Negligence is the most common legal theory used to recover damages in personal injury cases
To file a successful personal injury lawsuit, you need to be able to set forth a legal theory and show how the facts of your case support that legal theory.
The legal theory used in the vast majority of personal injury cases is negligence. With that in mind, let’s take a look at negligence laws in the Palmetto State.
What is negligence?
“Negligence” is the failure to exercise the appropriate standard of care. The specific standard of care that applies depends on the relationship between the plaintiff and the defendant.
Common examples of negligence include:
- A driver who runs a red light
- A store owner who fails to clean up a spilled drink in a timely manner
- A doctor who operates on the wrong body part
- A swimming pool owner who allows children to swim in their pool unsupervised
Establishing the elements of negligence in South Carolina
To establish a successful negligence claim, you must prove the following 3 elements:
- Duty. The plaintiff (the injured party) must prove that the defendant (the allegedly at-fault party) owed them a duty of care. A duty of care arises when the law recognizes a relationship between the plaintiff and defendant requiring the defendant to exercise a certain standard of care to avoid harming the plaintiff.
- Breach. The plaintiff must prove that their injury was caused by the defendant’s breach of the standard of care.
- Causation. The plaintiff must prove that their injury was caused by the defendant’s breach of the standard of care.
Let’s take a closer look at each of these elements.
In order to sue someone for negligence, you have to establish that the person (or entity) owed you a duty to adhere to some standard of care.
In general, people owe a duty to adhere to a standard of reasonable care while performing acts that could foreseeably harm others.
To put it another way, if a person is doing something that might harm others (such as driving a car), the person has a duty to act as a reasonable person would act (by, for example, not driving while intoxicated).
In certain cases, the standard of care owed is more specific.
For example, healthcare providers owe a duty to exercise the “degree of care and skill expected of a reasonable healthcare provider in the same profession.” Common carriers (those who transport people or property for money, such as bus drivers) have a duty to exercise the “highest degree of care.”
Once the appropriate standard of care is established, the court must decide whether the defendant breached the standard of care.
There’s no set formula for determining whether the defendant breached the standard of care. For highly technical fields (such as medical professionals), experts typically testify as to whether the defendant’s actions deviated from industry norms.
Several hours later, 2 automobiles entered the intersection at approximately the same time. The view was somewhat obstructed and neither driver saw the other until the collision was inevitable.
A passenger in one of the vehicles suffered permanent paralysis when she was impaled on the gearshift lever. The passenger sued the construction company, alleging that the company was negligent for removing the stop signs.
In deciding that the construction company was negligent, the South Carolina Supreme Court pointed out that the construction company could have easily put up temporary stop signs or otherwise warned travelers of their duty to stop before entering the intersection.
Just because someone acted carelessly, doesn’t mean they were negligent in a legal sense. In order to be negligent, the defendant’s carelessness must have been the cause of your injury.
To prove causation, you must establish both causation in fact and legal cause.
Causation in fact is proved by establishing that your injury would not have occurred but for the defendant’s negligence. Legal cause is present if the injury was foreseeable. An injury is foreseeable if it’s the natural and probable consequence of a breach of duty.
Let’s look at a couple of examples to distinguish causation in fact from legal cause:
Bill runs a red light and slams into Jennifer’s car. The impact of the collision causes Jennifer’s knee to strike the steering column. The knee injury requires physical therapy.
In this example, Bill’s act of running the red light was the cause in fact of Jennifer’s knee injury. In other words, but for Bill running the red light, the accident wouldn’t have occurred.
What’s more, there is legal cause because it was foreseeable that running a red light would result in a car accident.
Bill runs a red light and slams into Jennifer’s car. Jennifer is uninjured. When she exits her car to check on Bill, she slips on a patch of ice and falls down a steep bank and into a creek. Jennifer suffers a mild brain injury as a result of hypothermia.
In this example, Bill’s act of running the red light was the cause in fact of Jennifer’s brain injury. In other words, but for Bill running the red light, Jennifer wouldn’t have fallen into the creek.
However, a court is unlikely to find that there is legal cause because it wasn’t foreseeable that running a red light would result in another driver developing hypothermia.
Although the burden of proving causation is generally on the plaintiff, the burden of proof may shift if there is more than 1 defendant and the plaintiff can’t prove which of the defendants’ similar acts of negligence caused the harm.
For example, assume there are 3 hunters in the woods, and 2 of the hunters negligently shoot their guns in the direction of the 3rd hunter at the same time. The 3rd hunter is hit with a bullet but he can’t establish from which gun the bullet came. In this situation, both defendants would be subject to liability unless either of them is able to prove that they didn’t cause the injury.
What is gross negligence?
In South Carolina, punitive damages are only available if the defendant acted with “gross negligence.”
So what is gross negligence?
The South Carolina Supreme court defined gross negligence as “the failure to exercise even slight care.”
The term has also been defined by South Carolina courts as “the intentional, conscious failure to do something which it is incumbent upon one to do or the doing of a thing intentionally that one ought not to do.”
To put it simply, gross negligence requires something more than carelessness.
The record showed that the Department of Licensing received multiple credible reports of suspected problems and hazards with the ride, but the Department of Licensing failed to give the matter even a “cursory glance.”
The South Carolina Supreme Court found that the Department of Licensing was grossly negligent.
What is negligence per se?
Negligence requires a plaintiff to prove that the defendant owed them a duty and that the defendant breached the duty. Under the doctrine of negligence per se, the defendant’s law-breaking act serves to establish the first 2 elements of negligence automatically.
To put it another way, if negligence per se applies, you don’t need to prove that the defendant owed you a duty or that the defendant breached the duty.
So when does negligence per se apply in South Carolina?
Negligence per se applies when the defendant breaks a law that:
- Was enacted for the protection and safety of the public, and
- Expresses the rules of conduct in specific and concrete terms.
Comparative fault in South Carolina
You might wonder if you can still recover damages if you were partially at fault for your accident. The answer varies by state.
In South Carolina, a plaintiff can recover damages so long as they’re not more than 50% at fault for the accident. However, their damages are reduced by their percentage of fault. This is called the modified comparative fault rule.
Let’s look at an example:
Jason suffers a whiplash injury and sues Linda for $100,000.
At the end of the trial, the jury determines that Linda was 60% at fault for the accident (for running into the middle of the road) and that Jason was 40% at fault for the accident (for texting while driving).
Under South Carolina’s modified comparative fault rule, Jason is only able to recover $60,000 of his damages.
Had Jason been found 50% at fault, he would only be able to recover $50,000. On the other hand, had Jason been found 51% at fault, he would be barred from recovering ANY damages.
Statute of limitations
In South Carolina, you only have a certain amount of time to file a lawsuit before your right to file a lawsuit is permanently barred. This time restriction is known as the statute of limitations.
For most negligence cases in South Carolina, you have 3 years from the date of the injury to file a lawsuit.
There’s an important exception to the 3-year statute of limitations for negligence. If you're suing the local, state, or federal government, you must file your lawsuit within 2 years of the injury (although it can be extended to 3 years if you file a “verified petition” within 1 year).
Steps to take if someone’s negligence caused your injury
If you believe someone’s negligence caused your injury, there are a few steps you can take to preserve your rights and maximize your chances of recovery:
- Seek medical attention. If you suffer an injury, your priority should be your health. Call 9-1-1 or schedule an appointment with your doctor as soon as possible. Keep in mind that certain injuries, including some serious internal injuries, might not show symptoms until days or even weeks after an injury.
- Gather evidence. If it’s safe to do so, gather as much information about the accident as possible. This might include witness contact information, photographs, and police reports.
- Keep track of your damages. To improve your chances of recovering the damages you deserve, it’s important to keep track of all the expenses associated with your injury, as well as the ways in which the injury impacts your day-to-day life.
- Contact a personal injury attorney. To preserve your rights, it’s important to contact a personal injury attorney as soon as possible. Most initial consultations are free.
Damages worksheet to track expenses for your injury claim (medical treatment, property damage, lost wages, prescriptions)
Download in PDF format
Post-Accident Journal Form
Sample accident journal/diary to help you document the effect on your daily life
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