A bill

 

TO AMEND THE SOUTH CAROLINA CODE OF LAWS TO ENACT THE "ELIMINATE CRIMINAL PROFITEERING ACT" BY ADDING CHAPTER 83 TO TITLE 15 SO AS TO PREVENT PERSONS ENGAGED IN WRONGFUL CONDUCT FROM BRINGING ACTIONS OR OTHERWISE COLLECTING DAMAGE AWARDS FOR EVENTS OR OCCURRENCES RESULTING FROM THE WRONGFUL CONDUCT, AMONG OTHER THINGS.

 

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

 

SECTION 1.  Title 15 of the S.C. Code is amended by adding:

 

CHAPTER 83

 

Eliminate Criminal Profiteering Act

 

    Section 15-83-10.  As used in this chapter:

       (1) "Negligent security" means any claim against an owner or occupier, or against a security contractor, that sounds in tort or nuisance, arises from an alleged failure to make or keep the premises and approaches safe, and seeks to recover any damages.

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

       (3) "Person" means a natural person, entity, or government.

       (4) "Prior occurrences of substantially similar wrongful conduct" means prior occurrences of wrongful conduct which are sufficiently similar in nature and character, degree of dangerousness, 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 apprehend that such wrongful conduct is reasonably likely to occur again upon the premises and to understand that a specific and known physical condition of the premises has created a risk of such wrongful conduct on the premises that is substantially greater than the general risk of such wrongful conduct in the vicinity of the premises.

       (5) "Security contractor" means any person that contracts with an owner or occupier to provide protective or security services upon any premises, or any director, officer, employee, or agent of such person.

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

       (7) "Wrongful conduct" means:

           (a) any violation of federal, state, or local law, including any ordinance of any political subdivision of the State, that is punishable as a felony or misdemeanor, regardless of whether such violation results in an arrest, citation, accusation, indictment, or conviction; or

           (b) any other conduct that amounts to an intentional, or wilful and wanton, tort or other action.

 

    Section 15-83-20.  Notwithstanding any other provision of law, a person who participates or engages in wrongful conduct, or attempts to do the same, may not bring an action for negligence or otherwise collect any damages for negligent conduct relating to any acts, occurrences, or other events resulting in whole or in part from, or otherwise relating to, the wrongful conduct. This section applies to a person's heirs, estate, assigns, successors in interest, and other legal representatives. The defendant shall have the burden of proving by a preponderance of the evidence that a person participated in, or engaged in, illegal or wrongful conduct or attempted to do the same.

 

    Section 15-83-30.  (A) For purposes of this section, "unauthorized alien" means a person who is unlawfully present in the United States according to the federal Immigration and Nationality Act, 8 U.S.C. Section 1101, et seq.

    (B) General damages and past and future wages shall not be awarded in an action for negligence or other basis arising from an automobile collision to a person who was an unauthorized alien at the time of the collision. This section applies to a person's heirs, estate, assigns, successors in interest, and other legal representatives. A plaintiff in an action for negligence arising from an automobile collision that intends to seek general damages or past and future wages must provide, with their initial disclosure statement, or as soon thereafter as is practicable, documents showing that at the time of the collision the injured claimant or person was a citizen or lawful permanent resident of the United States or, if not a citizen or lawful permanent resident, the injured person was not an unauthorized alien. It shall be the plaintiff's burden to prove the requirement of this subsection by a preponderance of the evidence, and failure to do so shall constitute insufficient evidence as a matter of law to support any award of general damages or past and future wages.

    (C) This section shall not apply to a claim made against an uninsured or underinsured motorist policy which names the unauthorized alien as an insured.

 

    Section 15-83-40.  (A) For purposes of any action for negligent security, an owner or occupier owes no duty to protect an invitee or licensee from any type of wrongful conduct of a third person, unless the owner or occupier has actual knowledge of prior occurrences of substantially similar wrongful conduct upon the premises within the preceding year. If an owner or occupier has such knowledge, then the owner or occupier's duty is to take reasonable care under the circumstances, which will presumptively be met if the person did any of the following:

       (1) request the assistance of local law enforcement and follow any instructions from local law enforcement related to the same;

       (2) follow the guidelines of a reputable third-party relating to security and safety measures; or

       (3) hire a security contractor.

    (B) Notwithstanding subsection (A), for the purposes of any action for negligent security, an owner or occupier owes no duty to protect an invitee or licensee from the invitee's or licensee's own wrongful conduct or the wrongful conduct of a third person if the invitee or licensee comes upon the premises for the purpose of, or in the course of, engaging in wrongful conduct, or the invitee or licensee engages in wrongful conduct of any kind while on the premises.

    (C) A trespasser may not maintain an action for negligent security. For purposes of this section, a person is presumed to be a trespasser if they are physically present on the premises of the owner or occupier outside of posted business hours, at a time when the premises are not open to the public, or without the permission of the owner or occupier.

    (D) For purposes of this section, if an owner or occupier engages a security contractor, the security contractor owes the same duties that an owner or occupier would owe under this section.

 

    Section 15-83-50.  (A) If the trier of fact finds that a defendant is liable to a plaintiff in an action for negligent security, the trier of fact shall make an apportionment of fault, and in making such an apportionment, the trier of fact must be instructed to apportion fault among all of the following that are applicable, whether or not a party to the action and regardless of whether a plaintiff legally collects any damages from such person:

       (1) the plaintiff;

       (2) an owner or occupier;

       (3) any government or governmental agency related to a failure to enforce the law and otherwise maintain law and order;

       (4) any other third person whose wrongful conduct or negligence was a cause or contributing factor to the event from which the claim of negligent security arises; and

       (5) any other person to whom fault otherwise should be apportioned.

    (B) In connection with an apportionment of fault under this section, no party shall offer evidence, or make an argument or other comment within the hearing of any juror or prospective juror, concerning:

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

       (2) the financial resources of, or collectability of any judgment against, any party or nonparty; or

       (3) the effect of an apportionment of fault upon any award of damages.

    (C) If the finder of fact fails to apportion a reasonable degree of fault under subsection (A) to each third person whose wrongful conduct was a cause or contributing to the event from which the claim of negligent security arises, the court shall set aside the verdict of the jury and order a retrial of liability and damages. There shall be a presumption that an apportionment of fault is unreasonable if the total percentage of fault apportioned to all persons who engaged in wrongful conduct is less than the total percentage of fault apportioned to all other persons. To overcome this presumption, the trial court must make specific findings in writing, and those findings and the conclusion of reasonableness shall be reviewed de novo on any appeal.

 

    Section 15-83-60.  Nothing in this chapter prohibits a victim or survivor of crime from recovering full criminal restitution pursuant to the rights and procedures set forth for the recovery of such restitution under existing South Carolina law.

 

SECTION 2.  This act takes effect upon approval by the Governor.

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