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Partially at Fault In A Wreck? Your PI Case May Still Succeed

  • No one’s a perfectly safe driver. We all become distracted by something, drive faster than the speed limit and once in a while follow another vehicle too closely. Under South Carolina law, even if you’re not a textbook driver and were involved in an accident, you might still recover damages for your injuries if you can show the other party or parties were more responsible for the collision than you were.


    Nearly all personal injury cases use the legal theory of negligence. It generally states that if a party has an obligation to do something (or not do something), fails in that obligation and hurts someone as a result, the injured party may have a legal claim against the responsible party for compensation for the harm done.


    What a plaintiff needs to prove to win a case


    In a personal injury negligence case, the party suffering the injury (the one filing the lawsuit) is the plaintiff. The party who is accused of causing the injury is the defendant. The elements of negligence a plaintiff would need to prove are:


    • A duty of care (the legal obligation to do or not do something, given the circumstances) was owed by the defendant to the plaintiff.
    • The defendant failed in that obligation and breached that duty.
    • The defendant’s conduct, in fact, caused the harm to the plaintiff.
    • The conduct is a proximate, or legal, cause of the harm, which was foreseeable by the defendant.
    • The harm to the plaintiff resulted in damages that, under South Carolina law, can result in compensation.


    Although a personal injury case can be based on harm done by an intentional act by one party against another, the vast majority of cases are based on a negligence claim. One reason is that in nearly all cases an insurance policy held by the defendant applies, and it’s the insurance company that would pay a settlement or damages decided by a jury. Insurance policies normally don’t cover intentional acts, and few individuals have the resources to pay to settle a case or damages decided by a jury.


    The plaintiff need not be blameless to have a successful case.


    State law applies to most personal injury cases. In South Carolina, the plaintiff has the burden of showing that the defendant was more at fault than they were in order to prevail. This is considered a modified comparative negligence system that allows a plaintiff to collect damages even if he or she was partly at fault for the injury.


    For example:


    • A person driving ten miles an hour over the speed limit has a green light at an intersection and proceeds through it;
    • At the same time, another driver approaching the intersection from another direction, distracted by his smart phone, doesn’t see the red light and collides with the other vehicle;
    • If the speeder files a personal injury lawsuit  for compensation for injuries caused by the accident, he or she has the burden of proving the distracted driver was more at fault.


    If there are multiple defendants who may be to blame, a plaintiff would need to prove that the fault of all the defendants is greater than his or her own. In cases involving more than one defendant, each party will try to show all the others are to blame. Defendants may point fingers at each other, in addition to the plaintiff, trying to avoid liability.


    Although being partially at fault won’t necessarily bar recovery from a lawsuit, it will impact the amount of damages to be awarded. The damages award will be reduced by how much the plaintiff is at fault. If a jury decides a plaintiff is one-third to blame for the accident, the damages award will be cut by a third. If this plaintiff establishes $120,000 in damages, the maximum award would be $80,000.


    The jury decides who is at fault and how much blame they deserve.


    Juries in these cases not only need to figure out the facts to determine what happened, but also who is to blame for the accident and how much blame each party deserves. This can be a difficult task, depending on the facts of the case, and it can boil down to a jury member’s “gut feeling” as to how at-fault a party may be.


    Expert testimony and accident reconstruction, along with testimony by the parties and witnesses, are key to a jury’s findings.


    • Experts are often hired by each party to pull apart the accident, then piece it back together again, in order to come up with an opinion as to what happened, why and who is how much at fault.
    • The parties normally testify, though memories can be clouded or lost because of the trauma of the accident. Parties’ testimony may be seen as biased because they’re involved in the lawsuit.
    • A jury may see an accident witness as independent and credible, because he or she has no stake in the case’s outcome; but the person’s vantage point may not have been ideal, darkness or bad weather could have impaired their view, and their recollection of the accident may have faded over time.


    A jury, especially in a close case, may decide in favor of the party they most “connect” with because they find him or her (and/or their expert) more credible, they gave a better presentation on the stand and the jury better relates to one party compared to the other.


    Given how challenging the jury’s job is, the many issues it needs to face and the fact their opinions and findings can be unpredictable, most personal injury cases settle before going to trial. Both parties obtain the facts of the accident and attorneys for both sides add their opinions as to who is how much at fault; but it’s ultimately up to the parties to decide how much they’re willing to risk to have a group of strangers decide the case. If both parties are reasonable, chances are a jury will never need to decide whether a defendant is more at fault than the plaintiff, because the parties agreed to settle the case.