South Carolina: A Litigation: General Commercial Overview

Turning Point: How Act 42 May Reshape South Carolina’s Litigation Environment

Act 42 represents one of the most significant revisions to South Carolina tort law in decades. Applicable to causes of action arising or accruing after January 1, 2026, the legislation introduces a new framework for allocating fault in multi-tortfeasor cases. By permitting fault to be allocated to nonparties in certain circumstances, Act 42 has the potential to reshape litigation strategy, discovery, settlement dynamics, and liability exposure in multi-tortfeasor litigation.

Nonparty fault allocation

Many personal-injury and property-damage cases involve multiple actors who are potentially responsible. Before Act 42, however, South Carolina’s apportionment statute generally allocated fault only among the parties to the lawsuit. Under the prior framework, a defendant allocated 50% or more of the fault among the parties could be jointly and severally liable for the plaintiff's damages, even if that defendant was responsible for less than 50% of the overall fault when nonparties were considered.

That framework made party selection particularly consequential. Consider an injury for which four actors bear equal responsibility, but the plaintiff sues only two. Under the prior framework, the two defendants could each be allocated 50% of the fault for purposes of the verdict form and therefore face joint and several liability, despite each being responsible for only a quarter of the overall fault. As a result, plaintiffs evaluating whom to sue often considered practical factors such as collectability and available insurance, since adding additional defendants did not necessarily improve the likelihood of recovery.

Act 42 changes that dynamic. Subject to statutory requirements and exclusions, a defendant may now seek to have fault allocated to a nonparty tortfeasor. Plaintiffs can no longer assume that fault will be allocated exclusively among the parties they elect to sue. Returning to the four-actor example, the two named defendants may be able to avoid joint and several liability by establishing that the absent actors bear a share of responsibility.

The statute does not, however, create an unrestricted “empty chair” defense. A defendant must disclose a nonparty tortfeasor within 180 days after commencement of the action, absent good cause. The plaintiff may then elect to add the identified tortfeasor as a defendant, with the amended pleading relating back to commencement. If the plaintiff does not, the defendant bears the burden of proving the nonparty’s fault, subject to the plaintiff’s ability to challenge the nonparty’s inclusion on the verdict form through a Rule 56 or Rule 50 motion. The statute also excludes certain categories of nonparties from allocation altogether, such as parties who are immune from suit. 

Strategic implications

Act 42 is likely to encourage earlier and more comprehensive factual investigation than has historically been typical. Although South Carolina litigation often affords parties substantial flexibility in the timing and scope of discovery, with scheduling orders more the exception than the rule, the Act’s 180-day disclosure deadline requires parties to evaluate nonparty-fault theories early in the litigation. Litigants may feel increased pressure to identify potentially responsible actors and develop supporting evidence well before discovery would otherwise be expected to peak. Parties that delay those efforts may face difficulty establishing good cause for an untimely disclosure. That shift may prove particularly significant in South Carolina, where civil procedure rules do not build proportionality into the basic definition of discoverable material and generally permit broader discovery.

Third-party discovery may also play a greater role. Prior to Act 42, the conduct of an absent actor often had limited significance because that actor’s fault generally could not be reflected on the verdict form. Since that changes with Act 42, plaintiffs and defendants now both have additional reasons to seek discovery from nonparties.

Parties may also approach settlement differently, as they will increasingly need to consider not only the fault of the parties, but also the potential allocation of fault to nonparties. That may facilitate settlement in some cases by providing a clearer picture of likely exposure, but it may also complicate negotiations where significant factual development is required before fault can be meaningfully assessed. Heavier early-case discovery also translates into a different cost-of-defense calculus, and that shift in cost structure will itself factor into settlement strategy.

Act 42 may produce more proportional liability, but not necessarily simpler litigation. Permitting fault to be allocated to nonparties requires additional investigation, discovery, and factual development concerning actors who are not before the court and may generate new disputes over fault allocation, potentially making settlement more difficult in some cases.

Practical implications

Act 42 creates a stronger incentive for businesses to identify all potentially involved actors immediately after an incident. Contractors, maintenance providers, vendors, product manufacturers, and other third parties who might previously have received limited attention during an initial investigation may now become important to future fault-allocation arguments.

The practical challenge is not merely preserving information, but locating, collecting, and analyzing information quickly enough to make strategic decisions within the Act’s timelines. Contracts, maintenance records, communications, incident reports, surveillance footage, and other records may help establish who was involved and what role they played, but only if they can be efficiently identified and evaluated.

Businesses that can rapidly identify potential tortfeasors will be better positioned to develop or challenge nonparty-fault theories once litigation begins.

Additional considerations for hospitality businesses   

Act 42 also includes significant reforms affecting businesses that sell alcohol for on-premises consumption. Among other changes, the legislation revises liquor-liability insurance requirements and creates opportunities to reduce required coverage through certain risk-mitigation measures, including alcohol-server training.

It also establishes a specialized liability framework for certain actions involving an alcohol licensee and a tortfeasor charged with specified DUI offenses. Specifically, in such actions, the statute imposes joint and several liability on the licensee for 50% of the plaintiff’s actual damages. The Act also alters the rules triggering automatic joint and several liability for conduct tied to alcohol use, sale and possession. 

For hospitality businesses seeking to take advantage of the Act’s risk-mitigation provisions, documenting employee training, service practices, incident response, and compliance efforts will become increasingly important.

Looking ahead

By allowing fault to be allocated to qualifying nonparties, Act 42 changes the strategic considerations that have historically shaped multi-party litigation. Litigants will need to adapt to a framework that places greater emphasis on identifying potentially responsible actors and developing evidence regarding their role in the underlying events, often much earlier in the life of a case than under the prior framework. 

Since the operative provisions apply only to newly arising claims, the judiciary has yet to develop a meaningful body of appellate authority defining their practical contours. As courts begin to interpret the Act’s requirements, including the showing necessary to place a nonparty on the verdict form and the circumstances constituting good cause for untimely identification, it will become clearer how significantly the legislation alters litigation strategy for plaintiffs and defendants in multi-tortfeasor actions.