If you are injured by another person, you will most likely be focused on their liability. However, your actions will also be assessed when pursuing compensation for an injury.
Fortunately, South Carolina will not bar you from filing a lawsuit even if you are partially at fault. While the state used to employ a harsher traditional rule to determine fault, it has since embraced the modern “comparative negligence” rule. Under the current rule, South Carolina injury victims can sue and recover compensation as long as they are not more responsible than the defendant for the accident. Our lawyers can help you understand how this rule will play out in your case. Our goal is to gather enough evidence so that the defendant’s liability is clear, thereby limiting your responsibility and increasing your compensation.
For a free case review, contact our South Carolina personal injury attorneys at Burriss Ridgeway Injury Lawyers at (803) 451-4000.
Can Personal Injury Victims Still File a Lawsuit if They Share Fault for an Accident in South Carolina?
Fault has been an evolving issue in South Carolina personal injury law. While you can sue if you are partially at fault, recovering damages is another matter. Historically, South Carolina followed the traditional rule of “contributory” negligence. Under this older standard, personal injury victims could not recover any compensation if they were found even slightly at fault. This means that if you were just 1% at fault, you would not have won your claim. This is clearly a harsh and unfair rule, which is why most states, including South Carolina, no longer use it.
The Supreme Court of South Carolina abandoned the contributory negligence rule in the 1991 case of Nelson v. Concrete Supply Company, opting for the more modern “comparative” negligence standard. With the modified comparative negligence rule, you have a much fairer chance of getting the compensation you deserve despite being partially at fault. Our South Carolina personal injury lawyers can review your case to determine how this rule could impact your payout and how to limit your liability. The following will explain how fault is decided in a lawsuit:
The 51% Rule
Different states have different comparative negligence rules. In South Carolina, you will be barred from recovering damages if the defendant’s conduct is found to be less than 50% at fault, according to S.C. Code Ann. § 15-38-15(A). To put it another way, you can recover compensation as long as you are not found to be 51% or more at fault. This is commonly known as the “51%” rule. If the court finds you partially at fault but not 51% or more, you will be awarded compensation, but it will be reduced by the amount of fault you contributed to the accident.
An example will more clearly demonstrate this rule. Let’s say you were driving and slightly speeding when the defendant illegally turned out in front of you. At the end of your case, the court awards you $100,000 for your damages. It then concludes that the defendant was 90% at fault and you only 10%. This 10% is then subtracted from your total award, leaving you with $90,000 in compensation. However, if the court found that the defendant’s fault was less than 50%, you would receive $0 in damages.
Of course, you might wonder what happens if the fault is split between you and the defendant 50-50. If the court found both parties equally at fault, you would still recover compensation minus your portion of liability. The law states that the defendant must be found less than 50% at fault to escape liability. So, if the defendant is found to have any percentage of fault at 50% or higher, even 50.01%, the plaintiff will still recover damages.
Damages Caused by Intentional Conduct and Gross Negligence
Comparative negligence will not be an issue if the defendant’s conduct is found to be intentional or grossly negligent. The 51% rule only comes into play when ordinary negligence is involved. According to § 15-38-15(F), comparative negligence will not be applied if the victim’s injuries were caused by wanton, reckless, willful, grossly negligent, or otherwise intentional conduct. It will also not apply in cases involving the use of alcohol or drugs.
This usually applies when you file a civil case for damages caused by a crime. For instance, if you sue a drunk driver after the state has prosecuted them. However, you can still argue reckless or grossly negligent conduct even if the defendant was not charged with a crime. If the defendant’s conduct would be considered egregious or shocking to reasonable people, our attorneys can argue that the comparative negligence standard should not be applied to your conduct.
Arguing Fault in a South Carolina Lawsuit
Most injury cases start by filing an insurance claim. During the claims process, the above rule is used to guide each side, but determining fault at this stage is usually a matter of negotiation. If there are facts the insurance company can use to lower the compensation it pays you, it will use it. Our attorneys can help you fight these claims to achieve a better settlement, but sometimes, having a jury decide liability is better.
A jury is much more likely to be open to our arguments than a biased insurance company. In a trial, the court will first decide the amount of damages. If it is a “bench” trial, the judge will decide. If it is a traditional trial, a jury will determine damages and liability.
After the court renders a verdict on damages, it will issue a special verdict on the percentage of liability in the case. However, § 15-38-15(C)(3)(b) allows both sides to make further oral arguments before the court renders its verdict. If the trial is long or complex, the question of liability can get muddled. This gives our attorneys another opportunity to argue the evidence presented in the trial in a more comprehensive manner.
What if Fault is Shared Between the Plaintiff and Multiple Defendants in South Carolina?
The same rules above apply in cases where multiple defendants are alleged to have caused your injuries. South Carolina used to have “joint and several” liability, whereby each defendant was responsible for 100% of the damages regardless of their share of the fault. Under § 15-38-15(C)(3), each defendant will only be responsible for their share of the accident. However, the collective liability among the defendants must still add up to 50% or more in order to recover compensation.
Our South Carolina Personal Injury Lawyers Can Help You Today
Call our Columbia, SC personal injury lawyers at Burriss Ridgeway Injury Lawyers at (803) 451-4000 today for a free case consultation.
