Chapter 2 Negligence and Similar Breaches of Duty

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

CHAPTER 2 NEGLIGENCE AND SIMILAR BREACHES OF DUTY

This chapter focuses on torts involving negligence, i.e., the breach of a duty of due care. The chapter also addresses other fault-based misconduct short of intentional torts, particularly recklessness.

The elements of a cause of action in negligence are: (l) duty of due care; (2) breach of that duty; (3) legally protected injury; and (4) causal relationship, such that the negligence "proximately caused" the injury.¹ Whether the defendant breached his or her duty of due care and proximately caused the plaintiff's injury is a mixed question of law and fact.² The judge's function is to provide a proper charge and to direct the verdict only where there is no evidence upon which a reasonable juror could decide otherwise.³

The four sections in this chapter will address legal issues involved in: (1) determining, defining, and applying the duty owed by an actor in a particular situation (Section A); (2) determining proximate causal relationships (Section B); (3) proving breach of duty and causation (Section C); and (4) defining and applying defenses (Section D).

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Notes:

^[1] See, e.g., Moore v. Weinberg, 383 S.C. 583, 588, 681 S.E.2d 875, 878 (2009); Dorrell v. S.C. Dep't of Transp., 361 S.C. 312, 318, 605 S.E.2d 12, 15 (2004); Andrade v. Johnson, 356 S.C. 238, 245, 588 S.E.2d 588, 592 (2003); RESTATEMENT § 281; W. Page Keeton, Dan B. Dobbs, Robert E. Keeton, & David G. Owen, PROSSER AND KEETON ON THE LAW OF TORTS §§ 30 (lawyers' ed.) (5th ed. 1984 & Supp. 1988) (cited herein as PROSSER).

^[2] E.g., Mahaffey v. Ahl, 264 S.C. 241, 214 S.E.2d 119 (1975); Moody v. Dillon, 210 S.C. 458, 43 S.E.2d 201 (1947); Bolen v. Strange, 192 S.C. 284, 6 S.E.2d 466 (1940).

^[3] E.g., Wilson v. Marshall, 260 S.C. 271, 195 S.E.2d 610 (1973); Moody v. Dillon, 210 S.C. 458, 43 S.E.2d 201 (1947); Augustine v. Christopoulo, 196 S.C. 381, 13 S.E.2d 918 (1941); Charlton v. Strange, 192 S.C. 379, 6 S.E.2d 752 (1940); Turbyfill v. Atlanta & Charlotte Air Line Ry., 83 S.C. 325, 65 S.E. 278 (1909). In a given case, a court may establish and define the standard of care by looking to the common law, statutes...