Who Goes on the Verdict Form: South Carolina Law Needs Clarification
In South Carolina, a defendant whose total fault is less than 50% is only severally liable for its share of the damages. But, joint and several liability is triggered for defendants that are found to be 50% or more at fault. See S.C. Code Ann. § 15-38-15. Therefore, the number of entities (or persons) on a verdict form is critical.
South Carolina law requires the jury to determine any fault that may be attributed to the plaintiff. S.C. Code Ann. § 15-38-15(C)(2). So, a plaintiff and any non-settling defendants will certainly be on the verdict form for apportionment of fault.
The relevant South Carolina statute, however, is less clear on whether fault may be attributed to a non-party at fault. The statute specifically states that a defendant “shall retain the right to assert that another potential tortfeasor, whether or not a party, contributed” to the plaintiff’s injury. S.C. Code Ann. § 15-38-15(D). While this preserves the right of a defendant to make a non-party at fault argument, it does not clearly state whether a non-party may be included on the verdict form for fault allocation purposes.
This issue has not been finally decided in South Carolina.
At least one federal court has held that the South Carolina Supreme Court would likely hold that a non-party’s fault may not be considered by the jury. See Fagnant v. K-Mart Corp., 2013 WL 6901907, *5 (D. SC. Dec. 31, 2013). While the statute is ambiguous, the Fagnant court held that §15-38-15(D) merely affirms a defendant’s right to make the “empty chair” argument at trial, in hopes that it will achieve a complete defense verdict. Id. The defendant, the court explained, does not have the ability under South Carolina law to place a non-party on the verdict form.
Additionally, it is not clear whether a tortfeasor that settled before trial may be included on the verdict form for apportionment of fault. But, South Carolina law does expressly state that a settlement by one tortfeasor reduces the claim against other defendants. See S.C. Code Ann. § 15-38-50(1).
In our experience, a South Carolina trial court generally follows the Fagnant decision. Until the state legislature steps in, it is unlikely that any responsible third parties will be allowed on a verdict form for apportionment purposes. But, defendants in South Carolina still have the right to argue that third parties were at fault. And, defendants are also entitled to a set-off from any prior settlements.
About the Authors
- Christopher Collier is a senior partner at Hawkins Parnell Thackston & Young LLP. Chris defends individuals as well as businesses, ranging from family-owned to Fortune 250 national and multinational corporations. He concentrates his practice on litigation involving premises liability, product liability, transportation, toxic exposures, and environmental issues. He previously served in the role of Counsel-Litigation & Environmental for one of the nation’s Class I railroads.
- Lane Young is a nationally recognized trial lawyer with more than 35 years of experience defending businesses and individuals in complex litigation throughout the United States. He has tried more than 85 trials to verdict involving a wide range of high-risk cases from catastrophic injury and wrongful death to professional liability and commercial disputes.
For similar guidance in other states, please refer to the following Who Goes on the Verdict Form publications:
- Alabama: Pointing Fingers Across “the V” in Alabama
- Arkansas: Arkansas’ Evolving Apportionment Rules
- California: Proposition 51 and Apportionment of Fault in California
- Connecticut: Tinkering Toward Utopia Leads to Complexity in Connecticut
- Florida: Florida Rules on Apportionment of Liability
- Illinois: Illinois’ Approach to Non-Parties and Settling Defendants and the Apportionment of Fault
- Indiana: Is There Causative or Fault-based Apportionment in Indiana?
- North Carolina: Contributory Negligence & Pro Rata Apportionment in North Carolina
- Oregon: Obfuscation in Oregon
- Washington: The Empty Chair Variable in Washington
- West Virginia: West Virginia’s Adoption of Modified Comparative Fault