South Carolina employs the doctrine of modified comparative negligence to apportion liability among tortfeasors. That is, a plaintiff may recover damages if they are 50% or less at fault for the event that caused their injuries. If they are 51% at fault, or more, their own negligence acts as a complete bar to compensation. The victim’s damages are reduced by their percentage share of relative fault, as determined by the finder of fact (judge or jury).
Most states have adopted some form of modified comparative negligence. However, some states have different ways of apportioning liability in cases of shared negligence.
While South Carolina uses modified comparative negligence today, it hasn’t always been the case. Tracing the history of comparative negligence law in the state can provide insight into the law and how it has been applied in tort cases throughout South Carolina.
Contributory Negligence in South Carolina – Prior to 1991
Until 1991, contributory negligence was the law in South Carolina. (See Freer v. Cameron, 37 S.C.L. (4 Rich.) 228 (1851) (first adopting contributory negligence as the legal standard in South Carolina). Any amount of negligence on the part of the plaintiff acted as a full bar to recovery. McLean v. Atlantic Coast Line R.R., 81 S.C. 100, 112, 61 S.E. 900, 904 (1908). The McLean court explained, “[T]he doctrine of comparative negligence is not recognized…[I]t is only necessary…to show some negligence of plaintiff directly contributing as a proximate cause of the injury…” Id., at (112).
Until 1991, attempts to shift to a comparative negligence system through judicial directive were unsuccessful. In Langley v. Boyter, 284 S.C. 162, 325 S.E.2d 550 (Ct. App. 1984), quashed per curiam, 286 S.C. 85, 332 S.E.2d 100 (1985), the court declined to discuss the merits of comparative negligence. At the time, they called the doctrine of contributory negligence “basic, well-established law.” Id., at 87. See also Marley v. Kirby, 271 S.C. 122, 245 S.E.2d 604 (1978); Wessinger v. Southern Ry., 470 F. Supp. 930 (D.S.C. 1979) (rejecting comparative negligence in limited contexts as violative of the Equal Protection Clause).
Note: For a detailed review of the history of contributory negligence and its erosion over time throughout United States jurisprudence, see Langley v. Boyter, supra.
Comparative Negligence Adopted by South Carolina Case Law – 1991
In making its ruling, the court stated that comparative negligence is “more equitable” than other methods of apportioning liability. For actions arising July 1, 1991 and later, the courts directed use of a comparative negligence system. The system was modified, with damages recovered if negligence of the plaintiff was not greater than that of the defendant (50% or less).
In cases of multiple defendants, the defendants’ negligence is combined and compared to that of the plaintiff for the purpose of determining right to compensation. See Elder v. Orluck, 511 Pa. 402, 515 A.2d 517 (1986).
The Nelson case establishing modified comparative negligence was based on a fatal motor vehicle crash. Nelson, supra. The defendant was driving an 18-wheeler truck. They were on a highway entrance ramp ready to merge into traffic. The victim hit the back of their truck. At trial, the court refused to instruct the jury on the question of comparative negligence. The South Carolina Supreme Court used its ruling in Nelson to adopt comparative negligence as the legal standard for future cases in the state. Id.
Since the Supreme Court issued its opinion in 1991, Nelson has been cited many times as authority for comparative negligence in South Carolina tort law. See Stephens v. Draffin, 327 S.C. 1, 488 S.E.2d 307 (1997); Estate of Haley ex rel. Haley v. Brown, 370 S.C. 240, 634 S.E.2d 62 (S.C. Ct. App. 2006). The case continues to be cited following the codification of modified comparative negligence in 2005. The Nelson opinion does not directly explain why the court chose modified comparative negligence, where recovery is barred at 51% plaintiff’s liability, over pure comparative negligence. See Nelson, supra.
Statutory Law Adopting Negligence in South Carolina – 2005
South Carolina lawmakers codified modified comparative negligence in 2005 in S.C. Code § 15-38-15. Perhaps the codification of modified comparative negligence in 2005 did little to change the basic tenets of comparative negligence that were already in place through Nelson and its progeny. However, the law addresses joint and several liability among defendants and rejected the inclusion of non-party tortfeasors for the apportionment of liability.
In codifying modified comparative negligence, lawmakers rejected pure joint and several liability among defendants. Previously, pure joint and several liability was seen as the preferred method because it allowed the deserving victim to realize their recovery in full, even if it meant that a single defendant paid more than their share of culpability. However, with the codification of modified comparative negligence, lawmakers chose to apportion liability among defendants – and with it, the responsibility for damages – just as it is apportioned to the plaintiff, where appropriate.
Joint and several liability now applies in a similar manner to comparative negligence: If a defendant is more than 50% at fault, they are liable for the total damages to the plaintiff. If they are 50% or less at fault, they are liable for only their share. The defendant’s fault is evaluated relative to all other parties involved, including the plaintiff and other defendants. However, certain exceptions apply when alcohol, drugs, or other egregious conduct is involved.
Note: Non-party fault is not directly addressed in § 15-38-15. However, Fagnant v. K-Mart Corp, No.: 4:11-cv-00302-RBH (D.S.C. Dec. 31, 2013) suggested that non-party defendants should not be considered by the jury in apportioning liability. Smith v. Tiffany, 419 S.C. 548, 799 S.E.2d 479 (2017) similarly rejected the inclusion of non-party tortfeasors citing the plain language of § 15-38-15 and the need to give effect to the intent of the legislature.
Comparative Negligence in South Carolina Today
Modified comparative negligence and the tenants of Nelson remain law in South Carolina today. A plaintiff is not barred from pursuing compensation because of their own negligence. Rather, they must prove that they are less than 51% at fault for the events causing their harm. For any plaintiff, proper recovery requires clear case presentation of evidence and compelling argument to the finder of fact.