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  • Writer's pictureDana Adkins, Esq.

Car Accidents: How Fault is Determined

Updated: Oct 28, 2022

Determining fault is a crucial part of any personal injury claim arising from a car accident. In many situations, there can be more than one cause for a car crash and multiple drivers may share some fault.

Before 1991, South Carolina recognized a contributory negligence rule in civil litigation. Under a system of contributory negligence, if an injured person’s conduct was found to have contributed in any way to their own injury, then they were completely barred from any recovery from another party. This very harsh rule completely prevented any recovery if a person was even slightly negligent.

Since 1991, with the landmark holding in Nelson v Concrete Supply Co., 303 S.C. 243, 399 S.E.2d 783 (1991), South Carolina has followed a comparative negligence rule. Under a comparative negligence system, a person injured in a car accident may recover damages for their injuries, even if they were partially at-fault. However, their own negligence will be factored in and reduce the total amount they recover.

The South Carolina Court of Appeals modified the comparative negligence rule with its holding in Ross v. Paddy, 340 S.C. 428, 532 S.E.2d 612 (Ct. App. 2000), in which the court ruled that a plaintiff’s negligence cannot exceed that of the defendant’s. This modified comparative negligence rule means that a plaintiff, who is more than 50% at-fault for an accident cannot recover anything from the other driver. However, if a plaintiff is 50% or less at- fault, they can still recover compensation from the other driver, but the percent of their responsibility reduces their damages.

It can get a little tricky. The rule in South Carolina is that the plaintiff’s negligence must not exceed that of the defendants. So, if the jury determines that the plaintiff and defendant split fault exactly 50-50, the plaintiff may be awarded 50% of their damages. However, if the plaintiff is the least little bit more at fault than the defendant (0.00000001), the plaintiff will be completely barred from recovery. There are other complicated scenarios. For example, what happens if it was a multi-car accident? If there is more than one defendant, the plaintiff’s negligence must not exceed the combined negligence of all the defendants.

If you’re thinking there must at least be a clear and consistent method to calculate fault fairly, you’re mistaken. Quantifying fault is left to the jury’s subjective opinion. Two different juries trying the same case might find differing percentages of fault. But, you only get one chance at trial and you can’t appeal the jury’s determination of fault. For this reason, it’s important to get it right during your one shot and with your one jury!

As a South Carolina personal injury lawyer, I handle these types of cases and often work within the South Carolina modified comparative negligence system. If you were injured in a car crash, the following information will help you better understand how this system works.

In South Carolina, the burden is on the plaintiff to prove the defendant was negligent by a preponderance of the evidence. The defendant can of course offer evidence that they were not negligent, and they can also offer evidence that the plaintiff was negligent. See, Ross v. Paddy. Illustrating the facts of the case can help secure a lower percentage of fault for the plaintiff. Some of the factors that are used to determine who pays and how much include:

  • Whether any of the drivers were speeding.

  • Whether any of the drivers were following the vehicle in front of them too closely.

  • Whether any of the vehicles had brake lights or taillights that were not functioning.

  • Whether any of the drivers were texting or engaged in any other type of distracted driving.

  • Whether any of the drivers were intoxicated.

  • Whether there was proper road signage to indicate a sudden traffic slow down or stop.

  • Whether there was any debris or objects that may have helped trigger the crash.

  • Whether all of the vehicles were properly maintained.

Another issue that often comes up in multi-vehicle accidents is the potential for the combined losses of all the injured individuals to exceed automobile insurance policy limits. If so, it is important to determine if there are other parties that could be held liable, such as a defective product maker. This could provide other ways to recover full compensation, but these avenues are not available in all cases.

Whatever the unique circumstances of your case, it is extremely important to get an experienced attorney involved as early as possible after the accident. Memories fade over time, and critical evidence has a tendency to disappear. The sooner you retain strong legal counsel, the better your chances of recovering full and fair compensation for your injuries.

Attorney Dana Adkins has more than a decade of experience handling complex car accident cases. If you have been in an car wreck and have questions about what automobile insurance coverage is available to you, it would be our pleasure to talk to you about your situation. We happily meet with clients virtually or in-person at our office or even at your home. We proudly serve the entire state of South Carolina. Call or text us today!


(843) 823-6237




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