• Attacking the Negligence Claim
• Comparative Negligence
• Statutes of Limitations
• Assumption of Risk
• No Seatbelt Defense in SC

Attacking the Negligence Claim Itself
The defendant has two avenues of attack against a claim.  The defendant can attack the plaintiff’s claim of negligence or the defendant can plead affirmative defenses, such as comparative negligence and assumption of risk, which are listed and discussed below.

The claim of negligence itself basically consists of the claim that the defendant did not act with reasonable care and that lack of care caused the plaintiff’s injuries.

The defendant can attack this claim in various ways:

• The defendant can argue that the law did not require him to act carefully toward the plaintiff.
• The defendant can argue that he or she did act with reasonable care.
• The defendant can argue that his or her actions did not cause the plaintiff’s injuries, and
• The defendant can argue that the plaintiff’s injuries are not the kind the law would require the defendant to pay for.

In addition to attacking the standard elements of negligence, defendants are also able to argue for some modification of the elements, if the law allows.  For example, defendants can sometimes argue that the plaintiff had a special status that allowed the defendant to exercise a lower level of care in relation to the plaintiff than would otherwise be required by law. But in turn, plaintiffs can sometimes argue that due to the relationship between the parties there is a higher level of care, e.g. common carriers like airlines and bus lines owe a duty of utmost care to their passengers.

Comparative Negligence
Comparative negligence is the legal doctrine that defendants should not be responsible for the damages caused by the negligence of the plaintiff.  So, when the plaintiff’s injuries are partially caused by the plaintiff’s own negligence, the plaintiff’s recovery is limited to the extent of the plaintiff’s own negligence.

Due to the relative importance of comparative negligence, it has its own page.

Statutes of Limitation
Statutes of limitation cut off claims after a certain time specified by law.  The reason these exist is traditionally to protect and provide peace of mind against old claims.  Or at least that is the traditional basis.  When the cause of action is very distant in the past, memories fade, evidence disappears, and records are lost, meaning that the defendant may be put at what some would call an unjust disadvantage in defending against old claims.  This cuts both ways though.  Old claims are in the same way harder to bring for the same reasons.

These days statutes of limitation have been tinkered with by proponents of tort reform to shift risk away from those who injure others and to put the risk more squarely on those who have been injured.

Assumption of Risk in South Carolina
Assumption of risk is a doctrine that has traditionally barred or limited claims by plaintiffs who expressly or impliedly assumed the risk of some activity.   This doctrine has traditionally barred claims entirely, but now in many states including South Carolina, only certain forms of assumption of risk bar an entire claim.  The current law governing assumption of risk in South Carolina flows out of Davenport v. Cotton Hope.

Assumption of risk has four requirements:

• Plaintiff must know of the facts forming a dangerous condition
• Plaintiff must know the condition is dangerous
• Plaintiff must appreciate the nature and extent of the danger, and
• Plaintiff must voluntarily expose themselves to the danger.

Once these requirements are satisfied, the next analytical step is to decide whether the assumption is express or implied.  Express assumption of risk is when the plaintiff agrees to assume a risk, whether in a written or oral agreement.  Implied assumption of risk is when the requirements are met, but the plaintiff does not expressly assume the risk.  The plaintiff voluntarily exposes his or herself to a known danger without an agreement.  The agreement in express assumption of risk cases, if written, will usually take the form of a release or waiver of liability.  If the release or waiver is not effective to fulfill the requirements of assumption of risk, it will likely be ineffective to bar liability.

If the assumption of risk is implied rather than express, the next step is to determine whether the assumption was primary or secondary.  Primary implied assumption of risk is when the plaintiff knowingly assumes risks inherent in an activity.  Secondary implied assumption of risk is when the plaintiff merely exposes themselves to knowingly to negligence created by the defendant.

Here’s the bottom-line: If the assumption of risk express or primary implied, it is a complete bar to the claim (and more technically it is not a true affirmative defense, but rather absence of defendant’s negligence).  However, if the assumption of risk is secondary implied, it is not a bar to the claim, and negligence will be compared.

Examples of assumption of risk include when a person is injured and:

• was passenger who was trying to get the driver to drive unsafely, or
• knew that the driver was drunk and rode with that driver anyway, or
• had thrown oneself into traffic.

Sudden Emergency and Unavoidable Accident
Sudden Emergency and Unavoidable Accident are two legal doctrines that commonly limit the liability of defendants in South Carolina today.  They are often mentioned and pleaded together as though they are the same doctrine, although they are not.  They are discussed here separately, sudden emergency first.

(A) Sudden Emergency
In South Carolina, the courts recognize that under emergency circumstances individuals should not be held to the same level of care as individuals who act without the time pressure of an emergency situation.  Thus, when a defendant is faced with a sudden emergency, the defendant’s actions will not be held to the standard of what a reasonably prudent driver would have done under ordinary circumstances, but rather to the standard of what a reasonably prudent driver would do under the specific emergency.  So, even if the defendant didn’t take the wisest actions after the emergency, as long as they are actions that a reasonably prudent person could have taken, they are not considered negligent.

What is a sudden emergency?  The courts unhelpfully define it as a “sudden or unexpected event or combination of circumstances which calls for immediate action.”  So, a sudden emergency is basically just what you would expect an emergency to be.

Some caveats:
The defendant must not have brought about the emergency by his own actions or negligence.  Obviously, if a defendant swerves into an oncoming lane he cannot claim the defense of sudden emergency when he “suddenly” sees a car coming towards him.

Although referred to as a defense, it isn’t a true defense, i.e. proof of a sudden emergency does not mean that the plaintiff will necessarily have no remedy.  This is a good thing for plaintiffs.  Even if a judge believes that reasonable people could not disagree as to whether there was a sudden emergency, the judge must still submit the case to the jury.

Some relevant history:
Part of the reason why sudden emergency is not a true defense is because South Carolina has adopted the doctrine of comparative negligence.  Back when negligence law was developing under the regime of contributory negligence, when any negligence at all on the part of the plaintiff would result in no liability on the part of the defendant, the doctrine of sudden emergency arose to allow plaintiffs to recover when they acted somewhat negligently in the face of an emergency.

For example: You are driving a car, when an oncoming truck swerves into your lane. You swerve to the right, but the truck still hits you and you hit a guardrail.  However, if you had swerved to the left, you would have been able to escape without hitting anything.  Under pure contributory negligence as it was originally developing, you may have had no recovery because if viewed without regard to the sudden emergency, you acted negligently.

Sudden emergency developed as a way of solving this problem.

Today, in states like South Carolina, where comparative, not contributory, negligence is the rule, sudden emergency acts mostly for limiting the liability of defendants, but not in a rigid rule kind of way.  Instead, the judge will simply instruct the jury to take into consideration the sudden emergency, and the fact of the sudden emergency will be thrown into the pot with the rest of the facts to determine the amount of negligence if any. Haley v. Brown, (S.C. Ct. App. 2006)

(B) Unavoidable Accident
Unavoidable accident is the doctrine that no one is liable in a negligence suit for a pure or unavoidable accident.  Basically, if no human acted negligently or willfully to cause anything that could have caused the accident, it fits within this doctrine.  It is a “pure” accident in the sense, it happened by chance, not an accident in the sense of an “oops.”

These are relatively rare, and if the jury is asked to consider whether there was an unavoidable accident when the evidence presented at trial does not tend to show that there was an unavoidable accident, the plaintiff has grounds to get a new trial.  The thinking here is that once you introduce the idea to the jury that it may have been just an “accident” when of course no one intended to get into a car wreck poisons the jury against finding anyone at fault.  For this reason, many states but neither North or South Carolina, have heavily criticized or abandoned the unavoidable accident doctrine altogether.

No Seatbelt Defense in SC
In South Carolina, a claimant’s (that’s you) failure to wear a seatbelt is neither evidence of negligence per se nor basis for the partial defense of contributory negligence.  That means that, unlike in some states, failure to wear a seatbelt, although a traffic infraction, will not reduce the amount of your recovery in a negligence claim after a car wreck.

South Carolina courts have decided that there is no common law duty (a duty established by the courts rather than the legislature) to wear a seat belt, and the statute mandating use of seat belts explicitly states that the statute itself provides no defense for another’s negligence and that any evidence of failure to wear a seatbelt is inadmissible in court.  Thus, the courts will not reduce your recovery for failure to wear a seatbelt.