Commentary: Legislators should fix the lawsuit problem — the whole problem

This commentary by Palmetto Promise board chair Phil Hughes was originally published in the Post and Courier.

From stem to stern, South Carolina’s lawsuit system is broken — and anyone who’s run a small business, owned a restaurant that offered alcohol or driven a truck knows it. Sky-high insurance rates, nuclear verdicts and the chilling fear of being held responsible for another person’s actions have become all too common in our state because of our patchwork civil liability system known as “modified comparative negligence.”

That’s why lawmakers have prioritized tort reform this legislative session. But not all reform is created equal. The South Carolina House of Representatives has done a good job addressing the liquor liability issue, but if the General Assembly settles for the House’s narrow liquor liability bill (H.3497) instead of the Senate’s comprehensive tort reform legislation (S.244), the Palmetto State will miss a golden opportunity to provide justice for everyone — from truckers to tavern owners.

Let’s be clear: Liquor liability is a serious issue. Insurance rates for bars, restaurants and event venues are soaring, driving some out of business entirely. H.3497 proposes an opt-in solution allowing lower insurance minimums for some establishments and tying insurance mitigation to factors such as hours of operation and service style. That gets us halfway to justice — but only halfway.

What H.3497 doesn’t do is fix the broken legal framework that allows bars — or any business, for that matter — to be held 100% financially liable for minimal damages they actually caused. Under South Carolina’s version of “joint and several liability,” a business found minimally at fault (just 1% in some cases that involve a twisted definition of “negligence”) can still be required to pay the full damages awarded in a lawsuit if other responsible parties can’t pay or weren’t presented to the jury.