31 Negligence - Generally

• Library: Elements of Civil Causes of Action (SCBar) (2015 Ed.)

31 Negligence - Generally

A. Definition

Negligence is the breach of a duty of care owed to the plaintiff by the defendant. Generally, under common law, there is no duty to act. "An affirmative duty to act exists only if created by statute, contract, relationship, status, property interest, or some other special circumstance."¹

B. Element

In order to recover in any negligence action, the plaintiff must show:

(1) a duty of care owed by the defendant to the plaintiff
(2) a breach of that duty by a negligent act or omission
(3) damages proximately resulting from the breach.²

Sometimes the damages element is separated from proximate causation to create four elements.³

C. Elements Defined

1. A Duty of Care Owed by the Defendant to the Plaintiff

A duty of care is "that standard of conduct the law requires of an actor in order to protect others against the risk of harm from his actions. It embodies the principle that the plaintiff should not be called to suffer a harm to his person or property which is foreseeable and which can be avoided by the defendant's exercise of reasonable care."⁴ The duty to act may arise from statute, contract,⁵ relationship,⁶ status, property interest, or some other special circumstance.⁷ In order for there to be a duty of care based on a statute, the plaintiff must show: "(1) that the essential purpose of the statute is to protect from the kind of harm the plaintiff has suffered; and (2) that he is a member of the class of persons the statute is intended to protect."⁸ For example, dram shop liability is based on statutory duties imposed on establishments licensed to sell alcoholic beverages that prohibit them from serving minors or intoxicated persons.⁹ Other duties arise from the relationship between the parties as in negligent misrepresentation where the defendant possesses expertise or special knowledge that would ordinarily make it reasonable for the plaintiff to rely on the defendant,¹⁰ and the defendant has a pecuniary interest in a transaction between the parties.¹¹ Premises liability is a tort in which the duty is dependent on the status of the plaintiff. A defendant, for example owes an invitee¹² a duty of due care to discover risks and take safety precautions to warn of or eliminate unreasonable risks¹³ within the area of invitation.¹⁴ The duty owed to a licensee¹⁵ is to use reasonable care to discover and avoid injury to him or her and to use reasonable care to warn against any concealed dangerous conditions or activities known to the possessor, or any change in the condition of the premises which may be dangerous, and which the licensee may reasonably be not expected to discover.¹⁶ A possessor of property owes no duty to a trespasser¹⁷ except to do no wilful or wanton injury.¹⁸

Even if there is no duty to act, the defendant who acts voluntarily assumes a duty to use due care.¹⁹

2. A Breach of that Duty by a Negligent Act or Omission

Generally in a negligence action the plaintiff must show the defendant did not use the amount of care one ordinarily would have under the circumstances.²⁰ Negligence cannot be presumed from injury because South Carolina does not recognize the doctrine of res ipsa loquitur.²¹ If the plaintiff shows a duty arising from a statute²² and that the defendant violated a statute, the element is met by proof of negligence per se²³ A violation of an administrative regulation may also constitute negligence per se²⁴ In a medical malpractice action, the plaintiff must show that the defendant departed from the recognized and generally accepted standards, practices and procedures.²⁵ The defendant's failure to conform to that standard must generally be shown by expert testimony unless the subject matter is within common knowledge and experience.²⁶

For a plaintiff to recover for injuries caused by a dangerous or defective condition on the defendant's premises it must be shown that:

(1) a specific act of the defendant created the condition;
(2) the defendant had actual knowledge of the condition; or
(3) the defendant had constructive knowledge of the condition.²⁷

In "slip and fall cases," which many premises liability actions are, constructive notice is shown by proving a foreign substance had been on the floor for a sufficient time to be discovered and removed in the exercise of ordinary care.²⁸

3. Damages Proximately Resulting from the Breach

The plaintiff must show the breach of duty was the proximate cause of the injury. A plaintiff is not, however, required to prove that the defendant's negligence was the sole proximate cause of the injury.²⁹ The South Carolina Supreme Court has said:

Proximate cause requires proof of: (1) causation in fact and (2) legal cause.
Causation in fact is proved by establishing the injury would not have occurred "but for" the defendant's negligence. [citation omitted] Legal cause is proved by establishing foreseeability. [citation omitted] Although foreseeability of some injury from an act or omission is a prerequisite to establishing proximate cause, the plaintiff need not prove that the actor should have contemplated the particular event which occurred. The defendant may be held liable for anything which appears to have been a natural and probable consequence of his negligence. [citation omitted] A plaintiff therefore proves legal cause by establishing the injury in question occurred as a natural and probable consequence of the defendant's negligence.³⁰

Unless the evidence shows reasonable persons could not disagree, the question of proximate cause is one for the jury.³¹

D. Defenses

The statute of limitations applicable to injuries to the person or rights of another is three years for actions arising on or after April 5, 1988, and six years for those arising before that date.³² Actions initiated under the provision must be commenced within three years after the plaintiff knew, or by the exercise of reasonable diligence should have known, that a cause of action existed.³³

Contributory negligence is a defense in a negligence action that requires the defendant show the plaintiff was negligent³⁴ and that the negligence was the proximate cause of the injuries.³⁵ Traditionally, contributory negligence was a total defense to the cause of action; however, South Carolina has adopted comparative negligence under which the plaintiff may recover if his or her negligence is not greater than the defendant's in which case the plaintiff's recovery is reduced in proportion to his or her negligence.³⁶ Punitive damages, however, are not reduced by the proportion of the plaintiff's negligence under comparative negligence ³⁷

The South Carolina Supreme Court has held that "... comparative negligence encompasses the comparison of ordinary negligence with heightened forms of misconduct such as recklessness, willfulness, and wantonness ." and that under the comparative negligence system "... all forms of conduct amounting to negligence in any form, including, but not limited to, ordinary negligence, gross negligence, and reckless, willful, or wanton conduct, may be compared to and offset by any conduct that falls short of conduct intended to cause injury or damage."³⁸

The "unforeseeable incapacity" defense may protect a defendant from liability in some cases.³⁹

The South Carolina Tort Claims Act waives the immunity of the State, its agencies, political subdivisions, and governmental entities from liability in tort.⁴⁰ It contains, however, many limitations on liability and damages⁴¹ which may preclude or restrict a plaintiff's cause of action.⁴² One is the statute of limitations which is two years, unless the claimant first files a claim pursuant to the act in which case the limitation is three years.⁴³ Another limitation is that governmental entities⁴⁴ are not liable for a loss resulting from "employee conduct ... which constitutes actual fraud, actual malice, intent to harm, or a crime involving moral turpitude ...".⁴⁵ Ordinarily, only the governmental entity may be named as a party defendant, and the employee committing a tort while acting within the scope of his or her official duties is not personally liable unless the conduct in question constituted actual fraud, actual malice, intent to harm, or was a crime of moral turpitude.⁴⁶ If the employee is named as a defendant, the name of the appropriate governmental entity must be substituted.⁴⁷ These provisions:

... in no way shall limit or modify the liability of a licensed physician or dentist, acting within the scope of his profession, with respect to any action or claim brought hereunder which involved services for which the physician or dentist was paid, should have been paid, or expected to be paid at the time of the rendering of the services from any source other than salary appropriated by the governmental entity or fees received from any practice plan authorized by the employer ...⁴⁸

The Act is the exclusive and sole remedy for any tort committed by an employee of a governmental entity while acting within the scope of his or her official duty and must be liberally construed in favor of limiting the liability of the governmental entity.⁴⁹ In Padgett v. Colleton County,⁵⁰ the plaintiff was injured when he stepped into a hole on the County Courthouse grounds. The trial court held the county could not be liable for his injury because the person who created the dangerous condition was an independent contractor. The plaintiff argued the county was ultimately responsible for ensuring that caution tape was used where active landscaping was taking place, regardless of who was supposed to put it up. The appellate court agreed and said that while under the Tort Claims Act, a governmental entity is not liable for a loss resulting from an act of or omission of someone other than an employee,⁵¹ that limitation would not exonerate a governmental entity of liability for its own conduct.⁵² Since the county facilities director would have been responsible for placement and removal of caution tape and the...