SC’s Liability Laws are Judicial Socialism, Plain and Simple

Our state’s civil justice statutes are in dire need of reform—on many levels.   

But specifically, it is our system of modified comparative negligence that is often so scandalously unjust. “Nuclear” outcomes have become common, especially in venues like Richland County, where eight-figure verdicts have become routine in recent years. In 2024, a jury awarded a plaintiff (and the law firm) $63 million.  

Who pays that verdict? Make no mistake, we all do. 

When the South Carolina Contribution Among Tortfeasors Act was amended in 2005, a restriction was added that requires a jury to allocate 100% of fault among those parties (including the plaintiff) who are still in the lawsuit at the end of trial—when the case is presented to the jury for deliberation.  

If a person or entity was partially at fault but is not a named party at the time the case is presented to the jury (perhaps having settled pre-trial), the jury is not allowed to allocate fault to that person or entity. However, the jury is still required to allocate 100% of fault among the parties that are in the lawsuit at that time.  

This means if an at-fault defendant has already settled its claims, or if an at-fault person or entity is immune from suit for some reason, or even if the plaintiff (and his or her law firm) strategically chose not to sue that at-fault person or entity, the jury cannot allocate fault to that person or entity even if the jury believes that person or entity was at fault.  

In cases where multiple people or entities were each partially at fault (possibly including the plaintiff), this means the jury is prohibited from allocating fault in respective shares to the parties who were actually at fault, but is required instead to allocate 100% of fault only to the parties still in the lawsuit at the end of trial.  

This is the legacy of the 2005 Tortfeasors Act and Smith v. Tiffany. 

When a plaintiff (meaning, a plaintiff’s attorney) is permitted to make all other at-fault persons disappear in order to focus on one party, a party minimally at fault could potentially be held liable for the full judgment, even when that sum does not reflect what should have been that party’s actual proportionate share of the damages if all tortfeasors—not just one—had been fairly presented to the jury. The “negligence” loophole helps make this possible. 

This happened in Walt Disney World v. Wood (1987) where a tortfeasor/defendant (Disney) with 1% fault paid 86% of the damages. This outrage led to a first round of tort reforms in the Sunshine State. Florida’s law now requires, in most cases, for each defendant to pay only their own share of damages allocated across all parties to an event. 

The South Carolina Contribution Among Tortfeasors Act should be amended so that justice and common sense are restored. It is wrong for someone—anyone—to pay damages caused by someone else.  

In Critique of the Gotha Programme (1875), Karl Marx wrote: 

In a higher phase of communist society…only then can the narrow horizon of bourgeois right be crossed in its entirety and society inscribe on its banners: From each according to his ability, to each according to his needs! 

That final phrase, popular with Socialist and Communist movements at the time, has since become the rallying cry for a governmental system that forcibly redistributes income. It is the antithesis of the free market system that has made America the world’s economic powerhouse.  

It is no wild or hyperbole slur to connect this “from ability to need” Marxist concept to the civil justice situation in South Carolina.  

With our faulty “modified comparative negligence” system, every time a hard-working, resourceful businessperson—who built a business with his or her own hands—is flagrantly targeted, sequestered for allocation of fault, found “negligent” by murky definitions, and squeezed by a system that encourages such litigation activity, the Marxist principle is in action. It is judicial socialism, plain and simple.  

Under “from each according to his ability, to each according to his needs,” a defendant minimally at fault who has good insurance is ripe for unjust targeting and an unjust transfer of wealth that would have made Karl Marx proud.  

South Carolina lawmakers need to step up. We must end this judicial socialism, shut down arguments for government-controlled insurance markets and make sure our legal system is fair and just for all. 

Read more about SC’s lawsuit industry in our recent report, Sandlapper Shakedown.