On May 28, 2025, Governor Henry McMaster signed Act 42 (H.3430) into law, amending South Carolina’s Contribution Among Tortfeasors Act (S.C. Code Ann. §15-38-15) and related statutes governing alcohol sales and liability. The law takes effect January 1, 2026, applying only to claims arising on or after that date.
Key Changes to Tort Law
Joint and Several Liability Reform
Under Act 42, South Carolina retains joint and several liability for any defendant found more than 50% at fault. Defendants less than 50% at fault are only responsible for their apportioned share of damages. Fault is now assessed based on the total fault of all defendants, non-party tortfeasors, and the plaintiff, and must add up to 100%.
Reinstating the Empty Chair Defense
Previously limited by court rulings, the empty chair defense is now fully restored. Defendants can once again argue that a non-party tortfeasor (i.e., someone not named in the lawsuit) contributed to the plaintiff’s harm and should be included on the verdict form.
To do so, defendants must:
- Identify the non-party tortfeasor within 180 days of the lawsuit or show good cause for later disclosure.
- Prove the non-party’s liability unless the plaintiff adds them as a named defendant.
- Plaintiffs may challenge the addition of the tortfeasor under South Carolina Rules of Civil Procedure (Rule 56 or Rule 50).
- Settling tortfeasors, even if not parties to the case, will generally be included on the verdict form unless specifically excluded.
This amendment overturns prior rulings (e.g., Machin and Smith) and clarifies that juries may assign fault to non-defendant tortfeasors—addressing concerns that deep-pocket defendants were being unfairly held fully liable when others shared responsibility.
Setoffs and Fair Allocation
Defendants still retain the right to seek setoffs against damages allocated to settling or non-party tortfeasors, helping ensure a more equitable distribution of financial liability.
Alcohol-Related Liability Adjustments
Liability Exceptions Removed
The law removes exceptions that previously imposed full liability on defendants found grossly negligent or involved in alcohol-related conduct, even if they were less than 50% at fault. Going forward, such defendants will be liable only for their share of fault, unless they exceed the 50% threshold.
Special Rules for DUI Offenders
A new provision requires that tortfeasors charged with specific DUI offenses be listed on the verdict form if any defendant requests it. If both a licensee (e.g., bar or restaurant) and a DUI defendant are found liable, the licensee is automatically jointly and severally liable for 50% of actual damages.
Alcohol Sales Regulations and Liquor Liability Insurance Reform
Act 42 also makes significant reforms to alcohol sales and server responsibility, including:
- Mandatory alcohol server training and penalties for violations.
- Restrictions on selling alcohol to visibly intoxicated patrons.
- New rules for alcohol sales at collegiate sporting events.
- Authorization for captive insurance companies to offer liquor liability coverage in South Carolina.
Risk Mitigation Incentives for Alcohol Sellers
The law creates a risk mitigation program allowing establishments serving alcohol after 5:00 p.m. to reduce their mandatory $1 million liquor liability insurance if they adopt certain safety practices, including:
- Ceasing alcohol sales by 12:00 a.m.: −$250,000 coverage required
- Training all alcohol servers within 60 days: −$100,000
- Keeping alcohol sales under 40% of total sales: −$100,000
- Using digital ID scanners between midnight and 4 a.m.: −$100,000
- Being a 501(c)(3) nonprofit or special event license holder: −$500,000
Establishments may combine multiple measures, but must retain at least $300,000 in coverage.
Impact of Act 42
Act 42 represents a major shift in South Carolina tort and alcohol liability law. It restores fairness to civil litigation by ensuring defendants aren’t unfairly saddled with full liability unless truly primarily at fault. The law also encourages safer alcohol service practices, offers meaningful insurance cost reductions for compliant businesses, and promotes more accurate fault attribution in lawsuits involving multiple parties.
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