Allocation of Fault to Nonparties: Has the Time for Legislative Change Arrived?
Lawyers who have practiced in complex, multi-party litigation in this state are familiar with the challeges posed by the seeming inconsistencies within the South Carolina Contribution Among Joint Tortfeasors Act (“The Act”). While the Act allows defendants to argue the “empty chair defense,” jurors may only apportion fault to the plaintiffs and defendants — not to the “empty chair” — and the total of the percentages of fault must be one hundred percent. Put simply, this allows jurors to consider the fault of nonparties and even to decide that liability rests partially or soley with a nonparty; however, jurors cannot allocate fault to those nonparties on a jury verdict form. The defendants present at trial are then left holding the proverbial bag of full liability and the consequential responsibility of payment for damages that the jurors would have otherwise attributed to some other person or entity.
But did you know that the current Senate and the House are currently considering companion bills to amend the Act that would allow jurors to allocate fault to nonparties?