(concurring in part and dissenting in part):
I would hold that the trial judge was correct in granting summary judgment against the defendant on the issue of liability but was in error in applying the doctrine of judicial estoppel to the facts of this case.
“Judicial estoppel precludes a party from adopting a position in conflict with one earlier taken in the same or related litigation.” Hayne Federal Credit Union v. Bailey, 327 S.C. 242, 251, 489 S.E.2d 472, 477 (1997). The trial judge erred in finding Brown’s position, that McFaddin contributed to the accident, was inconsistent with his position during his guilty plea and that it was an intentional attempt to mislead the court in order to gain an unfair advantage in the civil proceeding. Brown’s attorney, at his plea, conceded Brown’s recklessness, asserted that McFaddin’s headlights confused Brown. He had experts prepare a video of the scene as it appeared at the time of the accident to demonstrate Brown’s confusion. Brown himself asserted he was blinded because McFaddin was parked in a curve facing him and that had he swerved to the left instead of the right he possibly would have hit another motorist head on.
I believe that:
1. McFaddin’s negligence, if any, was not an issue that had to be considered by the court in connection with Brown’s plea to reckless homicide.
2. Brown’s recklessness did not have to be the sole proximate cause for him to be found guilty of reckless homicide so long as it is a proximate cause.
3. In the civil context, any negligence on the part of McFaddin would be used to reduce the amount of Cothran’s recovery in direct proportion to the percentage of McFaddin’s negligence under the concept of comparative negligence.
4. While Brown is bound by his factual admissions from his guilty plea, the relative degree of culpability was not at issue nor was it decided in the prior proceeding. Because plaintiffs relative fault, if any, was not an issue in his guilty plea, Brown has not yet had a full and fair opportunity to contest it.
*3735. The grant of summary judgment in Cothran’s favor on the basis of judicial estoppel was inappropriate.
I would affirm the granting of partial summary judgment on the issue of Brown’s liability, but would reverse the circuit court’s application of judicial estoppel to this case.