A. Joint Tortfeasors

• Library: The South Carolina Law of Torts (SCBar) (2023 Ed.)

A. Joint Tortfeasors

1. Joint and Several Liability

a. Common Law

"Joint tortfeasor" is a term of art which applies not only to persons who are literally acting jointly or in concert but also to persons whose independent actions have "joined" to injure another person.¹ Until 2005 South Carolina followed the traditional common law rule that joint tortfeasors are "jointly and severally liable" to the plaintiff,² except where the South Carolina Tort Claims Act applied.³ One important aspect of common law joint and several liability is that the plaintiff may elect to sue one, some, or all the joint tortfeasors.⁴ Moreover, the plaintiff may sue them jointly in one suit or individually in separate suits.⁵

At common law, a defendant who was sued separately could not join other joint tortfeasors in the action; this right of joinder was the plaintiff's exclusively.⁶ The "South Carolina Contribution Among Tortfeasors Act"⁷ and the adoption of comparative negligence have not modified this rule.⁸

Where joint tortfeasors are sued separately, the plaintiff may plead facts in one suit that are inconsistent in the other.⁹ However, the inconsistent pleading in one case is admissible in the other case for purposes of impeaching the plaintiff's testimony.¹⁰

Each joint tortfeasor is individually liable for the full amount of the plaintiff's loss.¹¹ The plaintiff's award is not reduced because the other defendants are also "jointly" liable.¹² If the plaintiff elects to sue the defendants separately, he may receive a judgment against each defendant;¹³ a judgment in the same or a prior action in favor of an alleged joint tortfeasor does not automatically release the others.¹⁴ This does not mean the plaintiff will be overcompensated because he is limited to only one full recovery for his injury and defendants have a right of set-off.¹⁵

b. Statutory Scheme

In 2005, the South Carolina Legislature adopted a scheme for joint and several liability as a part of a comprehensive "tort reform" package.¹⁶ The Act provides that traditional common law joint and several liability applies to the following types of defendant: (1) any defendant whose conduct is fifty percent or more of the combined fault of (a) all defendants, and (b) the plaintiff;¹⁷ and (2) any defendant whose conduct is "willful, wanton, reckless, grossly negligent, or intentional or conduct involving the use, sale, or possession of alcohol or drugs."¹⁸ As to all other defendants, each of these defendants is liable only for that defendant's percentage of fault.¹⁹

The percentages of fault are to be determined in a two-step process. First, the fact finder will determine plaintiff's recoverable damages in same way as now done under Nelson v. Concrete Supply Co.²⁰—i.e., the trial court will do the following: (a) determine the total amount of damages, (b) determine the percentage of fault of plaintiff, and (c) subtract plaintiff's percentage share of the damages from the total damages in order to determine the amount of recoverable damages.²¹ Second, where the preceding determination indicates that two or more defendants are liable for plaintiff's damages and at least one defendant has moved for an allocation between or among defendants, the court will determine the percentage share of each defendant as follows: (a) allow oral argument by the parties (but no new evidence) on the issue; and (b) specify in a special verdict the percentage of fault of each defendant whose conduct proximately caused the plaintiff's injuries.²²

Where a settlement is involved, "set[-]off from any settlement received from any potential tortfeasor prior to the verdict shall be applied in proportion to each defendant's percentage of liability...."²³ As a preliminary matter on the issue of whether a nonsettling tortfeasor is entitled to a set-off, the trial court must review the settlement documents to determine if their terms shield the settling tortfeasor from the requirements of the Act.²⁴ The court must review the amount of the settlement and its terms and determine if the release or covenant was "given in good faith."²⁵

In computing the percentages in the second step, two additional statutory provisions are relevant. First, the statute provides that "the court may determine that two or more persons are to be treated as a single party. Such treatment must be used where two or more defendants acted in concert or where, by reason of agency, employment, or other legal relationship, a defendant is vicariously responsible for the conduct of another defendant."²⁶ Second, 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."²⁷ Because of the use of the phrase "retain the right" (which suggests no change in the current law) and because the use of the term "potential tortfeasor" (rather than the term "defendant" used in other parts of the section) suggests two distinct types of wrongdoers, it could be argued that this provision means that a nonparty, potential tortfeasor is not allocated any share of the fault. On the other hand, the phrase "liable for any . . . of the damages" suggests that allocation to a nonparty of some share of the damages would be allowed. If only party defendants can be involved in the allocation of fault, there is no clear answer to the procedural issue of whether a party defendant may join a "potential tortfeasor" as a party defendant to be included in the allocation of fault.²⁸

The requirement under the Act²⁹ that the factfinder apportion 100% fault between the plaintiff and all "defendants" does not extend to a nonparty with whom the plaintiff settled under a covenant not to execute.³⁰ The Act sets forth a detailed method for apportioning fault "among defendants."³¹ The court in Smith v. Tiffany found that the General Assembly took steps to protect nonsettling defendants by codifying a nonsettling defendant's right to argue the so-called "empty chair" defense in subsection (D),³² and by enacting subsection (E), which provides the right to offset the value of any settlement received prior to the verdict—a right which arises by operation of law and is not within the discretion of the courts.³³ Thus, a critical feature of the statute is the codification of the "empty chair" defense—a defendant "retain[s] the right to assert another potential tortfeasor, whether a party or not, contributed to the alleged injury or damages"—which necessarily contemplates lawsuits in which an allegedly culpable person or entity is not a party to the litigation (hence the chair in question being "empty").³⁴

The court in Smith v. Tiffany concluded that when the statutory provisions are construed as a whole—the legislature's use of the differing terms "defendants" in subsections (B) and (C) and "potential tortfeasor, whether or not a party" in subsection (D) with the mandatory offset in subsection (E)—the General Assembly's clear intent is not ambiguous. The court stated:

[W]ere we to accept Appellants' argument [that Appellant be permitted to join as a defendant an at-fault party who settled prior to suit], and vary from the provisions of the Act in this case to purportedly enhance the prospects of a more equitable result in this case, we would create a host of concerns, for Appellant's desired result would require (1) a plaintiff to maintain a suit against someone with whom he has already settled; (2) a settling defendant to defend a lawsuit he has already settled; (3) this Court to ignore the legislature's express acknowledgment in section 15-38-15(D) that not all potential tortfeasors will necessarily be parties to the suit; and (4) would create a conflict with other provisions of the Act, including sections 15-38-15(E) and 15-38-50(1), which address a nonsettling defendant's right to set[-]off. The most prominent obstacle to Appellants' approach is separation of powers, for we must defer to the will of the legislature as expressed in the Act. If the policy balance struck by the legislature in Act is to be changed, that prerogative lies exclusively within the province of the Legislative Branch.³⁵

c. Apportionment of Damages Based Upon Causation-in-Fact

Where it is possible to allocate a plaintiff's losses in terms of causation-in-fact, the common law doctrine of joint and several liability is not applicable. In such a case, those damages caused by one defendant will be apportioned to him while the damages caused by the other will be allocated to him.³⁶ Because the statutory scheme applies to "indivisible injuries,"³⁷ the same approach applies under the statutory scheme.

2. Contribution Among Joint Tortfeasors

At common law the individual liability of defendants also limited allocation among the defendants because the joint tortfeasor who paid the award could not recover any contribution from the other joint tortfeasors.³⁸ The "South Carolina Contribution Among Tortfeasors Act"³⁹ modified this rule and provided for a right of "pro rata" contribution⁴⁰ among persons "jointly or severally liable in tort"⁴¹ except for cases involving an intentional tort⁴² or "breaches of trust or other fiduciary obligation."⁴³

Under the Act each joint tortfeasor is liable for his "pro rata" share of the liability. The Act provides:

In determining the pro rata shares of tortfeasors in the entire liability (a) their relative degrees of fault shall not be considered; (b) if equity requires, the collective liability of some as a group shall constitute a single share; and (c) principles of equity applicable to contribution generally shall apply.⁴⁴

The right of contribution must be asserted against the other joint tortfeasors in a separate action,⁴⁵ unless the plaintiff has included the defendants involved in the suit by the plaintiff, in which case the contribution issues are addressed after the plaintiff's suit for liability has been resolved.⁴⁶...