Assumption of Risk
In South Carolina, a potential defense to any negligence action is that the plaintiff assumed the risk of the activity that lead to plaintiff’s injury. The four basic requirements to an assumption of risk defense in South Carolina are that the plaintiff must:
- know the facts that relate to a condition being dangerous
- know the condition is dangerous
- appreciate the nature and extent of the danger, and
- voluntarily expose themselves to the danger.
If each of these conditions is met, the next determination is if the Plaintiff’s assumption of risk was expressed or implied. Express assumption of risk is when the plaintiff explicitly agrees to assume the risk either verbally or in writing. This often occurs in the course of exculpatory contracts. While such contracts are generally valid, the South Carolina Court of Appeals held in Fisher v. Stevens that such contracts will be “strictly construed” against the party raising the assumption of risk defense. The court further held that there must be explicitly clear language indicating the intent of the parties in order for an exculpatory contract to exempt the defendant from liability.
Implied assumption of risk is when the four above requirements are met, but the plaintiff didn’t make any verbal or written statements acknowledging they were assuming the risk. South Carolina breaks implied assumption of risk into two categories: primary and secondary. In Davenport v. Cotton Hope, the court explained that primary implied assumption of risk isn’t a true affirmative defense but is instead a way of stating that the defendant did not breach its duty of care to the plaintiff. This can happen when an activity is inherently dangerous and retains a certain degree of danger despite the defendant’s best efforts at reducing those risks.
Secondary implied assumption of risk applies when the defendant creates the risk and the plaintiff knows about the risk and chooses to engage in the activity anyhow. Unlike express and primary implied assumption of risk, which completely prevents a plaintiff from recovering against the defendant, secondary implied assumption of risk still permits the plaintiff to receive partial compensation if their percentage of negligence was not greater than the negligence of the defendant. This is because South Carolina has followed a comparative negligence standard since July 1, 1991.
Partial Comparative Negligence
Prior to July 1, 1991, South Carolina used a contributory negligence standard. But in the case of Nelson v. Concrete Supply Co., the Supreme Court of South Carolina held that comparative negligence was the fairer standard and adopted comparative negligence as the standard for all actions arising after July 1, 1991.
In general, comparative negligence permits a plaintiff to recover damages based on the percentage of the defendant’s fault. For example, if a court or jury finds the defendant to be 75% at fault, the plaintiff would be entitled to recover 75% of their damages from the defendant. However, comparative negligence can be further broken down into pure comparative negligence or partial comparative negligence, and partial comparative negligence can be broken down even further into categories commonly referred to as “Not Greater Than” or “Less Than.”
The language of the Supreme Court of South Carolina in Nelson v. Concrete Supply Co. established a Not Greater Than standard in South Carolina. This means that a plaintiff can only recover if their own negligence is not greater than that of the defendant. The table below provides three examples to illustrate.
|Result||The plaintiff’s negligence is less than that of the defendant, so the plaintiff is entitled to recover. Plaintiff can recover 75% of their damages because that is the portion that defendant is responsible for.|
|Result||The plaintiff’s negligence is equal to that of the defendant, so the plaintiff is entitled to recover. Plaintiff can recover 50% of their damages because that is the portion that defendant is responsible for.|
|Result||The plaintiff’s negligence is greater than that of the defendant, so the plaintiff CANNOT recover. It doesn’t matter how much greater the plaintiff’s negligence is; plaintiff is completely barred under the Not Greater Than standard.|
|Plaintiff’s Negligence||Defendant’s Negligence||Result|
|Example 1||25%||75%||The plaintiff’s negligence is less than that of the defendant, so the plaintiff is entitled to recover. Plaintiff can recover 75% of their damages because that is the portion that defendant is responsible for.|
|Example 2||50%||50%||The plaintiff’s negligence is equal to that of the defendant, so the plaintiff is entitled to recover. Plaintiff can recover 50% of their damages because that is the portion that defendant is responsible for.|
|Example 3||51%||49%||The plaintiff’s negligence is greater than that of the defendant, so the plaintiff CANNOT recover. It doesn’t matter how much greater the plaintiff’s negligence is; plaintiff is completely barred under the Not Greater Than standard.|
If multiple defendants are involved, the plaintiff’s negligence is compared against the combined negligence of all defendants.
Joint & Several Liability
When two or more defendants jointly cause an injury, there are two main ways that the law can apportion responsibility for recovering damages. Under a pure several liability system, each defendant is responsible only for damages equaling their percentage of fault. Under a pure joint and several liability system, each defendant is responsible for the full amount of plaintiff’s recoverable damages; if a defendant pays more than their share of responsibility, that defendant can then pursue the other defendants in order to seek a contribution.
South Carolina splits the issue by using a modified form of joint and several liability. Under South Carolina Code §15-38-15, joint liability does not apply to defendants who are less than 50% responsible. This means that plaintiffs can only recover the individually responsible percentage of damages from each defendant who is less than 50% responsible but can recover their fully permitted damages from defendants who are 50% or more responsible. The table below provides three examples to illustrate.
|Defendant 1’s Negligence||50%|
|Defendant 2’s Negligence||50%|
|Result||Both defendants are jointly and severally liable for 100% of Plaintiff’s damages. Plaintiff can pursue each defendant for 50% or just one defendant for 100%.|
|Defendant 1’s Negligence||40%|
|Defendant 2’s Negligence||40%|
|Result||Both defendants are severally liable only, so Plaintiff must pursue 40% of their damages from Defendant 1 and 40% of their damages from Defendant 2.|
|Defendant 1’s Negligence||60%|
|Defendant 2’s Negligence||20%|
|Result||Defendant 1 is jointly and severally liable while Defendant 2 is only severally liable. Plaintiff can pursue Defendant 1 for the full 80% of Plaintiff’s damages (remembering that comparative negligence still applies and Plaintiff’s damages are offset by their own level of negligence) or pursue Defendant 1 for 60% and Defendant 2 for 20%.|
|Plaintiff’s Negligence||Defendant 1’s Negligence||Defendant 2’s Negligence||Result|
|Example 1||0%||50%||50%||Both defendants are jointly and severally liable for 100% of Plaintiff’s damages. Plaintiff can pursue each defendant for 50% or just one defendant for 100%.|
|Example 2||20%||40%||40%||Both defendants are severally liable only, so Plaintiff must pursue 40% of their damages from Defendant 1 and 40% of their damages from Defendant 2.|
|Example 3||20%||60%||20%||Defendant 1 is jointly and severally liable while Defendant 2 is only severally liable. Plaintiff can pursue Defendant 1 for the full 80% of Plaintiff’s damages (remembering that comparative negligence still applies and Plaintiff’s damages are offset by their own level of negligence) or pursue Defendant 1 for 60% and Defendant 2 for 20%.|
While plaintiffs may be able to bring cases for defective and dangerous products under a negligence theory, South Carolina Code § 15-73-10 also permits plaintiffs to bring these claims under a strict liability theory. In the case of Bragg v. Hi-Ranger, Inc., the Court of Appeals held that there are three requirements to bringing a successful strict liability claim:
- Plaintiff was injured by a product;
- The injury occurred because the product was in a defective condition, unreasonably dangerous to the user; and
- The product at the time of the accident was in essentially the same condition as when it left the hands of the defendant.
A strict liability theory benefits plaintiffs by not requiring them to prove that the seller or manufacturer failed to exercise due care as is required under a negligence theory. Additionally, strict liability cases do not focus on the fault of the user and are thus not subject to reductions in damages based on the users own negligence.
However, South Carolina Code §15-73-20 does place responsibility on the product user if the user discovers the defect, is aware of the danger, unreasonably uses the product, and is injury by it. Essentially, the statute provides an assumption of risk defense against claims alleging strict liability.
According to the Supreme Court of South Carolina as stated in the case of Barnwell v. Barber-Colman Co., the purpose of punitive damages “is to punish the wrongdoer and to deter him and others from engaging in similar misconduct.” Accordingly, punitive damages can only be awarded when plaintiff has proved that the defendant acted willfully, wantonly, or recklessly. Likewise, there is a general rule of capping punitive damages unless certain conditions are satisfied.
The process of obtaining an award that includes punitive damages begins at the onset of the case when the plaintiff specifically requests them in the complaint. If a case including a request for punitive damages goes before a jury, the case is divided into two parts. In the first stage, the jury determines if the defendant is liable for compensatory damages. Only if the defendant is liable for compensatory damages does the plaintiff get to argue for the application of punitive damages. In the second stage, plaintiff is able to argue why they feel that punitive damages are necessary. If punitive damages are awarded, the court reviews the amount of the award to ensure that it is not excessive.
Collateral Source Rule
South Carolina’s collateral source rule is designed to prevent liable defendants from receiving a plaintiff’s employment, insurance, or other contractual benefits. It accomplishes this purpose by requiring the defendant to pay the full amount they are responsible for without deducting any payment the plaintiff has already received or will receive from wholly independent sources.
For example, if an injured party uses medical insurance to cover upfront medical costs, the collateral source rule requires the defendant to still pay the full amount of damages, even though the money did not come out of the plaintiff’s pocket. This is not to say, however, that the plaintiff is entitled to compensation over what they actually paid. Instead, the insurance company (or other source of funds) is entitled to recover the amount that they paid.
South Carolina follows the general rule of obligating injured parties to mitigate their damages. This simply requires that plaintiffs take steps that an ordinarily prudent person would do in like circumstances to avoid as much damage as is reasonably possible. However, it does not require the plaintiff to take any unreasonable steps or to incur substantial expenses in order to avoid additional damage. Furthermore, the doctrine of mitigating damages is quite broad, and the burden of proof is on the defendant.
Magistrates have concurrent jurisdiction with the Circuit Court over “small claims” in South Carolina. As defined under South Carolina Code § 22-3-10, this means that magistrates can hear cases where the damages claimed are less than $7,500. However, under South Carolina Code § 22-3-20, magistrates do not have jurisdiction if the State is a party to the suit.
The Circuit Court is the court of general jurisdiction in South Carolina. This court is broken into a civil division, the Court of Common Pleas, and a criminal division, the Court of General Sessions. The Circuit Court also has limited appellate jurisdiction over Probate, Magistrate’s, and Municipal Courts. Burn injury is a subset of tort law, which is handled by the Court of common Please
The South Carolina Circuit Court is divided into sixteen judicial circuits that are manned by forty-nine circuit judges on a rotating basis. Each circuit maintains at least one judge with an office in the judge’s home county at all times. Circuit Court judges are elected to staggered six year terms by the South Carolina General Assembly.
Court of Appeals
Under Title 14, Chapter 8 of the South Carolina Code of Laws, the Court of Appeals has nine total judges, one Chief Judge and nine associate judges. Like the Circuit Court, judges on the Court of Appeals are elected by the South Carolina General Assembly to six year terms. The court is the primary method of appeal for decision of judges in the Circuit Court with limited exception.
As an appellate body, the Court of Appeals sits in panels of three but is also permitted to sit en banc—meaning all the judges are permitted to hear the case together. When the Court of Appeals decides to hear a case en banc, a decision requires at least 6 judges in order to be considered a
South Carolina Supreme Court
The highest court in South Carolina is the Supreme Court of South Carolina. The Court consists of 5 justices—one chief justice and four associate justices—who are elected by the South Carolina General Assembly to ten year terms. In addition to its role as the highest source of South Carolina state law, the Court is responsible for creating rules (both procedural and administrative) for all of the courts in South Carolina. While the Supreme Court of South Carolina has a limited scope of appeals that it handles directly, with regards to burn injuries, it hears cases exclusively on a discretionary basis.
The law firm of Walker Morgan is located at 135 E Main St., Lexington, SC 29072. All lawyers at Walker Morgan are licensed to practice law in the State of South Carolina. Should you wish to retain our firm for legal representation regarding a potential case in any other jurisdiction we are required to associate local counsel in that foreign jurisdiction and seek permission from a court of the foreign jurisdiction to temporarily engage in the practice of law therein for purposes of pursuing your potential claim only.
By offering the following information the lawyers at Walker Morgan are not offering legal advice or legal guidance. The lawyers at Walker Morgan are not licensed to practice law in South Carolina. Should you have a question/concern specific to South Carolina law, please contact an attorney licensed to practice law in the State of South Carolina.