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What is Contributory Negligence?

Most accidents in South Carolina are caused by negligence, meaning the failure to use reasonable care. For example, a motorist who is too lazy to check their mirrors before changing lanes is negligent when they collide with someone already traveling in the left-hand lane. Another term for negligence is “fault.” Any driver at fault should pay compensation to injured victims.

However, in some accidents, both parties are negligent to varying degrees. Perhaps the vehicle that gets hit on the highway was also speeding and therefore shares some of the blame. In this scenario, both drivers have failed to use reasonable care when driving on the road, so in a sense, both are at fault for the wreck.

Once upon a time, South Carolina followed the doctrine of “contributory negligence,” but now it uses a comparative negligence rule. Below, our Aiken, SC personal injury attorney reviews the relevant history and explains how comparative negligence can impact your case.

Old Rule: Contributory Negligence

Before 1991, a victim in South Carolina who was even 1% at fault for an accident was barred from bringing a lawsuit for compensation. This was the contributory negligence defense—and it was as severe as it sounds.

Imagine that a distracted driver swerves off the road and mows down a pedestrian walking along the shoulder. This driver is clearly at fault for the wreck and probably severely injured the pedestrian in the process. However, if the pedestrian was briefly looking at her phone in the moments before the collision, then she was also negligent for failing to pay attention.

Although the pedestrian’s negligence isn’t remotely as serious as the driver’s, contributory negligence would nevertheless bar a lawsuit. Consequently, the victim would likely receive absolutely no compensation for the accident, and the distracted driver would get off completely free.

Today, only a handful of states like North Carolina and Alabama continue to follow the contributory negligence rule. Instead, other states have modified it.

New Rule: Modified Comparative Negligence

Everything changed in South Carolina in 1991. In the case, Nelson v. Concrete Supply Company, the South Carolina Supreme Court decided to get rid of contributory negligence and adopt a comparative negligence rule because it was more “equitable”—essentially, fairer to all parties involved. This rule has now applied to personal injury lawsuits for more than 30 years.

Under the new rule, a person can bring a personal injury lawsuit so long as their negligence “is not greater” than the defendants. In other words, a plaintiff can be up to 50% at fault for an accident—but not a smidge over. If they are 51% to blame or greater, then they cannot receive compensation in a lawsuit.

This new rule allows someone who has been injured to sue provided they don’t bear most of the blame for an accident. It helps people like the hypothetical pedestrian mentioned above, but it wouldn’t help the driver who struck her.

Damages Are Reduced by Fault

The rule adopted by our Supreme Court in 1991 has another wrinkle we must mention. Although a plaintiff can sue if they were somewhat negligent, their damages get reduced by their percentage of fault. In other words, they will get less compensation than if they were completely blameless.

Return to the hypothetical involving a pedestrian struck while walking on the side of the road and looking at her phone. At trial, the jury might decide that the pedestrian is 20% to blame for the accident and the distracted motorist is 80% to blame. Based on the evidence, they decide the pedestrian’s losses total $100,000.

Because the pedestrian was 20% to blame, however, she will not get 20% of her damages. At most, she will take home $80,000. Had she been 50% to blame, she would have gotten $50,000 in compensation. And had she been 60% to blame, she would have gotten nothing because she would have been more at fault than the defendant.

In a trial, the factfinder (usually the jury) will decide each side’s proportion of fault. If you are negotiating a settlement, then the insurance adjusters will allocate fault between the parties.

Other States Have a More Lenient Rule

Interestingly, other states have what is called a “pure” comparative negligence rule. Under this system, a person can bring a lawsuit regardless of their percentage of fault, so long as the defendant is at least 1% to blame. In effect, a person could sue even if they bore 99% of the blame for the accident. As in South Carolina, their damages would still get reduced by their percentage of fault. Florida and California are two of the more prominent states to operate under a pure comparative negligence scheme.

How South Carolina’s Negligence Rules Affect Your Case

If you were injured in an accident, you would benefit greatly from hiring an experienced South Carolina personal injury attorney who can find evidence to minimize your own negligence. As you might expect, one way a defendant can defend their case is to argue you bear most of the blame for the accident. In a car crash, for example, the other driver might claim you were distracted, fatigued, or careless. Even if they cannot pin most of the blame on you, they can still reduce the amount of compensation they end up paying.

Unsurprisingly, many drivers and their insurers begin digging for evidence to use against a victim. For example, they might quickly contact you to ask for a recorded statement. In this statement, they try to get you to agree with statements that they make, such as, “You weren’t really paying attention, right?” or “You didn’t see the driver, correct?” If you agree, then it sounds like you are admitting to being careless and distracted yourself. These statements can come back to haunt a victim.

With the right attorney, you should never be ambushed like this. Our legal team advises our clients not to speak with any insurance adjuster unless we are present. We can then clarify any statements and dispel confusion.

Contact Our Firm to Learn More

Surasky Law understands how difficult it is to obtain meaningful compensation following a crash or other accident. Please contact our firm today to schedule a free consultation.


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