GENERAL ASSEMBLY OF NORTH CAROLINA
HOUSE DRH50195-MH-13A (02/01)
Short Title: Tort Reform for Citizens and Businesses.
Representatives Rhyne, McComas, Brisson, and Crawford (Primary Sponsors).
A BILL TO BE ENTITLED
AN ACT to provide tort reform for North carolina citizens and businesses.
The General Assembly of North Carolina enacts:
PART I. GENERAL REFORMS
SECTION 1.1. Article 4 of Chapter 8C of the General Statutes is amended by adding a new section to read:
"Rule 414. Evidence of medical expenses.
Evidence offered to prove past medical expenses may include all bills reasonably paid and a statement of the amounts actually necessary to satisfy the bills that have been incurred but not yet paid. Evidence of source of payment and rights of subrogation related to the payment shall be admissible."
SECTION 1.2. G.S. 1-289 reads as rewritten:
"§ 1-289. Undertaking to stay execution on money judgment.
(a) If the appeal is from a judgment directing the payment of money, it does not stay the execution of the judgment unless a written undertaking is executed on the part of the appellant, by one or more sureties, as set forth in this section.
(b) In an action where the judgment directs the payment of money, the court shall specify the amount of the undertaking required to stay execution of the judgment pending appeal as provided in subsection (c) of this section. The undertaking shall be to the effect that if the judgment appealed from, or any part thereof, is affirmed, or the appeal is dismissed, the appellant will pay the amount directed to be paid by the judgment, or the part of such amount as to which the judgment shall be affirmed, if affirmed only in part, and all damages which shall be awarded against the appellant upon the appeal, except as provided in subsection (b) of this section. Whenever it is satisfactorily made to appear to the court that since the execution of the undertaking the sureties have become insolvent, the court may, by rule or order, require the appellant to execute, file and serve a new undertaking, as above. In case of neglect to execute such undertaking within twenty days after the service of a copy of the rule or order requiring it, the appeal may, on motion to the court, be dismissed with costs. Whenever it is necessary for a party to an action or proceeding to give a bond or an undertaking with surety or sureties, he may, in lieu thereof, deposit with the officer into court money to the amount of the bond or undertaking to be given. The court in which the action or proceeding is pending may direct what disposition shall be made of such money pending the action or proceeding. In a case where, by this section, the money is to be deposited with an officer, a judge of the court, upon the application of either party, may, at any time before the deposit is made, order the money deposited in court instead of with the officer; and a deposit made pursuant to such order is of the same effect as if made with the officer. The perfecting of an appeal by giving the undertaking mentioned in this section stays proceedings in the court below upon the judgment appealed from; except when the sale of perishable property is directed, the court below may order the property to be sold and the proceeds thereof to be deposited or invested, to abide the judgment of the appellate court.
(c) The amount of the undertaking that shall be required by the court shall be an amount determined by the court after notice and hearing proper and reasonable for the security of the rights of the adverse party, considering relevant factors, including the following:
(1) The amount of the judgment.
(2) The amount of the limits of all applicable liability policies of the appellant judgment debtor.
(3) The aggregate net worth of the appellant judgment debtor.
the appellee in a civil action brought under any legal theory obtains a
judgment directing the payment or expenditure of money in the amount of twenty
five million dollars ($25,000,000) or more, and the appellant seeks a stay of
execution of the judgment within the period of time during which the appellant
has the right to pursue appellate review, including discretionary review and
certiorari, the amount of the undertaking that the appellant is required to
execute to stay execution of the judgment during the entire period of the
appeal shall be twenty five million dollars ($25,000,000). (c) If
the appellee proves by a preponderance of the evidence that the appellant for
whom the undertaking has been limited under subsection (b) of this section is,
for the purpose of evading the judgment, (i) dissipating its assets, (ii)
secreting its assets, or (iii) diverting its assets outside the jurisdiction of
the courts of North Carolina or the federal courts of the United States other
than in the ordinary course of business, then the limitation in subsection (b)
of this section shall not apply and the appellant shall be required to make an
undertaking in the full amount otherwise required by this section."
SECTION 1.3. Chapter 8 of the General Statutes is amended by adding a new Article to read:
"Admissibility of Collateral Source Payments.
"§ 8-58.25. Certain collateral source payments admissible as evidence.
(a) As used in this section, "collateral source payments" means a payment for any of the following damages for which recovery is permitted in a civil action that is made to or for the benefit of a plaintiff or is otherwise available to the plaintiff:
(1) Medical expenses and disability payments under the federal Social Security Act, any federal, State, or local income disability act, or any other public program.
(2) Payments under any health, sickness, or income disability insurance or automobile accident insurance that provides health benefits or income disability coverage, and any other similar insurance benefits available to the plaintiff, except life insurance.
(3) Payments under any contract or agreement of any person, group, organization, partnership, or corporation to provide, pay for, or reimburse the costs of hospital, medical, dental, or health care services.
(4) Payments under any contractual or voluntary wage continuation plan provided by an employer or other system intended to provide wages during a period of disability.
(5) From any other source.
A collateral source payment does not include gifts, gratuitous contributions or assistance, or payments arising from assets of the plaintiff.
(b) In any action, the court shall allow into evidence, if requested by a defendant, collateral source payments paid to or for the benefit of the plaintiff, or that are otherwise made available to the plaintiff, related to the losses or damages alleged in the complaint. Any amounts so allowed shall first be reduced by any payments made by the plaintiff to secure the right to receive the collateral source payment. The court shall allow into evidence, if requested by the plaintiff, rights of subrogation of any collateral source."
SECTION 1.4. G.S. 8C-702(a) reads as rewritten:
"(a) If scientific,
technical or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as
an expert by knowledge, skill, experience, training, or education, may testify
thereto in the form of an
opinion.opinion, or otherwise if all of the
(1) The testimony is based upon sufficient facts or data.
(2) The testimony is the product of reliable principles and methods.
(3) The witness has applied the principles and methods reliably to the facts of the case."
SECTION 1.5. G.S. 1A-1, Rule 42(b), reads as rewritten:
"(b) Separate trials. -
(1) The court may in furtherance of convenience or to avoid prejudice and shall for considerations of venue upon timely motion order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims, or issues.
(2) Upon motion of any party in an action that includes a claim commenced under Article 1G of Chapter 90 of the General Statutes involving a managed care entity as defined in G.S. 90-21.50, the court shall order separate discovery and a separate trial of any claim, cross-claim, counterclaim, or third-party claim against a physician or other medical provider.
(3) Upon motion of any party in an action in tort wherein the plaintiff seeks damages exceeding seventy-five thousand dollars ($75,000), the court shall order separate trials for the issue of liability and the issue of damages. Evidence relating solely to compensatory damages shall not be admissible until the trier of fact has determined that the defendant is liable. The same trier of fact that tries the issues relating to liability shall try the issues relating to damages."
SECTION 1.6. G.S. 1D-25 reads as rewritten:
"§ 1D-25. Limitation of amount of recovery.
(a) In all actions seeking an award of punitive damages, the trier of fact shall determine the amount of punitive damages separately from the amount of compensation for all other damages.
(b) Punitive damages awarded against a defendant shall not exceed three times the amount of compensatory damages or two hundred fifty thousand dollars ($250,000), whichever is greater. If a trier of fact returns a verdict for punitive damages in excess of the maximum amount specified under this subsection, the trial court shall reduce the award and enter judgment for punitive damages in the maximum amount.
(c) The provisions of subsection (b) of this section shall not be made known to the trier of fact through any means, including voir dire, the introduction into evidence, argument, or instructions to the jury.
(d) Punitive damages awarded in excess of one hundred thousand dollars ($100,000) shall be awarded by the presiding judge as follows:
(1) Twenty-five percent (25%) of the amount over one hundred thousand dollars ($100,000) shall be remitted to the plaintiff in accordance with applicable law.
(2) Seventy-five percent (75%) of the amount over one hundred thousand dollars ($100,000) shall be remitted to the Civil Penalty and Forfeiture Fund."
PART II. REFORMS APPLICABLE TO MEDICAL MALPRACTICE ACTIONS
SECTION 2.1. G.S. 1A-1, Rule 9(j), reads as rewritten:
"(j) Medical malpractice. - Any complaint alleging medical malpractice by a health care provider as defined in G.S. 90-21.11 in failing to comply with the applicable standard of care under G.S. 90-21.12 shall be dismissed unless:
(1) The pleading
specifically asserts that the medical care
has and all medical
records pertaining to the alleged injury then available to the plaintiff after
reasonable inquiry, have been reviewed by a person who is reasonably
expected to qualify as an expert witness under Rule 702 of the Rules of
Evidence and who is willing to testify that the medical care did not comply
with the applicable standard of care;
(2) The pleading
specifically asserts that the medical care
has and all medical
records pertaining to the alleged injury then available to the plaintiff after
reasonable inquiry, have been reviewed by a person that the complainant
will seek to have qualified as an expert witness by motion under Rule 702(e) of
the Rules of Evidence and who is willing to testify that the medical care did
not comply with the applicable standard of care, and the motion is filed with
the complaint; or
(3) The pleading alleges facts establishing negligence under the existing common-law doctrine of res ipsa loquitur.
Upon motion by the complainant prior to the expiration of the applicable statute of limitations, a resident judge of the superior court for a judicial district in which venue for the cause of action is appropriate under G.S. 1-82 or, if no resident judge for that judicial district is physically present in that judicial district, otherwise available, or able or willing to consider the motion, then any presiding judge of the superior court for that judicial district may allow a motion to extend the statute of limitations for a period not to exceed 120 days to file a complaint in a medical malpractice action in order to comply with this Rule, upon a determination that good cause exists for the granting of the motion and that the ends of justice would be served by an extension. The plaintiff shall provide, at the request of the defendant, proof of compliance with this subsection through up to ten written interrogatories, the answers to which shall be verified by the expert required under this subsection. These interrogatories do not count against the interrogatory limit under Rule 33."
SECTION 2.2.(a) G.S. 90-21.11 reads as rewritten:
"§ 90-21.11. Definitions.
As usedThe following definitions apply in this Article,Article:
term "health care provider" meansHealth care provider. - without
limitationWithout limitation, any of the following:
A person who pursuant to the provisions of Chapter 90 of the General
Statutes is licensed, or is otherwise registered or certified to engage in the
practice of or otherwise performs duties associated with any of the following:
medicine, surgery, dentistry, pharmacy, optometry, midwifery, osteopathy,
podiatry, chiropractic, radiology, nursing, physiotherapy, pathology,
anesthesiology, anesthesia, laboratory analysis, rendering assistance to a
physician, dental hygiene, psychiatry, psychology;psychiatry, or
aA hospital orhospital, a nursing home;home,
or an adult care home licensed under Chapter 131D of the General Statutes.
anyAny other person who is legally responsible for the negligence of
such person, hospital or nursing home;a person described by
sub-subdivision a. of this subdivision, a hospital, a nursing home, or an adult
care home described by sub-subdivision b. of this subdivision.
anyAny other person acting at the direction or under the supervision
of any of the foregoing persons, a person described by
sub-subdivision a. of this subdivision, a hospital, or a nursing
home.home, or an adult care home described by sub-subdivision b. of
used in this Article, the term "medical malpractice action" means Medical
malpractice action. - Either of the following:
civil action for damages for personal injury or death arising out of the
furnishing or failure to furnish professional services in the performance of
medical, dental, or other health care by a health care provider.
b. A civil action against a hospital, a nursing home, or an adult care home licensed under Chapter 131D of the General Statutes for damages for personal injury or death, when the civil action (i) alleges a breach of administrative or corporate duties to the patient, including, but not limited to, allegations of negligent credentialing or negligent monitoring and supervision; and (ii) arises from the same facts or circumstances as a claim under sub-subdivision a. of this subdivision."
SECTION 2.2.(b) G.S. 90-21.12 reads as rewritten:
"§ 90-21.12. Standard of health care.
as provided in subsection (b) of this section, in
In any medical
malpractice action, action for damages for personal injury or death
arising out of the furnishing or the failure to furnish professional services
in the performance of medical, dental, or other health care, the defendant health
care provider shall not be liable for the payment of damages unless the
trier of the factsfact is satisfiedfinds by the
greater weight of the evidence that the care of such health care provider was
not in accordance with the standards of practice among members of the same
health care profession with similar training and experience situated in the
same or similar communities under the same or similar circumstances at
the time of the alleged act giving rise to the cause of action.
(b) In any medical malpractice action arising out of the furnishing or the failure to furnish services pursuant to obligations imposed by 42 U.S.C. § 1395dd for an emergency medical condition as defined in 42 U.S.C. § 1395dd(e)(1), the defendant health care provider shall not be liable for the payment of damages unless the trier of fact finds by the greater weight of the evidence that the health care provider's deviation from the standard of care required under subsection (a) of this section constituted gross negligence, wanton conduct, or intentional wrongdoing. Nothing in this subsection shall be construed to change, alter, override, or otherwise affect the provisions of G.S. 90-21.14, 90-21.15, 90-21.16, or 20-166."
SECTION 2.3.(a) Article 1B of Chapter 90 of the General Statutes is amended by adding the following new section to read:
"§ 90-21.19. Liability limit for noneconomic damages.
(a) In any medical malpractice action in which the plaintiff is entitled to an award of noneconomic damages, the total amount of noneconomic damages for which judgment is entered against all defendants shall not exceed two hundred fifty thousand dollars ($250,000) per defendant. On January 1 of every third year, beginning with January 1, 2014, the Administrative Office of the Courts shall reset the limitation on damages for noneconomic loss set forth in this subsection to be equal to two hundred fifty thousand dollars ($250,000) times the ratio of the Consumer Price Index for November of the prior year to the Consumer Price Index for November 2011. In the event that any verdict or award of noneconomic damages stated pursuant to G.S. 90-21.19B(1) exceeds these limits, the court shall modify the judgment as necessary to conform to the requirements of this subsection.
(b) The following definitions apply in this section:
(1) Consumer Price Index. - The Consumer Price Index - All Urban Consumers, for the South urban area, as published by the Bureau of Labor Statistics of the United States Department of Labor.
(2) Noneconomic damages. - Damages to compensate for pain, suffering, emotional distress, loss of consortium, inconvenience, physical impairment, disfigurement, and any other nonpecuniary, compensatory damage. "Noneconomic damages" does not include punitive damages as defined in G.S. 1D-5.
(c) Any award of damages in a medical malpractice action shall be stated in accordance with G.S. 90-21.19B. If a jury is determining the facts, the court shall not instruct the jury with respect to the limit of noneconomic damages under subsection (a) of this section, and neither the attorney for any party nor a witness shall inform the jury or potential members of the jury panel of that limit."
SECTION 2.3.(b) Article 1B of Chapter 90 of the General Statutes is amended by adding the following new section to read:
"§ 90-21.19A. Periodic payment of future economic damages in medical malpractice actions.
(a) The following definitions apply in this section:
(1) Future economic damages. - Damages for future expense for medical treatment, care or custody, loss of future earnings, loss of future household services, and any other future pecuniary damages of the plaintiff following the date of the verdict or award.
(2) Periodic payments. - The payment of money or delivery of other property to the plaintiff at regular intervals.
(b) In any medical malpractice action, the form of the fact finder's verdict or award of damages, if supported by the evidence, shall indicate specifically what amount is awarded for future economic damages, and what amount, if any, of the total amount awarded for future economic damages represents damages awarded for loss of future earnings or loss of future household services.
(c) Upon the award of future economic damages in any medical malpractice action, the presiding judge shall, at the request of either party, enter a judgment ordering that the future economic damages of the plaintiff be paid in whole or in part by periodic payments rather than by a lump-sum payment if the present value of the future economic damages award is greater than or equal to two hundred thousand dollars ($200,000). In entering a judgment ordering the payment of future economic damages by periodic payments, the court shall make a specific finding as to the dollar amount of the present value of that portion of the future economic damages for which the plaintiff is to be paid by periodic payments. In calculating the total damages from which any attorney contingency fee for representing the plaintiff in connection with the medical malpractice action is calculated, the present value of any portion of the award representing future economic damages that are to be paid by periodic payments shall be used.
(d) A judgment authorizing periodic payments of future economic damages shall require that such payments be made through the establishment of a trust fund or the purchase of an annuity for the life of the plaintiff or during the continuance of the compensable injury or disability of the plaintiff, in such form and under such terms as shall be approved by the court. The establishment of a trust fund or the purchase of an annuity, as required and approved by the court, shall constitute the satisfaction of the defendant's judgment for future economic damages.
(e) The judgment ordering the payment of future economic damages by periodic payments shall specify the recipient of the payments, the schedule of the periodic payments, and the dollar amount of each periodic payment to be made pursuant to the schedule. The death of the plaintiff terminates liability for payment of future economic damages which by judgment pursuant to this section are required to be paid in periodic payments not yet due, except that the court that entered the original judgment may modify the judgment to provide that liability for payment of future periodic payments compensating the plaintiff for loss of future earnings or loss of future household services shall not be terminated by reason of the death of the plaintiff, but shall continue to be paid to persons surviving the plaintiff to whom the plaintiff owed a duty of support pursuant to law immediately prior to the plaintiff's death."
SECTION 2.3.(c) Article 1B of Chapter 90 of the General Statutes is amended by adding the following new section to read:
"§ 90-21.19B. Verdicts and awards of damages in medical malpractice actions; form.
In any malpractice action, any verdict or award of damages, if supported by the evidence, shall indicate specifically what amount is awarded for each of the following:
(1) Noneconomic damages.
(2) Present economic damages.
(3) Future economic damages.
(4) Loss of future earnings.
(5) Loss of future household services.
If applicable, the court shall instruct the jury on the definition of noneconomic damages under G.S. 90-21.19(b) and the definition of future economic damages under G.S. 90-21.19A(a). If applicable, the court shall instruct the jury that present economic damages are those damages for medical treatment, care or custody, loss of earnings, loss of household services, and any other pecuniary damages of the plaintiff up to the date of the verdict or award."
SECTION 2.4. G.S. 1A-1, Rule 26(f1), reads as rewritten:
"(f1) Medical malpractice discovery conference. - In a medical malpractice action as defined in G.S. 90-21.11, upon the case coming at issue or the filing of a responsive pleading or motion requiring a determination by the court, the judge shall, within 30 days, direct the attorneys for the parties to appear for a discovery conference. At the conference the court may consider the matters set out in Rule 16, and shall:
(2) Establish an
appropriate schedule for designating expert witnesses, consistent with a
discovery schedule pursuant to subdivision
(3), to be complied with by all
parties to the action such that there is a deadline for designating all expert
witnesses within an appropriate time for all parties to implement discovery
mechanisms with regard to the designated expert witnesses;(3) of this
subsection. As to each expert designated, the designation shall be accompanied
by a written report prepared and signed by the witness. The report shall
contain a complete statement of all opinions to be expressed and the basis and
reasons therefor; the data or other information considered by the witness in
forming the opinions; the qualifications of the witness, including a list of
all publications authored by the witness within the preceding 10 years; the
compensation the witness is to be paid for the study and testimony; and a
listing of any other cases in which the witness has testified as an expert at
trial or by deposition within the preceding four years. The party shall
supplement the expert's report if the party learns that in some material
respect the report is incomplete or incorrect. The expert's direct testimony
shall not be inconsistent with or go beyond the fair scope of the expert report
PART III. REFORM APPLICABLE TO PRODUCTS LIABILITY ACTIONS
SECTION 3.1.(a) G.S. 99B-1 reads as rewritten:
"§ 99B-1. Definitions.
When used in this Chapter, unless the context otherwise requires:
(1) "Claimant" means a person or other entity asserting a claim and, if said claim is asserted on behalf of an estate, an incompetent or a minor, "claimant" includes plaintiff's decedent, guardian, or guardian ad litem.
(1a) "Government agency" means this State or the United States, or any agency of this State or the United States, or any entity vested with the authority of this State or of the United States to issue rules, regulations, orders, or standards concerning the design, manufacture, packaging, labeling, or advertising of a product or provision of a service.
(2) "Manufacturer" means a person or entity who designs, assembles, fabricates, produces, constructs or otherwise prepares a product or component part of a product prior to its sale to a user or consumer, including a seller owned in whole or significant part by the manufacturer or a seller owning the manufacturer in whole or significant part.
(3) "Product liability action" includes any action brought for or on account of personal injury, death or property damage caused by or resulting from the manufacture, construction, design, formulation, development of standards, preparation, processing, assembly, testing, listing, certifying, warning, instructing, marketing, selling, advertising, packaging, or labeling of any product.
(4) "Seller" includes a retailer, wholesaler, or distributor, and means any individual or entity engaged in the business of selling a product, whether such sale is for resale or for use or consumption. "Seller" also includes a lessor or bailor engaged in the business of leasing or bailment of a product."
SECTION 3.1.(b) Chapter 99B of the General Statutes is amended by adding the following new section to read:
"§ 99B-12. Regulatory compliance.
(a) No manufacturer or seller shall be held liable in any product liability action if any one of the following apply:
(1) The product alleged to have caused the harm was designed, manufactured, packaged, labeled, sold, or represented in relevant and material respects in accordance with the terms of an approval, license, or similar determination of a government agency, where the approval, license, or similar determination is relevant to the event or risk allegedly causing the harm.
(2) The product was in compliance with a statute of this State or the United States, or a standard, rule, regulation, order, or other action of a government agency pursuant to statutory authority, where the statute or agency action is relevant to the event or risk allegedly causing the harm and the product was in compliance at the time the product left the control of the manufacturer or seller.
(3) The act or transaction forming the basis of the claim involves terms of service, contract provisions, representations, or other practices authorized by, or in compliance with, the rules, regulations, standards, or orders of, or a statute administered by, a government agency.
(b) This section does not apply if the claimant proves that the manufacturer or seller at any time before the event that allegedly caused the harm did any of the following:
(1) Sold the product after the effective date of an order of a government agency to remove the product or service from the market, to withdraw its approval, or to substantially alter its terms of approval in a manner that would have avoided the claimant's alleged injury.
(2) Intentionally, and in violation of applicable regulations, withheld from or misrepresented to the government agency information material to the approval or maintaining of approval of the product, and such information is relevant to the harm which the claimant allegedly suffered.
(3) Made an illegal payment to an official or employee of a government agency for the purpose of securing or maintaining approval of the product.
(c) Nothing in this section shall be construed to (i) expand the authority of any State agency or State agent to adopt or promulgate standards or regulations where no such authority previously existed; (ii) reduce the scope of any limitation on liability based on compliance with the rules or regulations of a government agency applicable to a specific act, transaction, person, or industry; or (iii) affect the liability of a service provider based on rates filed with and reviewed or approved by a government agency."
PART IV. OTHER REFORMS
SECTION 4.1. G.S. 6-21.1 reads as rewritten:
"§ 6-21.1. Allowance of counsel fees as part of costs in certain cases.
(a) In any
personal injury or property damage suit, or suit against an insurance company
under a policy issued by the defendant insurance company
and in which
the insured or beneficiary is the plaintiff, instituted in a court of
record, upon a findingfindings by the court (i) that
there was an unwarranted refusal by the defendant insurance company to negotiate
or pay the claim which constitutes the basis of such suit, instituted in
a court of record, where (ii) that the judgment for
recovery ofamount of damages recovered is ten thousand
dollars ($10,000)fifteen thousand dollars ($15,000) or less, and
(iii) that the amount of damages recovered exceeded the highest offer made by
the defendant prior to the commencement of the trial, the presiding judge
may, in his discretion, allow a reasonable attorney fee to the duly licensed
attorney representing the litigant obtaining a judgment for damages in said
suit, said attorney's fee to be taxed as a part of the court costs. The
attorneys' fees so awarded shall not exceed the higher of five thousand dollars
($5,000) or fifty percent (50%) of the damages awarded.
(b) When the presiding judge determines that an award of attorneys' fees is to be made under this statute, the judge shall issue a written order including findings of fact detailing the factual basis for the finding of an unwarranted refusal to negotiate or pay the claim, and setting forth the amount of the highest offer made prior to the commencement of the trial, and the amount of damages recovered, as well as the factual basis and amount of any such attorneys' fees to be awarded."
SECTION 4.2. The General Statutes are amended by adding a new Chapter to read:
"§ 38B-1. Title.
This Chapter may be cited as the Trespasser Responsibility Act.
"§ 38B-2. General rule.
A possessor of land, including an owner, lessee, or other occupant, does not owe a duty of care to a trespasser and is not subject to liability for any injury to a trespasser.
"§ 38B-3. Exceptions.
Notwithstanding G.S. 38B-2, a possessor of land may be subject to liability for physical injury or death to a trespasser in the following situations:
(1) Intentional harms. - A possessor may be subject to liability if the trespasser's bodily injury or death resulted from the possessor's willful or wanton conduct, or was intentionally caused by the possessor, except that a possessor may use reasonable force to repel a trespasser who has entered the land or a building with the intent to commit a crime.
(2) Harms to trespassing children caused by artificial condition. - A possessor may be subject to liability for bodily injury or death to a child trespasser resulting from an artificial condition on the land if all of the following apply:
a. The possessor knew or had reason to know that children were likely to trespass at the location of the condition.
b. The condition is one the possessor knew or reasonably should have known involved an unreasonable risk of bodily injury or death to such children.
c. The injured child did not discover the condition or realize the risk involved in the condition or in coming within the area made dangerous by it.
d. The possessor failed to exercise reasonable care to eliminate the danger or otherwise protect the injured child.
"§ 38B-4. Definitions.
The following definitions shall apply in this Chapter:
(1) Child trespasser. - A trespasser who is less than 14 years of age or who has the level of mental development found in a person less than 14 years of age.
(2) Possessor. - A person in lawful possession of land, including an owner, lessee, or other occupant, or a person acting on behalf of such a lawful possessor of land.(3) Trespasser. - A person who enters on the property of another without permission and without an invitation, express or implied."
PART V. MISCELLANEOUS PROVISIONS
SECTION 5.1. Severability. - If the provisions of Section 2.3(a) of this act are declared to be unconstitutional or otherwise invalid by final decision of a court of competent jurisdiction, then Section 2.3(b) and Section 2.3(c) of this act are repealed, but the invalidity does not affect other provisions or applications of this act that can be given effect without the invalid provisions. If any other provision of this act or its application to any person or circumstance is held invalid, the remainder of this act or the application of the provision to other persons or circumstances is not affected.
SECTION 5.2. Sections 2.2, 2.3, 3.1, and 4.2 of this act become effective October 1, 2011, and apply to causes of actions arising on or after that date. The remainder of this act becomes effective October 1, 2011, and applies to actions commenced on or after that date.