C. Proof

• Library: The South Carolina Law of Torts (SCBar) (2023 Ed.)

C. Proof

While not a substitute for an evidence treatise,⁷²⁹ this section addresses some of the issues frequently involved in proving that a negligence cause of action exists. In particular, it discusses burdens of proof and addresses the role of circumstantial evidence, the roles of statutes and custom, and the use of expert testimony.

1. The Burdens of Proof—Going Forward and Persuasion

The phrase "burden of proof actually involves two distinct burdens: (1) the burden of going forward with evidence; and (2) the burden of persuading the jury on a particular issue.⁷³⁰ Whether a party has presented sufficient evidence to satisfy the burden of going forward is challenged procedurally by a motion for summary judgment, for a directed verdict, or for a judgment notwithstanding the verdict.⁷³¹ The test for all three motions is the same⁷³² and has been expressed as follows:

[T]he trial court must view the evidence and all inferences which may reasonably be drawn therefrom in light most favorable to the non-moving party. If more than one reasonable inference can be drawn from the evidence, the case must be submitted to the jury.⁷³³

Some South Carolina cases have also stated the rule as follows: "An issue is for the jury if there is sufficient evidence to establish it in the mind of the reasonable juror."⁷³⁴ However, the South Carolina Supreme Court more recently stated the rule as follows:

[I]n cases applying the preponderance of the evidence burden of proof, the non-moving party is only required to submit a mere scintilla of evidence in order to withstand a motion for summary judgment. However, in cases requiring a heightened burden of proof or in cases applying federal law, we hold that the non-moving party must submit more than a mere scintilla of evidence to withstand a motion for summary judgment.⁷³⁵

As this quote suggests, the federal courts do not follow the "mere scintilla" approach.⁷³⁶

As a general rule,⁷³⁷ the plaintiff has both the burden of going forward with the evidence and the burden of persuading the factfinder "by the greater weight or preponderance of the evidence"⁷³⁸ that the plaintiff has established the elements of a cause of action in negligence.⁷³⁹ The defendant generally has these burdens in establishing affirmative defenses like comparative negligence which has subsumed contributory negligence and assumption of risk.⁷⁴⁰ The defendant does not have the burdens where no affirmative defense is involved—for example, where defendant denies the elements of the plaintiff's case by claiming that a third party was the proximate cause of the accident⁷⁴¹ or that the accident was unavoidable.⁷⁴²

2. Circumstantial Evidence

Where relevant to issues like duty, breach, causation, or damages, circumstantial evidence is generally admissible⁷⁴³ and a party can use it in satisfying the party's proof requirements.⁷⁴⁴

a. Flexible Approach to Permissible Inferences

In many jurisdictions the use of circumstantial evidence is often structured through the use of the doctrine of "resipsa loquitur."⁷⁴⁵ This doctrine is based on the common sense notion that it is logical to presume that the defendant is negligent when accidents seem most likely to have been caused by such negligence.⁷⁴⁶ However, since the particular facts of cases vary so widely, there is considerable dispute over the statement and applicability of the doctrine.⁷⁴⁷ Moreover, there is no clear agreement on the procedural impact of "presuming" or "inferring" under the doctrine that the defendant is negligent.⁷⁴⁸

South Carolina has avoided these disputes, while also retaining the core of common sense underlying the doctrine, by consistently rejecting res ipsa loquitur as such⁷⁴⁹ in favor of a flexible, case-by-case approach to the use of circumstantial evidence.⁷⁵⁰ As stated in Chaney v. Burgess:⁷⁵¹

While our decisions uniformly state that the so called doctrine of res ipsa loquitur does not apply in this State, they have with equal uniformity recognized that negligence may be proved by circumstantial evidence as well as direct evidence. And in determining the sufficiency of circumstantial evidence, the facts and circumstances shown are to be reckoned with in the light of ordinary experience and such conclusions deduced therefrom as common sense dictates. Where circumstantial evidence is relied upon to establish liability, the plaintiff must show such circumstances as would justify the inference that his [or her] injuries were due to the negligent act of the defendant, and not leave the question to mere conjecture or speculation.

In order to satisfy this test, it is not necessary for a plaintiff to show that the only possible cause of the injury is the defendant's negligence; a reasonable inference is all that is required.⁷⁵² Consistent with this approach the court has held:

When a thing which causes injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from a want of care.⁷⁵³

Numerous South Carolina cases have explicitly or implicitly applied this general rule, some cases holding that the requirements have been satisfied⁷⁵⁴ and some cases holding that they have not.⁷⁵⁵ For example, in Shepherd v. United States Fidelity and Guaranty Co.,⁷⁵⁶a parked automobile, which had apparently been untouched from the time the owner parked it, rolled out of a driveway and into the street, where it collided with the plaintiff's car. Examination of the car after the collision indicated that it did not have its brakes set and was in neutral gear. The court held:

The unexpected presence on the highway of a 'runaway' automobile without a driver or occupant . . . [raises] a prima facie inference of negligence on the part of the owner, being of itself sufficient to take the case to the jury, and . . . is sufficient to warrant the jury in concluding that he was negligent. . . .

The fact that the car remained stationary for some time before starting into motion does not relieve the driver from this presumption of negligence.⁷⁵⁷

The terms "prima facie," "inference," and "presumption" do not mean that the burden of going forward or the burden of persuading the jury concerning negligence or causation has shifted to the defendant. Instead, they only indicate that the plaintiff has satisfied his or her burden of going forward with the evidence and that, therefore, the issues will go to the jury, which still must determine if the plaintiff has satisfied the burden of showing that the presence of both negligence and proximate causation is more likely than not.⁷⁵⁸

Similarly, references to the lack of defendant's explanation of events⁷⁵⁹ do not indicate that the defendant must go forward with the evidence or that the burden of persuasion was shifted to the defendant.⁷⁶⁰ As stated in Tucker v. Reynolds:⁷⁶¹

Where we have said, "It is the duty of the defendant to go forward with his proof," it was only meant in the sense that, if he expects to win, it is his duty to do so, or take the risk of an adverse verdict, and not that any burden of proof rested upon him.

The lack of explanation is also important in another way because it is often relevant to whether a reasonable inference exists and thus as to whether the matter can be submitted to the jury. This approach was summarized in Brock v. Carolina Scenic Stages:⁷⁶²

[T]he circumstances heretofore set out, when considered together, are sufficient, in the absence of any explanation by the defendants, to warrant an inference that the collision was caused by the bus being driven to the left of the center of the highway.

. . . While the difficulty of proof does not relieve plaintiff of the burden of proof, yet in a situation like this, the court should take a very liberal view of the testimony.

As Brock indicates, under the flexible South Carolina approach, the degree of circumstantial evidence necessary to sustain an inference of negligence or causation varies with the circumstances. Thus, where the plaintiff has presented as much evidence as can reasonably be expected, a considerable degree of speculation by the jury has been tolerated,⁷⁶³ particularly where it was clear that the defendant was culpable⁷⁶⁴ or where the defendant could offer evidence and did not.⁷⁶⁵

There are exceptions to the basic rule that the plaintiff's burdens of proof do not shift to the defendant. One such exception arises in common carrier cases; where a common carrier is the defendant, a rebuttable presumption of negligence arises if a passenger is injured by an instrumentality or agent of the carrier.⁷⁶⁶ A rebuttable presumption of negligence also arises where a bailor shows that a chattel was delivered to the bailee in good condition and then returned in damaged condition.⁷⁶⁷

b. Constructive Notice

Circumstantial evidence is also involved in other, more specific ways. For example, where slippery material has been on the floor for a substantial period of time, then a merchant has "constructive" notice of its presence—i.e., a jury can use this length of time to infer that if the merchant had used due care, the material would have been discovered and cleaned up from the floor.⁷⁶⁸ Evidence showing that the condition existed after plaintiff's injury is also relevant to its existence at the time of injury and to constructive notice.⁷⁶⁹ Where it appears that the material had not been there long, the judge may determine the issue in favor of the defendant unless it is a known recurring condition.⁷⁷⁰

Although this approach to constructive notice in slip and fall cases is fair and logical, it can be used as a perhaps overly strict requirement that the plaintiff show that the material had in fact been on the floor for a period of time.⁷⁷¹ Such a strict mechanical application is contrary to the general approach to...