Tort/Negligence – First Impression – Comparative Negligence – Jury Instructions – Varying Degrees of Fault

Berberich v. Jack. (Lawyers Weekly No. 010-0550-11, 9 pp.) (Donald W. Beatty, J.) Appealed from Florence County Circuit Court. (Thomas A. Russo, J.) S.C. S. Ct. Click here for the full text of the opinion.

Holding: Under South Carolina’s 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. A trial court should instruct the jury on the definitions of these various forms of negligence whenever requested by a party.

Because the jury instructions in this case had the potential to confuse the jury, we reverse and remand for a new trial.

Facts

Plaintiff performed work on defendant’s home. Plaintiff slipped and fell from a wet ladder on defendant’s property.

According to plaintiff, defendant had refused to turn off her lawn’s automatic sprinkler, despite requests. Moreover, she locked the controls to prevent plaintiff from turning off the sprinkler. Plaintiff also contends defendant refused to call an ambulance for him after his fall and that he had to call an ambulance from his cell phone.

Defendant denies any discussions about the sprinkler, any knowledge of plaintiff’s fall and any knowledge that an ambulance came to her home.

At trial, plaintiff contended that defendant’s actions in locking the controls and refusing to turn off the sprinklers constituted reckless, willful and wanton conduct. He asked the trial court to charge the jury on the definitions of recklessness, willfulness and wantonness and to instruct the jury that ordinary negligence is not a defense to a heightened degree of wrongdoing, so that his ordinary negligence could not be compared to defendant’s alleged conduct. The trial court denied these requests.

The jury found plaintiff 75 percent negligent and defendant 25 percent negligent in causing the accident, resulting in no recovery for plaintiff.

Analysis

Under contributory negligence, if a plaintiff was negligent to any extent in contributing to his own injury, the plaintiff was completely barred from recovering damages from a negligent defendant.

To ameliorate the harsh results that could occur under this general rule, an exception developed: a defendant could not assert the contributory negligence of a plaintiff as a total defense in cases where the defendant’s conduct was reckless, willful, or wanton. Under such circumstances, the plaintiff’s own contributory negligence would not bar the plaintiff’s recovery.

In 1991, South Carolina abolished the doctrine of contributory negligence and adopted comparative negligence as its tort standard. Under comparative negligence a plaintiff in a negligence action may recover damages if his or her negligence is not greater than that of the defendant. The amount of the plaintiff’s recovery shall be reduced in proportion to the amount of his or her negligence.

Recklessness implies the doing of a negligent act knowingly; it is a conscious failure to exercise due care. If a person of ordinary reason and prudence would have been conscious of the probability of resulting injury, the law says the person is reckless or willful and wanton, all of which have the same meaning – the conscious failure to exercise due care. The element distinguishing actionable negligence from willful tort is inadvertence.

Negligence may be so gross as to amount to recklessness; when it does, it ceases to be mere negligence and assumes very much the nature of willfulness.

The terms “willful” and “wanton” when pled in a negligence case are synonymous with “reckless,” and import a greater degree of culpability than mere negligence. Evidence that a defendant’s conduct breached this higher standard entitles the plaintiff to a charge on punitive damages.

There is no S.C. case specifically addressing whether reckless, willful and wanton conduct can be compared to ordinary or simple negligence after the adoption of comparative negligence.

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. Furthermore, comparative negligence encompasses the comparison of ordinary negligence with heightened forms of misconduct such as recklessness, willfulness and wantonness.

The rule that a plaintiff’s ordinary negligence is not a defense to reckless conduct was meant to ameliorate the harshness of the “all or nothing” result under contributory negligence. Since the abandonment of contributory negligence in this state and the adoption of comparative negligence, the need for this concept has been eliminated.

We hold that, under 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. By this method, each party’s relative fault in causing the plaintiff’s injury will be given due consideration. A trial court should instruct the jury on the definitions of these various terms, in addition to ordinary negligence, when so requested by a party, even if punitive damages are not at issue.

In the case before us, the trial court declined plaintiff’s request to define the concepts of ordinary negligence versus recklessness, willfulness and wantonness but did instruct the jury on assumption of the risk and other concepts. We find this had the potential to confuse the jury and skew the apportionment of fault in a manner that favored the defendant. For this reason, we reverse and remand for a new trial.

However, we reject plaintiff’s contention that the jury should have been instructed that any negligence on his part could not be a defense to reckless conduct. A jury may compare all forms of negligence as part of its assessment of fault.

We likewise reject plaintiff’s alternative argument that the jury should have been instructed that heightened degrees of wrongdoing should be accorded greater weight than ordinary negligence. The 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.

Reversed and remanded.