Walker Morgan LLC

Who Is Responsible Guide

Who Is Responsible Guide

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.

Duty of Care

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.

Causation – Cause in Fact

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.


Causation – Proximate Cause

The second element of causation is proximate-cause causation. Proximate cause is a limitation on negligence claims.

It requires that the injury caused by the breach of duty is a foreseeable result of the tortfeasor’s breach of their duty of care. To put this another way, the resulting injury must be a natural and probable consequence of the negligent act.


The final element of a negligence claim is that the plaintiff must prove damages. This requires the plaintiff to show that the tortfeasor’s actions actually harmed them.

Tangible damages may include medical costs, lost wages, or any other actual damage attributable to the negligence.

Intangible damages, such as pain and suffering or mental anguish, can also be recovered.

In some circumstances, where a tortfeasor acts recklessly or intentionally, punitive damages, aimed to punish the tortfeasor for their conduct and dissuade future tortfeasors from acting similarly, are available.

Gross Negligence and Recklessness

In South Carolina, a tortfeasor is grossly negligent if he or she is so indifferent to the consequences of his conduct that he does not have the slightest care for his actions. It involves a conscious disregard to acting with due care.

Recklessness is a higher degree of negligence than gross negligence. It involves indifference to a level where the nature of the act is assumed to be willful. Reckless acts are those that are knowingly negligent.

Comparative Negligence

Comparative negligence is a defense used by the tortfeasor when the plaintiff’s negligence contributed to their injuries.

When used, the jury must determine the level of fault for both the plaintiff and the tortfeasor.

South Carolina uses a modified comparative negligence scheme. A plaintiff may only recover if his or her negligence is not greater than that of the defendant. The plaintiff’s recovery will be reduced proportionally by the amount of his or her own negligence.

Strict Liability

Under strict liability, a defendant is liable for injuries suffered by a plaintiff, regardless of the level of care with which the defendant acted.

Strict liability applies to situations or activities that are so dangerous that potential tortfeasors must take every available precaution to prevent injury.

It can also apply to defective and dangerous products that harm consumers.

Intentional Torts

An intentional tort is one where the tortfeasor acted intentionally in a manner that harmed the plaintiff.

The intentional torts most often associated with burns are the tort of assault and the tort of battery.

An assault occurs when a tortfeasor intentionally acts in a manner that causes a reasonable apprehension of immediate offensive or harmful contact to another.

A battery occurs when a tortfeasor intentionally makes offensive or harmful contact with the person of another.

Our Attorneys

injury lawyer kirk morgan

Kirk Morgan


injury lawyer billy walker

Billy Walker


injury lawyer will walker

Will Walker


injury lawyer chuck slaughter

Chuck Slaughter


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Degrees of Burns

First , second , and third degree burns

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Burn Injuries

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Scald Burn Injury

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