Shouldn’t liability be determined on the basis of fault and not by financial resources? A lot of other people in a lot of other states think so. But here in South Carolina, the issue of joint and several liability shows how our judicial system has gotten out of balance.

Proponents of joint and several liability claim it is a question of fairness. But in actual practice, joint and several liability has the effect of protecting parties most at fault at the expense of those with the deepest pockets. How is this possible?

Under existing South Carolina law, a party can be held responsible for the entire amount of a verdict, even if that party shares in only 1 percent of the fault. As you might imagine, this has opened the door for frivolous lawsuits targeting those with the ability to pay rather than those who are truly responsible.

Don’t think this is a big deal? Think someone, anyone, should pay in order to make the plaintiff whole again?

If you’re a business owner, think about all the people you do business with: suppliers, vendors, even people or other businesses you may have contracted with on a one-time basis. If a claim arises where one of your business “partners” is responsible for 99 percent of the damage — yet he’s let his liability insurance lapse — should you be forced to pay the entire cost for his actions simply because you were responsible enough to keep your insurance current?

Even if you are not a business owner, you are still affected by the issue of joint and several liability because it impacts economic development. Hundreds of businesses that might otherwise open or expand operations in our state avoid South Carolina because they don’t want to risk being forced to pay more than their fair share in a lawsuit. That means jobs, dollars and opportunities go elsewhere — to states that recognize the only fair system of justice is one where proportionate liability is the rule.

What message are we sending to those who act recklessly and without restraint? Are we saying it’s OK if you hurt others because someone else will pay the damages if you can’t afford them?

Should we reserve the right to punish those who knowingly and willfully act together? Absolutely. Should we make one party 100 percent liable for the negligence of another? Absolutely not.

Some 44 states have already acted to bring back balance and fairness by passing proportionate liability laws. These “fair-share” acts require the courts to assess the fault of each party and, in some cases, non-parties. (As it stands now, a jury in South Carolina may never know of the negligence of non-parties who have settled out of court, further exacerbating any fair assessment of fault.)

As businesses move or expand to states with more responsible tort systems, South Carolina can no longer afford to simply leave joint and several “as is.” What we need are common-sense reforms to the judicial system, reforms that will hold a negligent party liable for its fair share and nothing more. What we need is a fair and balanced system that takes care of victims, not one that only succeeds in creating new ones.

Mr. Fields is the state director for the National Federation of Independent Business.