Understanding How Comparative Negligence Can Affect My Injury Claim

The civil justice system in the United States has specific laws that vary from state-to-state, including the way fault and damages are apportioned in personal injury cases.

South Carolina, like the majority of states, has a modified comparative negligence or comparative fault system. In a nutshell, a comparative negligence system allows a victim to obtain compensation for injuries and financial losses, even if he or she is partially to blame for what happened, subject to certain limitations.

The attorneys at Joye Law Firm help people who have been injured as a result of others negligence seek compensation for their injuries and losses. Founded in 1968, Joye Law Firm has offices in Columbia, North Charleston, Clinton, and Myrtle Beach to serve accident victims and their families. Our personal injury firm can help protect your rights to the compensation that you need and deserve.

Call (803) 393-7891 or contact us online to schedule a free consultation to discuss your case in more detail.

What is Comparative Negligence?

Comparative fault allows for compensation to be awarded in proportion to the negligence of the parties involved. Modified comparative fault systems again vary by state.

South Carolina is one of the states that essentially has a 51% cutoff rule. Under the South Carolina comparative negligence law, a victim can recover money for accident-related injuries as long as he or she was less than 51 percent responsible for the accident. Insurance adjusters representing those involved in an accident assign fault to each side in an accident. If a case goes to trial, then the jury determines the degree of fault.

If you are partially at-fault and are awarded damages by a jury, then your award would be reduced by your degree of fault.

How Can it Affect My Compensation?

When a South Carolina jury decides a personal injury case, comparative negligence means that the compensation awarded in a civil action is subject to a reduction in proportion to a plaintiff’s negligence.

For example, assume a judge or jury awards a victim $100,000 in a personal injury case for which he or she is found to have been 25% at fault. Under South Carolina comparative negligence law, a state court reduces the verdict by $25,000, resulting in a $75,000 recovery. In the same scenario, if the plaintiff was deemed 50 percent at fault, he or she would be entitled to recover $50,000. However, if the jury found the person to be 51 percent or more liable, the person would not be entitled to any compensation.

Insurance companies and defense lawyers are likely to argue that your own negligence was a major contributing factor in the accident. Shifting the blame is a standard strategy employed to minimize the insurer’s liability and the amount that the insurer has to pay to resolve a claim.

For this reason, never try to negotiate on your own with the negligent party’s insurance company. Let an experienced personal injury lawyer handle the negotiations on your behalf. Assigning fault is a very fact-sensitive and complicated matter best left to a trained legal professional who can gather all the appropriate evidence and negotiate on your behalf.

How is Comparative Negligence Applied Under SC Law

A plaintiff in a negligence lawsuit in South Carolina can recover money damages so long as his or her negligence is less than 51 percent.

The general principles of a negligence claim are that a defendant owed a duty of care to a plaintiff, the defendant breached that duty of care, that breach of duty caused the plaintiff’s injuries, and those injuries caused damages. South Carolina adopted comparative negligence for motor vehicle accidents in 1962 and applied it to all injury cases in 1988.

Pure vs. Modified Comparative Negligence

A dozen states have pure comparative fault systems in which accident victims may still collect damages, even if he or she is primarily at fault.  While pure comparative fault does allow a victim to recover damages regardless of their degree of negligence, the amount of compensation awarded will still be reduced to offset the victim’s percentage of negligence.

The bottom line is that a claim that might have been barred outright in a modified comparative state such as South Carolina could still end up proving to be almost equivalent to a lost cause in a pure comparative state.

Let’s assume a car accident victim files a lawsuit even though it is established that he or she was 90 percent at fault. Assume further that the victim/plaintiff claims damages in the amount of $100,000. Even after theoretically winning the case, the plaintiff would only recover $10,000 with the application of pure comparative negligence. The attorney’s fee and case expenses would be deducted from this amount.

Contact an Experienced Personal Injury Attorney in South Carolina

In any personal injury case, the degrees of fault are major factors in out-of-court settlement negotiations and in cases presented to juries at trial. You need to be especially cautious with anything you say to an insurance company that represents that you were partly responsible for a car crash or other injury. You are usually better served to just let a skilled personal injury lawyer deal with an insurer for you.

Never provide a recorded statement to a claim adjuster or other representative for an insurance company, no matter how harmless they might make it sound. Never accept at face value an insurance adjuster’s assessment of the proportion of fault either. Insurers often try to use formal or informal statements to get accident victims to inadvertently admit to acts of negligence or blame that can be later used to reduce or deny injury claims.

Joye Law Firm, with four offices across South Carolina, offers more than 250 years of combined experience helping personal injury victims pursue personal injury claims. Call (877) 941-2615 or contact us online to schedule a free consultation.

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At What Price Can You Reach Greatness?

Blog by attorney Ken Harrell

I have just finished Andre Agassi’s autobiography, “Open.”  Never was a book more aptly named.  I can’t say that I ever gave a lot of thought to Agassi during the height of his career.  If you grew up in Waverly, Virginia in the 1960’s and 1970’s, there were three sports – football, basketball, and baseball.  I can honestly say that I don’t think I ever saw a real soccer ball until I went to college and I had equally little exposure to tennis and golf (which we considered to be sports for rich people).  To the extent that I was aware of Agassi, I thought of him as something of a brash punk seeking the spotlight with ever-changing hair and fashion choices that made the traditional tennis world uneasy.  After reading Agassi’s autobiography, I’m certainly a fan of the man he evolved into.  It’s rare to read an autobiography that doesn’t have a sheen of pompous waxing, especially one by a celebrity (Agassi was married to Brooke Shields for a few years in the 1990’s).  To the contrary, Agassi bared his soul in this book.  He spoke about how he came to hate tennis due to a controlling father who drove him relentlessly, and a stint at a tennis academy during his high school years.  He spoke of his abject failure academically.  He admitted many personal faults and lapses in judgment (including a stint of crystal meth use) that had him on the brink of squandering his immense talents during the height of his career.  He also wrote about the frustration of being over-shadowed throughout his career by Pete Sampras, who defeated Agassi in a number of top tournament championships.  Through it all, Agassi found a way to keep going – to keep re-making himself physically and to find some deeper sense of purpose in the game.  He ended his career having won eight Grand Slam events and having spent several periods of time ranked as the number one tennis player in the world.  Unquestionably, Andre Agassi was a “great” tennis player.

Agassi’s book left me thinking about the cost of greatness for all of us, in whatever endeavor we choose.  Greatness is something that just about everyone claims to aspire to, although I’m convinced that only a very few people are truly committed to doing what it would take to be “great” in their field.  As the managing partner of the Joye Law Firm, I’m very proud of the law firm we’ve built over the past 50 years.  Much of the credit obviously goes to Reese Joye, our founder, and my law partner Mark’s father.  Reese certainly laid the foundation for us to be successful.  However, I’m also proud of the work Mark and I have done over the past 25 years to transform the firm into something far grander than Reese could have envisioned.  None of this would have been possible if we didn’t have excellent lawyers and employees working for us.  We have 18 lawyers at our law firm.  I can undoubtedly say that all of them are very good at what they do.  You can’t be a lawyer at this law firm without being good at your craft.  There are also a few of our lawyers who are great at what they do.  Just as with tennis greatness, there are a few traits that separate the great trial lawyers from the rest of the pack.

What are those traits?

First, and foremost, is a work ethic that is hard to match.  In his book “Outliers”, author Malcolm Gladwell opined that it takes 10,000 hours of practice for someone to master their craft.  I would agree with that.  Depending on how many hours a week someone is working, that’s four to five years of working.  There has never been a new lawyer who had any idea of how to be a good lawyer on their first day of work.  In my experience, it takes four to five years of experience before a lawyer truly has his or her sea legs under them to such an extent that they truly feel confident about doing their job.  Fortunately, fledgling lawyers at our law firm are surrounded by a pack of lawyers who are willing to guide and teach them, and who are vested in seeing them succeed.  However, Gladwell’s belief about the need to invest 10,000 hours are about how much time is needed to be competent in a craft, not to become great.  The great lawyers have an engine that seems to run hot all the time.  As I write this article on a Sunday afternoon in my office, I am reminded that the same two or three lawyers seem to be the ones I see working on weekends or late at night.  There is a high cost for greatness.  It is not for everyone.

Second is a level of competitiveness that borders on obsession.

Great trial lawyers love to win.  However, what really drives them is that they hate to lose more than anything imaginable.  All great trial lawyers lose cases.  All great athletes lose games and matches.  If a lawyer tells you he’s never lost a case, you’re talking to a lawyer who’s likely afraid of the courtroom (or who has spent his career cherry picking the cases he tries on the rare occasions he enters a courtroom).  The great trial lawyers not only learn from their defeats but they are sickened by them.  They lose sleep, they lose appetite, they go through a deep funk.  When a lawyer is that deeply affected by his losses, his competitive drive will help spur him to greatness.

Third is courage.

I’ll brag on my law partner Mark here.  Over the past year and a half, Mark has obtained two stellar verdicts in federal court – one for $6 million and the other for $12 million.  Now that would be impressive in and of itself.  However, what’s truly impressive is that prior to the trial of these two cases, Mark turned down a $3.5 million offer on the first case and an $8.7 million offer on the second.  If you find a trial lawyer who has the courage (and the cajones) to turn down offers of $3.5 million and $8.7 million and then to go out and get higher verdicts, you’ve found yourself a great trial lawyer.  That’s a rare bird indeed.

Finally, great trial lawyers have a deeper sense of purpose that goes beyond a specific case and making a lot of money.

Andre Agassi eventually found some purpose in tennis after marrying Steffi Graf (arguably the greatest women’s tennis player ever) and having children.  More importantly, he was driven to succeed because he realized it would help him realize his goal of building a college preparatory academy in inner-city Las Vegas.  (The Democracy Preparatory Academy at Agassi Campus will turn 20 next year.)  The same commitment to a cause greater than a single case is a trait shared by many of the best trial lawyers.  It starts by helping a client whose life has been catastrophically affected by a severe injury or by the death of a loved one start to rebuild their lives but it can often go beyond that.  When Mark and I were young lawyers, we were fortunate to participate in a case which resulted in a $262.5 million verdict against Chrysler related to a defect with the latch on its minivan’s rear door.  Mark’s closing argument, in that case, has been featured in books published on the art of a great closing argument.  That verdict was eventually vacated by the Fourth Circuit Court of Appeals and the case then settled for a much lower amount.  What the Fourth Circuit couldn’t vacate was the recall of these minivans by Chrysler to repair the defective latches.  The verdict our law firm obtained played a role in saving lives – and there are countless other examples of civil trial results spurring safety improvements that have benefitted all of us.

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Vitamin E Acetate: Could this be the cause of vaping lung damages?

Health authorities say a form of vitamin E has been identified as a “very strong culprit” in a nationwide outbreak of lung injuries related to the use of e-cigarettes.

The Centers for Disease Control and Prevention (CDC) said in a November 8 statement that fluid samples collected from the lungs of 29 patients in 10 states across the country with vaping-associated lung injury contained Vitamin E acetate, which is used as an additive in some vaping products.

The outbreak of e-cigarette-related lung problems has killed 40 people and sickened 2,051 since March, according to the Washington Post. The South Carolina Department of Health and Environmental Control (DHEC) says it has 33 cases of vaping-related respiratory illness “confirmed or probable.” It is investigating reports of suspected vaping-related illnesses in all four regions of the state. Those diagnosed with vaping-related lung injury in South Carolina range in age from 13-69, though they are typically young male adults or teenagers.

Many patients have been hospitalized in intensive care units. Dr. Armin Meyer, a pulmonologist in Greenville, SC, said in a Facebook video that he has had six patients, some of whom “have been critically ill, requiring high amounts of oxygen and even … artificial life support.”

According to The Post, the illness is related to illicit or bootleg vaping products “that are essentially a stew of unknown chemicals concocted, packed and sold by unknown manufacturers and sellers.”

What is Vitamin E Acetate and Why is it in E-Cigarettes?

Vitamin E is found in many foods, including vegetable oils, cereals, meat, fruits and vegetables. Alpha-tocopheryl acetate (ATA) is a specific form of Vitamin E that is often found in skincare products and dietary supplements.

An acetate is a salt or ester compound formed from acetic acid. Sodium (salt) acetate has anti-caking properties.

E-cigarettes work by heating a liquid to produce an aerosol that users inhale into their lungs. The liquid in an e-cigarette can contain nicotine, tetrahydrocannabinol (THC) and cannabinoid (CBD) oils, and other substances and additives.

The CDC says Vitamin E acetate is used as an additive in the production of vaping products because it resembles THC oil. THC is the psychoactive compound of marijuana. Vitamin E acetate is also used as a thickening ingredient in e-liquids.

Vitamin E acetate usually does not cause harm when ingested as a vitamin supplement or applied to the skin, according to the CDC. However, research suggests when vitamin E acetate is inhaled, it may interfere with normal lung functioning.

Dr. Anne Schuchat, principal deputy director of the CDC, said at a news briefing that fluid samples taken from the lungs of 29 patients, including two who died, “provided evidence of vitamin E acetate at the primary site of injury in the lungs.”

Vitamin E acetate is sticky, like honey, and clings to lung tissue. Researchers do not know exactly how it harms the lungs, but studies in animals are being considered to help explain that, Schuchat said.

Schuchat also left open the possibility that other chemicals or toxins from vaping fluids or devices could be causing the severe respiratory ailments, the Post said.

Symptoms of e-cigarette-related lung injury include breathing difficulty, shortness of breath and/or chest pain. Some patients have reported mild to moderate gastrointestinal illness, including vomiting, diarrhea, and fatigue.

As WIS News in Columbia has reported, many of the symptoms of vaping-related illness and the flu are similar, such as coughing, shortness of breath, chest pain, nausea and vomiting. The two – the flu and e-cigarette lung injury – can co-exist and amplify each other, making the combination more dangerous and potentially deadly.

CDC Recommendations About Vaping

The CDC says that since the specific compound or ingredient causing lung injury is not yet known, “the only way to ensure that you are not at risk while the investigation continues is to refrain from use of all vaping products.

Further, the CDC recommends that you do not use vaping products that contain THC. The CDC also recommends that people do not:

• Buy any type of e-cigarette or vaping products, particularly those containing THC, off the street.
• Modify or add any substances to e-cigarette or vaping products that are not intended by the manufacturer, including products bought through retail establishments.

SC DHEC adds that e-cigarettes should never be used with other smoked tobacco products and that “these products are not safe for youth or young adults.”

South Carolina is one of several states where it is illegal for minors to buy or possess e-cigarettes or other electronic nicotine distribution systems (ENDS).

Get Legal Help for Vaping Lung Damages

South Carolina residents injured by the use of e-cigarette vaping products may be entitled to seek compensation for their medical bills and other losses through a product liability claim. Numerous states and local school districts have filed lawsuits against leading e-cigarette manufacturer Juul, charging that the e-cig maker purposely targeted teens and young adults with flavored vaping products.

As The New York Times reports, Juul Labs, the nation’s largest seller of e-cigarettes, announced ahead of an anticipated FDA flavor ban that it would discontinue sales of mint-flavored pods, which teenagers have cited as among their favorites. Previously, Juul settled a lawsuit by agreeing to stop advertising to youths.

The first individual lawsuits over vaping injuries and deaths have already been filed across the country and many more e-cigarette lung injury lawsuits are expected.

Companies that design, produce and sell products have an obligation to make them safe or adequately warn about any inherent dangers. When they fail to do so, they should be made to compensate the victims of their defective products.

The South Carolina defective products attorneys of Joye Law Firm can help you seek full compensation if a defective vaping product is to blame for your injuries. We have nearly 250 years of combined legal experience and are committed to helping people who have suffered a life-changing injury because of unsafe products. Contact Joye Law Firm today.

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Food Safety Violations Discovered In Nursing Homes

A nationwide investigation of nursing homes has uncovered thousands of food safety violations of the type that could lead to deadly foodborne illness among nursing home residents.

The investigation by FairWarning, a nonprofit news organization based in Southern California, focuses on public health, consumer and environmental issues. The organization charges that its review of inspection reports, federal data and interviews with residents and long-term care experts indicates that nursing home residents nationwide are at risk for foodborne illness from unsafe kitchens. Food safety experts fear that problems may be worse in assisted living centers, which lack the federal oversight of nursing homes.

Foodborne illness is a threat to people of any age. But those over 65 are especially susceptible due to weakened immune systems, chronic diseases, and age-related changes in their digestive systems, the report says.

Adults age 65 and older are more likely to be hospitalized or die from foodborne illness, according to the U.S. Department of Health & Human Services.

The FairWarning report says records from the Centers for Medicare & Medicaid Services show that South Carolina was among the states with the most enforcement actions for violations of federal food safety standards for nursing homes in 2018.

The Joye Law Firm in South Carolina can assist you if you or a loved one of yours has been hospitalized or died from a food-borne illness contracted while a resident of a S.C. nursing home. Our nursing home abuse and neglect attorneys may be able to help you hold the nursing home accountable and recover compensation for your loss.

Poor Hygiene In Nursing Home Kitchens

Inspection records from the Centers for Medicare & Medicaid Services, which regulates nursing homes that receive federal money, show that unsafe food handling was the third most frequently cited violation last year in America’s estimated 15,700 nursing homes. Only infection control deficiencies and accident hazards were cited more often.

In 2018, 33 percent of the nation’s nursing homes were cited for violating federal requirements to safely store, prepare and serve food.

Since January 2016, about a third of all nursing homes were cited two or more times for the same food safety violation, according to a FairWarning analysis of federal nursing home data. During that period, 1,553 nursing homes – 10 percent – were cited three or more times for the same failure.

The FairWarning report says that nursing home inspection reports, available online, describe a chronic lack of hand-washing; months-old expired food; workers handling raw meat with bare hands, then touching residents’ food; and microwaves and stovetops caked with debris.

A 2015 report by the nonprofit Center for Science in the Public Interest found that states vary widely in how well they detect and report foodborne illnesses.

FairWarning also says less than 1 percent of food safety violations in nursing homes are deemed serious enough to warrant a high-level citation. It quotes a spokeswoman for the Centers for Medicare & Medicaid Services who said that multiple factors are considered in imposing fines or other enforcement actions. In weighing penalties, she said, the government considers the level of harm and number of residents affected.

Michael Connors of California Advocates for Nursing Home Reform, a San Francisco-based nonprofit, told FairWarning that much of the blame lies with nursing home operators who routinely skimp on residents’ dietary needs or slash kitchen staff to save money and increase profits.

“By treating life-threatening conditions (in the kitchen) as minor problems, regulators are sending a message to nursing home operators that no change is needed,” Connors said.

Dr. David Gifford, a senior vice president and chief medical officer of the American Health Care Association, a trade group for long-term care providers, defended the industry’s handling of food safety. “The vast majority of issues identified during inspections are important to correct but are rated by the state and federal officials as unlikely to put anyone’s health at significant risk.”

Examples of less critical offenses that can result in citations include things like staff members failing to wear gloves, a bearded worker without a face guard or unlabeled leftovers.

Federal Government to Do Less to Protect Nursing Home Residents

In July, the Trump Administration moved to roll back a series of protections for nursing home residents, including one proposal that would lower the qualifications for directors of food and nutrition services at long-term care facilities. The government contends that the changes would eliminate requirements that are unnecessary, obsolete or excessively burdensome.

The Trump administration proposal includes requiring a director of food and nutrition services to either have a minimum of 2 years of experience in the position of a director of food and nutrition services, or to have completed a minimum course of study in food safety that includes such topics as foodborne illness, sanitation procedures, and food purchasing/receiving. A person in the position would receive “frequently scheduled consultations” from a qualified dietitian or other clinically qualified nutrition professional.

The proposal states that its intent is to reduce long-term care facilities’ training and hiring costs.

Currently, if a qualified dietitian or other clinically qualified nutrition professional is not employed full-time, the director of food and nutrition services must be a certified dietary manager, a certified food service manager, have similar national certification for food service management and safety from a national certifying body or have an associate’s or higher degree in food service management or in hospitality (with food service or restaurant management coursework).

FairWarning says comments recently submitted to the government call the proposal risky and “a step backwards in healthcare.”

Contact a Nursing Home Abuse Attorney

A South Carolina nursing home abuse and neglect attorney from Joye Law Firm can help you if you or a loved one has been injured by foodborne illness due to poor hygiene in a long-term care facility kitchen or food services. We use our skills and experience to help protect the health and safety, legal rights and financial interests of nursing home residents and others in long-term care institutions.

Joye Law Firm has offices in Charleston, Myrtle Beach, Clinton, and Columbia, but our nursing home abuse attorneys are ready to take care of your case anywhere in South Carolina. Call Joye Law Firm. You can reach us at (877) 936-9707 or fill out an online form for a free case review.

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