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Comparative Negligence

Comparative Negligence


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

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.


Modified Comparative Negligence – Version 1

Modified comparative negligence allows the plaintiff to recover from the defendant if the plaintiff’s negligence is below a certain threshold.

The first modified version allows recovery by the plaintiff if the plaintiff’s negligence is not as great as the negligence of the defendant.

If both parties are equally to blame (50% each) for an accident with damages to the plaintiff of $100,000, the plaintiff could not recover. If the defendant is 51% to blame for the accident, the plaintiff would recover $51,000 in damages.

Modified Comparative Negligence – Version 2 – South Carolina’s Version

South Carolina’s version of modified comparative negligence allows the plaintiff to recover from the defendant if the plaintiff’s negligence is less than or equal to that of the defendant.

Thus, if the plaintiff and defendant are each 50% responsible for an accident that caused the plaintiff $100,000 in damages, the plaintiff can still recover $50,000 from the defendant.

Under the South Carolina system, all forms of negligence are compared. If a plaintiff acted recklessly and the defendant only acted with normal negligence, their negligence would still be compared.

Comparative Negligence with Multiple Parties

In some cases, a plaintiff may sue two negligent parties for the injuries suffered. For a moment, assume that three cars, driven by Drivers A, B, and C, were involved in a traffic accident. In some form or another, each of the drivers was acting negligently at the time of the accident.

Now assume the jury hears relevant evidence regarding the accident and decides that Driver B suffered damages totaling $100,000.

After deliberations, the jury determines that Driver A is 30% at fault for Driver B’s damages, Driver C is 50% at fault, and Driver B is 20% at fault.

In this situation, Driver A would owe Driver B $30,000 while Driver C would owe $50,000. Driver B may not recover for the damages attributable to his own negligence.

A brief word about joint and several liability

In South Carolina, there is a small twist relating to the example above. Driver C, 50% at fault for the accident, may actually be liable for the entire $80,000 to Driver B.

This is because of joint and several liability. In South Carolina, if there are multiple defendants, and one is at least 50% liable for total damages, then that defendant is liable to the plaintiff for the entire recovery. This defendant can then sue the other defendant for payment of their portion of the damages.

If no defendant is more than 50% liable, then the doctrine does not apply, and each defendant is liable only for their portion of damages.

A Note on Contributory Negligence

South Carolina, like most states in the U.S., used to be a contributory negligence state. The doctrine was abandoned in South Carolina in 1991.

Under the doctrine of contributory negligence, a plaintiff generally cannot recover if he or she was also negligent, even if the defendant was more negligent than the plaintiff was. South Carolina’s system resembled gross-slight comparative negligence, insofar as a plaintiff could still recover if his or her negligence was merely slight while the defendant’s negligence was gross.

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