Tort reform advocates generally seek to address the costs of insurance and business losses created by lawsuits or threats to lawsuits. In the past, states such as South Carolina have imposed caps on damages and prefiling requirements in medical malpractice cases. A person claiming injuries by negligent physicians usually must have an affidavit from another physician that the negligent physician violated the standard of practice and care — before filing suit.
On May 12, 2025, Governor Henry McMasters signed into law House Bill 3430, which puts into place additional changes to South Carolina tort law. Many of these concern the liability of restaurants, bars, entertainment venues, and other establishments serving alcohol. We explain these measures and the advantages and disadvantages for clients in personal injury law cases and the lawyers who represent them.
The move has led to a surge in SC Personal Injury Attorneys looking at new ways to market their firm, including SEO for Personal Injury Law Firms.
Changing the Apportionment of Fault:
House Bill 3430 makes significant changes to how courts assign liability when multiple actors negligently cause personal injuries. Specifically, the law changes whether and how joint tortfeasors face liability for all of a plaintiff’s injuries. In assigning fault, parties who are not sued or have settled have their portions of fault considered along with those defendants going to trial.
As you will read below, plaintiffs’ lawyers and potential plaintiffs raise concerns that this reform may deny plaintiffs adequate compensation for all of their injuries. To understand the pros and cons of this new change, it helps to discuss the general scheme of apportioning fault.
A Brief Review of Comparative Negligence:
The new law keeps the approach of comparative negligence in determining whether a negligent plaintiff can nevertheless receive compensation for damages. In South Carolina, a negligent plaintiff can still recover damages if the plaintiff’s portion of fault does not exceed 50 percent. An injured party whose negligence exceeds 50 percent cannot recover any damages. Otherwise, comparative negligence reduces what the plaintiff would otherwise receive in damages by the percentage fault of the plaintiff.
A Primer on “Joint and Several Liability”?
House Bill 3430 amends the concept of “joint and several liability.” To understand it, consider this example.
The personal injury victim is involved in a multi-vehicle wreck at a city intersection. The victim’s vehicle gets rear-ended by a motorist failing to keep a proper lookout, pushing the victim into an intersection. Another motorist runs a red light and t-bones the victim For our illustration, we’ll assume that the victim obeyed the relevant traffic laws and otherwise did not operate the vehicle negligently. A jury says that the one rear-ending the victim is 25 percent at fault, and the one who t-boned is 75 percent responsible for the plaintiff’s damages.
Under a traditional joint and several liability system, the plaintiff can hold each of the two at-fault drivers responsible for the entirety of the damages. Recovery from each defendant for all damages occurs without regard to the proportion of fault. That means the driver who was 25 percent blameworthy in causing the wreck could face liability for all damages as well as the one who is 75 percent at fault.
Even without House Bill 3430, Section 15-38-15, otherwise known as the “South Carolina Contribution Among Tortfeasors Act,” imposes joint and several liability upon a defendant who is determined to be more than 50 percent at fault. In our example, the driver who failed to keep a proper lookout does not face joint and several liability. Instead, that driver only faces liability for 25 percent of the damages. The tortfeasor running the red light, being 75 percent responsible, is subject to joint and several liability.
What if a Tortfeasor Settles or Doesn’t Go to Trial?
Here is where House Bill 3430 changes Section 15-38-15 and impacts joint and several liability.
Suppose the driver who ran the red light settles and does not get sued. This leaves as the single defendant going to trial the one whose negligence contributed 25 percent to the accident. Under Section 15-38-15 as it existed before House Bill 3430, the lone tortfeasor in the lawsuit would have been liable for all that the jury awarded, less what what the plaintiff received from the settling party.
This is because the prior version of Section 15-38-15 used the word “defendant.” Current South Carolina law apportions fault among defendants, not necessarily anyone who might have been at fault but is not a party to the lawsuit.
The tort reform measure in House Bill 3430 calls for a court to consider the contribution of all actors, including those whose claims do not reach trial. With this approach, the driver who is 75 percent at fault but whose liability carrier tendered the $25,000.00 is considered along with the driver who is 25 percent at fault. If total damages amount to $50,000.00, the driver who is 25 percent at fault (or that driver’s insurer) is responsible for $12,500.00 in damages. However, if the plaintiff proves $100,000 in damages, the defendant going to trial is responsible for $25,000.
The Case of Multiple Drivers:
Depending on the number of at-fault motorists and the amount of damages from the wreck, House Bill 3430 may not have much impact in cases involving multiple motorists. Bear in mind that South Carolina law requires motorists to carry minimum liability coverage of $25,000 per injured person and $50,000 per accident. Assuming that the plaintiff does not have underinsured motorist coverage (more on that below), a single plaintiff may end up getting no more than $25,000 from each of the defendants.
Drunk Driving Accidents:
However, House Bill 3430 creates a strong advantage for defendants with higher amounts of insurance or resources to pay damages. Since juries under this tort reform measure must apportion responsibility to non-party tortfeasors as well as tortfeasors at trial, active defendants who can convince juries that they are not more than 50 percent at fault can avoid being responsible for all of the damages.
Drunk driving cases present a situation of multiple defendants, each with different levels of insurance to pay damages. Suppose one negligent driver runs a stop sign and strikes a car on the driver’s side and seriously injures the driver. The at-fault driver gets charged with driving while impaired. The plaintiff’s lawyer learns while investigating the claim that the impaired driver had consumed several alcoholic drinks at a local restaurant. The plaintiff, through the lawyer, includes the owner of the restaurant as a defendant based on the theory of serving a person who appears to be intoxicated.
At trial, a jury then assigns 25 percent fault to the restaurant for negligently serving alcohol to the intoxicated driver. Under the prior version of Section 15-38-15, the restaurant owner does not enjoy relief from joint and several liability. In that case, a plaintiff suffering $200,000 in damages could recover $175,000 ($200,000 less the $25,000 tendered and paid by the driver’s liability insurance).
Under the new version of Section 15-38-15(a), the at-fault driver’s negligence is considered along with the establishment serving the intoxicated driver. Assuming the jury assigns 75 percent fault to the driver and 25 percent to the establishment, a plaintiff suffering $200,000 in damages would get only $25,000 from the driver. Standing alone, the new Section 15-38-15(a), the plaintiff would recover $50,000 from the establishment (or its liability insurer) that served the drunk driver
However, Section 61-2-147 attempts to alleviate some of the potential unfairness that the limitation of joint and several liability may otherwise produce. Specifically, plaintiffs may either move to have the drunk driver who settles be included in the jury’s apportionment of damages or added as a defendant. If the jury determines both the driver and the establishment serving the alcohol to be at fault for the plaintiff’s damages, then the establishment becomes liable for one-half of the plaintiff’s damages regardless of the percentage of fault.
Lower Liability Limits for Alcohol Servers:
One pro of House Bill 3430 lies in measures to reduce the risk of intoxicated drivers hitting the road due to negligence from those establishments that serve alcohol.
By default, establishments licensed or permitted to sell alcohol for on-premises consumption must carry at least $1 million of liability insurance. Section 61-2-45, as amended by House Bill 3430, lowers the required insurance by instituting measures to qualify for “liquor liability risk mitigation.” The establishment may qualify by one of the following:
- Ending alcohol sales by no later than 12 am;
- Requiring, arranging for, and otherwise causing employees who serve alcohol to complete an “alcohol server training course” within sixty (60) days after being hired as a server;
- Having less than 40 percent of establishment sales from alcohol
- Use a “forensic digital identification system” to verify the identity of those who enter an establishment between 12 am and 4 am; or
- Exist and operate as a 501(c)(3) non profit
The reductions of required insurance depend upon the measures taken. Establishments stopping alcohol sales by midnight get a $250,000 reduction of the minimum liability limits. With implementation of the second, third, or fourth measures comes a reduction of $100,000 per measure. A non-profit establishment can see limits reduced by $500,000.
Punitive Damages and Uninsured and Underinsured Motorist Coverage
House Bill 3430 signed by Governor McMasters incorporates the provisions on joint and several liability and alcohol establishments originally proposed in Senate Bill 244.
One set of provisions not included in the final tort reform bill signed into law would eliminate the requirement that uninsured and underinsured motorist policies cover punitive damages. Defendants face punitive damages for willful, wanton, or reckless conduct. These include cases involving impaired drivers.
Uninsured motorist coverage pays damages caused by a negligent driver who does not have the required liability coverage. Motorists in South Carolina must have uninsured motorist coverage of at least $25,000 per injured person and $50,000 per accident. The personal injury victim purchases it, but the victim’s insurance company (under the uninsured motorist coverage) would defend the claim.
Underinsured motorist coverage pays damages over and above what is available under the at-fault driver’s liability coverage to pay, up to limits. South Carolina law does not require motorists to have it, but automobile insurers must offer it.
