The Law of Comparative Negligence & Minors in South Carolina

From time to time, in both the retail and hospitality  settings, we assist clients who have either been sued or threatened with suit arising from claims involving injury to a minor. The alleged injuries can be very serious, which makes these claims stressful for our clients. The seriousness of the injuries along with the tenderness of age also creates difficulty in assessing exposure. The exposure analysis often includes questions to us about comparative negligence. Specifically, our clients want to know whether a minor can be comparatively negligent for his or her own injuries in South Carolina. Stated succinctly, the answer to that question is “Yes.”

Three recent cases in our jurisprudence speak to the issue of whether a minor can be comparatively negligence for his or her own injuries.

In Brown v. Smalls, 325 S.C. 547, 481 S.E.2d 444 (Ct. App. 1997), a guardian of a three-year-old child who had suffered severe injuries when he was struck by a motorist while crossing the street brought a personal injury action against the motorist. At trial, the jury found the injured child 75% at fault and motorist 25% at fault. An issue on appeal was whether the jury could apportion fault to the minor. Relying on an earlier case from the South Carolina Supreme Court, Standard v. Shine, 278 S.C. 337, 295 S.E.2d 786 (1982), the Brown Court answered in the affirmative:

[T]he prevailing view in cases of both primary and contributory negligence of minors is that no arbitrary limits as to a minimum age should be set. The capacities of children vary greatly, not only with age, but also with individuals of the same age. Therefore, no very definite statement can be made as to just what standard is to be applied to them. § 32 Prosser on Torts (4th Ed.). Of course, a child of tender years is not required to conform to an adult standard of care. The Restatement (Second) of Torts § 283A suggests that a minor’s conduct should be judged by the standard of behavior to be expected of a child of like age, intelligence, and experience under like circumstances.

Id. at 555-56, 481 S.E.2d at 449 (Ct. App. 1997) (quoting Standard v. Shine, 278 S.C. 337, 338-39, 295 S.E.2d 786, 787 (1982)).

Judge Ralph King Anderson, Jr., the authoring judge in Brown, took the analysis a step further and suggested an appropriate jury charge in matters involving minors and comparative negligence:

A child under the age of fourteen years is not required to conform to an adult standard of care. A minor’s conduct should be judged by the standard of behavior to be expected of a child of like age, intelligence, and experience under like circumstances. A child may be so young as to be manifestly and utterly incapable of exercising any of those qualities of attention, perception, knowledge, experience, intelligence, and judgment which are necessary to enable the child to perceive a risk and to realize its unreasonable character. On the other hand, it is obvious that a minor who has not yet attained majority may be quite as capable as an adult of exercising such qualities.

Id.

In Jones ex rel. Castor v. Carter, 336 S.C. 110, 518 S.E.2d 619, a six-year-old bicyclist’s guardian sued a motorist for negligence, seeking to recover for personal injuries the minor bicyclist suffered when she collided with the motorist’s car at an intersection after the bicyclist failed to stop at a stop sign. The jury at the trial stage found for the motorist. On appeal, the Court of Appeals affirmed the Circuit Court’s judgment. In arriving at its holding, the Court of Appeals instructed:

Under the holding in Standard, what specific behavior is legally expected of a minor under fourteen becomes a question of fact decided on the circumstances of each case. Even though one child of a given age may be completely incapable of acting in accordance with a given adult standard of care, another child of the same age may have sufficient maturity and knowledge such that a jury could reasonably expect that child to act as an adult should under the same circumstances. See Brown, 325 S.C. at 556, 481 S.E.2d at 449. Thus, in the wake of Standard, where there is evidence that a minor should be expected to exhibit a certain level of care, Herring [v. Boyd, 245 S.C. 284, 140 S.E.2d 246 (1965) ] can no longer operate to prevent a jury, in determining the child’s negligence or comparative negligence, from considering the child’s failure to exercise that level of care. A child under fourteen therefore may be, but is not necessarily, negligent for failure to obey an adult standard of care.

Id. at 117-18, 518 S.E.2d at 622-23 (footnote omitted).

Finally, in Estate of Haley ex rel. Haley v. Brown, 370 S.C. 240, 634 S.E.2d 62 (Ct. App. 2006), the estate of a minor bicyclist, who was killed when his bicycle ran into car as he exited driveway from behind bushes, brought a wrongful death action against the driver of the car. At trial, the Circuit Court directed a verdict in favor of the driver, noting it was the bicyclist who struck the motorist and that the motorist swerved and applied the brakes. At the appellate stage, in addition to considering whether the circuit judge erred by directing a verdict (rather than permitting the case to go to the jury), the Court of Appeals again addressed the issue of a minor being comparatively negligent for his or her injuries. Again, the Court recognized the law of this state permitted such an analysis. Further, in light of the facts of the case, the Court concurred the motorist was without fault for the accident and held directed verdict was appropriate. Id. at 65, 634 S.E.2d at 245.

The bottom line is this: In South Carolina, a minor can be held by the factfinder to be comparatively negligent for his or her injuries. In fact, where the facts support such a holding, there is precedent (Estate of Haley ex rel. Haley v. Brown, 370 S.C. 240, 634 S.E.2d 62 (Ct. App. 2006)) to support a tenable argument at the directed verdict stage the alleged tortfeasor is completely faultless and deserving of dismissal from suit. Where a question of fact does exist, the factfinder is then guided by the following parameters when assessing the existence of comparative negligence: A minor’s conduct should be judged by the standard of behavior to be expected of a child of like age, intelligence, and experience under like circumstances. A child may be so young as to be manifestly and utterly incapable of exercising any of those qualities of attention, perception, knowledge, experience, intelligence, and judgment which are necessary to enable the child to perceive a risk and to realize its unreasonable character. On the other hand, it is obvious that a minor who has not yet attained maturity may be quite as capable as an adult of exercising such qualities. Every case is different, and what drives the analysis is the purported cause for the alleged injury, the maturity of the minor involved, and whether he or she possessed the attention, perception, knowledge, experience, intelligence, and judgment to perceive the alleged danger and avoid it prior to the subject accident occurring.