Palmetto Promise: Partial Victory, Not Full Justice
- SCCLR Newsletter
- Nov 11
- 9 min read
By: Felicity Ropp
After years of false starts, heated hearings, and last-minute negotiations, South Carolina has finally passed lawsuit reform. Governor Henry McMaster signed H.3430 into law in May 2025, calling it “landmark tort reform.”
This legislation is, indeed, a milestone. For the first time in two decades, the General Assembly has tackled not just liquor liability but also the broader civil justice distortions that have made South Carolina one of the nation’s most lawsuit-friendly states. The journey to passing reform legislation was long and arduous, and debate took over the Senate calendar for weeks on end during the spring.
Palmetto Promise is encouraged by many of the provisions in H.3430 (now Act 42), and we believe it will be transformative for the broken civil liability system here in South Carolina. But let’s be clear: H.3430 is progress, not perfection. The new statute delivers meaningful relief for bars, restaurants, venues, and small businesses. It finally removes the infamous “alcohol exception” that forced businesses to pay 100% of damages for someone else’s drunken decisions. Yet, despite that long-overdue fix, the bill stops short of full, comprehensive lawsuit reform.
South Carolina’s system of joint and several liability, though trimmed back, still allows for flagrantly unfair results. The bill also leaves untouched many of the deeper problems that make our courts a magnet for “nuclear verdicts” and our businesses a target for predatory lawsuits.
Let’s break down what changed, what didn’t, and where the fight goes from here.
A TALE OF TWO BILLS: S.244 VS. H.3430
In March 2025, after weeks of debate and negotiation, the South Carolina Senate passed S.244, a sweeping tort reform package that took aim at the full range of lawsuit abuses plaguing our civil justice system. S.244 as filed, would have corrected the 51% “cliff” in joint and several liability, ensured nonparties (including those who have settled) could always be included on verdict forms, reined in excessive noneconomic damages, and clarified fault in medical malpractice and other civil cases.
But by the time the dust settled, many of those provisions had been stripped away in the final compromise that passed as H.3430. The result: a narrower—but still significant—law focused primarily on liquor liability, nonparty fault inclusion, and risk mitigation for hospitality businesses.
WHAT H.3430 GOT RIGHT
1. The Alcohol Exception Is Finally Gone
Perhaps the most important reform in H.3430 is the removal of the “alcohol exception” in South Carolina’s joint and several liability statute (§15-38-15). Previously, a bar or restaurant could be forced to pay 100% of damages—even if they were only as little as 1% at fault—simply because alcohol was involved.
That injustice is now gone. A defendant who is less than 50% at fault will only be responsible for their share of the damages. This change alone restores a measure of fairness and ends years of abusive litigation tactics that bankrupted responsible businesses for the wrongdoing of others.
However, there still remains a section of the bill that could make a restaurant or bar responsible for 50% of the damages even if they are less than 50% responsible for a tort. For a truly fair system, they should only pay what their actual percent fault is.
2. A Step Forward on Fault Apportionment
Defendants may now ask juries to allocate fault to “additional tortfeasors” (those who have committed torts)—including people or entities who contributed to the harm but weren’t formally sued.
That’s a big deal. Under the old Smith v. Tiffany precedent (see our Sandlapper Shakedown report for more details on that case), juries could divide fault only among the parties still in the case at trial. That meant plaintiffs’ attorneys could strategically “hide” other wrongdoers by settling with them or never naming them in the first place—then target one business for the whole tab.
Under H.3430, defendants can move to add those other responsible parties to the verdict form (even those who have settled), ensuring juries see the whole picture. It’s not perfect (there are exceptions and burdens of proof), but it’s a crucial move toward fairness.
3. Responsible Alcohol Service Becomes Law
For the first time, South Carolina will require alcohol server training statewide for every employee serving alcohol at a licensed establishment. Every employee who serves alcohol must complete a program designed by the Department of Revenue in conjunction with the Department of Behavioral Health and Developmental Disabilities, covering topics from ID verification to recognizing intoxication. The law lays out a very long list of what this course must cover.
The law also requires forensic ID scanners at late-night establishments (operating between midnight and 4 am) and creates escalating penalties for overserving. These are commonsense safeguards that make our communities safer while giving businesses a clear rulebook to follow.
4. Liquor Liability Insurance Relief
H.3430 reduces the notorious crushing $1 million insurance mandate on establishments serving alcohol by allowing risk-mitigation credits. Bars and restaurants can lower insurance coverage requirements if they meet certain conditions—closing before midnight, having employees complete the alcohol server training shortly after they are hired, having less than 40% of their total sales coming from alcohol, or using a forensic ID scanner.
That means responsible businesses are rewarded, not punished. This risk-based system will likely bring insurance premiums down and help mom-and-pop establishments stay open, if insurance carriers are willing to offered those lowered coverage tiers. It is worth noting that Senator Shane Massey (R-Edgefield), the author of S.244, argued that this mitigation method will be much less effective than wholesale reform and lowering of the $1 million mandate.
5. Accountability for Drunk Drivers
Under this new law, if a drunk driver is charged under South Carolina’s DUI laws, other tortfeasors can move to make sure that driver is listed on the jury verdict form. If both a bar and the drunk driver are found liable, the bar’s exposure is capped at 50% of actual damages.
This is common sense: the person who got behind the wheel drunk bears primary responsibility, not the establishment that served him sometimes hours before.
A question remains about this change, however; another part of H.3430 says that any nonparty tortfeasor whose behavior is “wilful, wanton, reckless, or intentional” cannot be added to the verdict form. Drunk driving surely falls under that category—so it remains to be seen if the requirement for drunk drivers to be included on the verdict form supersedes this verdict form exception.
6. Transparency in the Insurance Market
The Department of Insurance must now collect data and report annually to legislators on the state’s liquor liability insurance market—how many policies exist, claim totals, profits, and trends. This data will give lawmakers and the public the information they need to track whether reform is working and whether additional legislation is needed to mitigate.
7. Preserves the “empty chair” defense
Some observers worried that by expanding the ability to list nonparties on the jury verdict form, H.3430 might inadvertently eliminate the empty chair defense—the long-standing ability of a defendant to argue that someone not in the courtroom was actually the one responsible for the harm. It does not. The empty chair defense remains fully intact.
Defendants still have the right to argue that fault lies with individuals or entities who are not present as parties in the case. What H.3430 adds is a pathway—under defined procedures—to allow some of those nonparties to be formally listed on the verdict form so the jury can assign fault accordingly. In other words, defendants can continue to point to absent actors as before, but now juries have more tools to allocate responsibility fairly when appropriate.
REFORMS STILL URGENTLY NEEDED
Despite these important gains, South Carolina’s civil justice system still remains unbalanced. Compared to the comprehensive vision of S.244, the new law leaves major gaps unaddressed:
The 51% Cliff Has Only Gotten Worse. If a defendant is just 50% at fault, they can still be forced to pay 100% of the damages, with a version of the old joint and several liability standard applying to them. State law prior to H.3430 required fault to be more than 50% to trigger joint and several liability, so a jury would have to think intentionally about assigning a 51% fault to a defendant. But with a sneaky change included in H.3430, the 51% has lowered to 50%, making it very easy for a half-and-half fault split to trigger joint and several. That’s the same old “deep pockets” problem that would be fixed by shifting to a system of pure several liability, like Tennessee and Florida. Theoretically, a bar whose fault is capped at 50% under the new law could still be forced to pay full damages in a DUI case.
Too Many Exclusions on the Verdict Form. H.3430 excludes immune parties, public entities, asbestos cases, and others from being named on verdict forms. True fairness means everyone who contributed to the harm should be visible to the jury for their consideration when assigning liability percentages. If all parties are listed on the jury verdict form, then that 50% threshold will be more difficult to breach.
“Wilful, wanton, reckless, or intentional” has got to go. While the “gross negligence” standard was removed from joint and several liability exceptions, conduct that is “wilful, wanton, reckless, or intentional” remains a trigger for full liability and an exception for nonparty tortfeasors appearing on the jury form. Plaintiffs could pin a tortfeasor as “negligent” on a hair trigger, and “wilful, wanton, reckless, or intentional” conduct is not much harder to prove (not to mention, it’s not defined in statute). S.244 as originally proposed allowed only those cases “where the plaintiff’s damages arise in whole or in part from assault, battery, sexual assault, sexual abuse, sexual misconduct, financial fraud, or theft.” The “wilful, wanton, reckless, or intentional” net is significantly wider. What this half-measure reform means in practice is that trial lawyers are still able to toss out tortfeasors who contributed to an action in order to target the “cash cow” defendants with high insurance liability coverage limits. The same “wilful, wanton, reckless, or intentional” standard is also an exception to nonparties who can be included on the jury verdict form, so a tortfeasor whose conduct is wilful, wanton, et al, has to be left off the verdict form (something that is frankly nonsensical—who would not want another party with reckless behavior to be listed on the verdict form to have fault assigned for their behavior?)
No Limits on Noneconomic or Punitive Damages. South Carolina still lacks meaningful caps on subjective awards for “pain and suffering.” The risks of such “nuclear verdicts” drive up insurance premiums for everyone.
No Reform for Medical Malpractice or Insurance Bad Faith. S.244 as filed, included promising steps toward medical malpractice reform—critical for keeping healthcare affordable and accessible. Those provisions were dropped before passage by the Senate, but we hope legislators will revisit this crucial piece of the reform puzzle in 2026. Like Florida, we should prevent medical damages inflation in personal injury suits by limiting evidence to prove damages attributable to medical treatment or services to amounts that are fairly determined based on standard and defensible methods for calculating medical damages.
No Procedural Safeguards Against Frivolous Suits. Early-dismissal mechanisms, stronger summary judgment standards, and penalties for baseless claims remain on the wish list.
Switch to the visible intoxication standard. S.244 would have set a “visible intoxication” standard for holding bars and restaurants liable for overserving a customer. This is a much higher standard for liability than the “knowingly” or “should have known” someone was intoxicated, and additionally it is much clearer for waiters and bartenders to recognize. Visible intoxication language should be included in future legislation.
Limited Scope for Insurance Mitigation.H.3430 was primarily focused on assisting hospitality businesses with lowering their insurance premiums with targeted mitigation, but industries like trucking, retail, construction, and healthcare still face the same lawsuit threats that make South Carolina a target for trial lawyers. The lawsuit problem is not limited to the hospitality sector. Until we pass a tort reform bill that protects these other industries, our state will continue to shackle economic prosperity and freedom.
Remove statute of repose exceptions for construction cases. Our state needs all the home builders we can get, and under current law, there are huge loopholes for builders to be sued for alleged construction defects years after a home was built, regardless of how long it’s been. Just like a warranty expiration, new construction needs a hard stop on when builders can be held liable. Otherwise, we are driving away contractors from working in our state.
UNFINISHED BUSINESS
Reform is rarely “one and done.” The General Assembly took an important step in 2025, but true, robust lawsuit reform means finishing what the Senate started with S.244.
After H.3430 passed, S.244’s architect, Senator Shane Massey (R-Edgefield), pointed out how far South Carolina has to go to catch up with reforms passed in states we compete with economically, Florida, Alabama, North Carolina, and Georgia.
“[H.3430] certainly does not make it any worse than we are today. I don’t know that it does a whole lot to improve it,” he said. “I don’t want anyone to think that this solves all the problems.”
South Carolina legislators must continue to reform our broken civil liability system until it is truly fair and just for all parties. The passage of H.3430 gives South Carolina a start on the road to robust tort reform. But as every reformer knows, halfway fixed is still broken.
Until South Carolina fully removes joint and several liability, allows juries to see the full picture, and reins in runaway verdicts, our state will remain a “judicial hellhole” for businesses and a high-cost state for consumers.
The South Carolina House of Representatives, as part of the compromise to reach the language in H.3430, has pledged to take up additional reform in the 2026 session, and a Tort Reform Ad Hoc committee has been meeting this fall.
The Legislature should be proud of the progress—but not satisfied. Because true justice, like true reform, means finishing the job.
