Comparative Negligence in South Carolina: The Definitive Guide

Imagine you witness a car accident. Thankfully, everyone is okay! Eventually, the officer on scene asks for your opinion on what you observed: Who was at fault for the accident?

Fault is a topic of primary interest to law enforcement – and the insurance company. Sometimes, fault is easy to assess. If a distracted driver rear ends another vehicle, that can be open-and-shut. With fault being so clear, there should not be much to disagree over, and the distracted driver’s insurance carrier should not have a basis to deny the victim compensation or reduce their payout.

However, most insurance companies are for-profit. That means some insurance adjusters may home in on the tiniest detail as a basis to say the victim was at least partially at fault for the accident – and thus does not deserve the compensation they’re requesting. For example, in our rear end scenario, imagine they discover that the victim was changing the radio station at the time of the incident. If not for that “distraction,” they contend, the victim in hindsight could have taken some maneuver to avoid the wreck.

Sounds extreme, but could it actually happen? In some states, maybe. Thankfully, that kind of scenario has become much less likely since South Carolina adopted the standard of comparative negligence.

What Is the South Carolina Comparative Negligence Statute?

The South Carolina comparative negligence statute and its associated rules lay out what to do if multiple people are involved in an incident where someone gets injured. Comparative negligence (sometimes called “modified comparative negligence”) means being held responsible for your portion of the blame for an accident or incident. The jury compares your negligence and the negligence of the other party and assigns a percentage of fault to each of you.

By rule, you can only potentially collect for the percentage of the accident that wasn’t your fault. In order to figure out how much at fault each person is, a jury compares all the negligence and assigns a percentage of fault to each party.

Can One Partially At Fault Party Sue Another Partially At Fault Party?

Under the doctrine of comparative fault, as long as the plaintiff’s blame is equal to or less than the defendant’s blame, the plaintiff is still eligible to recover potential compensation.

On the other hand, if a jury deems the plaintiff to be more than half at fault for the incident, the plaintiff is barred from compensation in South Carolina. This is called the 51% rule.

Pie chart to show South Carolina Comparative Negligence Law if they are at fault of more or less than 50%

Does This Mean South Carolina Is an At Fault State?

Yes, South Carolina is an at fault state. But what does that mean for you?

Let’s take the common example of a car accident. In a no-fault state, who was at fault doesn’t particularly matter for insurance claim purposes. Each injured party generally turns to their own insurance policies to cover their harms and losses. In South Carolina, fault matters. Broadly speaking, the at fault person (or their insurance) has to pay for the other person’s personal and property damages resulting from the accident. The victim should be made whole.

Read More: South Carolina Personal Injury Law Basics

What Is an Example of Comparative Negligence in South Carolina?

Let’s say Driver A is going above the speed limit, but is otherwise driving appropriately at the time of the accident. Driver B is going the speed limit, but doesn’t have their lights on. They crash.

Damages after the car wreck are calculated at $1,000. If the jury decides Driver A was 40% at fault for the accident and Driver B was 60% at fault, Driver A can potentially collect up to $600 in compensation from Driver B. Driver B would be barred from trying to recover compensation from Driver A (since they are over 50% at fault).

Comparative Negligence in SC when at fault 40% or 60%

Comparative Negligence: A Slip and Fall Example

Just so you don’t think it’s all about car accidents, here’s an example involving a slip and fall. Let’s say you’re walking through a mall and you slip on a wet spot. You think the mall will be on the hook for your injuries.

Upon further investigation, however, it turns out you were on the phone at the time of the fall and perhaps weren’t sufficiently focused on where you were walking. Is there shared blame? A jury would need to assess if and how much each party was at fault.

These are the kinds of ambiguous situations the comparative negligence doctrine was created to address.

Comparative Fault vs. Contributory Negligence

Some states (like North Carolina) have an alternative system called the contributory negligence rule. South Carolina used to follow contributory negligence, until they determined it was outdated and leading to unfair outcomes. Under contributory negligence, any amount a party contributed to the accident or injury — even 1% — could prevent them from recovering compensation.

Said another way, the insurance company for a defendant who is 99% at fault could technically get off the hook in a contributory negligence state if they can show – in hindsight – that the victim was even the tiniest bit at fault. Remember, the insurance company has a different agenda than yours. Some insurance companies may put significant resources and effort into unearthing a bit of blame for you with the benefit of hindsight.

Contributory negligence is a harsh rule initially designed to prevent frivolous cases from being filed. Fortunately, South Carolina adjusted in 1991. In ’91, South Carolina switched from contributory negligence to the current, more equitable system of dividing blame by comparative fault. Most states have the comparative negligence rule and consider it much fairer than contributory negligence.

“Pure” Comparative Negligence

A few states still use an old system called pure comparative negligence. Under these rules, a plaintiff can try to recover the amount the defendant was responsible for — even if the defendant was only a bit at fault. As there is no “51% rule,” it is technically possible (but unlikely) to see someone 99% at fault in an accident trying to recover compensation from a party who is only 1% at fault.

South Carolina vs. the Others

51% rule?
At fault plaintiff can recover
South Carolina (Comparative Negligence)
Yes
Yes
Pure Comparative Negligence State
No
Yes
Contributory Negligence State
1% fault can be a bar
No

When Did South Carolina Adopt Comparative Negligence?

By 1991, South Carolina had completely switched over from the old contributory negligence system and started using their current comparative negligence rules for their injury and accident cases. The changeover happened in an iconic case, Nelson v. Concrete Supply Company.

The court’s decision made it explicit that the changeover was complete and even supplied the rationale: “Having determined comparative negligence is the more equitable doctrine, we now join the vast majority of our sister jurisdictions and adopt it as the law of South Carolina.”

What if More Than Two Parties Are At Fault Under South Carolina Negligence Law?

Apportioning blame between the plaintiff and one defendant may not be the end of the process. What if three or more parties were involved in the incident?

Let’s imagine that damages after a car accident have been assessed at $1,000. Driver A is trying to get compensation from Driver B and Driver C. The jury finds that Driver A is 10% at fault, so Driver A is eligible to recover up to $900 from the other two drivers. As it turns out, Driver B has no money whatsoever.

In this scenario, can Driver A get the full $900 from Driver C?

Comparative Negligence in SC illustrations of 3 drivers involved in an accident

The old rule in South Carolina would have made Driver C liable for the full $900. Why? Either A or C is getting the short end of the stick here. Under the old rule, it was decided that it was better that C lose money than A be unable to pay for medical care. C was partially at fault, after all.

The new rule says that each defendant is only responsible for up to their percentage of liability as assigned by the jury or the judge – as long as a defendant is less than 50% at fault. In our scenario, remember that Driver A has been found 10% at fault. The jury assigns the remaining blame evenly: Driver B is 45% at fault, as is Driver C. Driver A is entitled to recover $450 from each driver. If Driver B has no money, Driver C is still only responsible up to their percentage of assigned blame: 45% or $450.

Do I Want a Lawyer for My Case Involving Comparative Negligence?

Yes. The vast majority of cases never get to the courtroom. That means, instead of dealing with jurors looking to impartially assess each party’s fault, you’ll be going head to head with an insurance adjuster from the other party’s insurance company. The adjuster represents the insurance company’s interests, and you should have an experienced advocate looking out for yours.

Any settlement offer an insurance adjuster makes will be based on their determinations regarding your level of fault. An insurance adjuster can have tremendous incentive to assign every possible bit of blame to you, thereby reducing or even avoiding a settlement payout. With the help of hindsight and extensive training, your adjuster can be an intimidating obstacle in your fight for the compensation you may deserve. You should have a skilled attorney in your corner to make the fight fair.

The Bottom Line: South Carolina Comparative Negligence

What does comparative negligence mean for you? Before 1991, you could be barred from any recovery in South Carolina if an insurance company could find the slightest evidence of your fault. While that’s still the standard across the border in North Carolina, South Carolina has modernized. Thus, even if you’re partially at fault in an accident, you still may be able to recover compensation. This system can often yield the fairest results, but you must be very careful in your dealings with the insurance company.

Every case is unique, and the specific facts and subtleties of your injury can make a world of difference. That’s why hiring a personal injury attorney is a good idea. For a free case evaluation, call 1-866-900-7078.

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