Sixty-first General Assembly

LLS NO. 97­0008.01 JBB HOUSE BILL 97­1002

STATE OF COLORADO

BY REPRESENTATIVE George.

ENGROSSED

JUDICIARY

A BILL FOR AN ACT

CONCERNING CIVIL LIABILITY RELATING TO ILLEGAL DRUGS.

Bill Summary

(Note: This summary applies to this bill as introduced and does not necessarily reflect any amendments which may be subsequently adopted.)

Establishes a new cause of action in favor of any person or entity suffering damages or increased expense because of illegal drug use. Specifies that an action may be brought against any person or entity that sold or was in the chain of distribution of the illegal drug used by the individual illegal drug user and any person or entity involved in the sale or distribution of the type of illegal drug used by that individual. Establishes a new cause of action in favor of an illegal drug user against any person or entity that sold or was in the chain if distribution of the illegal drug used by that individual. Sets forth certain exceptions, what damages may be recovered, rules on contributory negligence, contribution among joint tortfeasors, prejudgment attachments, and other procedures.

Be it enacted by the General Assembly of the State of Colorado:

SECTION 1. Article 21 of title 13, Colorado Revised Statutes, 1987 Repl. Vol., as amended, is amended BY THE ADDITION OF A NEW PART to read:

PART 6

DRUG DEALER LIABILITY ACT

13­21­601. Short title.  THIS PART 6 SHALL BE KNOWN AND MAY BE CITED AS THE "DRUG DEALER LIABILITY ACT".

13­21­602.  Legislative declaration. (1)  THE GENERAL ASSEMBLY HEREBY DECLARES THAT THE PURPOSE OF THIS PART 6 IS:

(a)  TO PROVIDE A CIVIL REMEDY FOR DAMAGES TO PERSONS IN THIS STATE INJURED AS A RESULT OF THE USE OF AN ILLEGAL DRUG;

(b)   TO SHIFT, TO THE EXTENT POSSIBLE, THE COST OF DAMAGE CAUSED BY THE MARKET FOR ILLEGAL DRUGS IN THE STATE TO THOSE WHO ILLEGALLY PROFIT FROM THAT MARKET;

(c)  TO DETER THOSE WHO HAVE NOT YET ENTERED INTO THE DISTRIBUTION MARKET FOR ILLEGAL DRUGS BY ESTABLISHING THE PROSPECT OF SUBSTANTIAL MONETARY LOSS; AND

(d)  TO ESTABLISH AN INCENTIVE FOR USERS OF ILLEGAL DRUGS TO IDENTIFY AND SEEK PAYMENT FOR THEIR OWN TREATMENT FROM THOSE DEALERS WHO HAVE SOLD THEM ILLEGAL DRUGS IN THE PAST.

13­21­603.  Definitions.  AS USED IN THIS PART 6, UNLESS THE CONTEXT REQUIRES OTHERWISE:

(1)  "ILLEGAL DRUG" MEANS A CONTROLLED SUBSTANCE AS DEFINED IN SECTION 18­18­102 (5), C.R.S.

(2)  "INDIVIDUAL ILLEGAL DRUG USER" MEANS THE INDIVIDUAL WHOSE USE OF A SPECIFIED ILLEGAL DRUG IS THE BASIS OF AN ACTION BROUGHT UNDER THIS PART 6.

(3)  "PARTICIPATE IN THE MARKETING OF ILLEGAL DRUGS" MEANS TO TRANSPORT, IMPORT INTO THIS STATE, SELL, POSSESS WITH THE INTENT TO SELL, FURNISH, ADMINISTER, OR GIVE AWAY OR OFFER TO TRANSPORT, IMPORT INTO THIS STATE, SELL, FURNISH, ADMINISTER, OR GIVE AWAY, AN ILLEGAL DRUG. "PARTICIPATE IN THE MARKETING OF ILLEGAL DRUGS" DOES NOT INCLUDE THE PURCHASE OR RECEIPT OF AN ILLEGAL DRUG FOR PERSONAL USE.

(4)  PERIOD OF ILLEGAL DRUG USE" MEANS, IN RELATION TO THE INDIVIDUAL ILLEGAL DRUG USER, THE PERIOD OF TIME FROM THE INDIVIDUAL'S FIRST USE OF A SPECIFIED ILLEGAL DRUG TO THE ACCRUAL OF THE CAUSE OF ACTION. THE PERIOD OF ILLEGAL DRUG USE IS PRESUMED TO COMMENCE TWO YEARS BEFORE THE CAUSE OF ACTION ACCRUES UNLESS THE DEFENDANT PROVES OTHERWISE.

(5)  "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 A FOREIGN COUNTRY.

(6)  "SPECIFIED ILLEGAL DRUG" MEANS THE TYPE OF ILLEGAL DRUG USED BY AN INDIVIDUAL ILLEGAL DRUG USER WHOSE USE IS THE BASIS OF AN ACTION BROUGHT UNDER SECTION 13­21­604 (2) (b).

13­21­604.  Damages ­ persons injured by an individual illegal drug user. (1)  ANY ONE OR MORE OF THE FOLLOWING PERSONS MAY BRING AN ACTION FOR DAMAGES CAUSED BY AN INDIVIDUAL'S USE OF AN ILLEGAL DRUG WITHIN THIS STATE:

(a)  A PARENT, LEGAL GUARDIAN, CHILD, SPOUSE, OR SIBLING OF THE INDIVIDUAL ILLEGAL DRUG USER;

(b)  AN EMPLOYER OF AN INDIVIDUAL ILLEGAL DRUG USER;

(c)  A MEDICAL FACILITY, INSURER, GOVERNMENTAL ENTITY, EMPLOYER, OR OTHER ENTITY THAT FUNDED A DRUG TREATMENT PROGRAM OR EMPLOYEE ASSISTANCE PROGRAM FOR THE INDIVIDUAL ILLEGAL DRUG USER OR THAT OTHERWISE EXPENDED MONEY ON BEHALF OF THE INDIVIDUAL ILLEGAL DRUG USER OR A DEPENDENT OF THE INDIVIDUAL ILLEGAL DRUG USER; AND

(d)  A PERSON INJURED AS A RESULT OF THE WILLFUL, RECKLESS, OR NEGLIGENT ACTIONS OF AN INDIVIDUAL ILLEGAL DRUG USER.

(2)  A PERSON ENTITLED TO SEEK DAMAGES UNDER THIS SECTION MAY SEEK DAMAGES FROM ONE OR MORE OF THE FOLLOWING:

(a)  A PERSON WHO SOLD, ADMINISTERED, OR FURNISHED, OR IS IN THE CHAIN OF DISTRIBUTION OF, AN ILLEGAL DRUG USED BY THE INDIVIDUAL ILLEGAL DRUG USER;

(b)  IF ESTABLISHED BY CLEAR AND CONVINCING EVIDENCE, A PERSON WHO WITHIN THIS STATE KNOWINGLY PARTICIPATED IN THE MARKETING OF THE SPECIFIED ILLEGAL DRUG USED BY AN INDIVIDUAL ILLEGAL DRUG USER 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 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, OR ANY OTHER PECUNIARY LOSS PROXIMATELY CAUSED BY AN INDIVIDUAL'S USE OF AN ILLEGAL DRUG;

(b)  NONECONOMIC DAMAGES, INCLUDING BUT NOT LIMITED TO PHYSICAL AND EMOTIONAL PAIN, SUFFERING, PHYSICAL IMPAIRMENT, EMOTIONAL DISTRESS, MENTAL ANGUISH, DISFIGUREMENT, LOSS OF ENJOYMENT, LOSS OF COMPANIONSHIP, SERVICES, AND CONSORTIUM, AND OTHER NONPECUNIARY LOSS 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, BUT NOT LIMITED TO, EXPENSES FOR EXPERT WITNESSES AND EXPENSES FOR INVESTIGATIVE SERVICES TO DETERMINE THE IDENTITY OF THE DEFENDANTS AND THE LOCATION OF ANY ASSETS OF THE DEFENDANTS.

13­21­605.  Limited damages ­ suits by an individual illegal drug user. (1)  AN INDIVIDUAL ILLEGAL DRUG USER MAY BRING AN ACTION UNDER THIS SECTION FOR DAMAGES CAUSED BY HIS OR HER USE OF AN ILLEGAL DRUG WITHIN THIS STATE ONLY IF ALL OF THE FOLLOWING CONDITIONS ARE MET:

(a)  THE INDIVIDUAL PERSONALLY DISCLOSES TO NARCOTICS ENFORCEMENT OFFICERS, MORE THAN SIX MONTHS BEFORE THE FILING OF THE ACTION, ALL OF THE INFORMATION KNOWN TO THE INDIVIDUAL REGARDING ALL OF THAT INDIVIDUAL'S SOURCES OF ILLEGAL DRUGS;

(b)  THE INDIVIDUAL HAS NOT USED AN ILLEGAL DRUG WITHIN THE SIX MONTHS BEFORE THE FILING OF THE ACTION; AND

(c)  THE INDIVIDUAL CONTINUES TO REMAIN FREE FROM THE USE OF ALL ILLEGAL DRUGS THROUGHOUT THE PENDENCY OF THE ACTION.

(2)  AN INDIVIDUAL ILLEGAL DRUG USER ENTITLED TO BRING AN ACTION UNDER THIS SECTION MAY SEEK DAMAGES ONLY FROM A PERSON WHO SOLD, ADMINISTERED, OR FURNISHED, OR IS IN THE CHAIN OF DISTRIBUTION OF, AN ILLEGAL DRUG USED BY THE INDIVIDUAL ILLEGAL DRUG USER.

(3)  AN INDIVIDUAL ILLEGAL DRUG USER ENTITLED TO BRING AN ACTION UNDER THIS SECTION MAY RECOVER ONLY THE FOLLOWING DAMAGES:

(a)  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, OR ANY OTHER PECUNIARY LOSS PROXIMATELY CAUSED BY AN INDIVIDUAL'S USE OF AN ILLEGAL DRUG;

(b)  REASONABLE ATTORNEY'S FEES; AND

(c)  COSTS OF SUIT, INCLUDING BUT NOT LIMITED TO EXPENSES FOR EXPERT WITNESSES AND EXPENSES FOR INVESTIGATIVE SERVICES TO DETERMINE THE IDENTITY OF THE DEFENDANTS AND THE LOCATION OF ANY ASSETS OF THE DEFENDANTS.

13­21­606.  Nonexclusiveness ­ exceptions to liability. (1)  ANY CAUSE OF ACTION ESTABLISHED BY THIS PART 6 SHALL BE IN ADDITION TO AND NOT IN LIEU OF ANY OTHER CAUSE OF ACTION AVAILABLE TO A PLAINTIFF.

(2)  A PERSON WHOSE POSSESSION, USE, OR DISTRIBUTION OF ILLEGAL DRUGS IS AUTHORIZED BY LAW IS NOT LIABLE FOR DAMAGES UNDER THIS PART 6 NOR SHALL SUCH PERSON BE ENTITLED TO BRING AN ACTION UNDER SECTION 13­21­605.

(3)  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 MARKETING OF ILLEGAL DRUGS IF THE PARTICIPATION IS IN FURTHERANCE OF AN OFFICIAL INVESTIGATION.

13­21­607. Comparative negligence. (1)  AN ACTION BY AN INDIVIDUAL ILLEGAL DRUG USER PURSUANT TO SECTION 13­21­605 IS GOVERNED BY THE PRINCIPLES OF COMPARATIVE NEGLIGENCE. NOTWITHSTANDING THE PROVISIONS OF SECTION 13­21­111 (1), CONTRIBUTORY NEGLIGENCE SHALL NOT BAR RECOVERY BY AN INDIVIDUAL ILLEGAL DRUG USER, BUT COMPARATIVE NEGLIGENCE MAY DIMINISH THE AWARD OF ANY DAMAGES IN PROPORTION TO THE AMOUNT OF NEGLIGENCE ATTRIBUTABLE TO THE INDIVIDUAL ILLEGAL DRUG USER.

(2)  COMPARATIVE NEGLIGENCE SHALL NOT BE ATTRIBUTED TO A PLAINTIFF WHO IS NOT AN INDIVIDUAL ILLEGAL DRUG USER, UNLESS THAT PLAINTIFF WILLFULLY AND KNOWINGLY GAVE THE INDIVIDUAL ILLEGAL DRUG USER THE SPECIFIED ILLEGAL DRUG OR MONEY FOR THE PURCHASE OF THE SPECIFIED ILLEGAL DRUG.

13­21­608. Contribution among and recovery from multiple defendants.  NOTWITHSTANDING THE PROVISIONS OF SECTION 13­50.5­102 (3), A PERSON SUBJECT TO LIABILITY UNDER THIS PART 6 HAS A RIGHT OF CONTRIBUTION AGAINST ANY OTHER PERSON SUBJECT TO LIABILITY UNDER THIS PART 6. 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 PART 6 AND OTHER LAWS AGAINST A PERSON WHOM A DEFENDANT HAS ASSERTED A RIGHT OF CONTRIBUTION.

13­21­609. Effect of criminal drug conviction. (1)  A PERSON AGAINST WHOM RECOVERY IS SOUGHT WHO HAS A CRIMINAL CONVICTION FOR OTHER THAN MERE POSSESSION OF THE SPECIFIED ILLEGAL DRUG UNDER THE "COMPREHENSIVE DRUG ABUSE PREVENTION AND CONTROL ACT OF 1970", 21 U.S.C. SEC. 801, ET SEQ., FOR ACTIONS OCCURRING WITHIN THIS STATE OR UNDER SECTION 18­18­405 OR 18­18­406, C.R.S., IS ESTOPPED FROM DENYING PARTICIPATION IN THE ILLEGAL DRUG MARKET. SUCH 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.

(2)  THE ABSENCE OF A CONVICTION OF A PERSON AGAINST WHOM RECOVERY IS SOUGHT DOES NOT BAR AN ACTION AGAINST THAT PERSON.

13­21­610. Prejudgment attachment and execution on judgments. (1)  EXCEPT AS PROVIDED IN SUBSECTION (3) OF THIS SECTION, A PLAINTIFF UNDER THIS PART 6 MAY REQUEST AN EX PARTE, PREJUDGMENT ORDER OF ATTACHMENT UNDER RULE 104 OF THE COLORADO RULES OF CIVIL PROCEDURE WITHOUT THE REQUIREMENTS DESCRIBED IN SECTION (c) OF RULE 104 AGAINST ALL OF THE ASSETS OF A DEFENDANT SUFFICIENT TO SATISFY A POTENTIAL AWARD. IF ATTACHMENT IS ISSUED, A DEFENDANT IS ENTITLED TO AN IMMEDIATE HEARING. THE ATTACHMENT MAY BE REMOVED 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 PART 6 IS NOT ELIGIBLE TO EXEMPT ANY PROPERTY, OF WHATEVER KIND, FROM PROCESS TO LEVY OR PROCESS TO EXECUTE ON THE JUDGMENT.

(3)  ANY ASSETS SOUGHT TO SATISFY A JUDGMENT UNDER THIS PART 6 THAT HAVE BEEN NAMED IN A FORFEITURE ACTION PENDING ON THE DATE THAT THE ATTACHMENT UNDER SUBSECTION (1) OF THIS SECTION IS SOUGHT OR HAVE BEEN SEIZED FOR FORFEITURE BY ANY STATE OR FEDERAL AGENCY MAY NOT BE ATTACHED OR USED TO SATISFY A JUDGMENT UNLESS AND UNTIL THE ASSETS HAVE BEEN RELEASED FOLLOWING CONCLUSION OF THE FORFEITURE ACTION OR RELEASED BY THE AGENCY THAT SEIZED THE ASSETS.

13­21­611. Statute of limitations. (1)  EXCEPT AS OTHERWISE PROVIDED BY THIS SECTION, A CLAIM UNDER THIS PART 6 SHALL NOT BE BROUGHT MORE THAN TWO YEARS AFTER THE CAUSE OF ACTION ACCRUES. A CAUSE OF ACTION ACCRUES UNDER THIS PART 6 WHEN A PERSON WHO MAY RECOVER HAS REASON TO KNOW OF THE HARM FROM ILLEGAL DRUG USE THAT IS THE BASIS OF THE CAUSE OF ACTION AND HAS REASON TO KNOW THAT THE ILLEGAL DRUG USE IS THE CAUSE OF THE HARM.

(2)  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 PART 6 OR AS OTHERWISE PROVIDED BY LAW. FOR A DEFENDANT, THE STATUTE OF LIMITATIONS UNDER THIS SECTION DOES NOT EXPIRE UNTIL SIX MONTHS AFTER THE INDIVIDUAL POTENTIAL DEFENDANT IS CONVICTED OF A CRIMINAL OFFENSE OR AS OTHERWISE PROVIDED BY LAW.

13­21­612. Stay of action.  ON MOTION BY A GOVERNMENTAL AGENCY INVOLVED IN A DRUG INVESTIGATION OR PROSECUTION, AN ACTION BROUGHT UNDER THIS PART 6 SHALL BE STAYED UNTIL THE COMPLETION OF THE CRIMINAL INVESTIGATION OR PROSECUTION THAT GAVE RISE TO THE MOTION FOR A STAY OF THE ACTION.

13­21­613. Not retroactive.  NO CAUSE OF ACTION SHALL ACCRUE BASED UPON ANY ACT BY A DEFENDANT THAT OCCURRED PRIOR TO THE EFFECTIVE DATE OF THIS PART 6.

13­21­614. Severability. IF ANY PROVISION OF THIS PART 6 OR THE APPLICATION THEREOF TO ANY PERSON OR CIRCUMSTANCE IS HELD INVALID, SUCH INVALIDITY SHALL NOT AFFECT OTHER PROVISIONS OR APPLICATIONS OF THIS PART 6 THAT CAN BE GIVEN EFFECT WITH THE INVALID PROVISION OR APPLICATION, AND TO THIS END THE PROVISIONS OF THIS PART 6 ARE DECLARED TO BE SEVERABLE.

SECTION 2.  Effective date ­ applicability.  This act shall take effect upon passage and shall apply to causes of action accruing or after said date.

SECTION 3.  Safety clause. The general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety.