In South Carolina, the doctrine of comparative negligence bars a plaintiff from recovering for his or her injuries if the plaintiff’s own negligence amounts to more than 50% of the total fault. Recently, in an opinion dated October 28, 2020, the South Carolina Court of Appeals reversed a decision of the trial court in Pickens County finding that an injured pedestrian’s negligence was greater than 50% because she did not use a crosswalk in attempting to cross a busy, four-lane highway when it was dark and raining.
On an evening in October, Chelsea Abdelgheny had just finished teaching a fitness class when her boss asked that she check on an order he had placed at a sign store across the street. The street in question was Highway 8 in Easley, which is a four-lane highway with a wide center medium. Chelsea was wearing a neon pink hooded sweatshirt and bright blue exercise pants at the time, and she crossed Highway 8 at the point closest to her rather than using the nearest crosswalk. It was dark, raining, and traffic was moderate. Chelsea was talking to her boss on her cellphone while she was crossing Highway 8, but she successfully crossed the northbound lanes, reached the center medium, and stopped and looked to make sure all was clear before she attempted to cross the southbound lanes of Highway 8.
Unfortunately, Gerald Moody was driving southbound from Pickens in his pickup truck and he hit Chelsea while she was attempting to finish crossing Highway 8. Chelsea’s memory was fuzzy, but she testified that she first saw Mr. Moody’s truck when he hit her. Mr. Moody testified that he was driving at a speed of about 25 to 30 miles per hour, his windshield wipers and headlights were on, and he “looked up and . . . saw this lady in front of my driver’s headlight with her hand up. She turned and looked at me and made approximately two fast steps, and I hit her with the right passenger headlight.” He testified that when he saw Chelsea, she was only ten feet in front of his truck. Mr. Moody testified that he hit his brakes, but he still struck her. The impact broke Chelsea’s right hip and caused her other significant injuries.
Chelsea sued Mr. Moody for negligence, and Mr. Moody raised comparative negligence as a defense. The trial court grant summary judgment to Mr. Moody and dismissed the case because it determined that Chelsea’s negligence in not using the crosswalk exceeded fifty percent of the total fault such that she could not recover. The Court of Appeals reversed.
Although the Court of Appeals agreed with the trial court that, by crossing the highway outside of the crosswalk, Chelsea was negligent, the appellate court explained that “we cannot agree that the only inference a reasonable juror could make is Chelsea’s own negligence accounted for more than fifty percent of the fault.” Indeed, both Chelsea and Mr. Moody had a duty to keep a proper lookout, and the fact that Chelsea did not use the crosswalk did not excuse Mr. Moody from his duty to look and see. There were a number of facts from which a jury could infer that Mr. Moody’s negligence exceeded that of Chelsea’s—for example, a jury could find that his testimony that he “looked up” and saw Chelsea ten feet ahead was incompatible with keeping a careful looking or that his speed was too fast for conditions. For these reasons, the Court of Appeals reversed the trial court’s grant of summary judgment to the driver.
Blog post by attorney Marghretta Shisko. Click here to learn more about Marghretta.
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