What is Comparative Negligence?

Comparative Negligence is a legal doctrine which can apply to car wrecks, slip and fall accidents, premises liability, or any case brought under the theory of Negligence.  Essentially, the doctrine of Comparative Negligence states that the plaintiff’s recovery should be reduced by the percentage of fault attributed to the plaintiff.  For example, let us assume Driver A makes an illegal left turn into oncoming traffic.  Driver A is then T-boned by Driver B, who is traveling twenty-five miles over the speed limit.  In this scenario both drivers were negligent.  Driver A was negligent because she made an illegal left turn.  Driver B was negligent because he was speeding.  Who is ultimately responsible for the injuries suffered by Driver A?  To resolve this question in South Carolina, a Jury will be asked to apply the doctrine of Comparative Negligence.

At the close of the case the Judge will instruct the Jury to first determine if the Defendant, Driver B, was negligent and then determine whether the Plaintiff, Driver A, was also negligent. If the Jury concludes that both drivers were negligent, then the Jury must assign a percentage of fault to each party.  Essentially, the Jury is comparing the negligent or careless behavior of the Plaintiff and Defendant.  The Plaintiff may only recover if her negligence is 50% or less when compared to one or more Defendants.  Put more aptly, the South Carolina Supreme Court held … a plaintiff in a negligence action may recover damages if his or her negligence is not greater than that of the defendant.  The amount of the plaintiff's recovery shall be reduced in proportion to the amount of his or her negligence.  If there is more than one defendant, the plaintiff's negligence shall be compared to the combined negligence of all defendants.” Nelson v. Concrete Supply Co., 303 S.C. 243, 245, 399 S.E.2d 783, 784 (1991)

Returning to the previous example, if the Jury finds that both Driver A and Driver B are negligent, the Jury will then determine the damages suffered by the Plaintiff, Driver A.  Let us suppose they find that Driver A’s total actual damages were $100,000 dollars.  Now the Jury must “apportion” or compare the negligence by putting a percentage of fault on both Driver A and Driver B.  If the Jury puts 51% or higher on Driver A, then she recovers no money and receives a ZERO verdict.  However, if the Jury finds 50% or less negligence on the part of Driver A, then Driver A will make a recovery reduced by their percentage of fault.  So, if the Jury finds both Driver A 50% negligent and Driver B 50% negligent, then Driver A would recover $50,000 or 50% of $100,000.

Car wrecks in South Carolina are the most common types of cases where the doctrine of Comparative Negligence is applied.  Prior to Comparative Negligence, South Carolina and many other states had Contributory Negligence. Contributory Negligence was an incredibly harsh doctrine that denied any recovery if the plaintiff was even 1% at fault for a car crash.  In 1991, South Carolina adopted the Doctrine of Comparative Negligence in the case of Nelson v. Concrete Supply Co., 303 S.C. 243, 245, 399 S.E.2d 783, 784 (1991).  Perhaps the greatest and most thorough discussion of Comparative Negligence came from the great trial lawyer and appellate Judge, Alex Sanders.  Chief Judge Sanders authored the 1984 opinion in Langley v. Boyter, where he stated, “Thus, the absence of the doctrine of comparative negligence in South Carolina, like the presence of the doctrine of contributory negligence, has been brought about because, until now, no one has ever questioned which doctrine should be applied.” 284 S.C. 162, 177, 325 S.E.2d 550, 559 (Ct. App. 1984), opinion quashed, 286 S.C. 85, 332 S.E.2d 100 (1985)

Judge Sanders was ahead of his time in 1984.  Shortly after publishing his opinion in Langley v. Boyter, the Supreme Court quashed his opinion and continued the Draconian doctrine of Contributory Negligence in South Carolina.  However, as mentioned previously, the Supreme Court reversed its long-standing embrace of Contributory Negligence in 1991.  Further, in a belated nod to the wisdom and forethought of Chief Judge Sanders, the Supreme Court merely instructed members of the bar to read the 1984 Langley v. Boyter opinion rather than rendering its own reasoning.  See Nelson v. Concrete Supply Co., 303 S.C. 243, 245, 399 S.E.2d 783, 784 (1991).

Thankfully, motorists in South Carolina can ride a little easier knowing that recovery for a personal injury is not totally prohibited simply because they were 1% at fault for an accident. Indeed, a large percentage of car wrecks involve some percentage of negligence on both drivers involved in the crash. The trial lawyers at Thomason & Pracht are familiar with the specifics of Comparative Negligence law in South Carolina and can help if you or a loved one has been injured in a motor vehicle crash.  Please do not hesitate to call for a free consultation. 


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