A negligence action requires the plaintiff to prove four elements:
1. The defendant owed the plaintiff a duty to act reasonably in some aspect;
2. The defendant failed to act in such a manner;
3. The defendant’s breach caused the plaintiff’s injury; and
4. The injury suffered by the plaintiff is one of which the law provides for the recovery of damages.
This page will provide a brief overview of comparative negligence, which can be a defense to a negligence claim.
Comparative negligence can be a defense to a negligence claim. It is the defendant’s way of saying that the plaintiff was negligent as well. Depending on his or her level of fault, a plaintiff’s recovery may be lessened or barred by comparative negligence.
When showing that the plaintiff was also negligent, the defendant must prove the same elements used in a normal negligence action. Thus, the defendant must show that the plaintiff owed a duty of care and breached that duty.
The jury determines the proportion of negligence for each party. After hearing evidence regarding the actions of each party, the jury will assign a percentage to each party that represents their level of fault in the resulting losses. These numbers should add up to 100.
Traditionally, there are four types of comparative negligence. We will outline each in this section, but know that South Carolina only observes a modified version of comparative negligence, which we will explain in the most detail.
Pure Comparative Negligence
Under pure comparative negligence, a plaintiff can recover as long as the defendant was slightly negligent. The plaintiff, however, can only recover the proportion of his damages for which the defendant was responsible.
If the plaintiff were 51% to blame for his $100,000 in personal injury damages, he would only recover $49,000 from the defendant.
Slight-Gross Comparative Negligence
The harshest form of comparative negligence is known as slight-gross comparative negligence. Under this doctrine, a plaintiff is barred from recovery if he or she was at all negligent, unless their negligence was slight and the defendant’s negligence was gross. It is not used widely.