In South Carolina, the rule is comparative negligence: even if a plaintiff is partially negligent, that plaintiff can still recover if their negligence does not exceed the negligence of others. The recovery will, however, be reduced in proportion to the plaintiff’s negligence.
For example, if a plaintiff is 30% at fault (negligent), and one defendant is 70% at fault, and damages as determined by a jury are $100,000, the plaintiff would get a verdict for $70,000 from that defendant. You might be thinking about how one would determine the percentages of fault. The answer is that the legal system just punts. The case is put on by both the plaintiff’s side and the defense, witnesses are called, and arguments are made. Then, the jury is told the rule, that they have to determine how much each party was at fault, and they come up with an answer. So, they ignore how hard the question is, and they come up with an answer because eventually they will tire of deliberating.
There are a few wrinkles to the comparative negligence rule though.
50% or 51%: The rule in SC is that the plaintiff’s negligence must not exceed that of the defendants, i.e. in a case where a jury determines that the plaintiff and defendant split fault exactly 50-50, the plaintiff gets 50% of damages. If the plaintiff is the least little bit more at fault than the defendant, the plaintiff is barred from recovery. This rule is called the 51% bar rather than the 50.000…001% bar because 51 percent bar is easier to say.
What happens when there are multiple parties? In multi-party suits, the plaintiff’s negligence must not exceed the combined negligence of the defendants. So, even if there is no defendant individually responsible for 51% of the negligence, the plaintiff’s claim is not barred.
Is it an affirmative defense or is the burden on the plaintiff? It turns out that, although contributory negligence was treated as a defense, comparative negligence generally acts as a burden on the plaintiff. In South Carolina, the burden is on the plaintiff to prove that the defendant was negligent by a preponderance of the evidence. The defendant can of course offer evidence that they were not negligent, but they can also offer evidence that the plaintiff was negligent as well. Ross v. Paddy.
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The traditional rule in negligence was contributory negligence which developed in an earlier wave of tort reform, in England rather than the US. Contributory negligence put in place a complete bar to recovery for plaintiffs found to be the least bit negligence. Gradually in the 20th century, state courts began to realize that it was unjust to deny recovery to those who have been injured from individuals in all likelihood more able to bear the loss. Comparative negligence was born.
Comparative negligence was slow to come in some states, and never came at all in some others. North Carolina, and four other jurisdictions (AL, DC, MD, and VA), still have contributory negligence. South Carolina adopted comparative negligence back in 1991, in the landmark case Nelson v. Concrete Supply Co. The comparative negligence adopted in South Carolina and described above is not the only form of comparative negligence alive and well in the United States.
There are currently three forms in the US today:
- Pure Comparative Negligence
- Modified Comparative Negligence – 50 percent bar
- Modified Comparative Negligence – 51 percent bar
Pure comparative negligence is the most liberal form allowing plaintiffs to recover no matter how negligent they were if another party was at all negligent. For example, a plaintiff who was 99% negligent and another party was 1% negligent, the plaintiff would still recover 1% of their total damages.
In modified comparative negligence, like in contributory negligence, there is a bar to recovery for the plaintiff, but the bar is set much lower, at either 50 or 51 percent, rather than at any fault at all.
In 51 percent bar states, the rule is that same as in South Carolina, the plaintiff is only barred from recovery if they are more negligent that the combined defendants.
In 50 percent bar states, the combined defendants must be collectively more negligent than the plaintiff, i.e. the plaintiff must be less than 50% at fault.
For example, a plaintiff who was 50% negligent could recover in 51 percent bar states like South Carolina, but could not recover in states like Georgia that have a 50 percent bar.
For information about affirmative defenses see: Common Defenses.