§ 23-6 Comparative Negligence - 1 Plaintiff V. 1 Defendant - with Counterclaim

• Library: South Carolina Requests to Charge - Civil (SCBar) (2016 Ed.)

§ 23-6 Comparative Negligence - 1 Plaintiff v. 1 Defendant - With Counterclaim

Comparative negligence is the law in South Carolina. One of the defenses interposed by each party is that of comparative negligence. Each party, by this defense of comparative negligence, in essence says this: Even if the jury should find that I was at fault, the other party was more at fault than I was and the fault of each of us combined and concurred with that of the other to act as the proximate cause of the accident and, without which, the accident would not have happened. In other words, it required the fault of each of us for the accident to have happened, but the other party was more at fault than I was.

The plaintiff has the burden of proving the negligence and fault, if any, of the defendant. The defendant has the burden of proving the negligence and fault, if any, of the plaintiff and the degree of such. With respect to the counterclaim, i.e., the complaint of the defendant, the defendant has the burden of proving the negligence and fault, if any, of the plaintiff. The plaintiff has the burden of proving the negligence and fault, if any, of the defendant and the degree of such.

Where negligence has been established on the part of both the defendant and the plaintiff, then you must weigh or compare the respective contributions of each person to the occurrence. Considering the conduct of each person involved as a whole, you must determine whether one made a larger contribution than the other.

In making this comparison, the degree of negligence attributable to a party is not to be measured solely by the character thereof, nor solely by the number of respects in which he is found to have been at fault. It is the conduct of a party considered as a whole which must be determined. That is to say, once it has been established that each has been at fault, it is then the jury's function to weigh their respective contributions to the result, which will, regardless of the nature of their acts or omissions, determine who made the larger contribution and to what extent it exceeds or is less than that of the other.

It is the conduct of the parties considered as a whole which is being measured by you in the form of a percentage.

Comparative negligence will defeat a recovery by a party if the fault of that party was greater than that of the other party. Another way of saying this is to say that a party can recover only if his fault, if any, is equal to or less than that of the other...