A bill

 

TO AMEND THE SOUTH CAROLINA CODE OF LAWS BY ADDING ARTICLE 3 TO CHAPTER 3, TITLE 27, SO AS TO DEFINE TERMS RELATED TO NEGLIGENT SECURITY; TO PROVIDE THAT AN OWNER OR OCCUPIER SHALL BE HELD LIABLE FOR NEGLIGENT SECURITY ARISING FROM ANY INJURY SUSTAINED BY A PERSON UPON THE OWNER OR OCCUPIER'S PREMISES IF THE PLAINTIFF PROVES THE INJURY WAS FORESEEABLE AND OTHER FACTS; TO PROVIDE SITUATIONS IN WHICH AN OWNER OR OCCUPIER SHALL BE HELD LIABLE FOR NEGLIGENT SECURITY SUSTAINED BY ANY PERSON UPON THE PREMISES BY A THIRD PERSON; TO PROVIDE EXCEPTIONS; TO PROVIDE THAT NO OWNER OR OCCUPIER IS REQUIRED TO EXERCISE EXTRAORDINARY CARE TO KEEP PEOPLE ON THE PREMISES SAFE FROM THEIR WRONGFUL CONDUCT; TO PROVIDE STANDARDS OF NEGLIGENT SECURITY FOR SECURITY CONTRACTORS; TO OUTLINE PROVISIONS FOR TRIAL, LIABILITY, AND RELIEF FOR SUITS ARISING FROM NEGLIGENT SECURITY CLAIMS; AND TO LIMIT REMEDIES FOR NEGLIGENT SECURITY AGAINST OWNERS AND OCCUPIERS TO THE PROVISIONS IN THIS ACT.

 

Be it enacted by the General Assembly of the State of South Carolina:

 

SECTION 1.  Chapter 3, Title 27 of the S.C. Code is amended by adding:

 

Article 3

 

Negligent Security

 

    Section 27-3-300.  For the purposes of this article:

    (1) "Negligent security" means any claim against an owner or occupier, or against a security contractor, that:

       (a) is actionable in tort or nuisance;

       (b) seeks to recover damages for bodily injury or wrongful death; and

       (c) arises from an alleged failure to keep the premises and approaches safe from the wrongful conduct of third persons.

    (2) "Owner or occupier" means any person or entity that owns, leases, occupies, operates, maintains, or manages real property of any kind or any director, officer, employee, or the person's agent.

    (3) "Particularized warning of imminent wrongful conduct" means information actually known to an owner or occupier and deemed credible by the owner or occupier that causes the owner or occupier to consciously understand that a third person is likely to imminently engage in wrongful conduct on the premises that poses a clear danger to the safety of persons upon the premises, the information is specific regarding the identity of the third person, the nature and character of the wrongful conduct, the degree of dangerousness of the wrongful conduct, and the location, time, and circumstances of the wrongful conduct.

    (4) "Premises" means the real property, including any attached buildings or structures, that is owned, leased, occupied, operated, maintained, or managed by an owner or occupier.

    (5) "Prior occurrences of substantially similar wrongful conduct" means prior occurrences of wrongful conduct that are sufficiently similar in nature and character, degree of dangerousness, proximity, location, time, and circumstances to the wrongful conduct from which a claim of negligent security arises to lead a reasonable person in the position of the owner or occupier to believe that the wrongful conduct is reasonably likely to occur upon the premises, to understand the risk of injury to persons upon the premises presented by the wrongful conduct, and to understand that a specific and known physical condition of the premises has created a risk of the wrongful conduct on the premises that is substantially greater than the general risk of such wrongful conduct in the vicinity of the premises.

    (6) "Security contractor" means any person that contracts with an owner or occupier to provide protective or security services upon any premises or for any of the person's directors, officers, employees, or agents.

    (7) "Third person" means any person other than an owner or occupier, security contractor, or a person under the direction, control, or supervision of an owner or occupier or security contractor.

    (8) "Wrongful conduct" means:

       (a) any conduct that is punishable as a felony or misdemeanor regardless of whether the violation results in an arrest, citation, accusation, indictment, or conviction; or

       (b) any conduct that constitutes an intentional tort or a wilful, wanton, or reckless tort.

 

    Section 27-3-310.  An owner or occupier shall be liable for negligent security arising from any injury sustained by any person upon the premises of the owner or occupier as an invitee if the plaintiff proves that:

    (1) the wrongful conduct by a third person that caused the injury sustained by the invitee was reasonably foreseeable because the owner or occupier:

       (a) had particularized warning of imminent wrongful conduct by a third person; or

       (b) reasonably should have known that a third person was reasonably likely to engage in the wrongful conduct upon the premises, based on prior occurrences of substantially similar wrongful conduct:

           (i) upon the premises of which the owner or occupier had actual knowledge;

           (ii) upon the property adjoining the premises, or otherwise occurring within five hundred yards of the premises, of which the owner or occupier had actual knowledge; or

           (iii) by the third person whose wrongful conduct caused the injury, if the owner or occupier knew or should have known, by clear and convincing evidence, that the third person was or would be upon the premises and if the owner or occupier had actual knowledge of the prior occurrences of substantially similar wrongful conduct;

    (2) the injury sustained by the invitee was a reasonably foreseeable consequence of the wrongful conduct by a third person;

    (3) the wrongful conduct by a third person was a reasonably foreseeable consequence of the third person exploiting a specific physical condition of the premises known to the owner or occupier, which created a reasonably foreseeable risk of wrongful conduct on the premises that was substantially greater than the general risk of wrongful conduct in the vicinity of the premises;

    (4) the owner or occupier failed to exercise ordinary care to remedy or mitigate the specific and known physical condition of the premises and to otherwise keep the premises safe from the wrongful conduct by a third person; and

    (5) the failure of the owner or occupier to exercise ordinary care was a proximate cause of the injury sustained by the invitee.

 

    Section 27-3-320.  An owner or occupier shall be liable for negligent security arising from any injury sustained by any person upon the premises of the owner or occupier as a licensee if the plaintiff proves that:

    (1) the wrongful conduct by a third person that caused the injury sustained by the licensee was reasonably foreseeable because the owner or occupier had a particularized warning of imminent wrongful conduct by a third person;

    (2) the injury sustained by the licensee was a reasonably foreseeable consequence of the wrongful conduct by a third person;

    (3) the wrongful conduct by a third person was a reasonably foreseeable consequence of the third person exploiting a specific physical condition of the premises known to the owner or occupier, which created a reasonably foreseeable risk of wrongful conduct on the premises that was substantially greater than the general risk of wrongful conduct in the vicinity of the premises;

    (4) the owner or occupier intentionally or wilfully and wantonly failed to exercise any care to remedy or mitigate the specific and known physical condition of the premises and to otherwise keep the premises safe from such wrongful conduct by a third person; and

    (5) the fact that the owner or occupier failed to exercise any care was a proximate cause of the injury sustained by the licensee.

 

    Section 27-3-330.  No owner or occupier shall be liable for negligent security:

    (1) arising from an injury sustained by a trespasser upon the owner or occupier's premises;

    (2) arising from an injury sustained by a person who was not on the owner or occupier's premises;

    (3) arising from the wrongful conduct of a third person if the wrongful conduct did not occur upon the premises and in a place from which the owner or occupier had the legal right and authority to exclude the third person;

    (4) arising from the wrongful conduct of a third person if the third person was upon the premises as a tenant or as a guest of a tenant, and if the owner or occupier had commenced eviction proceedings against the tenant at the time of the wrongful conduct;

    (5) arising from an injury sustained by a third person on the owner or occupier's premises as an invitee or a licensee if the person:

       (a) entered upon the premises for the purpose of committing a felony or any violation of Title 16, Chapters 3 and 11 that is punishable as a misdemeanor; or

       (b) was engaged at the time of the injury in the commission of a felony or any violation of Title 16, Chapters 3 and 11 that is punishable as a misdemeanor;

    (6) arising from an injury sustained upon premises that is used as a single-family residence; or

    (7) based on a particularized warning of imminent wrongful conduct by a third person if the owner or occupier made any reasonable effort to provide information to law enforcement personnel concerning the warning, provided that calling 911 or otherwise making a report about the information to law enforcement personnel shall be deemed a reasonable effort.

 

    Section 27-3-340.  (A) No owner or occupier is required to exercise extraordinary care to keep people on or around any premises safe from wrongful conduct by a third person, and no owner or occupier shall be required to assume the responsibilities and obligations of government for law enforcement and public safety.

    (B) In any action for negligent security, in assessing whether an owner or occupier has breached a duty to exercise ordinary care to keep people on or around any premises safe from wrongful conduct by a third person, the trier of fact shall consider the security measures employed by the owner or occupier at the time of the injury from which the claim of negligent security arises, the need for additional or other security measures, the practicality of additional or other security measures, whether additional or other security measures would have prevented the injury, the respective responsibilities of owners or occupiers with respect to the premises and government with respect to law enforcement and public safety, and any other relevant circumstances.

 

    Section 27-3-350.  (A) If a security contractor assumes and undertakes a duty to invitees and licensees to keep all or part of a premises of an owner or occupier safe from the wrongful conduct of a third person, then the security contractor may be liable for negligent security only in the same manner, to the same extent, and subject to the same limitations and provisions applicable to an owner or occupier contained in this article.

    (B) No security contractor shall be liable for negligent security except as provided in this section.

    (C) Nothing in this code section shall limit or otherwise affect any claim or remedy of an owner or occupier for breach of contract.

 

    Section 27-3-360.  (A) In any action for negligent security:

       (1) if the trier of fact finds that any defendant is liable to the plaintiff, then the trier of fact shall make an apportionment of fault pursuant to subsection (B), and in making such an apportionment, the trier of fact shall reasonably apportion fault to:

           (a) the owner or occupier;

           (b) any third person whose wrongful conduct was a cause of the injury from which the claim of negligent security arises; and

           (c) any other persons to whom fault otherwise should be apportioned pursuant to subsection (B).

       (2) In connection with an apportionment of fault pursuant to subsection (B) no party shall offer evidence, or make an argument or other comment in the hearing of any juror or prospective juror, concerning:

           (a) any sentence of imprisonment or probation, fine, or other punishment that has been, or could be, imposed in a criminal prosecution of any third person for the wrongful conduct from which the claim of negligent security arises;

           (b) the financial resources of any party or nonparty; or

           (c) the effect of an apportionment of fault upon any award of damages to the plaintiff.

       (3) In addition to the provisions contained in subsection (A)(2), if a jury fails as the trier of fact to apportion a reasonable degree of fault to the third person whose wrongful conduct was a cause of the injury from which the claim of negligent security arises, then the trial court shall set aside the verdict of the jury and order a retrial of liability and damages. There shall be a rebuttable presumption that an apportionment of fault is unreasonable if the total percentage of fault apportioned to all third persons for their wrongful conduct is less than the total percentage of fault apportioned to all owners or occupiers, security contractors, and other persons and entities that did not engage in wrongful conduct.

    (B)(1) When an action is brought against one or more persons pursuant to this article and the plaintiff is to some degree responsible for the injury or damages claimed, the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall determine the percentage of fault of the plaintiff and the judge shall reduce the amount of damages otherwise awarded to the plaintiff in proportion to his percentage of fault.

       (2) When an action is brought against one or more persons pursuant to this chapter, the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall after a reduction of damages pursuant to subsection (B)(1), if any, apportion its award of damages among the person or persons who are liable according to the percentage of fault of each person. Damages apportioned by the trier of fact as provided in this section shall be the liability of each person against whom they are awarded, shall not be a joint liability among the persons liable, and shall not be subject to any right of contribution.

       (3) In assessing percentages of fault, the trier of fact shall consider the fault of all persons or entities who contributed to the alleged injury or damages, regardless of whether the person or entity was, or could have been, named as a party to the suit.

       (4) The liability for a violation of this article by a nonparty shall be considered if the plaintiff entered into a settlement agreement with the nonparty or if a defending party gives notice not later than one hundred twenty days prior to the date of trial that a nonparty was wholly or partially at fault. The notice shall be given by filing a pleading in the action designating the nonparty and setting forth the nonparty's name and last known address, or the best identification of the nonparty which is possible under the circumstances, together with a brief statement of the basis for believing the nonparty to be at fault.

       (5) Assessments of percentages of fault of nonparties shall be used only in the determination of the percentage of fault of named parties. When fault is assessed against nonparties pursuant to this section, findings of fault shall not subject any nonparty to liability in any action or be introduced as evidence of liability in any action.

       (6) Notwithstanding the provisions of this section or any other provisions of law which might be construed to the contrary, the plaintiff shall not be entitled to receive any damages if the plaintiff is fifty percent or more responsible for the injury or damages claimed.

 

    Section 27-3-370.  (A) The provisions contained in this article provide the sole and exclusive remedy for negligent security against owners or occupiers.

    (B) Nothing in this article shall be construed to limit or otherwise affect any claim or remedy for breach of contract or any other claim, remedy, or cause of action arising under the tort laws in this State.

 

SECTION 2.  The Code Commissioner is directed to designate Sections 27-3-10 through 27-3-370 as Article 1 styled as "Landowner's Duty of Care."

 

SECTION 3.  The repeal or amendment by this act of any law, whether temporary or permanent or civil or criminal, does not affect pending actions, rights, duties, or liabilities founded thereon, or alter, discharge, release or extinguish any penalty, forfeiture, or liability incurred under the repealed or amended law, unless the repealed or amended provision shall so expressly provide.  After the effective date of this act, all laws repealed or amended by this act must be taken and treated as remaining in full force and effect for the purpose of sustaining any pending or vested right, civil action, special proceeding, criminal prosecution, or appeal existing as of the effective date of this act, and for the enforcement of rights, duties, penalties, forfeitures, and liabilities as they stood under the repealed or amended laws.

 

SECTION 4.  If any section, subsection, paragraph, subparagraph, sentence, clause, phrase, or word of this act is for any reason held to be unconstitutional or invalid, such holding shall not affect the constitutionality or validity of the remaining portions of this act, the General Assembly hereby declaring that it would have passed this act, and each and every section, subsection, paragraph, subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more other sections, subsections, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective.

 

SECTION 5.  This act takes effect upon approval by the Governor.

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