Comparative Negligence Vs. Contributory Negligence In South Carolina

The legal doctrine of comparative negligence is an essential aspect of South Carolina injury cases. You may have also heard of the term “contributory negligence” and are wondering if it applies to your case. It’s important to understand these two concepts and how they could affect the compensation you may receive.

Modified Comparative Negligence In SC

South Carolina is one of the many states that follow the comparative negligence doctrine. In this system, a plaintiff’s total award may be reduced if he or she was partly at fault for the injury.

An example is when a car on the wrong lane collided with the plaintiff’s vehicle, but the plaintiff was later found to have been speeding, thus adding to the injury. In this case, it may be said that the driver of the other car had 90 percent of the liability, while the plaintiff had 10 percent. Thus, the plaintiff’s compensation award would be reduced by 10 percent. If the plaintiff was awarded $100,000, he or she would receive only $90,000.

Some states subscribe to the “pure comparative negligence” rule, where a plaintiff can recover damages even if he or she was 99 percent at-fault. But South Carolina follows the “modified comparative negligence” rule, with a 51 percent bar. Here, the plaintiff’s fault must only be 50 percent or less. If it reaches 51 percent or more, he or she can no longer receive any compensation.

Contributory Negligence – Historical In SC

In contrast to comparative negligence, the concept of contributory negligence completely prevents plaintiffs from collecting compensation if they were partly liable in the accident – even if that fault was only one percent. This rule may seem harsh, but it was intended to discourage careless conduct and fraudulent claims. Today, however, only very few states subscribe to this rule.

South Carolina also used to follow the contributory negligence system, but by 1991, it had completely switched to modified comparative negligence. This is due to the landmark case of Nelson v. Concrete Supply Co. Thus, plaintiffs in personal injury claims today have a chance to recover damages if they were less than 51 percent at fault.

Cases With Multiple Defendants

Before 2005, South Carolina had a legal doctrine called joint and several liability. That meant if an injured plaintiff sued two or more defendants, upon receiving a verdict, each was 100% responsible to the plaintiff for the full amount. Even if one defendant was only 10% at fault in causing the injury, it was legally liable to pay the entire amount owed to the plaintiff. The plaintiff could choose who to collect from. No plaintiff could collect more than the jury verdict amount. The aggrieved defendant who paid more than its share could later seek contribution from the other defendants. The idea was that any loss caused by a judgment proof defendant would be born by the other defendants and not the injured plaintiff.

The rule changed in 2005 when South Carolina rejected joint and several liability by statute. Now if two or more defendants contributed to the injury of the plaintiff their respective degrees of fault must be determined. Each shall pay only their share of the plaintiff’s loss. Typically, the trial judge would give a verdict form or paper with questions to the jury. The jury would be instructed to determine an allocation of fault for each party, including the plaintiff and each defendant. Total “fault” must equal 100%. The verdict form would request the jury determine the total “money damages” or harm suffered by the plaintiff. The court would then do the math and render a judgment against each defendant according the jury’s allocation of fault.

The end of joint and several liability fundamentally changed the way attorneys handle legal cases. Consider a premises liability case occurring at a hotel with lax security. The hotel lacked adequate locks, lightening or security guards. A criminal gains access into a guest’s room and causes harm. Is a premise liability case on behalf of the injured guest even viable now? The criminal actor will most likely be found the most culpable party but judgment proof. For that reason the lawyer for the plaintiff may avoid suing the criminal actor so as not to have him become a party in the case and a party on the verdict form. Allocation of fault can only be done against party defendants and not “tortfeasors” who have not been sued. The hotel may attempt to add or “third-party-in” the criminal actor and make him a party. As you can see the situation can be come complicated. The need for an experienced lawyer is evident.

Establishing The Amount You Deserve

Whether you have a meritorious case and how much you deserve must be analyzed by an attorney with experience in this field. The attorney must investigate the potential wrongdoers who caused harm, determine each’s ability to respond to a judgment, and decide whether they can and should be made a party to a lawsuit. That’s what we do at Kassel McVey.

We’re one of the state’s most trusted law firms, and we’re ready to be of service to you. Your initial consultation is completely free. Call us today at (803) 256-4242.

Kassel Mcvey
1330 Laurel Street
Columbia, South Carolina 29201

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Columbia, South Carolina 29202

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