Dirk Derrick (00:00):
Welcome to The Legal Truth, the podcast created to provide you general legal information about South Carolina law, lawyers and the legal process, and hopefully prevent you from being surprised by the unexpected. We will answer many of the questions I've been asked during the past 35 years about South Carolina personal injury claims and Workers' Compensation claims. We will also discuss existing laws and proposed changes in the law and how they affect you. My name is Dirk Derrick. I'm the founder of the Derrick Law Firm, and I'm your host.
Voiceover (00:35):
Please see required ethics disclaimers in show notes.
Pearl Carey (00:42):
Hi, everyone. Welcome back to The Legal Truth podcast. Today we're discussing the truth about comparative negligence in South Carolina, and I'm here with my co-host, Dirk Derrick. Thanks so much for joining me today, Dirk.
Dirk Derrick (00:52):
Thank you, Pearl. Glad to be here.
Pearl Carey (00:55):
And my first question for you is, what is comparative negligence in South Carolina?
Dirk Derrick (00:59):
Comparative negligence is a court rule, and it's a statutory rule here in South Carolina that says that if a plaintiff, an injured party was more than 50% of fault, they don't get to collect anything. So on jury verdicts, you will have a question with the jury to divide up responsibility. Who caused this incident to happen, and if they say that the plaintiff, the person bringing the action, was negligent, and that that negligence was more than 50% of the total fault in the case, and plaintiff can't recover.
(01:34):
If you've got this modified comparative negligence that says, "Once you go over 50%, you can't collect." You have true comparative negligence in some other states that says, "Plaintiff can't recover whatever percentage he or she's at fault, but they can be 90% at fault and still collect 10% of the award." You also have what's called contributory negligence is what applied in South Carolina when I got out of law school a couple of years ago, is still in North Carolina. It says, "If the plaintiff is 1% at fault, he or she can get nothing," which is a very harsh rule to say, "Somebody else can be 99% of the fault and causing your injury. But if you are 1% at fault, then you can't recover." So that's the three types of negligence, we're a modified comparative negligent state. So what we're trying to do is make sure that when we present the evidence to the jury, that the jury does not find our client more than 50% at fault.
Pearl Carey (02:32):
So with reference to seatbelts and texting, do those facts change comparative fault?
Dirk Derrick (02:37):
Well, texting is something they can consider in coming up with the degree of negligence on behalf of anybody, defendant or the plaintiff. Seatbelt use is not. Presently in South Carolina, whether someone's wearing their seatbelt is inadmissible by court and cannot be considered as negligence or as part of the fault causing the wreck. A few years back when they made it unlawful to drive or ride without a seatbelt, when they made it a requirement you wear a seatbelt, they also put a provision in that said, "That that evidence cannot be presented in a civil case and cannot be the foundation of negligence on behalf of anybody." So the jury would never hear whether the plaintiff or the defendant has a seatbelt on.
Pearl Carey (03:25):
Wow, I didn't know that. And so how do UM and UIM coverages interact with comparative negligence?
Dirk Derrick (03:31):
It applies the same. If you think about UM, all the coverages you got, most time the at-fault party has coverage, that's called liability coverage. You could have excess liability coverage, you could have an umbrella policy. All that's liability coverage. That's what pays the verdict or pays the award. If they have no insurance, if the defendant or the person causing it had no insurance, then the plaintiff has uninsured motorist coverage on their own car. So it would pay damages that have been awarded if the defendant has no insurance. It as nothing to do with comparative negligence.
(04:07):
Comparative negligence determines the verdict. And then UM and UIM are just the mechanisms of paying that verdict. UM, being uninsured motorist, if the defendant has no coverage, UIM coverage is underinsured motorist coverage, which means the person who caused the harm had insurance but does not have enough to pay the damages. Does that make sense?
Pearl Carey (04:30):
Yes, that does. And so what kind of evidence is needed to move the needle with fault percentages?
Dirk Derrick (04:37):
Fault percentages is everything that makes up why this thing happened. If you think let's take a car wreck, in a car wreck, you will look at everything the defendant did wrong and everything that the plaintiff did and everything they did wrong, and you determine everyone's conduct on what a reasonable person would've done in the same circumstance. So we're looking at the defendant and the jury's looking at the defendant saying, "Did the defendant do something negligent? Did they do something unreasonable?" Were they speeding? Were they distracted? Were they looking at a phone? Did they drive when they were sleepy? What did they do that was negligent?” If they determined something was negligent on the defendant, then they look at the plaintiff. If the defense has alleged that the plaintiff contributed to the wreck because of the plaintiff's negligence, then the jury would look at the plaintiff.
(05:33):
Did the plaintiff do anything that was unreasonable? And if they find that the plaintiff did something unreasonable, then they divide it. They come up with a number, they think the defendant's 60%, the plaintiff's 40 or 90 and 10. And what they usually do is look at how bad the conduct on each party was. Common comparative negligence, arguments by our defense lawyers will be was not paying attention. Even if somebody pulled out in the road in front of them, had the plaintiff been paying attention, they could have stopped faster. They alleged that the plaintiff did not respond the way a reasonable person would've responded. Somebody pulled out, and they didn't slow down. They just kept going. Assuming the defendant would clear the lane and they didn't, and they clipped the back of the defendant's car. And they don't allege that the plaintiff was comparatively negligent because even though the defendant failed to yield the right-of-way, if the plaintiff would've taken foot off the gas or hit the brakes, they could have missed the car.
Pearl Carey (06:30):
I got it.
Dirk Derrick (06:30):
So they're looking at whether the plaintiff had any health conditions and shouldn't have been driving, whether the plaintiff was supposed to be wearing eyeglasses and weren't wearing eyeglasses, whether the plaintiff was speeding, whether the plaintiff was distracted in any way. They're looking at anything to take some of the fault off the defendant and put it on the plaintiff. And the reason they're doing that is any fault they can put on the plaintiff reduces what they owe the plaintiff.
Pearl Carey (06:58):
Right.
Dirk Derrick (06:59):
So if they can put 10% on the plaintiff, then the plaintiff only collects 90% of the verdict, because 10% has been removed because of his or her negligence. They can put 20, it reduces what they've got to pay the plaintiff by 20%. So they're always trying to put some blame on the plaintiff. It's funny, some people put blame on the plaintiff if they just got up that day and was driving down the road. I heard one person in one of our focus groups this past week, which may be the worst argument for comparative negligence I've ever heard, but the plaintiff was in a shared ride vehicle, an Uber or-
Pearl Carey (07:38):
Lyft, yeah.
Dirk Derrick (07:38):
... Lyft or something, and the driver of that car caused a wreck. And there was a focus group member that says that he thought that the plaintiff was at least 40% at fault for getting into an Uber. That when you get into an Uber or a Lyft, you assume that they may get in an wreck, which is a pretty scary argument from someone who represents plaintiffs.
(08:07):
Now, the other people in that jury room discussed it with them and said, "That's not negligence." You can walk back, when somebody wakes up in the morning, what time they got on the road, just because they're in a location. You could say, "Well, they helped cause a wreck because they were there." They helped cause a wreck because they got in a Uber. They helped cause a wreck because they left their home that morning. So there's always a link of causal relationships to get people to an incident, but for them to be comparatively negligent, they got to be negligent. They got to do something that a reasonable person would not do. And I would take the position that getting into a taxi or getting an Uber is not negligence in and of itself.
Pearl Carey (08:51):
Yeah, that strikes me as a little victim blamey.
Dirk Derrick (08:54):
Yeah.
Pearl Carey (08:54):
Okay. So what is something that a plaintiff might do that would tip them over that 50% line for comparative negligence?
Dirk Derrick (09:02):
Well, to be over the 50% line, the jury's got to find out they're the main cause of the incident.
Pearl Carey (09:09):
Okay.
Dirk Derrick (09:11):
That can be cause, let's say plaintiff's going down the road 20 miles over the speed limit, and somebody pulls out in front of him. And the person who pulls out in front of him says, "Well, look, they were way down the road. I thought I had time, and I pulled out and they hit me." The jury may say, "Plaintiff's over 50% because had he been going to speed limit, it would not have occurred." The defendants argue comparative negligence a lot, they do it a lot on premise liability cases and every one of them, open and obvious plaintiff's own fault.
(09:42):
If somebody falls, whether you fall on a slip and fall or a trip and fall case, they always allege comparative negligence. And the truth is, in most of those cases, the jurors, the focus groups we've done, most of them, they don't put some blame on the plaintiff. How they divide that up is going to depend on how bad the conduct is on behalf of the defendant.
(10:04):
If it is a code violation, if the defective condition that caused the fall was a code violation or a violation of law, they almost always would put substantially more on the defendant. If it wasn't a code violation, and it wasn't any kind of building code or anything, but it's still a dangerous condition where they didn't reach the level of being a code violation, sometimes they may push more on the plaintiff.
(10:25):
If the plaintiff is distracted while they're walking, they don't put it on. If they're looking at the phone and they fall, you're in trouble. That's something that'll take you over 50%. Very rarely will we get a focus group of 12 people or a hundred people that says, who will say that, "Plaintiff has no fault if they fall, no matter how dangerous the condition is." I mean, it can be whether it's defective steps, whether it's water on the floor, trip on something at a grocery store. They don't put some blame on the plaintiff. The thing is, from our standpoint is to build the case and look at everything the defendant did and everything the defendant could have done to prevent this from every existing to give the plaintiff a chance to fault.
Pearl Carey (11:08):
Right, but you can't say, "You were walking so that's comparative negligence. You got in an Uber, that's comparative negligence."
Dirk Derrick (11:14):
Right. Now what they say in premise cases is you need to be looking at where you walking. And a lot of people are quick to say, "Well, if I'd have been doing it, I'd have seen that." But you go to grocery stores are a bad place because all the advertising up here are eye level, and they know people are walking down the aisles, looking at the aisles. So if anything's left in the aisle in a walk place and it's real low, it's a dangerous situation. But we've handled a lot of them. We focused a lot of them. And there's usually somebody in there who wants to blame the plaintiff partially for it, and they deliberate and stuff. So it ends up usually putting a little bit of blame on the plaintiff, maybe more dependent on the situation. Now, if you can show code violations, if you can show somebody else fell in this same location and they didn't fix it, the plaintiff's degree of comparative negligence goes down.
Pearl Carey (12:08):
That makes sense. Okay, Dirk, is there anything else that you'd like to add on the topic of comparative negligence in South Carolina?
Dirk Derrick (12:14):
I think the only thing I'll add is for people to understand that plaintiffs, the person bringing the case, had the same duty to act reasonable as the defendant. And everything that someone does is going to be looked at and investigated. So if you're riding down the road, this tip is to everybody who has a cell phone, and you're looking at your cell phone, you look ahead and there's nothing in front of you. You glance down at your cell phone came out and somebody's pulled right out in front of you. They have clearly failed to yield the right of way to you. But understand that your recovery could be limited by whatever blame a jury puts on you for glancing down at your phone or for going five miles an hour over the speed limit. Everything's going to be looked at. So even though the majority of the blame may be on somebody else, what you can recover from, could be reduced by any little thing you do to give somebody an opportunity to say you played a part in it.
(13:09):
We know this, there are pro-defendant jurors on every jury, almost every jury that I've seen, and these are people who have decided they don't think anybody should recover anything. They don't like the torts, they don't like lawyers. They have a bias to where they don't think people should even bring a claim. Now, most of those people, those same people, something happens to them, they'll come to me to hire us and say, "Now I'm not one of those people, but I got a legitimate problem." So they just think there's a lot of people who don't have legitimate claims, but anyway, when they're on their jury, they often look for any little thing that the plaintiff did to argue against the plaintiff.
(13:49):
So you're going to have somebody on a jury who's really looking at everything you do. So as you go through life, understand that even if someone hurts you, your conduct's going to be looked at also. And one final piece of advice, if something happens where you have an incident, do not get on social media and start telling the world what happened. You can say something on social media that will ruin your case, that will put some comparative on you. Just don't tell the world if someone's negligence hurt you.
Pearl Carey (14:25):
Tell a lawyer, not the world.
Dirk Derrick (14:26):
Tell a lawyer first, not the world first. You can save your lawyer some headaches.
Pearl Carey (14:34):
Absolutely. Well, thank you so much, Dirk. I learned a lot about comparative negligence in South Carolina, and thank you so much to all of our listeners for tuning into another episode of The Legal Truth podcast. For more information, visit our website at derricklawfirm.com. And we hope to see you in the next one. Bye.
Dirk Derrick (14:48):
Bye.
Voiceover (14:51):
Thank you for joining us on The Legal Truth podcast. If you have questions that you would like answered on a future episode, please send them to thelegaltruth@derricklawfirm.com. If you would like to speak to us directly, call us at 843-248-7486. If you find the podcast valuable, please leave us a 5-star review and share the legal truth with your neighbor, friend, or family member who is seeking reliable information about a South Carolina personal injury or Workers' Compensation claim.
(15:20):
Dirk J. Derrick of the Derrick Law Firm Injury Lawyers is responsible for the production of this podcast located at 901 North Main Street, Conway, South Carolina. Derrick Law Firm Injury Lawyers has included the information on this podcast as a service to the general public. Use of this podcast and any related materials does not in any manner constitute an attorney-client relationship between Derrick Law Firm Injury Lawyers and the user.
(15:43):
While the information on this podcast is about legal issues, it is not intended as legal advice and should not be used as a substitute for competent legal advice from a licensed professional attorney in your particular state. Anyone seeking specific legal advice or assistance should retain an attorney. Any prior results mentioned, do not guarantee a similar outcome. The content reflects the personal views and opinions of the participants in the podcast and are not intended as endorsements of any views or products.
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This podcast could contain inaccuracies. The information contained in this podcast does not constitute legal advice and is not guaranteed to be correct, complete, or up-to-date as laws continue to change. In this podcast, you will hear information about focus groups. Please note that not all of the firm's cases are presented to a focus group. Additionally, when speaking about juries or jurors in relation to a focus group, we are speaking of focus group participants and not actual trial juries or jurors.
