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RECALLED
May 26, 2005
H. 3778
Introduced by Reps. Harrison, Wilkins, Cato, W.D. Smith, Merrill, Jennings, J.E. Smith and Chellis
S. Printed 5/26/05--S.
Read the first time March 22, 2005.
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 15-38-15 SO AS TO PROVIDE IN AN ACTION TO RECOVER DAMAGES RESULTING FROM PERSONAL INJURY, WRONGFUL DEATH, DAMAGE TO PROPERTY, OR TO RECOVER DAMAGES FOR ECONOMIC LOSS OR NONECONOMIC LOSS, JOINT AND SEVERAL LIABILITY DOES NOT APPLY TO A DEFENDANT WHO IS LESS THAN FIFTY PERCENT AT FAULT; TO PROVIDE FOR APPORTIONMENT OF PERCENTAGES OF FAULT AMONG DEFENDANTS; AND TO PROVIDE THAT THE PROVISIONS OF THIS SECTION DO NOT APPLY TO A DEFENDANT WHOSE CONDUCT IS WILFUL, WANTON, RECKLESS, GROSSLY NEGLIGENT, INTENTIONAL, OR CONDUCT INVOLVING THE USE, SALE, OR POSSESSION OF ALCOHOL OR ILLEGAL OR ILLICIT DRUGS.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Chapter 38, Title 15 of the 1976 Code is amended by adding:
"Section 15-38-15. (A) In an action to recover damages resulting from personal injury, wrongful death, damage to property, or to recover damages for economic loss or for noneconomic loss such as mental distress, loss of enjoyment, pain, suffering, loss of reputation, or loss of companionship resulting from tortious conduct, if indivisible damages are determined to be proximately caused by more than one defendant, joint and several liability does not apply to a defendant whose conduct is determined to be less than fifty percent of the total fault for the indivisible damages as compared with the total of:
(1) the fault of all the defendants; and
(2) the fault or comparative negligence, if any, of plaintiff.
A defendant whose conduct is determined to be less than fifty percent of the total fault is liable only for that percentage of the indivisible damages determined by the jury or trier of fact.
(B) Apportionment of percentages of fault among defendants is to be determined as provided in subsection (C).
(C) The jury, or the court if there is no jury, shall:
(1) specify the amount of damages;
(2) determine the percentage of fault, if any, of plaintiff and the amount of recoverable damages pursuant to applicable rules concerning comparative negligence; and
(3) upon a motion by at least one defendant, when there is a verdict pursuant to items (1) and (2) for damages against two or more defendants for the same indivisible injury, death, or damage to property, specify in a separate verdict pursuant to the procedures described in subitem (b) the percentage of liability that proximately caused the indivisible injury, death, damage to property, or economic loss from tortious conduct, as determined pursuant to item (1), that is attributable to each defendant whose actions are a proximate cause of the indivisible injury, death, or damage to property. In determining the percentage attributable to each defendant, any fault of the plaintiff, as determined by item (2), will be included so that the total of the percentages of fault attributed to the plaintiff and to the defendants must be one hundred percent. In calculating the percentage of fault attributable to each defendant, inclusion of any percentage of fault of the plaintiff as determined in item (2) shall not reduce the amount of the plaintiff's recoverable damages as determined pursuant to item (2). For this purpose:
(a) the court may determine that two or more persons are to be treated as a single party. This treatment must be used when two or more defendants acted in concert or when, by reason of agency, employment, or other legal relationship, a defendant is vicariously responsible for the conduct of another defendant; and
(b) after the initial verdict awarding damages is entered and before the special verdict on percentages of liability is rendered, the parties must be allowed oral argument, with the length of the argument subject to the discretion of the trial judge, on the determination of the percentage attributable to each defendant. However, no additional evidence is allowed.
(D) A defendant retains the right to assert that another potential tortfeasor, whether or not a party, contributed to the alleged injury or damages and may be liable for any or all of the damages alleged by another party.
(E) Notwithstanding the application of this section, setoff from any settlement received from a potential tortfeasor before the verdict must be applied in proportion to each defendant's percentage of liability as determined pursuant to subsection (C).
(F) This section does not apply to a defendant whose conduct is determined to be wilful, wanton, reckless, grossly negligent, intentional, or conduct involving the use, sale, or possession of alcohol or illegal or illicit drugs."
SECTION 2. The repeal or amendment by this act of any law, whether temporary or permanent or civil or criminal, does not affect pending actions, rights, duties, or liabilities founded thereon, or alter, discharge, release or extinguish any penalty, forfeiture, or liability incurred under the repealed or amended law, unless the repealed or amended provision shall so expressly provide. After the effective date of this act, all laws repealed or amended by this act must be taken and treated as remaining in full force and effect for the purpose of sustaining any pending or vested right, civil action, special proceeding, criminal prosecution, or appeal existing as of the effective date of this act, and for the enforcement of rights, duties, penalties, forfeitures, and liabilities as they stood under the repealed or amended laws.
SECTION 3. If any section, subsection, paragraph, subparagraph, sentence, clause, phrase, or word of this act is for any reason held to be unconstitutional or invalid, such holding shall not affect the constitutionality or validity of the remaining portions of this act, the General Assembly hereby declaring that it would have passed this act, and each and every section, subsection, paragraph, subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more other sections, subsections, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective.
SECTION 4. This act takes effect upon approval by the Governor.
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