The phone call from the insurance adjuster started friendly enough. But then came the question that made your stomach turn: “So, in your own words, what do you think you could have done to avoid the collision?”
Just like that, the conversation shifted. Suddenly, you are not the victim. You are a suspect in your own injury claim.
This is not an accident. It is a deliberate tactic. Insurance companies know that in South Carolina, the concept of “fault” is not always a simple, all or nothing issue. They know that if they can shift even a small percentage of the blame onto you, they can save themselves thousands, or even millions, of dollars.
They will twist your words, misinterpret the evidence, and use a complex legal doctrine called “comparative fault” to attack your right to compensation. They are banking on you not understanding the rules of this fight.
It is time to change that.
Key takeaways
- South Carolina’s modified comparative fault law allows you to recover damages even if you were partially at fault for an accident, as long as your share of the blame is 50% or less.
- If you are found to be 51% or more at fault, you are barred from recovering any compensation at all. This is a hard and fast cutoff.
- Insurance companies aggressively use this law to reduce or deny claims by finding any possible way to assign a percentage of fault to the injured victim.
- The percentage of fault is determined by evidence, including police reports, witness testimony, video surveillance, and expert analysis.
- You should never admit fault or apologize at an accident scene, as these statements can be used against you to increase your percentage of blame.
What Is Comparative Fault in South Carolina? The 51% Rule Explained
When you are injured because of someone else’s carelessness, the legal term for that carelessness is “negligence.” To win an injury claim, you must prove that the other party was negligent and that their negligence caused your injuries. But what happens when an insurer or a court decides that both parties made mistakes?
This is where comparative fault comes in. Years ago, many states followed a harsh rule called “contributory negligence.” Under that old system, if you were found to be even 1% at fault for your own accident, you were barred from recovering a single penny.
It was a brutal, all or nothing system that led to unfair results for many injured people. South Carolina has since adopted a more modern and equitable system called modified comparative fault. Under this rule, being partially at fault does not automatically destroy your claim.
Instead, a jury or a judge (or the attorneys during settlement negotiations) will assign a percentage of fault to each party involved in the incident.
This percentage directly affects the amount of compensation you can receive.
However, South Carolina’s system has a critical threshold. As outlined in the landmark case Nelson v. Concrete Supply Co., which established the state’s 51% bar, there is a point where your right to recovery is completely cut off.
If you are found to be 51% or more at fault for the accident, you recover nothing. This is why insurance companies fight so hard over every single percentage point. Pushing you from 50% to 51% fault means the difference between a substantial recovery and getting absolutely nothing.
The Insurance Company’s Blame Game: A Calculated Strategy
Insurance adjusters are not neutral investigators seeking the truth. They are professional risk managers for a massive corporation. Their primary goal is to minimize financial payouts.
The comparative fault law is one of their most powerful tools for achieving this goal. Their entire investigation will be geared toward finding any scrap of evidence that can be used to assign a percentage of fault to you.
They are not just looking for obvious errors on your part. They dig for subtle things they can blow out of proportion. Their strategy is to build a narrative where you are at least partially responsible, regardless of the other party’s blatant negligence.
Insurance companies employ a number of tactics to shift blame onto accident victims. They are trained to probe for weaknesses in your story and exploit your lack of legal knowledge.
- Using your own words against you: They will ask leading questions during recorded statements, hoping you say something that sounds like an admission of fault, such as “I didn’t see him until the last second” or “I might have been going a little over the speed limit.”
- Misinterpreting the police report: If a police report is ambiguous or contains a minor error, they will interpret it in the light most favorable to their driver and most damaging to you.
- Hiring biased experts: They have accident reconstructionists on call who can produce reports that conveniently conclude you were speeding, failed to brake in time, or made an improper maneuver.
- Scouring your social Media: Investigators will look for any posts that suggest you were distracted or that your injuries are not as severe as you claim, using this to attack your credibility.
- Delaying and denying: Sometimes, they will simply deny the claim and assign you a high percentage of fault with little justification, hoping you will get frustrated and give up or accept a tiny settlement offer.
This aggressive approach is designed to wear you down and make you doubt the strength of your own case. It is a deliberate strategy to save their company money at your expense, and it is a fight you should not have to face alone.
How Fault Is Proven in a South Carolina Injury Claim
Because the percentage of fault is so critical, building a case requires a deep and thorough investigation to gather objective evidence. Your word against the other driver’s is not enough.
You must build a fortress of proof that establishes the other party’s negligence and defends you against false accusations of fault. The fight over fault is won or lost based on the quality and presentation of the evidence.
An experienced legal team knows how to gather these crucial pieces and weave them into a compelling narrative that clearly shows what happened.
This is not a simple checklist.
It involves aggressive investigation, legal motions, and working with professionals to analyze the facts.
- The official police report: This is often the starting point. It contains the officer’s initial observations, witness information, and sometimes a preliminary finding of fault. While not always conclusive, a favorable report is powerful evidence.
- Witness statements: Independent witnesses who have no stake in the outcome are incredibly credible. Tracking them down quickly before their memories fade is essential.
- Photo and video evidence: Surveillance footage from nearby businesses, traffic cameras, or even a witness’s cell phone can provide undeniable proof of how an accident occurred.
- Accident scene analysis: Documenting skid marks, debris fields, and vehicle damage can help experts reconstruct the sequence of events with scientific precision.
- Expert testimony: In complex cases, accident reconstructionists can analyze the data to determine vehicle speeds, points of impact, and driver actions. Medical experts can also testify about how your injuries are consistent with the other party’s actions.
Gathering this evidence requires immediate action. Businesses often overwrite surveillance footage within days. Witnesses move or become difficult to find. The physical evidence at the scene disappears quickly. This is why you cannot wait to begin building your case.
Why You Need a Fighter to Battle Over Fault
The comparative fault rule turns every personal injury claim into a high stakes fight over percentages. The insurance company has a team of professionals—adjusters, investigators, and lawyers—who are masters at this game.
They know how to manipulate evidence, ask trick questions, and build a case against you. Trying to maneuver this process on your own is like walking into a courtroom and trying to argue against a seasoned prosecutor without knowing the law. You are at an immediate and overwhelming disadvantage.
An aggressive personal injury attorney is your champion in this fight. Their role is to:
- Launch an immediate investigation: They will preserve evidence, find and interview witnesses, and document the scene before critical proof disappears.
- Counter the insurer’s tactics: They know how to handle insurance adjusters. They will take over all communication, protecting you from recorded statement traps and pressure tactics.
- Hire the right experts: They have a network of trusted accident reconstructionists, engineers, and medical professionals who can provide the expert testimony needed to prove your case and refute the other side’s claims.
- Build a compelling case: They will weave all the evidence together into a powerful narrative that clearly demonstrates the other party’s negligence and minimizes any potential fault on your part.
- Fight for every percentage point: They understand that the difference between 50% and 51% is everything. They will not let an insurance company bully you into accepting more blame than you deserve.
This is not just about paperwork. It is about fighting back against a system designed to work against you.
FAQ
What happens if a police report says I was partially at fault?
A police officer’s opinion on a traffic collision report is not the final word on legal fault. It is one piece of evidence, but it can be challenged.
Officers do not always have all the facts, and they sometimes make mistakes. An independent investigation may uncover evidence that contradicts the report and proves the other driver was more at fault than the officer believed.
Can fault be divided among more than two parties?
Yes. In accidents involving multiple vehicles or complex situations, fault can be allocated among several different parties.
For example, in a three-car pileup, one driver might be 60% at fault, another 30% at fault, and a third 10% at fault. Your ability to recover would depend on the fault of each party relative to your own.
Does South Carolina’s comparative fault rule apply to wrongful death cases?
Yes, the same principles of comparative fault apply. If your loved one was killed in an accident, the compensation available to your family could be reduced or eliminated if the defense can prove your loved one was partially responsible for the incident that led to their death.
How does a jury decide on the percentages of fault?
If a case goes to trial, the jury will listen to all the evidence presented by both sides. They will hear from witnesses, review documents and photos, and listen to expert testimony.
After deliberation, they will be instructed on the law of comparative fault and will be asked to assign a specific percentage of fault to each party based on their judgment of the evidence.
If I was not wearing a seatbelt, can that be used against me?
In South Carolina, the law generally prohibits evidence of a failure to wear a seatbelt from being used to prove negligence or contributory negligence. However, the law is complex, and insurance companies may still try to argue it. It is a nuanced issue that requires careful legal analysis.
Do Not Let Them Blame You for Your Own Injuries
The other side is already building their case against you. They are looking for any reason, any excuse, to blame you for what happened and deny you the resources you need to heal. You cannot let them win.
You need a fighter in your corner who will stand up to their tactics, expose their strategy, and demand the justice you are owed. At Jamie Casino Injury Attorneys, we fight for the underdog.
We take on the big insurance companies and their armies of lawyers. We know their playbook, and we are not afraid to challenge them at every turn. We will conduct our own ruthless investigation to uncover the truth and build a case that protects you from unfair blame.
Your fight is our fight. Contact our Columbia office today at (803) 373-0375 for a free, no-obligation case review. Let us show you how we fight for the injured people of South Carolina. You pay us nothing unless we win your case.