H.B. 281

1

RECOVERY FOR DAMAGES FROM DRUG DEALER
2 1997 GENERAL SESSION
3 STATE OF UTAH
4 Sponsor: Steve Barth
5 AN ACT RELATING TO CONTROLLED SUBSTANCES; CREATING THE DRUG
6 DEALER'S LIABILITY ACT; AND PROVIDING FOR CIVIL ACTIONS AGAINST DRUG
7 DEALERS BY PERSONS HARMED BY THE UNLAWFUL DEALING OF DRUGS.
8 This act affects sections of Utah Code Annotated 1953 as follows:
9 ENACTS:
10 58-37e-1, Utah Code Annotated 1953
11 58-37e-2, Utah Code Annotated 1953
12 58-37e-3, Utah Code Annotated 1953
13 58-37e-4, Utah Code Annotated 1953
14 58-37e-5, Utah Code Annotated 1953
15 58-37e-6, Utah Code Annotated 1953
16 58-37e-7, Utah Code Annotated 1953
17 58-37e-8, Utah Code Annotated 1953
18 58-37e-9, Utah Code Annotated 1953
19 58-37e-10, Utah Code Annotated 1953
20 58-37e-11, Utah Code Annotated 1953
21 58-37e-12, Utah Code Annotated 1953
22 58-37e-13, Utah Code Annotated 1953
23 Be it enacted by the Legislature of the state of Utah:
24 Section 1. Section 58-37e-1 is enacted to read:
25 CHAPTER 37e. DRUG DEALER'S LIABILITY ACT
26 58-37e-1. Title.
27 This chapter is known as the "Drug Dealer's Liability Act."

1 Section 2. Section 58-37e-2 is enacted to read:
2 58-37e-2. Definitions.
3 As used in this chapter:
4 (1) "Illegal drug" means a drug or controlled substance whose distribution is a violation
5 of state law.
6 (2) "Illegal drug market" means the support system of illegal drug-related operations, from
7 production to retail sales, through which an illegal drug reaches the user.
8 (3) "Individual drug user" means the individual whose illegal drug use is the basis of an
9 action brought under this chapter.
10 (4) "Participate in the illegal drug market" means to distribute, possess with an intent to
11 distribute, commit an act intended to facilitate the marketing or distribution of, or agree to
12 distribute, possess with an intent to distribute, or commit an act intended to facilitate the marketing
13 and distribution of an illegal drug. "Participate in the illegal drug market" does not include the
14 purchase or receipt of an illegal drug for personal use only.
15 (5) "Period of illegal drug use" means, in relation to the individual drug user, the time of
16 the individual's first use of an illegal drug to the accrual of the cause of the action. The period of
17 illegal drug use is presumed to commence two years before the cause of action accrues unless the
18 defendant proves otherwise by clear and convincing evidence.
19 (6) "Person" means an individual, governmental entity, corporation, firm, trust,
20 partnership, or incorporated or unincorporated association, existing under or authorized by the laws
21 of this state, another state, or foreign country.
22 (7) "Place of illegal drug activity" means, in relation to the individual drug user, each
23 county in which the individual possesses or uses an illegal drug or in which the individual resides,
24 attends school, or is employed during the period of the individual's illegal drug use, unless the
25 defendant proves otherwise by clear and convincing evidence.
26 (8) "Place of participation" means, in relation to a defendant in an action brought under
27 this chapter, each county in which the person participates in the illegal drug market or in which
28 the person resides, attends school, or is employed during the period of the person's participation
29 in the illegal drug market.
30 (9) "Specified illegal drug" means cocaine, heroin, or methamphetamine and any other
31 controlled substance the distribution of which is a violation of state law.

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1 Section 3. Section 58-37e-3 is enacted to read:
2 58-37e-3. Liability for participation in the illegal drug market.
3 (1) A person who knowingly participates in the illegal drug market within this state is
4 liable for civil damages as provided in this chapter. A person may recover damages under this
5 chapter for injury resulting from an individual's use of an illegal drug.
6 (2) A law enforcement officer or agency, the state, or a person acting at the direction of
7 a law enforcement officer or agency or the state is not liable for participating in the illegal drug
8 market, if the participation is in furtherance of an official investigation.
9 Section 4. Section 58-37e-4 is enacted to read:
10 58-37e-4. Recovery of damages.
11 (1) One or more of the following persons may bring an action for damages caused by an
12 individual's use of an illegal drug:
13 (a) a parent, legal guardian, child, spouse, or sibling of the individual drug user;
14 (b) an individual who was exposed to an illegal drug in utero;
15 (c) an employer of the individual drug user;
16 (d) a medical facility, insurer, governmental entity, employer, or other entity that funds
17 a drug treatment program or employee assistance program for the individual drug user or that
18 otherwise expended money on behalf of the individual drug user; or
19 (e) a person injured as a result of the willful, reckless, or negligent actions of an individual
20 drug user.
21 (2) A person entitled to bring an action under this section may seek damages from one or
22 more of the following:
23 (a) a person who knowingly distributed, or knowingly participated in the chain of
24 distribution of, an illegal drug that was actually used by the individual drug user; or
25 (b) a person who knowingly participated in the illegal drug market if:
26 (i) the place of illegal drug activity by the individual drug user is within the city, city and
27 county, or unincorporated area of the county in which the defendant's place of participation is
28 located;
29 (ii) the defendant's participation in the illegal drug market was connected with the same
30 type of illegal drug used by the individual drug user;
31 (iii) the defendant participated in the illegal drug market at any time during the individual

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1 drug user's period of illegal drug use; and
2 (iv) the underlying offense for the defendant's conviction occurred in the same county as
3 the individual drug user's drug use.
4 (3) A person entitled to bring an action under this section may recover all of the following
5 damages:
6 (a) economic damages, including the cost of treatment and rehabilitation, medical
7 expenses, loss of economic or educational potential, loss of productivity, absenteeism, support
8 expenses, accidents or injury, and any other pecuniary loss proximately caused by the illegal drug
9 use;
10 (b) noneconomic damages, including physical and emotional pain, suffering, physical
11 impairment, emotional distress, mental anguish, disfigurement, loss of enjoyment, loss of
12 companionship, services and consortium, and other nonpecuniary losses proximately caused by
13 an individual's use of an illegal drug;
14 (c) exemplary damages;
15 (d) reasonable attorney's fees; and
16 (e) costs of suit, including reasonable expenses for expert testimony.
17 Section 5. Section 58-37e-5 is enacted to read:
18 58-37e-5. Limited recovery of damages.
19 (1) An individual drug user may not bring an action for damages caused by the use of an
20 illegal drug, except as otherwise provided in this section. An individual drug user may bring an
21 action for damages caused by the use of an illegal drug only if all of the following conditions are
22 met:
23 (a) the individual personally discloses to narcotics enforcement authorities before filing
24 the action, all of the information known to the individual regarding all that individual's sources of
25 illegal drugs;
26 (b) the individual has not used an illegal drug within the six months before filing the
27 action; and
28 (c) the individual continues to remain free of the use of an illegal drug throughout the
29 pendency of the action.
30 (2) A person entitled to bring an action under this section may seek damages only from
31 a person who distributed, or is in the chain of distribution of, an illegal drug that was actually used

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1 by the individual drug user.
2 (3) A person entitled to bring an action under this section may recover only the following
3 damages:
4 (a) economic damages, including the cost of treatment, rehabilitation, and medical
5 expenses, loss of economic or educational potential, loss of productivity, absenteeism, accidents
6 or injury, and any other pecuniary loss proximately caused by the person's illegal drug use;
7 (b) reasonable attorney's fees; and
8 (c) costs of suit, including reasonable expenses for expert testimony.
9 Section 6. Section 58-37e-6 is enacted to read:
10 58-37e-6. Third party cases.
11 (1) A third party may not pay damages awarded under this chapter, or provide a defense
12 or money for a defense, on behalf of an insured under a contract of insurance or indemnification.
13 (2) A cause of action authorized pursuant to this section may not be assigned, either
14 expressly, by subrogation, or by any other means, directly or indirectly, to any public or publicly
15 funded agency or institution.
16 Section 7. Section 58-37e-7 is enacted to read:
17 58-37e-7. Joinder of parties.
18 (1) Two or more persons may join in one action under this chapter as plaintiffs if their
19 respective actions have at least one place of illegal drug activity in common and if any portion of
20 the period of illegal drug use overlaps with the period of illegal drug use for every other plaintiff.
21 (2) Two or more persons may be joined in one action under this chapter as defendants if
22 those persons are liable to at least one plaintiff.
23 (3) A plaintiff need not be interested in obtaining and a defendant need not be interested
24 in defending against all the relief demanded. Judgment may be given for one or more plaintiffs
25 according to their respective rights to relief and against one or more defendants according to their
26 respective liabilities.
27 Section 8. Section 58-37e-8 is enacted to read:
28 58-37e-8. Comparative responsibility.
29 (1) An action by an individual drug user is governed by the principles of comparative
30 responsibility. Comparative responsibility attributed to the plaintiff does not bar recovery but
31 diminishes the award of compensatory damages proportionally, according to the measure of

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1 responsibility attributed to the plaintiff.
2 (2) The burden of proving the comparative responsibility of the plaintiff is on the
3 defendant, which shall be shown by clear and convincing evidence.
4 (3) Comparative responsibility may not be applied in an action brought by a third party
5 who was not an individual drug user.
6 Section 9. Section 58-37e-9 is enacted to read:
7 58-37e-9. Contribution among and recovery from multiple defendants.
8 A person subject to liability under this chapter has a right of action for contribution against
9 another person subject to liability under this chapter. Contribution may be enforced either in the
10 original action or by a separate action brought for that purpose. A plaintiff may seek recovery in
11 accordance with this chapter and existing law against a person whom a defendant has asserted a
12 right of contribution.
13 Section 10. Section 58-37e-10 is enacted to read:
14 58-37e-10. Standard of proof -- Effect of criminal drug conviction.
15 (1) Proof of participation in the illegal drug market in an action brought under this chapter
16 shall be shown by clear and convincing evidence. Except as otherwise provided in this chapter,
17 other elements of the cause of action shall be shown by a preponderance of the evidence.
18 (2) A person against whom recovery is sought who has a criminal conviction pursuant to
19 state drug laws or the Comprehensive Drug Abuse Prevention and Control Act of 1970, Public
20 Law 91-513, 84 Stat. 1236, codified at 21 U.S.C. Sec. 801 et seq., is estopped from denying
21 participation in the illegal drug market. A conviction is also prima facie evidence of the person's
22 participation in the illegal drug market during the two years preceding the date of an act giving rise
23 to a conviction.
24 (3) The absence of a criminal drug conviction of a person against whom recovery is sought
25 does not bar an action against that person.
26 Section 11. Section 58-37e-11 is enacted to read:
27 58-37e-11. Prejudgment attachment and execution on judgments.
28 (1) A plaintiff under this chapter, subject to Subsection (3), may request an ex parte
29 prejudgment writ of attachment from the court pursuant to Utah Rules of Civil Procedure, Rule
30 64A against all assets of a defendant sufficient to satisfy a potential award. If attachment is
31 instituted, a defendant is entitled to an immediate hearing. Attachment may be lifted if the

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1 defendant demonstrates that the assets will be available for a potential award or if the defendant
2 posts a bond sufficient to cover a potential award.
3 (2) A person against whom a judgment has been rendered under this chapter is not eligible
4 to exempt any property, of whatever kind, from process to levy or process to execute on the
5 judgment, unless the property is exempt by operation of law.
6 (3) Any assets sought to satisfy a judgment under this chapter that are named in a
7 forfeiture action or have been seized for forfeiture by any state or federal agency may not be used
8 to satisfy a judgment unless and until the assets have been released following the conclusion of
9 the forfeiture action or released by the agency that seized the assets.
10 Section 12. Section 58-37e-12 is enacted to read:
11 58-37e-12. Statute of limitations.
12 (1) Except as otherwise provided in this section, a claim under this chapter may not be
13 brought more than two years after the cause of action accrues. A cause of action accrues under this
14 chapter when a person who may recover has reason to know of the harm from illegal drug use that
15 is the basis for the cause of action and has reason to know that the illegal drug use is the cause of
16 the harm.
17 (2) (a) For a plaintiff, the statute of limitations under this section is tolled while the
18 individual potential plaintiff is incapacitated by the use of an illegal drug to the extent that the
19 individual cannot reasonably be expected to seek recovery under this chapter or as otherwise
20 provided by law.
21 (b) For a defendant, the statute of limitations under this section is tolled until six months
22 after the individual potential defendant is convicted of a criminal drug offense or as otherwise
23 provided by law.
24 (3) A cause of action may not be asserted based on any act of the defendant which
25 occurred prior to the effective date of this chapter.
26 Section 13. Section 58-37e-13 is enacted to read:
27 58-37e-13. Representation of governmental entities -- Stay of action.
28 (1) A county attorney, district attorney, or city attorney may represent any political
29 subdivision of the state, and the attorney general may represent the state in an action brought under
30 this chapter.
31 (2) On motion by a governmental agency involved in a drug investigation or prosecution,

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1 an action brought under this chapter shall be stayed until the completion of the criminal
2 investigation or prosecution that gave rise to the motion for a stay of the action.




Legislative Review Note
as of 1-24-97 3:33 PM

A limited legal review of this bill raises no obvious constitutional or statutory concerns.

Office of Legislative Research and General Counsel

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