relation to law . . . . 

Adler v. Fenton, 65 U.S. 407, 410, 16 L. Ed. 696, 698 (1860).