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 arefound to be 50% or more at fault. SeeS.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. SeeS.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.