While the Act allows defendants to argue the “empty chair defense,”  jurors may only apportion fault to the plaintiff and the defendants – not to the “empty chair” – and the total of the percentages of fault must be one hundred percent.  Put simply, this allows jurors to consider the fault of nonparties and even to decide that liability rests partially or solely with a nonparty; however, jurors cannot allocate fault to those nonparties on a jury verdict form. The defendants present at trial are then left holding the proverbial bucket of full liability and the consequential responsibility of payment for damages that the jurors would have otherwise attributed to some other person or entity. 

 

Prof. Chapman reports that the S.C. Senate and the S.C. House are currently considering companion bills to amend the Act to allow jurors to allocate fault to nonparties; and, if the bills were to pass and be signed into law by the Governor, it would have a significant impact on defendants’ ability to limit their liability and potential exposure at trial.