Vol. 7, No. 2, Pg. 36. PRO/CON: Comparative Negligence and Apportionment of Liability Among Tortfeasors: Is Joint and Several Liability Obsolete?.

• Author: By Steven A. Snyder and I. Antonio Delcampo

South Carolina Lawyer

1995.

Vol. 7, No. 2, Pg. 36.

PRO/CON: Comparative Negligence and Apportionment of Liability Among Tortfeasors: Is Joint and Several Liability Obsolete?

36PRO/CON: Comparative Negligence and Apportionment of Liability Among Tortfeasors: Is Joint and Several Liability Obsolete?By Steven A. Snyder and I. Antonio DelcampoThe South Carolina Supreme Court has instituted comparative negligence as the law of the land, allowing juries to apportion degrees of fault between plaintiffs and defendants. The United States Congress is debating legislation that would require juries and courts, under certain circumstances, to apportion liability and damages between defendant-wrongdoers.

But what is to become of joint and several liability? Is apportionment of damages between defendant wrongdoers just around the corner in South Carolina?

Where a jury is permitted to appropriate degrees of fault between a plaintiff and a defendant, the same jury should also determine and apportion damages between joint tortfeasors.

During the era of contributory negligence, any negligence of the plaintiff contributing to her damages barred her from any recovery against a defendant guilty of even greater negligence." The law balanced this possible inequity by allowing a plaintiff who was found to be legally 'pure' because he was not even slightly negligent, to collect his entire judgment from any defendant who was guilty of 'even slight negligence'." Laubach v. Morgan, 588 P.2d 1071, 1074 (Okla. 1978).

Is apportionment of damages between defendant wrongdoers just around the corner in South Carolina?

In Nelson v. Concrete Supply Co., 303 S.C. 243, 399 S.E.2d 783 (1991), the South Carolina Supreme Court followed a majority of states and adopted a system of comparative negligence for all causes of action arising on or after July 1, 1991. The landmark Nelson decision, however, did not offer guidance as to how liability in multiple defendant cases should be handled, other than to state: "If there is more than one defendant, the plaintiff's negligence shall be compared to the combined negligence of all defendants." 399 S.E.2d at 704.

Similarly, the famous Court of Appeals decision in Langley v. Boyter, 284 S.C. 162, 325 S.E.2d 550 (Ct. App. 1984), which was referenced in the Nelson opinion, failed to address this issue. Instead, the Court stated: "We resist the temptation to give our views on how the doctrine of comparative negligence should be applied in various situations not presented by the instant case." 325 S.E.2d at 566.

As a result, South Carolina's Contribution Among Tortfeasors Act, S.C. Code § 15-38-10, et seq., remains in effect, and its application to a comparative negligence case has yet to be addressed by South Carolina courts.

Some commentators have argued that the South Carolina Supreme Court's decision in Nelson does not affect the ongoing applicability of joint and several liability. See, e.g., F. Patrick Hubbard & Robert L. Felix, Comparative Negligence in South Carolina: Implementing Nelson v. Concrete Supply Co., 43 S.C.L.Rev. 273, 306 (1992). Others, however, contend that a more prudent and persuasive approach would be to allocate damages among the tortfeasors on a proportionate fault basis.

Those states that maintain joint and several liability argue principally that apportioning fault on a comparative basis does not render an indivisible injury or...