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S.B. 54 Enrolled
AN ACT RELATING TO CONTROLLED SUBSTANCES; CREATING THE DRUG
DEALER'S LIABILITY ACT; PROVIDING FOR CIVIL ACTIONS AGAINST DRUG
DEALERS BY PERSONS HARMED BY THE UNLAWFUL DEALING OF DRUGS.
This act affects sections of Utah Code Annotated 1953 as follows:
ENACTS:
58-37e-1, Utah Code Annotated 1953
58-37e-2, Utah Code Annotated 1953
58-37e-3, Utah Code Annotated 1953
58-37e-4, Utah Code Annotated 1953
58-37e-5, Utah Code Annotated 1953
58-37e-6, Utah Code Annotated 1953
58-37e-7, Utah Code Annotated 1953
58-37e-8, Utah Code Annotated 1953
58-37e-9, Utah Code Annotated 1953
58-37e-10, Utah Code Annotated 1953
58-37e-11, Utah Code Annotated 1953
58-37e-12, Utah Code Annotated 1953
58-37e-13, Utah Code Annotated 1953
58-37e-14, Utah Code Annotated 1953
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 58-37e-1 is enacted to read:
58-37e-1. Title.
This chapter is known as the "Drug Dealer's Liability Act."
Section 2. Section 58-37e-2 is enacted to read:
58-37e-2. Definitions.
As used in this chapter:
(1) "Illegal drug" means a drug or controlled substance whose distribution is a violation of
state law.
(2) "Illegal drug market" means the support system of illegal drug-related operations, from
production to retail sales, through which an illegal drug reaches the user.
(3) "Illegal drug market target community" is the area described in Section 58-37e-7.
(4) "Individual drug user" means the individual whose illegal drug use is the basis of an
action brought under this chapter.
(5) "Level 1 offense" means possession of 16 ounces or more or distribution of four ounces
or more of a mixture containing a specified illegal drug or possession of 16 pounds or more or 100
plants or more or distribution of ten pounds or more of marijuana.
(6) "Level 2 offense" means possession of eight ounces or more, but less than 16 ounces,
or distribution of two ounces or more, but less than four ounces, of a mixture containing a specified
illegal drug or possession of eight pounds or more or 75 plants or more, but less than 16 pounds or
100 plants, or distribution of more than five pounds, but less than ten pounds of marijuana.
(7) "Level 3 offense" means possession of four ounces or more, but less than eight ounces,
or distribution of one ounce or more, but less than two ounces, of a mixture containing a specified
illegal drug or possession of four pounds or more or 50 plants or more, but less than eight pounds
or 75 plants, or distribution of more than one pound, but less than five pounds of marijuana.
(8) "Level 4 offense" means possession of 1/4 ounce or more, but less than four ounces, or
distribution of less than one ounce of a mixture containing a specified illegal drug or possession of
one pound or more or 25 plants or more, but less than four pounds or 50 plants, or distribution of less
than one pound of marijuana.
(9) "Participate in the illegal drug market" means to distribute, possess with an intent to
distribute, commit an act intended to facilitate the marketing or distribution of, or agree to distribute,
possess with an intent to distribute, or commit an act intended to facilitate the marketing and
distribution of an illegal drug. "Participate in the illegal drug market" does not include the purchase
or receipt of an illegal drug for personal use only.
(10) "Period of illegal drug use" means, in relation to the individual drug user, the time of
the individual's first use of an illegal drug to the accrual of the cause of the action. The period of
illegal drug use is presumed to commence two years before the cause of action accrues unless the
defendant proves otherwise by clear and convincing evidence.
(11) "Person" means an individual, governmental entity, corporation, firm, trust, partnership,
or incorporated or unincorporated association, existing under or authorized by the laws of this state,
another state, or foreign country.
(12) "Place of illegal drug activity" means, in relation to the individual drug user, each
county in which the individual possesses or uses an illegal drug or in which the individual resides,
attends school, or is employed during the period of the individual's illegal drug use, unless the
defendant proves otherwise by clear and convincing evidence.
(13) "Place of participation" means, in relation to a defendant in an action brought under this
chapter, each county in which the person participates in the illegal drug market or in which the
person resides, attends school, or is employed during the period of the person's participation in the
illegal drug market.
(14) "Specified illegal drug" means cocaine, heroin, or methamphetamine and any other
controlled substance the distribution of which is a violation of state law.
Section 3. Section 58-37e-3 is enacted to read:
58-37e-3. Liability for participation in the illegal drug market.
(1) A person who knowingly participates in the illegal drug market within this state is liable
for civil damages as provided in this chapter. A person may recover damages under this chapter for
injury resulting from an individual's use of an illegal drug.
(2) A law enforcement officer or agency, the state, or a person acting at the direction of a
law enforcement officer or agency or the state is not liable for participating in the illegal drug
market, if the participation is in furtherance of an official investigation.
Section 4. Section 58-37e-4 is enacted to read:
58-37e-4. Recovery of damages.
(1) One or more of the following persons may bring an action for damages caused by an
individual's use of an illegal drug:
(a) a parent, legal guardian, child, spouse, or sibling of the individual drug user;
(b) an individual who was exposed to an illegal drug in utero;
(c) an employer of the individual drug user;
(d) a medical facility, insurer, governmental entity, employer, or other entity that funds a
drug treatment program or employee assistance program for the individual drug user or that
otherwise expended money on behalf of the individual drug user; or
(e) a person injured as a result of the willful, reckless, or negligent actions of an individual
drug user.
(2) A person entitled to bring an action under this section may seek damages from one or
more of the following:
(a) a person who knowingly distributed, or knowingly participated in the chain of
distribution of, an illegal drug that was actually used by the individual drug user;
(b) a person who knowingly participated in the illegal drug market if:
(i) the place of illegal drug activity by the individual drug user is within the illegal drug
market target community of the defendant;
(ii) the defendant's participation in the illegal drug market was connected with the same type
of illegal drug used by the individual drug user; and
(iii) the defendant participated in the illegal drug market at any time during the individual
drug user's period of illegal drug use.
(3) A person entitled to bring an action under this section may recover all of the following
damages:
(a) economic damages, including 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 illegal drug use;
(b) noneconomic damages, including physical and emotional pain, 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 drug;
(c) exemplary damages;
(d) reasonable attorney's fees; and
(e) costs of suit, including reasonable expenses for expert testimony.
Section 5. Section 58-37e-5 is enacted to read:
58-37e-5. Limited recovery of damages.
(1) An individual drug user may not bring an action for damages caused by the use of an
illegal drug, except as otherwise provided in this section. An individual drug user may bring an
action for damages caused by the use of an illegal drug only if all of the following conditions are
met:
(a) the individual personally discloses to narcotics enforcement authorities, more than six
months before filing the action, all of the information known to the individual regarding all that
individual's sources of illegal drugs;
(b) the individual has not used an illegal drug within the six months before filing the action;
and
(c) the individual continues to remain free of the use of an illegal drug throughout the
pendency of the action.
(2) A person entitled to bring an action under this section may seek damages only from a
person who distributed, or is in the chain of distribution of, an illegal drug that was actually used by
the individual drug user.
(3) A person entitled to bring an action under this section may recover only the following
damages:
(a) economic damages, including 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 illegal drug use;
(b) reasonable attorney's fees; and
(c) costs of suit, including reasonable expenses for expert testimony.
Section 6. Section 58-37e-6 is enacted to read:
58-37e-6. Third party cases.
A third party may not pay damages awarded under this chapter, or provide a defense or
money for a defense, on behalf of an insured under a contract of insurance or indemnification.
Section 7. Section 58-37e-7 is enacted to read:
58-37e-7. Illegal drug market target community.
A person whose participation in the illegal drug market constitutes the following level
offense shall be considered to have the following illegal drug market target community:
(1) Level 4: the county in which the defendant's place of participation is situated;
(2) Level 3: the target community described in Subsection (1) plus all counties with a border
contiguous to that target community;
(3) Level 2: the target community described in Subsection (2) plus all counties with a border
contiguous to that target community;
(4) Level 1: the state.
Section 8. Section 58-37e-8 is enacted to read:
58-37e-8. Joinder of parties.
(1) Two or more persons may join in one action under this chapter as plaintiffs if their
respective actions have at least one place of illegal drug activity in common and if any portion of the
period of illegal drug use overlaps with the period of illegal drug use for every other plaintiff.
(2) 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.
(3) A plaintiff need not be interested in obtaining and a defendant need not be interested in
defending against all 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 9. Section 58-37e-9 is enacted to read:
58-37e-9. Comparative responsibility.
(1) An action by an individual drug user is governed by the principles of comparative
responsibility. Comparative responsibility attributed to the plaintiff does not bar recovery but
diminishes the award of compensatory damages proportionally, according to the measure of
responsibility attributed to the plaintiff.
(2) The burden of proving the comparative responsibility of the plaintiff is on the defendant,
which shall be shown by clear and convincing evidence.
(3) Comparative responsibility may not be applied in an action brought by a third party who
was not an individual drug user.
Section 10. Section 58-37e-10 is enacted to read:
58-37e-10. Contribution among and recovery from multiple defendants.
A person subject to liability under this chapter has a right of action for contribution against
another person subject to liability under this chapter. Contribution may be enforced either in the
original action or by a separate action brought for that purpose. A plaintiff may seek recovery in
accordance with this chapter and existing law against a person whom a defendant has asserted a right
of contribution.
Section 11. Section 58-37e-11 is enacted to read:
58-37e-11. Standard of proof -- Effect of criminal drug conviction.
(1) Proof of participation in the illegal drug market in an action brought under this chapter
shall be shown 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.
(2) A person against whom recovery is sought who has a criminal conviction pursuant to
state drug laws or the Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub. L.
91-513, 84 Stat. 1236, codified at 21 U.S.C. Sec. 801 et seq., is estopped from denying participation
in the illegal drug market. A conviction is also prima facie evidence of the person's participation in
the illegal drug market during the two years preceding the date of an act giving rise to a conviction.
(3) The absence of a criminal drug conviction of a person against whom recovery is sought
does not bar an action against that person.
Section 12. Section 58-37e-12 is enacted to read:
58-37e-12. Prejudgment attachment and execution on judgments.
(1) A plaintiff under this chapter, subject to Subsection (3), may request an ex parte
prejudgment writ of attachment from the court pursuant to Utah Rules of Civil Procedure, Rule 64A
against all assets of a defendant sufficient to satisfy a potential award. If attachment is instituted,
a defendant is entitled to an immediate hearing. Attachment may be lifted if the defendant
demonstrates that the assets will be available for a potential award or if the defendant posts a bond
sufficient to cover a potential award.
(2) A person against whom a judgment has been rendered under this chapter is not eligible
to exempt any property, of whatever kind, from process to levy or process to execute on the
judgment, unless the property is exempt by operation of law.
(3) Any assets sought to satisfy a judgment under this chapter that are named in a forfeiture
action or have been seized for forfeiture by any state or federal agency may not be used to satisfy
a judgment unless and until the assets have been released following the conclusion of the forfeiture
action or released by the agency that seized the assets.
Section 13. Section 58-37e-13 is enacted to read:
58-37e-13. Statute of limitations.
(1) Except as otherwise provided in this section, a claim under this chapter may not be
brought more than two years after the cause of action accrues. A cause of action accrues under this
chapter when a person who may recover has reason to know of the harm from illegal drug use that
is the basis for the cause of action and has reason to know that the illegal drug use is the cause of the
harm.
(2) (a) For a plaintiff, the statute of limitations under this section is tolled while the
individual potential plaintiff is incapacitated by the use of an illegal drug to the extent that the
individual cannot reasonably be expected to seek recovery under this chapter or as otherwise
provided by law.
(b) For a defendant, the statute of limitations under this section is tolled until six months
after the individual potential defendant is convicted of a criminal drug offense or as otherwise
provided by law.
(3) The statute of limitations under this chapter for a claim based on participation in the
illegal drug market that occurred prior to the effective date of this chapter does not begin to run until
the effective date of this chapter.
Section 14. Section 58-37e-14 is enacted to read:
58-37e-14. Representation of governmental entities -- Stay of action.
(1) A county attorney, district attorney, or city attorney may represent any political
subdivision of the state, and the attorney general may represent the state in an action brought under
this chapter.
(2) On motion by a governmental agency involved in a drug investigation or prosecution,
an action brought under this chapter shall be stayed until the completion of the criminal investigation
or prosecution that gave rise to the motion for a stay of the action.
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