Day on Torts
As you would expect, the Tennessee General Assembly is not particularly fond of drug dealers. But did you know that the General Assemby had passed what they call the "Drug Dealer Liability Act?"
The Act, codified at TCA 29-38-101 et seq, permits the recovery of damages caused by drug dealers. We just used this Act to add an additional cause of action against a man who we alleged engaged in inappropriate conduct with two pre-teen females and from time to time used a drug to help accomplish his actions. The use of the Act was important because (a) it gave us a claim for attorney’s fees and (b) it provides for prejudgment attachment of assets of the defendant.
The Act contains several sections, but this is the section that creates the cause of action, identifies who can file suit, and states what damages can be recovered.
29-38-106. Persons allowed to bring an action for damages — Persons against whom damages may be sought — What damages may be sought. —
(a) One (1) or more of the following persons may bring an action for damages caused by an individual’s use of an illegal drug:
(1) A parent, legal guardian, child, spouse, or sibling of the individual drug user;
(2) An individual who was exposed to an illegal drug in utero;
(3) An employer of the individual drug user;
(4) 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
(5) A person injured as a result of the willful, reckless, or negligent actions of an individual drug user.
(b) A person entitled to bring an action under this section may seek damages from one (1) or more of the following:
(1) 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;
(2) A person who knowingly participated in the illegal drug market, if:
(A) The place of illegal drug activity by the individual drug user is within the illegal drug market target community of the defendant;
(B) 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
(C) The defendant participated in the illegal drug market at any time during the individual drug user’s period of illegal drug use.
(c) A person entitled to bring an action under this section may recover all of the following damages:
(1) 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, and any other pecuniary loss proximately caused by the illegal drug use;
(2) 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 losses proximately caused by an individual’s use of an illegal drug;
(3) Exemplary damages;
(4) Reasonable attorney fees; and
(5) Costs of suit, including, but not limited to, reasonable expenses for expert testimony.
One can see there are multiple ways that this Act can be used to help certain of our clients. Note that the act covers injuries to third parties. So, for instance, if your client is hurt in a car or truck wreck by a person using an illegal drug your client has a cause of action up the chain of distribution of the illegal drug.
Now, before someone writes and tells me what a fool I am let me hasten to add I can see all sorts of issues arising from a suit against a drug dealer, not the least of which is the personal safety of the lawyer bringing such a claim. The fact remains, however, that the Act is yet another arrow in the trial lawyer’s quiver and, as we demonstrated, has uses beyond those that are immediately obvious.