On May 28, 2025, South Carolina Governor Henry McMaster officially signed H.3430, also known as Act 42, which amends part of South Carolina’s Contribution Among Tortfeasors Act, S.C. Code Ann. §15-38-15, as well as laws regarding the sale of alcohol and liability resulting therefrom. This act takes effect January 1, 2026, and applies only to causes of action or claims arising or accruing after January 1, 2026.¹

S.C.’s joint and several liability law provides that a defendant deemed to be more than 50% at fault may be liable for up to 100% of the loss, while a defendant with less than 50% liability will be responsible only for the percentage of damage directly attributable to them.² If liability is found against two or more defendants, upon motion by a defendant, the fact finder would determine and assign to each defendant the percentage of liability attributable to each and attribute any comparative fault of the plaintiff, with the total percentages of fault attributed to the plaintiff and the defendants must equal 100%.³ “A defendant shall retain the right to assert that another potential tortfeasor, whether or not a party, contributed to the alleged injury or damages and/or may be liable for any or all of the damages alleged by any other party.”⁴

When passed in 2005, Section 15-38-15 was thought to permit a defendant to argue the traditional empty chair defense and have fault apportioned to a tortfeasor not named in the lawsuit. However, in 2017, the South Carolina Supreme Court decided that while a defendant may present evidence under the empty chair defense, a fact finder could not apportion any percentage of fault to a non-party tortfeasor – such as a tortfeasor who was never sued, or a tortfeasor defendant who by virtue of a settlement or dismissal was no longer a party in the case when the jury began deliberation.⁵ The inclusion of defendants in Section (C) and potential tortfeasor in Section (D) of §15-38-15 led the court to conclude the South Carolina legislature chose those words deliberately, and they did not share the same meaning. This meant the jury form dictated that the percentage of fault could only be distributed among the defendants actually named and still in the lawsuit.

South Carolina’s new law still follows joint and several liability for a defendant who is 50% or more at fault. However, joint and several liability does not apply to any defendant who is less than 50% liable when considering the fault of “all the defendants and tortfeasors and [] the fault (comparative negligence), if any, of plaintiff.”⁶ It also now requires the fact finder to determine the liability attributable to each defendant and tortfeasor, as well as any fault of the plaintiff, if any, and those percentages must total 100%.⁷

Act 42 places the onus on the defendants in the action to have a non-named tortfeasor added to the verdict form. For the non-defendant tortfeasor to be added to the verdict form,

1. the tortfeasor must be disclosed within 180 days of the commencement of the action or at a later for good cause shown, or the plaintiff may add the tortfeasor as a defendant with the amended pleading relating back to the commencement of the action;
2. the defendant bears the burden of proof [of establishing the liability of the tortfeasor] unless the plaintiff amends his pleadings to add the tortfeasor as a party;
3. if the plaintiff does not add the tortfeasor in the action, the plaintiff may challenge the addition of the tortfeasor pursuant to South Carolina Rules of Civil Procedure Rule 56 and Rule 50. If those motions are denied, then the tortfeasor appears on the verdict form; and
4. notwithstanding the time requirement in item (1), a settling tortfeasor, whether or not a party, shall be added to the verdict form unless excluded by subsection (H).^{8, 9}

This new law retains a defendant’s right to a setoff from any potential tortfeasor not placed on the verdict form.¹⁰

This amendment overrules Machin and Smith and clarifies the 2005 version of Section 15-38-15 to provide a defendant the ability to argue the empty chair defense and have a non-defendant tortfeasor included on the verdict form when determining the percentage of fault and damages in a tort action. This reform will help properly allocate risk and the resulting damages in South Carolina rather than allow a plaintiff to not sue those responsible or to settle with a defendant or tortfeasor and release them from the case while forcing those with deep pockets to be fully responsible for an accident.

This new bill also amends S.C. Code Ann. §15-38-15(F). Currently, a defendant “whose conduct is determined to be willful, wanton, reckless, grossly negligent, or intentional or conduct involving the use, sale, or possession of alcohol or the illegal or illicit use, sale, or possession of drugs” could still be held liable for the full measure of a plaintiff’s damages, even if less than 50% at fault.¹¹ Act 42 removes the gross negligence and alcohol exceptions, so a defendant who was grossly negligent or charged with driving under the influence or another alcohol-related crime would only be liable for their portion of the attributed fault, so long as that fault was less than 50% of the damages.¹²

However, this bill also creates a new statute that a tortfeasor charged with certain driving under the influence charges¹³ shall appear upon the verdict form upon motion by any defendant in an action.¹⁴ If a verdict is rendered against both a licensee and a defendant charged with an alcohol-related driving offense, then the licensee is jointly and severally liable for fifty percent of the plaintiff’s actual damages.¹⁵

Act 42 also establishes that a person or establishment that sells liquor by the drink may not knowingly sell to intoxicated persons,¹⁶ creates mandatory alcohol server training and administrative penalties and fines for violations of the training,¹⁷ amends penalties for violations regarding the sale of beer or wine,¹⁸ creates a statute regulating alcohol sales at collegiate sporting events,¹⁹ and allows captive insurance companies to offer liquor liability in the state.²⁰

South Carolina's tort reform and liquor liability bill also creates a liquor liability risk mitigation program where establishments that sell alcohol for on-site consumption after 5:00 p.m. can reduce the mandatory insurance requirements for liquor liability. This bill amends S.C. Code Ann. §61-2-145, which mandates $1,000,000 in coverage by allowing an establishment to meet various conditions and reduce the amount of insurance coverage it must keep. Those conditions are:

• Stop alcohol service by 12:00 a.m. and reduce the required coverage by $250,000;
• Train all alcohol servers within 60 days of employment reduces the required coverage by $100,000;
• Keep alcohol sales under 40% of total sales reduces the required coverage by $100,000;
• Use of forensic digital ID scanners from 12:00 a.m. to 4:00 a.m. reduces required coverage by $100,000;
• Be a 501(c)(3) nonprofit or hold a special event license reduces required coverage by $500,000. ²¹

A licensee may meet one or more of these requirements to reduce its required liquor liability coverage but must maintain coverage of at least $300,000.²²

South Carolina’s new Tort Reform and Liquor Liability law will ultimately benefit defendants and businesses by limiting unfair liability in civil cases, especially for those that involve the use or sale of alcohol. This new law provides much-needed reform to South Carolina’s joint and several liability laws establishes alcohol server training requirements and will reduce insurance requirements (and premiums) for those who qualify. It ensures that a defendant is only fully liable if found more than 50% at fault, reinstates the =empty chair defense to and allows a defendant to add non-party tortfeasors to the verdict form, and allows businesses to reduce mandatory liquor liability insurance costs by implementing responsible practices, like early alcohol sale cutoff times, staff training, and ID scanning.

¹ “This act takes effect January 1, 2026, and applies only to causes of action or claims arising or accruing after January 1, 2026, and applies to all policies issued after that date, other than Section 61-4-523 which takes effect upon approval by the Governor.” Tort Reform and Liquor Liability Act, 2025 S.C. Acts, Act 42, Section 11.

² See S.C. Code §15-38-15(A) (2005).

³ See S.C. Code Ann. §15-38-15(C) (emphasis added).

⁴ S.C. Code Ann. §15-38-15(D) (emphasis added).

⁵ See Machin v. Carus Corp., 419 S.C. 527, 799 S.E.2d 468 (2017); Smith v. Tiffany, 419 S.C. 548, 799 S.E.2d 479 (2017). 

⁶ Act 42, Section 1, Section 15-38-15(A) (emphasis added).

7 Tort Reform and Liquor Liability Act, 2025 S.C. Acts, Act 42, Section 1, S.C. Code Ann. §§ 15-38-15(A), (B), and (C)(3).

⁸ Subsection (H) applies to tortfeasors who are immune from liability; willful, wanton, reckless, or intentional actions of the non-named tortfeasor; vicarious liability; strict liability; asbestos cases; or actions against the state. Tort Reform and Liquor Liability Act, 2025 S.C. Acts, Act 42, Section 1, S.C. Code Ann. § 15-38-15(H).

⁹ Tort Reform and Liquor Liability Act, 2025 S.C. Acts, Act 42, Section 1, S.C. Code Ann. § 15-38-15(G).

¹⁰ Tort Reform and Liquor Liability Act, 2025 S.C. Acts, Act 42, Section 1, S.C. Code Ann. § 15-38-15(G). 

11 See S.C. Code Ann. §15-38-15(F) (2005). 

¹² Tort Reform and Liquor Liability Act, 2025 S.C. Acts, Act 42, Section 1, S.C. Code Ann. § 15-38-15(F).

¹³ See S.C. Code Ann. §§ 56‑5‑2930, 56‑5‑2933, or 56‑5‑2945.

¹⁴ Tort Reform and Liquor Liability Act, 2025 S.C. Acts, Act 42, Section 9, S.C. Code Ann. § 62-2-147.

¹⁵ Id.

¹⁶ Tort Reform and Liquor Liability Act, 2025 S.C. Acts, Act 42, Section 2, S.C. Code Ann. §61-6-2220.

¹⁷ Tort Reform and Liquor Liability Act, 2025 S.C. Acts, Act 42, Section 3, S.C. Code Ann. §61-3-100, et. seq.

¹⁸ Tort Reform and Liquor Liability Act, 2025 S.C. Acts, Act 42, Section 4, S.C. Code Ann. §61-4-580(B).

¹⁹ Tort Reform and Liquor Liability Act, 2025 S.C. Acts, Act 42, Section 5, S.C. Code Ann. §61-4-523.

²⁰ Tort Reform and Liquor Liability Act, 2025 S.C. Acts, Act 42, Section 7, S.C. Code Ann. §38-90-20(A).

²¹ Tort Reform and Liquor Liability Act, 2025 S.C. Acts, Act 42, Section 8, S.C. Code Ann. §61-2-145.

²² Tort Reform and Liquor Liability Act, 2025 S.C. Acts, Act 42, Section 8, S.C. Code Ann. §61-2-145(E)(6).