S 859 Session 112 (1997-1998)
S 0859 General Bill, By Passailaigue, Hayes and Wilson
A BILL TO AMEND TITLE 44, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO
NARCOTICS AND CONTROLLED SUBSTANCES, SO AS TO ADD CHAPTER 54 CREATING THE
"SOUTH CAROLINA DRUG DEALER LIABILITY ACT" WHICH PROVIDES A CIVIL REMEDY FOR
DAMAGES FOR MONETARY, NON-ECONOMIC, AND PHYSICAL LOSSES TO PERSONS AND
COMMUNITIES INCURRED AS A RESULT OF AN INDIVIDUAL'S USE OF ILLEGAL CONTROLLED
SUBSTANCES.
12/15/97 Senate Prefiled
12/15/97 Senate Referred to Committee on Judiciary
01/14/98 Senate Introduced and read first time SJ-13
01/14/98 Senate Referred to Committee on Judiciary SJ-13
A BILL
TO AMEND TITLE 44, CODE OF LAWS OF SOUTH
CAROLINA, 1976, RELATING TO NARCOTICS AND
CONTROLLED SUBSTANCES, SO AS TO ADD CHAPTER 54
CREATING THE "SOUTH CAROLINA DRUG DEALER
LIABILITY ACT" WHICH PROVIDES A CIVIL REMEDY FOR
DAMAGES FOR MONETARY, NON-ECONOMIC, AND
PHYSICAL LOSSES TO PERSONS AND COMMUNITIES
INCURRED AS A RESULT OF AN INDIVIDUAL'S USE OF
ILLEGAL CONTROLLED SUBSTANCES.
Be it enacted by the General Assembly of the State of South
Carolina:
SECTION 1. Title 44 of the 1976 Code is amended by adding:
"CHAPTER 54
Drug Dealer Liability Act
Section 44-54-10. This chapter may be cited as the Drug Dealer
Liability Act.
Section 44-54-20. The purpose of this chapter is to provide a civil
remedy for damages to persons in a community injured by an
individual's use of illegal controlled I substances. It establishes a
cause of action against drug dealers for damages for monetary,
non-economic, and physical losses incurred as a result of an
individual's use of an illegal controlled substance. This chapter will
shift the cost of the damage caused by the marketing of illegal drugs
to those who illegally profit from that market, as well as deter others
from entering the illegal drug market by subjecting them to
substantial monetary loss. This chapter will also provide an incentive
for individual users to identify illegal drug marketers and recover
from them the costs of their own drug treatment.
Section 44-54-30. As used in this chapter, unless the context
requires otherwise:
(1) 'Controlled substance' means a controlled dangerous
substance as defined and covered by Chapter 53 of Title 44, Poisons,
Drugs, and Other Controlled Substances, Section 44-53-10 et seq.
(2) 'Illegal controlled substance' means cocaine, phencyclidine,
heroin, or methamphetamine and any other illegal controlled
dangerous substance the possession or distribution of which is a
violation of Chapter 53 of Title 44, Poisons, Drugs, and Other
Controlled Substances, Section 44-53-10 et seq.
(3) 'Individual user' means the individual whose use of an
illegal controlled substance that is not obtained directly from or
pursuant to a valid prescription or order of a licensed physician or
practitioner is the basis of an action brought under this chapter.
(4) 'Level one offense' means the illegal possession with intent
to distribute less than four ounces or the illegal distribution of less
than one ounce of an illegal controlled substance.
(5) 'Level two offense' means the illegal possession with intent
to distribute four ounces or more but less than eight ounces, or the
illegal distribution of one ounce or more, but less than two ounces, of
an illegal controlled substance.
(6) 'Level three offense' means the illegal possession with intent
to distribute eight ounces or more but less than sixteen ounces, or the
illegal distribution of two ounces or more, but less than four ounces,
of an illegal controlled substance.
(7) 'Level four offense' means the illegal possession with intent
to distribute sixteen ounces or more, or the illegal distribution of four
ounces or more, of an illegal controlled substance.
(8) 'Marketing of an illegal controlled substance' means the
possession with intent to distribute or distribution of a specified
illegal controlled substance which is a violation of Chapter 53 of
Title 44, Poisons, Drugs, and Other Controlled Substances, Section
44-53-10 et seq.
(9) 'Participate in the marketing of an illegal controlled
substance' means to transport, import into this state, possess with
intent to distribute, distribute an illegal controlled substance or offer
to transport, import into this state, possess with the intent to
distribute, or distribute an illegal controlled substance. 'Participate
in the marketing of an illegal controlled substance' does not include
the purchase or receipt of an illegal controlled substance for personal
use only.
(10) 'Period of illegal use' means, in relation to the individual
user of an illegal controlled substance, the time from the individual's
first illegal use of an illegal controlled substance to the accrual of the
cause of action.
(11) 'Person' means a natural person, governmental entity, or
corporation, partnership, firm, trust, or incorporated or
unincorporated association, existing under or authorized by the laws
of this state, another state, or a foreign country.
(12) 'Place of illegal activity' means, in relation to the individual
user of an illegal controlled substance, each parish in which the
individual illegally possesses or uses an illegal controlled substance
during the period of the individual's use of an illegal controlled
substance.
(13) 'Place of participation' means, in relation to a defendant in
an action brought under this chapter, each parish in which the person
participates in the marketing of illegal controlled substances during
the period of the person's participation in the marketing of illegal
controlled substances.
Section 44-54-40. (A) Any one or more of the following persons
may bring an action for damages caused by an individual's use of an
illegal controlled substance against those persons enumerated in
subsection (B) of this section:
(1) a parent, legal custodian, child, spouse, or sibling of the
individual user;
(2) an individual who was exposed to an illegal controlled
substance in utero;
(3) an employer of the individual user;
(4) a medical facility, insurer, employer, governmental entity,
or other legal entity that funds a drug treatment program or other
employee assistance program for or that otherwise expends money on
behalf of the individual user; or
(5) a person injured as a result of the willful, reckless, or
negligent actions of an individual user.
(B) A person entitled to bring an action pursuant to subsection (A)
of this section may seek damages from one or more of the following:
(1) a person who sold, administered, or furnished an illegal
controlled substance to the individual user; or
(2) a person who knowingly participated in the marketing of an
illegal controlled substance, if all of the following apply:
(a) The place of illegal activity by the individual user is
within the municipality, parish, or unincorporated area of the parish
in which the defendant's place of participation is situated.
(b) The defendant's participation in the marketing of illegal
controlled substances was connected with the same type of illegal
controlled substance used by the individual user, and the defendant
has been convicted of an offense for that type of specified illegal
controlled substance, which he committed in the same parish as the
individual user's place of use.
(c) The defendant participated in the marketing of illegal
controlled substances at any time during the period in which the
individual user used the illegal controlled substance.
(C) As used in paragraph B(2) of this section, 'knowingly
participated in the marketing of an illegal controlled substance'
means an individual was convicted of possession with the intent to
distribute or distribution of an illegal controlled substance in
violation of Chapter 53 of Title 44, Poisons, Drugs, and Other
Controlled substances, Section 44-53-10 et seq.
(D) A person entitled to bring an action under this section may
recover all of the following damages:
(1) economic damages including, but not limited to, the cost of
treatment and rehabilitation, medical expenses, loss of economic or
educational potential, loss of productivity, absenteeism, support
expenses, accidents or injury, and any other pecuniary loss
proximately caused by the use of an illegal controlled substance;
(2) non-economic damages including, but not limited to,
physical and emotional pain and suffering, physical impairment,
emotional distress, mental anguish, disfigurement, loss of enjoyment,
loss of companionship, services, and consortium, and other
nonpecuniary losses proximately caused by an individual's use of an
illegal controlled substance;
(3) exemplary damages;
(4) reasonable attorney fees; and
(5) costs of suit including, but not limited to, reasonable
expenses for expert testimony.
Section 44-54-50. (A) An individual user is entitled to bring an
action for damages caused by the use of an illegal controlled
substance only if all of the following conditions are met:
(1) not less than six months before filing the action, the
individual personally discloses to narcotics enforcement authorities
all of the information known to the individual regarding the
individual's sources of illegal controlled substances;
(2) the individual has not used an illegal controlled substance
within thirty days before filing the action; and
(3) the individual does not use an illegal controlled substance
during the pendency of the action.
(B) The individual user entitled to bring an action under this
section may recover only the following damages:
(1) economic damages including, but not limited to, the cost of
treatment, rehabilitation, and medical expenses, loss of economic or
educational potential, loss of productivity, absenteeism, accidents or
injury, and any other pecuniary loss proximately caused by the
person's use of an illegal controlled substance;
(2) reasonable attorney fees; and
(3) costs of suit including, but not limited to, reasonable
expenses for expert testimony.
(C) The individual user entitled to bring an action under this
section may seek damages only from a person who distributed or
possessed with the intent to distribute the illegal controlled substance
actually used by the individual user.
Section 44-54-60. (A) A third party shall not pay damages
awarded under this chapter or provide a defense or the cost of a
defense, on behalf of an insured under an obligation of insurance or
indemnification.
(B) A cause of action authorized by this chapter shall not be
assigned, either expressly, by subrogation, or by any other means,
directly or indirectly, to any public or publicly funded agency or
institution.
Section 44-54-70. Any person whose participation in the
marketing of illegal controlled substances constitutes any of the
following levels of offense shall be subject to a rebuttable
presumption of responsibility in the following amounts:
(1) for a level one offense, twenty-five percent of the damages;
(2) for a level two offense, fifty percent of the damages;
(3) for a level three offense, seventy-five percent of the
damages; or
(4) for a level four offense, one hundred percent of the damages.
Section 44-54-80. (A) Two or more persons may join in one
action under this chapter as plaintiffs if their respective actions have
at least one market for illegal controlled dangerous substances in
common and if any portion of the period of use of an illegal
controlled dangerous substance is concurrent with the period of use
of an illegal controlled dangerous substance for every other plaintiff.
(B) Two or more persons may be joined in one action under this
chapter as defendants, if those persons are liable to at least one
plaintiff.
(C) A plaintiff need not participate in obtaining and a defendant
need not participate in defending against all of the relief demanded.
Judgment may be given for one or more plaintiffs according to their
respective rights to relief and against one or more defendants
according to their respective liabilities.
Section 44-54-90. A person subject to liability under this chapter
has a right of action for joinder of claims under South Carolina Rules
of Civil Procedure, Rule 18, or for joinder of persons needed for just
adjudication under South Carolina Rules of Civil Procedure, Rule 19,
against another person subject to liability under this chapter. Joinder
of persons may be enforced either in the original action or by a
separate action brought for that purpose. A person may seek
recovery in accordance with this chapter and as otherwise provided
by law against a person against whom a defendant has asserted a
joinder action.
Section 44-54-100. (A) Proof of liability in an action brought
pursuant to this chapter shall be by clear and convincing evidence.
Except as otherwise provided in this chapter, other elements of the
cause of action shall be shown by a preponderance of the evidence.
(B)(1) A person against whom recovery is sought who has been
convicted of the distribution of an illegal controlled dangerous
substance under state law or under the Comprehensive Drug Abuse
Prevention and Control Act of 1970, 21 U.S.C. Section 801 et seq.,
is precluded from denying participation in the marketing of an illegal
controlled dangerous substance. Except as provided in paragraph (2)
of this subsection, the provisions of this subsection shall not affect a
person's burden of proving the elements required by the South
Carolina Rules of Civil Procedure and applicable precedent setting
case law.
(2) A conviction specified in paragraph (1) of this subsection
shall also be prima facie evidence of the defendant's participation in
the marketing of an illegal controlled substance used by the
individual user, where the conviction was based upon the person's
marketing of that same type of illegal controlled substance.
(C) The absence of a criminal conviction of a person pursuant to
paragraph B(1) of this section against whom recovery is sought does
not bar an action against that person in an action pursuant to any
applicable rules of the South Carolina Rules of Civil Procedure.
Section 44-54-110. (A) It is a defense to any action brought
pursuant to this chapter that the person who possessed with the intent
to distribute or distributed a controlled substance did so under the
authority of law as a licensed physician or practitioner, as an ultimate
user of the controlled substance pursuant to a lawful prescription, or
as a person otherwise authorized by law.
(B) A law enforcement officer or agency, the state, or any person
acting at the direction of a law enforcement officer or agency of the
state is not liable for participating in the marketing of an illegal
controlled substance, if the participation is in furtherance of an
official investigation.
Section 44-54-120. A person authorized to file an action under
this chapter may seek a seizure or injunction or other remedial action
pursuant to the provisions of the South Carolina Rules of Civil
Procedure, Rules 64 and 65, respectively, against all assets of a
defendant sufficient to satisfy a potential award, except an asset
named in or seized pursuant to a forfeiture action by the state or
federal agency before a plaintiff commences an action pursuant to
this chapter, unless the asset is released by the agency that seized it.
Section 44-54-130. (A) Except as otherwise provided in this
subsection, a cause of action prescribes in one year after a defendant
furnishes the illegal substance or a cause of action accrues under this
chapter when a person who may recover has reason to know of the
harm from the use of an illegal controlled substance that is the basis
for the cause of action and has reason to know that the use of an
illegal controlled substance is the cause of the harm.
(B) Prescription against a defendant is suspended until one year
after the individual potential defendant is convicted of a criminal
offense involving an illegal controlled dangerous substance or as
otherwise provided by law.
Section 44-54-140. On motion by a governmental entity involved
in an investigation or prosecution involving an illegal controlled
dangerous substance, an action brought under this chapter shall be
continued until the completion of the criminal investigation or
prosecution that gave rise to the motion for a continuance of the
action."
SECTION 2. This act takes effect upon approval by the Governor.
The provisions of this act shall have prospective application only and
shall apply only to a cause of action arising on and after its effective
date.
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