D. Defenses

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

D. Defenses

1. The Injured Person's Conduct and Comparative "Fault"

A number of defenses to a negligence action involve conduct by the injured person which limits or bars the plaintiff's right to recover even if the elements of a cause of action exist. Two such defenses were particularly important prior to 1991: (1) contributory negligence, and (2) assumption of risk. Since both of these were affirmative defenses, the defendant had to specifically plead each defense⁸⁵⁷ and bore the burdens of proof of establishing each defense.⁸⁵⁸ As discussed below, since 1991, however, these two defenses are subsumed into the comparative negligence calculus. This chapter will discuss the defenses as they may remain relevant to explain comparative negligence in particular cases.

In addition, the injured person's conduct may be such that he or she is estopped from bringing a suit in negligence.⁸⁵⁹

a. Contributory Negligence

(1) Nature and Proof

In order to establish the defense of contributory negligence, the defendant had to show that the plaintiff was negligent⁸⁶⁰ and that this negligence was a proximate cause of the plaintiff's injuries.⁸⁶¹ The tests of negligence and causation were the same as those used for analyzing the defendant's conduct.⁸⁶² Thus, for example:

(1) The injured person has a duty, including in some cases a duty of affirmative action,⁸⁶³ to use due care to protect himself from injury, including injury resulting from the foreseeable misconduct of others, including the defendant.⁸⁶⁴
(2) The injured person must act as a reasonable person⁸⁶⁵ under the circumstances⁸⁶⁶ would act.

(3) Proof issues were handled similarly. Thus, for example, circumstantial evidence is handled in a like fashion⁸⁶⁷ and statutes are admissible to show the plaintiff's negligence.⁸⁶⁸ In addition, contributory negligence was "generally a question of fact to be determined by the jury"⁸⁶⁹ unless a reasonable juror could reach only one result.⁸⁷⁰

(2) Effects of Contributory Negligence

(a) Traditional Common Law Rule and Comparative Negligence

Under the traditional common law framework, if contributory negligence was a proximate cause of the injuries, then the plaintiff's misconduct served as a total defense to the cause of action unless one of the exceptions discussed below was applicable.⁸⁷¹ This common law rule was altered by Nelson v. Concrete Supply Co.,⁸⁷² which held that for all causes of action arising on or after July 1, 1991, a plaintiff in a negligence action may not recover damages if plaintiff's negligence is greater than that of the defendant. If there is more than one defendant, plaintiff's negligence is compared to the combined negligence of all defendants. Where plaintiff's negligence is not greater, plaintiff may recover; but plaintiff's recovery of compensatory damages is reduced in proportion to the amount of plaintiff's contributory negligence. Twenty years after Nelson, the South Carolina Supreme Court noted: "South Carolina's system is essentially a comparative fault system, but comparative negligence is the term most often used in this state, and we recognize the terms as equivalent."⁸⁷³

Under the comparative negligence scheme Nelson adopted, comparing the negligence of the plaintiff and defendant[s] is ordinarily a question of fact for the jury.⁸⁷⁴ However, defendant is entitled to summary judgment or a directed verdict where the plaintiff's negligence is, as a matter of law, greater that the defendant's negligence, if any.⁸⁷⁵ A plaintiff's violation of a safety statute is still negligence per se, but such violation does not totally bar recovery unless the plaintiff's negligence exceeds the defendant's.⁸⁷⁶ Because of the need to make a careful allocation of fault, the jury charge requires careful wording, and special verdicts or interrogatories may be useful.⁸⁷⁷ The trial judge has the discretion to decide whether: (1) to use special verdicts or interrogatories; or (2) to charge the jury on the effects of comparative negligence and let the jury decide liability and the amount of recoverable damages.⁸⁷⁸

Comparative negligence has also replaced the common law rule in actions by railroad employees against their employer⁸⁷⁹ and for admiralty actions.⁸⁸⁰ At one time, employers could elect not to utilize workers' compensation, and contributory negligence was not available as a defense in an action by an employee against his or her employer if the employer had elected not to operate under workers' compensation.⁸⁸¹

The total or partial bar to recovery applies only to those injuries that are proximately caused by the injured person's negligence.⁸⁸² Thus, contributory negligence is to be distinguished from the doctrine of "avoidable consequences," which bars recovery for losses from negligence by the plaintiff which occur after the initial injury—for example, negligent failure to get proper medical treatment.⁸⁸³ Recovery for the incremental harm resulting from the plaintiff's negligent conduct may be totally or partially barred, but the initial injuries are fully recoverable.

In 1987, the South Carolina Supreme Court held that the proper role of failure to use a seat belt is a legislative matter and that "in the absence of an affirmative statutory duty, a plaintiff's failure to use a seat belt does not constitute contributory negligence or a pre-injury failure to minimize damages."⁸⁸⁴ Although Section 56-5-6520 of the South Carolina Code constitutes such an affirmative statutory duty, Section 56-5-6540(C) provides: "A violation of this article does not constitute negligence per se or contributory negligence and is not admissible as evidence in a civil action." A similar provision in Section 56-5-6460 also bars the admission of a failure to satisfy S.C. Code Ann. § 56-5-6410, which requires child restraint systems for children less than six years old. Because of such statutory bars, the admission of lack of a seatbelt to show negligence has been barred,⁸⁸⁵ but lack of seatbelt usage has been admitted for some other purposes.⁸⁸⁶

The treatment of a motorcyclist's failure to wear safety equipment is not clear. Sections 56-5-3660 to -3680 of the South Carolina Code require that motorcyclists under twenty-one wear a helmet and, if there is no windscreen, screen goggles. Because of this statute, the failure by a person aged twenty-one or over is not negligence,⁸⁸⁷ but there is no clear answer concerning a person under twenty-one.

(b) Exceptions to General Rule

(i) Recklessness

Under the traditional common law approach, contributory negligence was not a defense where the defendant's actions were willful, wanton, or reckless.⁸⁸⁸ However, if the injured person was also willful, wanton or reckless, then such misconduct on his or her part was a total bar to suit.⁸⁸⁹ Though the basis of the exception has not been clearly articulated in the cases, it appears to be based on a policy decision that recklessness is sufficiently unlike negligence⁸⁹⁰ that it should be regarded as the proximate cause⁸⁹¹ or that a crude comparative fault or comparative wrongfulness approach should be used.⁸⁹²

In 2001, the South Carolina Supreme Court noted that South Carolina's approach "is essentially a comparative fault system" and that comparative fault and comparative negligence are equivalent.⁸⁹³ Consistent with this framework, the court held:

[U]nder our 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.⁸⁹⁴
. . .
Conduct that is not comparable includes intentional torts, such as assault, battery, and false imprisonment, as well as any other conduct intended to cause injury or damage.⁸⁹⁵

The court also rejected the defendants "argument that the jury should have been instructed that heightened degrees of wrongdoing should be accorded greater weight than ordinary negligence" and held that "[t]he relative significance of each party's conduct and its overall contribution to the plaintiff's injury are accounted for in the offsets inherent in our comparative negligence system."⁸⁹⁶

(ii) Last Clear Chance

Even where the injured person was negligent, this negligence did not bar a suit under the traditional common law approach if the defendant had the "last clear chance" to avoid the accident.⁸⁹⁷ This doctrine was applicable when: (1) the defendant knew (or in some cases, should have known)⁸⁹⁸ that, because of plaintiff's negligence, plaintiff was in a predicament from which he or she might not extricate himself; and (2) the defendant had an opportunity to avoid the injury by due care in spite of the conduct of the plaintiff.⁸⁹⁹

Spahn v. Town of Port Royal⁹⁰⁰ held that "last clear chance has been subsumed by adoption of comparative negligence such that it remains a factor for the jury's consideration in comparing the parties' fault, but that it does not totally relieve a plaintiff of his or her negligence." The court held the following instruction to the jury is appropriate when supported by the facts:

In determining the relative percentages of negligence for the plaintiff and the defendant, you should consider, as a factor relevant to the defendant's share of negligence, whether the plaintiff was in peril and unable to extricate himself from the peril. If the plaintiff was in peril, you should also consider whether the defendant was aware of that peril and if he or she was, whether the defendant could have then avoided the injury to the plaintiff if the defendant had used due care at that point.⁹⁰¹

(iii) Protected Classes

Some duties are imposed on a defendant in order to protect a certain class of victims from certain risks, including the risk of harm from the injured person's negligent misconduct. In such a case the protective purpose of imposing the duty would be frustrated if the negligence...