South Carolina Clarifies Jury Instructions on NegligenceBy Kristine L. Roberts, Litigation News Print Editor – June 14, 2011
The Supreme Court of South Carolina has held that, under the state’s comparative negligence system, a jury may compare all forms of negligence to assess each party’s relative fault. Berberich v. Jack. In a case of first impression in the state, the court directed trial judges to instruct juries, when requested, on the definitions for heightened degrees of negligence, including recklessness, wantonness, and willfulness.
Slip and Fall
Naomi Jack hired Neal Berberich to work on her home. During the project, a dispute arose over Jack’s automatic sprinkler system. Berberich claimed that he told Jack that his crew had difficulty working with the sprinklers on and that Jack refused to turn them off. Jack claimed that she did not receive any complaints, but that she had instructed a crew member not to turn off her sprinkler system.
While Berberich was working at the top of an eight-foot ladder, Jack’s sprinklers came on. Berberich slipped on a wet rung while climbing down, fell, and was injured.
The Jury Charge
Berberich filed suit, alleging that Jack’s conduct was negligent, willful, wanton, and reckless. He initially sought compensatory and punitive damages, but later withdrew the punitive damage claim.
At trial, Berberich asked the court to charge the jury on the definitions of recklessness, willfulness, and wantonness and to instruct the jury that any ordinary negligence on his part could not be compared to Jack’s reckless conduct. The trial court refused, ruling that the definitions Berberich sought were relevant only if punitive damages were at issue. The jury returned a defense verdict.
Defining the Degrees of Negligence
On appeal, Berberich argued that the trial court abused its discretion by refusing his requested jury instructions. Berberich alternatively argued that the trial court erred by not instructing the jury to give more weight to Jack’s reckless conduct.
The South Carolina Supreme Court agreed that the trial court’s instructions had the potential to confuse the jury and reversed and remanded for a new trial. The court held that a trial judge should instruct the jury on the definitions of the various forms of negligence whenever requested by a party, even if punitive damages are not at issue.
The court described South Carolina’s abolition of contributory negligence and adoption of comparative negligence in 1991. It reviewed the “troublesome” distinctions in the degrees of ordinary negligence and heightened wrongdoing, explaining that the terms willful, wanton, and reckless all signify conscious failure to exercise due care.
Under contributory negligence, South Carolina courts had developed an exception to the rule that any negligence by the plaintiff was a complete bar to recovery. To avoid this harsh all-or-nothing result, courts held that a plaintiff’s ordinary negligence was not a defense to reckless conduct.
The Berberich court held that the adoption of comparative negligence eliminated the need for this exception. The court stated that all forms of negligence—including reckless, willful, or wanton conduct—may be compared to any conduct that falls short of an intentional tort. As the court explained, “[b]y this method, each party’s relative fault in causing the plaintiff’s injury will be given due consideration.” Using the same rationale, the court rejected Berberich’s argument that the trial court erred by not instructing the jury that reckless conduct “should be accorded greater weight than ordinary negligence.”
Comparing Each Party’s Fault
“It is interesting that the South Carolina Supreme Court found that the trial court should instruct the jury on the definitions of the various forms of negligence when requested, but rejected the argument that the jury should be instructed on how to compare those forms of negligence,” says Laura H. Kennedy, Phoenix, a chair of the ABA Section of Litigation’s Young Advocates Committee. “In this way, the court appears to leave the mechanics of the fault comparison wholly within the province of the jury,” says Kennedy.
Yet even defining the forms of negligence can lead to jury confusion. “The legal definitions may be confusing for jurors who are going to have difficulty weighing the varying degrees of negligence,” says Oran F. Whiting, Chicago, a chair of the Section of Litigation’s Trial Practice Committee.
Litigants frequently argue that conduct rises to the level of recklessness or wantonness. “Lawyers use heightened terms like recklessness as an enhanced jury argument,” says James W. Shelson, Jackson, MS, vice-chair of the Section’s Trial Practice Committee.
“The definitions still give the trial lawyers a powerful tool to argue, albeit more subtly, the very result which the court rejected, that is, that heightened degrees of negligence should be given greater weight than ordinary negligence,” notes Kennedy.
Keywords: litigation, South Carolina, jury instructions, negligence, recklessness, wantonness, willfulness
- » Berberich v. Jack, Op. No. 26955, 2011 S.C. LEXIS 106 (S.C. Apr. 4, 2011).
- » Nelson v. Concrete Supply Co., 399 S.E.2d 783 (S.C. 1991).
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