Generally, recovery for personal injuries occurs via tort liability. A tort is a civil wrong that unfairly causes another person to suffer a loss or harm. The person responsible for this loss or harm, known as the tortfeasor, becomes legally liable for the damage or losses he or she caused.
Torts are a unique area of the law in several ways. First, the tortfeasor need not commit a crime or even act intentionally in causing harm. Their negligence, covered in detail later, is sufficient to make them liable for the harm.
Second, as torts pass through the civil court system, the standard of proof is different from criminal cases. Criminal cases require that the state must prove their case beyond a reasonable doubt. Tort cases generally only require that the plaintiff, taking the same role as the state in a criminal case, prove their case to a lower burden of proof, generally the preponderance of the evidence.
The O.J. Simpson case illuminates this distinction well. Although acquitted of murder, O.J. was liable for the tort of wrongful death.
Negligence is a failure to act with the care that a reasonably prudent person would act with under the circumstances. Negligence actions generally result from acting carelessly. The element to a negligence claim are explained briefly below.
The duty of care requires that actors must act in a way that avoids reasonably foreseeable harm to another. In South Carolina, a duty arises from an actor’s relationship with the injured party. Parties must have a sustained relationship recognized by the law as a foundation of a duty of care. This duty may arise by statute, contract, relationship, status, property interest, or other special circumstance.
Breach of the duty of care is the second element of a negligence claim. It is a question of fact generally left to the jury. Briefly stated, when a tortfeasor fails to act in a way that avoids reasonably foreseeable harm to someone they owe a duty of care to, they breach their duty of care.
The third element of a negligence claim is causation. Causation can be broken into two elements, both of which must be satisfied for a successful negligence claim. The first element of causation is cause-in-fact causation.
Cause-in-fact causation is generally referred to by legal professionals as “but-for causation.” This element is satisfied when the plaintiff can prove that they would not have been injured if the tortfeasor had not breached their duty of care.