A personal injury lawsuit may begin with one injured person and one defendant.
By the time the case reaches a jury, someone who was never sued may still have a place in the fault calculation.
South Carolina made that possibility more explicit in 2026 when changes to its Contribution Among Tortfeasors Act took effect. The revised law creates procedures for allocating fault not only among defendants who are physically in the case, but also to certain other people or businesses alleged to have contributed to the same injury.
For plaintiffs, that changes an important strategic question. Identifying the right defendant is still essential, but it may no longer be enough to ask only, “Who are we suing?”
The other question is: Who might the defense blame?
A Person Does Not Always Have to Be a Defendant to Affect the Verdict
Consider a multi-vehicle collision.
A commercial driver is sued after a serious crash. During the case, the driver’s company argues that another motorist contributed to the collision. That second driver was never named as a defendant.
Under South Carolina’s current Section 15-38-15, the jury can, when the statutory requirements are met, allocate part of the fault to a nondefendant tortfeasor.
The practical effect is significant. Fault assigned elsewhere can affect the percentage ultimately attributed to the defendant who is actually being sued.
That makes early party analysis particularly important. Someone working with Farmer & Morris Law Spartanburg personal injury attorneys may therefore need to consider both sides of the liability picture: who should be included in the claim and which other person or business a defendant may later argue contributed to the injury.
This is not simply a technical change to a verdict form. It can influence how the entire case is investigated.
The Defense Cannot Simply Point at an Empty Chair
There is an important limit.
A defendant cannot wait until closing argument and casually blame someone who has never been part of the litigation.
For claims arising or accruing after January 1, 2026, South Carolina’s revised statute generally requires a defendant seeking allocation of fault to a nondefendant tortfeasor to disclose that person within 180 days after the action begins, unless the court allows later disclosure for good cause.
The plaintiff then has options.
The statute allows the plaintiff to add the identified tortfeasor as a defendant, with the amended pleading relating to the commencement of the action. If the plaintiff chooses not to add that party, the defendant generally bears the burden of proving that the nonparty breached a duty and that the breach proximately caused the plaintiff’s injury.
That second point matters.
“Somebody else caused this” is an argument. It is not proof.
The defendant still needs evidence connecting the absent party to the harm.
For a broader look at that distinction, understanding what the evidence must show to prove liability provides useful context. Negligence claims ultimately depend on duty, breach, and causation rather than simply identifying another possible actor.
Why the Percentage Matters
South Carolina’s statute also deals with what happens after responsibility is divided.
When indivisible damages were caused by more than one tortfeasor, a defendant found less than 50% at fault generally is not subject to joint and several liability under Section 15-38-15. That defendant is ordinarily responsible only for the percentage of damages corresponding to its allocated share of fault.
Imagine a jury determines that an injury produced $300,000 in damages.
If Defendant A is allocated 30% of the total fault under the statute, the apportionment rule can make that percentage financially important. If another tortfeasor receives a meaningful share of the fault, the allocation among them becomes more than an academic exercise.
The plaintiff’s own comparative negligence can also enter the calculation.
South Carolina already had a comparative-negligence framework before the 2026 amendment. Readers unfamiliar with the underlying concept can find a useful overview of how comparative negligence affects a personal injury case.
The 2026 development adds another layer: fault may now be allocated under the statute to qualifying tortfeasors who are not defendants in the action.
This Can Change Which Evidence Matters
Once a nonparty is blamed, the scope of the factual dispute can widen quickly.
Suppose a delivery company is sued because its driver allegedly caused a collision. The company responds that a repair contractor performed faulty brake work.
The case is no longer concerned only with how the driver operated the vehicle.
Maintenance records matter. So may inspection documents, repair invoices, and testimony about what work was actually performed.
A premises case can develop the same way. A property owner sued after an injury might argue that an outside contractor created the dangerous condition. Suddenly, the contract between those businesses and evidence about who controlled the relevant work may become central.
This is why fault allocation and evidence cannot really be separated.
Adding another name to the verdict form also adds another factual theory that needs support or needs to be challenged.
Not Every Nonparty Can Be Added
South Carolina’s revised statute contains limits on the process.
Certain nondefendant tortfeasors are excluded from the verdict form, depending on the circumstances. The statute addresses situations involving immunity, imputed or vicarious liability, strict-liability claims, and willful, wanton, reckless, or intentional conduct, among other exceptions.
Settling tortfeasors receive separate treatment as well.
Those details are important because the new rule should not be read as permission to place virtually anyone on a verdict form simply because a defendant would prefer to spread the blame.
The statute creates a procedure, deadlines and evidentiary burdens precisely because an absent person’s percentage of fault can affect the parties who remain in the courtroom.
The Real Change Is Strategic
South Carolina’s 2026 amendment makes an old litigation instinct more important: look beyond the obvious parties early.
For plaintiffs, that means considering whether other potentially responsible people or businesses should be included before the case develops too far.
For defendants, it means identifying a legitimate nonparty-fault theory early enough to comply with the statutory process and having evidence to support it.
For both sides, the case can no longer be understood solely by looking at the names printed at the top of the complaint.
Sometimes the person who matters to the verdict is the person who never took a seat at counsel’s table.
That is what makes South Carolina’s revised allocation rule more than procedural housekeeping. In the right case, the “empty chair” can change how responsibility and ultimately damages is divided.
This article provides general information about South Carolina personal injury law and is not legal advice for an individual case.