Johnson: SC Legislature should make stopping lawsuit abuse a top priority
Source: The State
March 6, 2015
COLUMBIA, SC — Frivolous lawsuits victimize South Carolina’s citizens and businesses, and it’s time this stops. There are three areas of tort reform that must be a top priority in this year’s legislative session.
If someone cuts a leg on a barbed-wire fence while he’s trespassing, the trespasser should be liable, not the landowner. S.282 and H.3266 would ensure that.
This is necessary because a group called the American Law Institute is trying to convince courts to impose a broad new duty on land owners to exercise reasonable care for anyone on their land; this means they would be liable for injuries to anyone except “flagrant trespassers” — a term that isn’t defined in any state’s tort law and that will therefore serve as an invitation to litigation. If courts adopted this standard, a judge or jury would be forced to decide whether a person intruding on your property had “flagrant” intentions. The need to pass a law to prevent this before it takes root is especially important to the forestry and lumber community, railroads, hunt clubs and industrial facilities.
Another high-priority reform should be transparency in contracting when government officials hire outside attorneys on a contingency fee to conduct litigation on behalf of a state. These private attorneys are paid only if their cases are successful, so profit becomes the motive rather than protecting the public interest. While there are certain times it makes sense to hire outside attorneys, our state should set clear guidelines to ensure there are no abuses of the system or conflicts of interest now and in the future.
In our state, private attorneys can be hired without any legislative oversight, at whatever rate is deemed appropriate by the attorney general. Obviously, the potential for a conflict of interest is inherent in this system, especially when it comes to hiring and compensation decisions. In other states, reports of widespread abuse of such unchecked systems have become the norm. Creating a system with clear limits and checks and balances makes common sense. North Carolina passed this legislation last summer with bipartisan support, joining 14 other states since 2010. It’s all about transparency.
Finally, court transparency should be addressed, especially in asbestos litigation. One needs look no further than U.S. Bankruptcy Judge George Hodges’ Garlock Sealing Technologies decision in a Charlotte federal court last year. Judge Hodges’ decision documents how plaintiffs’ lawyers abuse the lack of disclosure between the asbestos bankruptcy trust and civil tort systems to gain an unfair litigation advantage. Judge Hodges found the withholding of evidence by asbestos plaintiffs’ counsel to be “widespread and significant.” This results in plaintiffs getting compensation for claims of 100 percent of their exposure from a financially solvent company, which may have had little to do with a plaintiff’s exposure. But shortly thereafter, these same plaintiffs file multiple bankruptcy trust claims for exposure to other products in order to receive additional compensation, and the plaintiff’s attorney gets his contingency share each time. S.281 seeks to add transparency to these types of civil suits and bankruptcy trust filings so the judge and jury can consider this evidence. A number of S.C. companies could be targeted as such, forcing them, like Garlock, into bankruptcy.
South Carolina cannot afford to wait to pass these critical tort reform measures. Lawsuit abuse of any kind means increased costs and unpredictable liability for our citizens and businesses. For the good of the Palmetto State’s citizens, the Legislature must make tort reform a priority this year and pass this commonsense legislation.
Mr. Johnson, an Orangeburg businessman, is chairman of the S.C. Chamber of Commerce and the State Workforce Investment Board and the immediate past chair of the S.C. Manufacturers’ Alliance; contact him at email@example.com.