Joint and Several Liability in South Carolina

South Carolina abolished joint and several liability in 2005 when the South Carolina General Assembly adopted South Carolina’s Uniform Contribution Among Tortfeasors Act, located at S.C. Code § 15-38-10 et seq.   The Act addresses:

  1. The allocation of fault and damages between a plaintiff and one or more defendants; and
  2. The right of contribution among joint tortfeasors.

Allocation of fault between a Plaintiff and Defendant(s)

Under the Act:

  • Joint and several liability does not apply to any defendant whose conduct is less than 50% of the total fault for the plaintiff’s indivisible damages.  Such a defendant is liable for only the percentage of fault attributed to him by the fact finder.  If the defendant is more than 50% at fault, he will be jointly and severally liable.
  • In a jury trial, the jury shall determine liability and damages.
  • If the jury finds faults and damages, upon motion by a defendant, the jury shall allocate the damages between the parties. 
  • The Court may determine that two or more persons be treated as a single party.

The empty chair defense applies

The South Carolina Contribution Among Tortfeasors Act envisions that one or more potentially liable parties may settle with a plaintiff.  Section 15-38-15(D) provides:

(D) A defendant shall retain the right to assert that another potential tortfeasor, whether or not a party, contributed to the alleged injury or damages and/or may be liable for any or all of the damages alleged by any other party.

In recent cases, the South Carolina Supreme Court expressly indicated that the “empty chair defense” is available to a defendant that has not settled.  In Machin v. Carus Corp., Slip. Op. No. 27714 (April 26, 2017), the South Carolina Supreme Court held that a non-settling defendant can introduce evidence at trial that another person (including the plaintiff’s employer) was the cause of the plaintiff’s injuries, provided that such evidence relates to a defense in the case.  For example, Machin involved a products liability action.  Evidence that the employer had altered the machine was relevant to the defense that when the machine was sold it was not in a defective condition and unreasonably dangerous.

Likewise, in Smith v. Norman K. Tiffany, Slip. Op. No. 27715 (April 26, 2017), the South Carolina Supreme Court held that Section (D) codifies the empty chair defense; “[T]he General Assembly took steps to protect nonsettling defendants by codifying a nonsettling defendant’s right to argue the so-called empty chair defense in subsection (D)…”    

Therefore, if a person or entity settles with a Plaintiff, a non-settling defendant may present evidence and argue at trial facts to support its defenses, including facts that show that a settling person or entity caused the plaintiff’s injuries.

There is a right to offset amounts collected from settling defendants.

Section 15-38-15(E) provides:

Notwithstanding the application of this section, setoff from any settlement received from any potential tortfeasor prior to the verdict shall be applied in proportion to each defendant’s percentage of liability as determined pursuant to subsection (C).

The right to setoff amounts paid by other parties arises by operation of law.  Smith v. Widner, 397 S.C. 468, 724 S.E.2d 188 (Ct. App. 2012).  Based upon South Carolina cases, the trial court must reduce the verdict by the amount paid in settlement by another party before entering judgment.  For setoff to apply as a matter to law, the settlement funds must have been paid to compensate the same plaintiff on a claim for the same injury.  

However, when a settlement involved two claims, one of which involves the same injury as the claim tried to verdict and one of which does not, the trial court must make the factual determination of how to allocate the settlement between the two claims.  Presumably, if the settlement agreement with the settling party does not allocate the settlement proceeds between injuries or damages, the trial court must hold an evidentiary hearing to determine which claims for damages were settled and how the settlement proceeds must be allocated.

The verdict form will not include a party that has settled.

The only parties that will appear on the verdict form are those that are still in the case at the time it is sent to the jury.  In Smith v. Norman K. Tiffany, the South Carolina Supreme Court strictly interpreted the statute and indicated that 100% of the fault would be allocated among the plaintiff and the defendants.  Likewise, the Machin court stated the rule as follows:

In describing the allocation of fault among parties and the format of the jury form, if the legislature intended to allow non-parties to be included on the jury verdict form, it would have used terms other than “defendant” and “defendants” in drafting subsection C, just as it used the different term – potential tortfeasor – in subsection (D).  …. Giving the words ‘defendant’ and ‘defendant’ a plain and ordinary reading, we find that subsection (C ) allows only a “defendant” or “defendants” to be listed on the jury form and included in the allocation of fault.

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