Latest Tort Deform

The Editorial Staff of the Post & Courier had a great article about South Carolina’s joint and several liability law.

“It looked like SC Venue Crisis had landed its latest poster child when a Cayce sports bar announced this month it was closing because of rising liability insurance rates. But just a day later, The Post and Courier’s Hannah Wade reports, Henry’s got hit with a lawsuit alleging that it had overserved an inebriated customer who left the bar, crashed into one car, drove away and crashed into another, this time killing a 17-year-old girl and her grandfather.

And in an instant, that tragic wreck provided the essential context that bar owners and their supporters keep hoping no one will notice as they try to convince the Legislature to abolish one of the most important tools South Carolina has in our fight against drunk driving.

The law they want to change was written deliberately to punish bad behavior. Like, in a state with some of the highest drunken-driving death rates in the nation, continuing to sell alcohol to customers who are already too drunk to drive.

That’s not the way bar owners characterize their campaign, of course, which is why news of the two deaths caused by an alleged drunken Henry’s patron is so important. Bar owners and convenience store owners speak of personal responsibility. They complain about a state law called joint and several liability that allows people who are found liable in a lawsuit to be stuck with more than their share of the damages if other defendants can’t pay.

What they don’t mention is that this policy doesn’t apply in the vast majority of lawsuits filed in South Carolina. Normally, defendants who are assigned less than 50% of the blame only pay their share of damages.

The exception is for “a defendant whose conduct is determined to be willful, wanton, reckless, grossly negligent, or intentional” and for conduct “involving the use, sale, or possession of alcohol or the illegal or illicit use, sale, or possession of drugs.”

What this law means is that even if the people who sold or served alcohol or engaged in those other bad behaviors were only slightly responsible for a death or injury, they can get stuck paying most or all of the damages. That’s how important our lawmakers think it is to deter bad behavior, and rightly so.

Bar owners say they’re going out of business because insurance rates have skyrocketed as a result of a 2017 law that requires them to maintain $1 million in liability insurance to cover any lawsuits they lose after they violate the laws that prohibit serving drunk and underage customers.

But rather than focusing their campaign on modifying or repealing the $1 million requirement that they say is forcing them out of business, they’re focusing more on eliminating joint and several liability — which the owner of the convenience store that sold beer to an underaged Paul Murdaugh was already doing.

And it’s worth noting that bar owners and their allies aren’t just trying to remove the part of the joint and several liability law that applies to serving alcohol. They’re trying to eliminate the entire law, so no one who engages in “willful, wanton, reckless, grossly negligent, or intentional” misconduct or who sells or uses illegal drugs can be held extra responsible for any injuries, deaths and damage that result from their irresponsible behavior. It makes you wonder who’s backing this movement besides bar owners and convenience store owners.

It’s unfortunate when reputable bars close — as they do every day in every state in our nation, often for reasons that have nothing to do with insurance requirements. It’s tragic when people are killed by drunk drivers — as happens every day because drunks and the people who enable their drunkenness don’t care enough about the lives of their fellow human beings.

The law punishing bars for profiting from patrons who go out and kill innocent people isn’t broken. It doesn’t need fixing.”