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What is Negligence?

What is Negligence?
Axelrod & Associates, P.A.

What does negligence mean under SC law?

If you intend to collect compensation from a person or business for a harm that they have caused you, you will first need to prove liability. The most common way that accident victims can prove liability is by establishing that the at-fault party was negligent. But how do you show negligence and how is it defined under SC law?

In this article, we will cover the basics of negligence law in SC, including:

  • What negligence means under SC law,
  • The definition of a tort,
  • The difference between “liability” and “negligence,” and
  • The different types of negligence in SC.


If you have seen websites, blog posts, or marketing materials for personal injury lawyers or auto accident attorneys in SC, you’ve probably seen some variation of the phrase “if you have been injured due to someone else’s negligence, call now…”

It’s worded this way for a reason – if your injuries were caused by someone else’s negligence (or intentional act), you may have a valid case. If your injuries were caused by your own negligence, you probably do not have a case (although you might still be able to recover damages if you were less than 50% at fault in the incident).

Negligence is defined in SC appellate opinions. For example, in Trivelas v. SCDOT, the Court of Appeals says that, to establish a negligence claim, the plaintiff must prove three elements:

  1. The defendant owed a duty of care to the plaintiff (for example, to keep a proper lookout for motorcycles while driving),
  2. The defendant breached their duty of care to the plaintiff through an act or omission, and
  3. The plaintiff’s damages were proximately caused by the defendant’s breach of their duty to the plaintiff.

What is a Tort?

A “tort” is an injury that is caused by someone else’s negligence – an injury for which there is a legally recognized remedy.

For example, when a driver fails to keep a proper lookout and crashes with a motorcyclist, they have 1) committed negligence that 2) results in a compensable tort (the auto accident).

A tort could also be an injury for which there is a legally recognized remedy that is caused by an intentional act. For example, if I punch someone in the face without justification, that could be the tort of assault and battery and it may also be the crime of assault and battery.

Liability v. Negligence

What is the difference between liability and negligence?

Liability is when a person (or business) is held legally responsible for a thing. Negligence is one way to establish a person’s civil liability for a tort that they have committed.

For example, if an injured motorcyclist establishes that the driver who hit them failed to keep a proper lookout (a duty that the driver owed to them) and that the failure to keep a proper lookout was the proximate cause of their damages (but for the driver’s failure to keep a proper lookout, the crash would not have happened), then the at-fault driver can be held liable for their negligence.

In our other example, if I intentionally punch someone, 1) I could be held civilly liable for my intentional act of striking them, and 2) I could be held criminally liable for the same actions under SC’s criminal laws.


“Ordinary” negligence is enough to establish liability and recover damages in most cases, but, in some cases, there may be more than “ordinary” negligence.

Negligence per se or strict liability, for example, allows the plaintiff to recover damages without technically proving the elements of negligence, while gross negligence or intentional torts entitle the plaintiff to receive punitive damages.

Negligence Per Se

Negligence per se is when the defendant violates a law or regulation that is intended to protect the public.

When a defendant commits negligence per se (for example, by running a red light and hitting another car in the intersection), the plaintiff no longer needs to prove the elements of negligence – the fact that the defendant violated a law that is intended to protect the public is enough to establish liability.

Gross Negligence

Gross negligence is when there is a reckless disregard for the safety or lives of others. It is “willful, wanton, or reckless conduct” that, if proven, entitles the plaintiff to receive punitive damages (in SC – this varies from state to state).

Comparative Negligence

Comparative negligence is when the plaintiff is partly at fault for the crash or other incident that caused their injuries.

If the plaintiff is partly at fault, they are not necessarily barred from recovering damages under SC law. If the plaintiff is more than 50% at fault in the incident, they cannot recover any damages. If the plaintiff is 50% or less at fault, they can recover damages, but their recovery will be reduced by the percentage of fault that is attributed to them (up to 50%).

SC’s “modified comparative negligence rule” is different than the rule in some other states. In NC, for example, there is a “contributory negligence rule” that bars a plaintiff from any recovery if they are even 1% at fault for an accident.

Intentional Torts and Strict Liability

Intentional conduct and strict liability are not forms of negligence, but they are ways to establish liability.

If someone intentionally causes harm to another person, they can be held liable for their actions, and the plaintiff is entitled to punitive damages.

Strict liability usually refers to liability that is established by statute – for example, if a dog attacks someone in SC, there is strict liability on the part of the dog’s owner (with some exceptions). Or, if a defective product injures a person, there may be strict liability on the part of the manufacturer, seller, or distributor of the product.

Strict liability also sometimes refers to the effect of negligence per se – if you break a traffic law intended to protect the public, you are “strictly liable” for any damage that you caused.


If you have been injured due to another person or business’s negligence, gross negligence, or intentional acts, your SC personal injury lawyer on the Axelrod team will help you to determine who is liable and whether comparative negligence or negligence per se will apply in your case. Call now at 843-353-3449 or send us a message for a free case evaluation.

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