Court: Recklessness should be weighed in comparative negligence

By FRED HORLBECK, Senior Staff Writer

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A homeowner who has workers performing maintenance on her home allegedly refuses to turn off her automatic sprinkler despite workers’ requests. Later, a worker slips on a wet ladder and falls. He sues, claiming the homeowner was reckless, and the homeowner asserts the worker was negligent.

In a real-life suit from Florence County, that scenario raised a novel question under South Carolina’s comparative negligence system: Could a jury compare and offset the plaintiff’s alleged ordinary negligence against the defendant’s alleged recklessness?

It could indeed, the state Supreme Court said in an April 4 first-impression decision.

“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,” Justice Donald W. Beatty wrote for the court.

The case is Berberich v. Jack (Lawyers Weekly No. 010-0550-11, 9 pp.).

The issue had been quietly simmering ever since the court replaced the state’s contributory negligence system in the 1991 case of Nelson v. Concrete Supply Co., 303 S.C. 243, said Patrick Hubbard, a torts professor at the University of South Carolina School of Law.

“What has been happening since that case came out is that, periodically, an issue will reach the court about a part of this system that the court has missed, and they have to resolve it,” Hubbard said.

He called the ruling “reasonable” and said many other jurisdictions nationwide had taken the same approach.

“I regard it as an important bit of precedent because it has now answered a question we just didn’t know the answer to before,” Hubbard said.

Edward L. Graham, a lawyer for the worker, hailed the decision.

 “In our case it was extremely important because my client was accused of being negligent in exposing himself to a risk arising out of his employment while the defendant was alleged to do something that was borderline intentional,” Graham said.

“It was a willful act that she did turn on the automatic sprinkler system and keep it on in a locked position and deny my client access to a safe workplace. The jury was not given definitions of willful or wanton or reckless behavior on the part of the defendant. So the jury really had no way of trying to figure out how to balance simple negligence on the part of the plaintiff against heightened wrongdoing on the part of the defendant,” he said.

The trial court had rejected the worker’s request to charge the jury that his own alleged ordinary negligence was no defense to the defendant’s alleged recklessness. It also denied his request for a jury instruction on the definitions of recklessness, willfulness and wantonness.

Henceforth, trial courts should provide such instructions when asked, the Supreme Court said.

“Each party’s relative fault in causing the plaintiff’s injury will be given due consideration,” Justice Beatty wrote. “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.”

The court reversed and remanded because instructions that the trial court did give were potentially confusing, according to the opinion.

Ronald P. Diegel, a lawyer for the defendant, did not return Lawyers Weekly’s phone call seeking comment prior to deadline.

Background & analysis

The case arose when plaintiff Neal Berberich sued the defendant for negligence.

Berberich was on a ladder when the sprinkler system activated, Graham said. The 8-foot-tall A-frame ladder became slippery, and Berberich fell, hurting his back, neck and ankle.

The plaintiff sued for actual and punitive damages. He withdrew his request for punitives before the case went to the jury but asked the judge to charge the jury that his own alleged ordinary negligence was no defense to the defendant’s alleged recklessness. He also sought a jury instruction on the definitions of recklessness, willfulness and wantonness.

The trial court refused. The charge wasn’t part of South Carolina law, it said, and the definitions Berberich sought were relevant only if punitive damages were at stake. It then instructed the jury on assumption of risk and “other concepts.”

On appeal, the plaintiff contended that the trial court’s refusal was an abuse of discretion. First, he said, the defendant’s allegedly reckless, willful and wanton conduct was a heightened form of wrongdoing, unlike ordinary negligence. Alternatively, he said, the court should have instructed the jury to give more weight to recklessness, wantonness and willfulness.

But the defendant argued that the terms were irrelevant because the plaintiff had consented to send the case to the jury on the issue of actual damages only.

The Supreme Court disagreed with both arguments from the plaintiff. In contrast to the defendant’s stance, it said courts should instruct juries on the different types of negligence upon request from a party.

The comparative negligence system, Justice Beatty wrote, 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.”

“Further, although there is a divergence of opinion in courts that have considered the question, we hold the sounder reasoning supports the determination that comparative negligence encompasses the comparison of ordinary negligence with heightened forms of misconduct such as recklessness, willfulness, and wantonness,” he wrote.

Opinion Brief

Case name: Berberich v. Jack

Court: S.C. Supreme Court

Judge: Justice Donald W. Beatty.

Attorney for plaintiff/appellant workman: Edward L. Graham of the Graham Law Firm (Florence)

Attorneys for defendant/respondent homeowner: Ronald P. Diegel and William H. Frye, both of
Murphy & Grantland, (Columbia)

Issue: Under comparative negligence, could a jury compare and offset a plaintiff’s alleged ordinary negligence against a defendant’s alleged recklessness?

Holding: Yes. The court, characterizing South Carolina’s comparative negligence as a comparative fault system, said the system encompasses the comparison of ordinary negligence with heightened forms of misconduct such as recklessness, willfulness and wantonness even where punitive damages are not at issue.

Potential impact: The Supreme Court made it clear that, under the comparative negligence system, trial courts henceforth should instruct juries on the definitions of various types of negligence upon the request of any party.