## Facts

- Noel Dillon and Neil Frazer, Ontario residents, were co-employees of a Canadian corporation sent to Greenville, South Carolina for a work assignment.
- The employer paid for the employees’ hotel, a rental car, and daily travel time between the hotel and the worksite; Frazer was the only authorized driver of the rental car.
- While returning from the worksite with Dillon as a passenger, Frazer ran a stop sign and caused a collision that seriously injured Dillon.
- Dillon suffered multiple fractures (including ribs, sternum, clavicle, and thumb) and a punctured lung; he was hospitalized for two days and later required physical therapy.
- Dillon’s undisputed special damages (including medical expenses and lost wages) exceeded $30,000; he was unable to work for about 10 weeks and then returned on reduced hours.
- Frazer admitted negligence; Dillon sought substantial damages for pain and suffering and loss of earning capacity, and Elizabeth Dillon asserted a loss-of-consortium claim.

## Issues

1. Whether Ontario workers’ compensation exclusivity barred the tort action where the parties were Ontario residents employed by a Canadian company but the accident occurred in South Carolina.
2. Whether a new trial absolute on damages was required when the jury awarded $6,000 despite undisputed special damages exceeding $30,000.

## Decision

- The Supreme Court of South Carolina affirmed the refusal to apply Ontario workers’ compensation law to bar the action.
- The court held Frazer could not rely on Ontario law because it was not timely and properly pleaded as an affirmative defense, and South Carolina substantive tort law applied under lex loci delicti.
- The court reversed the denial of a new trial absolute on damages, holding the verdict was grossly inadequate and indicated compromise or disregard of the evidence and instructions.
- The case was remanded for a new trial on damages only (affirmed in part, reversed in part, remanded).

## Legal Principles

- Foreign law must be specially, timely pleaded to be applied; failure to plead it precludes reliance on it as an affirmative defense.
- Under South Carolina’s lex loci delicti rule, substantive tort rights are governed by the law of the place of injury.
- A new trial absolute on damages is warranted when an award is so inadequate that it shocks the conscience and suggests passion, prejudice, compromise, or failure to follow the court’s instructions.
- Additur does not cure a verdict that reflects improper considerations or remains below uncontroverted special damages.

## Conclusion

South Carolina law governed the tort claim because the injury occurred in South Carolina and Ontario workers’ compensation law was not properly pleaded; the jury’s damages award was grossly inadequate in light of undisputed economic loss, requiring a new trial limited to damages.


Dillon v. Frazer, 383 S.C. 59, 678 S.E.2d 251 (S.C. 2009)