Laws are nuanced. Complicated. There are exceptions and loopholes. And while our society functions under laws that have been in place for decades—some have endured for more than a century—laws are among the most frequently evolving institutions in South Carolina and nationwide. Some laws change and we barely feel an effect, but others have a big impact on our lives.
The basic premise of personal injury law is that an injured person is entitled to be made financially whole by a negligent party who caused their injury. In other words, the law intends for them to be restored to the financial condition they’d be in if the accident or injury had never happened. That’s great in theory, but we all know that it’s not always as easy as it seems. There can be more than one party who’s liable for an injury, but actually getting compensated for your injury can be complicated.
If you were injured in an accident—car accident, slip-and-fall, or any other type of South Carolina personal injury—you’ll need to face the questions of who was at fault and who actually pays. As of January 1, 2026, the answer to the second question has changed. This could have an impact on how much money you’re able to recover.
What is South Carolina Act 42?
H.3430, which became known as Act 42, was signed into law in the spring of 2025 by South Carolina Governor Henry McMaster. The law amends the Contribution Among Tortfeasors Act (South Carolina Code Section 15-38-15), along with several laws governing the sale of alcohol and the liability that can flow therefrom.
This rule affects how fault—and the damages that follow—are divided among multiple responsible parties.
But first things first: The law applies to claims that arose on or after January 1, 2026. If your accident happened before 2026, the old rules will apply.
Background: Joint and several liability
Joint and several liability allows a plaintiff to collect the full amount of their damages from any one defendant, even if that defendant was only partially to blame. The defendant would then need to pursue the other defendants to recover their share of the damages.
For a victim, this would act as a safety net, of sorts. If one at-fault party had no insurance or no money, the victim could still collect the amount owed from another party who did have insurance.
But Act 42 narrows the safety net. Under the new law, if a defendant is found more than 50% at fault, they can still be held responsible for the full amount of your damages. But if the defendant is found less than 50% at fault, then they can only be held responsible for their own apportioned share. Fault is now measured across everyone involved… each defendant, certain non-parties, and even the injured plaintiff… and the total must add up to 100%.
Here’s an example of how this might play out:
A driver was involved in a multi-car crash. They’re seriously injured and have about $500,000 in medical bills and lost wages.
The jury determines that Driver A was 70% at fault and Driver B was 30% at fault.
Under the new rules, if Driver A is more than 50% at fault, they can be on the hook for the full amount. Driver B—at 30% fault—is responsible for 30% of the damages, or $150,000.
However, if Driver A is uninsured or has few assets, the victim is still at a loss for $350,000 because Driver B can no longer be forced to cover the gap.
In other words, the party with the deepest pockets isn’t always the party who’s most at fault. Now, fault percentages directly limit what a victim may collect from the smaller players.
The “empty chair” defense
Act 42 fully restores the ability of a defendant to argue that someone who isn’t named in the lawsuit (i.e. a non-party) contributed to the injury, and that they should be named on the verdict form.
It’s called the “empty chair” because the jury is asked to assign blame to a party that has no chair at the defense table.
How does this affect the plaintiff? Every percentage point of fault a jury assigns to an absent person or entity that’s not a party to the lawsuit is a percentage that can come straight from their recovery—because there is no guarantee you can ever collect on it.
However, there are guardrails in place. If a defendant aims to shift blame to a non-party, they must identify that person or entity within 180 days of the start of the lawsuit (or later, with good cause). The defendant carries the burden of providing that the added party’s conduct actually helped cause the plaintiff’s injuries. The law also puts the responsibility on the defendant to have a non-named party added to the verdict form.
For example, let’s assume a person is injured after their car is rear-ended by a delivery truck. The injured victim files a lawsuit against the trucking company. The trucking company then argues that their repair shop did poor brake work, which it claims was the cause of the crash. The defendant (trucking company) asks the jury to assign part of the blame to the repair shop, which is not named as a defendant.
If the jury agrees, it might say the repair shop is 40% at fault (hypothetically) and the trucking company is 60% at fault. If that’s the situation, then nearly half of the victim’s damages are tied to a party that’s not even in the lawsuit at all.
This is why your experienced attorney matters. A good lawyer will investigate every potentially responsible party right from the start… which means the correct people are in the courtroom and there are no “empty chairs.”
Are there exceptions under the new law?
Yes. The new law has an exception, just as so many other laws do. It doesn’t let every defendant off the hook, so to speak, because it has a lighter share. One carve-out is a defendant whose conduct is found to be willful, wanton, reckless, or intentional. Another is a defendant whose conduct involves the illegal use, sale or possession of drugs. In these instances, the defendant can still be held fully responsible for all the damages.
The alcohol exception
There’s also a specific rule aimed at alcohol-related lawsuits. If both a licensed establishment (such as a bar or restaurant) and a drunk driver are found liable for an injury, the establishment is automatically responsible for 50% of the actual damages. This is part of the law’s broader overhaul of liquor liability, which also lowered the mandatory insurance coverage for businesses that serve alcohol. If a business adopts safety measures, it can lower this coverage from $1 million to as little as $300,000.
These exceptions can be the difference between a full and partial recovery, which is why the evidence and investigation after an accident are so important.
What Act 42 means for an injured plaintiff
If you were hurt in an accident in 2026 or later:
- Timing matters. The new rules apply to claims that arose on or after January 1, 2026. If the accident is more recent, then these apportionment rules will be used.
- Every at-fault party counts. It’s crucial to identify every responsible party, and to make sure each one is named in your lawsuit.
- The defendant has new tools. They can be expected to point fingers at each other and at absent non-parties to shrink the amount they owe.
It’s worth noting that this law is still new. The courts will continue to sort how these provisions play out in real cases over the next couple of years.
Remember, Act 42 doesn’t change whether you can recover from an injury caused by a negligent party—it changes the strategy for making sure you actually collect what you’re owed. Fault is now sliced more finely among multiple parties, which means early decisions in your case carry more weight than they did before.
If you’ve been injured in South Carolina, contact the team at Chappell, Chappell, & Newman, LLC. We’ll investigate every source of responsibility, anticipate potential empty-chair arguments from the defense, and build your case so the parties that caused your injury are the ones that answer for it.