The Eliminate Criminal Profiteering Act adds a new Chapter 83 to Title 15 to prevent persons who engaged in wrongful conduct from bringing negligence claims or collecting damages for events that flow from that conduct. It defines "wrongful conduct" broadly to include any criminal violation (even without conviction) and intentional or willful-and-wanton torts, and places the burden on defendants to prove the plaintiff’s participation in such conduct.
The bill also narrows negligent-security liability by eliminating an owner or occupier’s duty to protect invitees unless the owner had actual knowledge of substantially similar incidents on the premises within the prior year, prescribes three actions that presumptively satisfy the duty, requires apportionment of fault to nonparties (including governments), and forbids awarding general damages and past/future wages to persons unlawfully present in the U.S. at the time of an auto collision. Criminal restitution claims remain intact.
At a Glance
What It Does
Bars persons who participated in or attempted wrongful conduct from recovering civil damages for harms that result from that conduct; prohibits general damages and wage awards in automobile-negligence suits for persons unlawfully present in the U.S.; and sharply limits negligent-security duties by requiring actual knowledge of similar prior incidents within one year before a duty arises.
Who It Affects
Plaintiffs in personal-injury and negligent-security suits (including unauthorized immigrants), property owners and managers, security contractors, liability insurers, and local governments that might be apportioned fault as nonparties.
Why It Matters
The bill shifts evidentiary burdens and legal defenses, reduces potential payouts in many premises-liability and auto cases, and creates new litigation and discovery dynamics by requiring fault apportionment to nonparties and permitting retrials when courts find apportionments unreasonable.
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What This Bill Actually Does
The Act creates a blunt rule: if you participated in unlawful or intentionally wrongful conduct that in whole or in part caused the event giving rise to a negligence claim, you cannot recover damages for that event. "Wrongful conduct" is defined to include any violation of law punishable as a misdemeanor or felony, whether or not prosecutors charged or convicted the individual. The defendant — the party being sued — must prove by a preponderance of the evidence that the plaintiff engaged in or attempted the wrongful conduct before the plaintiff can be barred from recovery.
For negligent-security claims, the Act removes the common-law duty for owners and occupiers to protect invitees or licensees except when the owner had actual knowledge of "prior occurrences of substantially similar wrongful conduct" on the premises within the preceding year. If that narrow threshold is met, the owner’s duty is to exercise reasonable care, but the statute establishes three specific steps that presumptively satisfy reasonableness: (1) request and follow local law-enforcement assistance; (2) follow reputable third-party security guidelines; or (3) hire a security contractor.
The statute also treats security contractors as subject to the same duty and prevents trespassers from bringing negligent-security claims, with a statutory presumption about presence outside posted hours.On auto-collision claims, the Act bars awards of general damages and past and future wages to any person who was unlawfully present in the United States at the time of the collision. Plaintiffs seeking those categories of damages must produce, at initial disclosure or soon thereafter, documentation proving their citizenship or lawful permanent-resident status (or otherwise proving they were not unlawfully present).
The bill excludes uninsured/underinsured motorist policy claims naming the unauthorized alien as an insured.Procedurally, the Act demands that juries apportion fault to all relevant actors, including nonparties such as other wrongdoers and government agencies; if the jury allocates an unreasonably low share of fault to persons who engaged in wrongful conduct, the court must order a retrial. The Act also bars evidence or argument to jurors about criminal sentences, a party’s financial resources or collectability of judgments, or how fault apportionment affects damages.
Finally, the statute expressly preserves a crime victim’s right to recover criminal restitution under existing law.
The Five Things You Need to Know
The statute defines "wrongful conduct" to include any criminal violation punishable as a misdemeanor or felony—even without an arrest or conviction—and bars recovery when such conduct caused the plaintiff’s injury.
Defendants bear the burden to prove by a preponderance of the evidence that the plaintiff engaged in or attempted wrongful conduct before exclusion of recovery applies.
For negligent-security liability, an owner or occupier owes no duty unless they had actual knowledge of substantially similar prior incidents within the past year; complying with law-enforcement assistance, reputable third-party guidelines, or hiring a security contractor presumptively satisfies the duty.
A plaintiff unlawfully present in the U.S. at the time of an automobile collision may not receive general damages or past/future wage awards and must prove lawful status at initial disclosure to seek those damages.
Juries must apportion fault to all applicable actors (including nonparties and governments), and a verdict can be set aside with a retrial ordered if the court finds the apportionment unreasonably minimizes the fault of persons who engaged in wrongful conduct.
Section-by-Section Breakdown
Every bill we cover gets an analysis of its key sections.
Definitions that broaden the scope of barred claims
This section sets the statutory vocabulary the rest of the chapter uses. The key operational terms are "wrongful conduct," defined to include criminal violations regardless of conviction, "prior occurrences of substantially similar wrongful conduct," and the definitions of owner/occupier, security contractor, and third person. Those definitions matter because the statute’s gates—who can sue and what triggers duties—turn on these definitions, which courts will have to interpret (for example, what counts as "substantially similar" or whether a misdemeanor of a very different character qualifies).
Bar on recovery by persons who participated in wrongful conduct
This provision creates the central prophylactic rule: anyone who participated in wrongful conduct may not bring a negligence action or collect damages for harms that flow from that conduct. Practically, it converts what would be an affirmative defense or comparative-fault argument into a threshold bar in some cases and shifts the evidentiary burden to defendants to show participation by a preponderance. That burden will drive early discovery disputes and motions to dismiss or for summary judgment where evidence of criminal or wrongful conduct exists.
Prohibition on certain damages for unauthorized aliens in vehicle cases
This section denies general damages and past/future wage awards in automobile negligence suits when the injured person was unlawfully present in the U.S. at the time of the collision, while preserving claims under certain uninsured/underinsured policies. It also imposes a documentary-disclosure requirement on plaintiffs seeking those categories of damages and makes the plaintiff bear the burden to prove lawful presence. This creates a new, status-focused evidentiary gate unique to auto cases rather than a broader immigration-based bar across tort law.
Narrowed negligent-security duty and presumptive compliance measures
The statute eliminates the typical duty-to-protect inquiry unless the owner had actual knowledge of substantially similar prior incidents within the preceding year. If the duty exists, reasonableness is the standard, but the statute provides three discrete actions that will presumptively satisfy that standard—requesting and following law-enforcement instructions, following reputable third-party guidelines, or hiring a security contractor. The provision also treats security contractors as standing in the owner’s shoes for duties and defines when a person is presumed to be a trespasser, affecting both liability exposure and contract terms between owners and security providers.
Expanded apportionment rules and limits on jury evidence
This section requires apportionment of fault to all causally relevant actors, including nonparty wrongdoers and governments, and prohibits jurors from hearing about criminal penalties, a party’s financial resources, or how apportionment affects damages. It adds teeth by allowing the court to set aside verdicts and order retrials when juries fail to assign a reasonable degree of fault to wrongdoers—creating a presumption of unreasonableness if the fault assigned to wrongdoers is less than that assigned to others unless the court makes written findings. Expect more complex pleadings, expanded discovery into nonparty conduct, and potential appeals based on the reasonableness standard.
Preservation of criminal restitution rights
This final provision clarifies that nothing in the chapter limits a crime victim’s statutory right to full criminal restitution under existing South Carolina law. It separates civil forfeiture of damages from criminal restitution remedies, meaning victims can still seek restitution in criminal proceedings regardless of the civil bars established here.
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Explore Justice in Codify Search →Who Benefits and Who Bears the Cost
Every bill creates winners and losers. Here's who stands to gain and who bears the cost.
Who Benefits
- Property owners and occupiers: The heightened threshold for negligent-security duties and the presumption that certain steps satisfy reasonableness reduce premises-liability exposure and defense costs when prior incidents are absent.
- Security contractors and businesses: Clear statutory guidance that hiring a contractor or following third-party guidelines presumptively meets the duty may lower liability risk and make contracts easier to price and negotiate.
- Liability insurers and self-insured entities: Fewer recoverable claims and the bar on some plaintiffs’ damages (including unauthorized immigrants in auto cases) can reduce payout exposure and reserve requirements.
- Municipalities and law enforcement: The statute’s express encouragement for owners to seek and follow law-enforcement instructions can shift responsibility toward cooperative security planning and may protect municipalities when their guidance is followed.
Who Bears the Cost
- Injured plaintiffs who engaged in even minor unlawful conduct: People whose misconduct contributed to injury—whether misdemeanor or felony and even without conviction—may be stripped of civil recovery, potentially leaving injured but culpable victims uncompensated.
- Unauthorized immigrants in automobile collisions: Plaintiffs unlawfully present at the time of a collision cannot recover general damages or lost-wage awards, significantly reducing recoverable compensation in many car-accident cases.
- Courts and litigants generally: Mandatory apportionment to nonparties, retrial requirements, and the need for written findings will increase pretrial litigation, discovery burdens (including subpoenas to nonparties), and appellate review, raising costs and delay.
- Owners and security contractors in ambiguous cases: The "actual knowledge" and "substantially similar" thresholds, plus an undefined standard for "reputable third-party" guidelines, create legal uncertainty and could produce uneven outcomes and higher insurance or compliance costs.
- Local governments and agencies: The statute permits apportionment of fault to governmental entities for failures to enforce law or maintain order, opening the door to being named as a nonparty source of fault and to complex intergovernmental litigation.
Key Issues
The Core Tension
The central dilemma is whether to deny civil recovery to individuals who contributed to their own harm (and thereby discourage "profiting" from wrongdoing) at the cost of shrinking civil remedies for injured people and creating complex litigation dynamics; the bill solves one problem—limiting payouts to culpable actors—but does so by raising evidentiary, procedural, and fairness questions that shift burdens onto courts, nonparty defendants, and vulnerable plaintiffs.
The Act forces several difficult implementation choices. First, defining and proving "wrongful conduct" without a criminal conviction creates evidentiary disputes: defendants must show participation by a preponderance, but civil discovery and privacy limits may make that proof uneven.
That creates a tension between avoiding "profiteering" by wrongdoers and denying recovery to injured people whose culpable conduct is factual but not criminally adjudicated.
Second, the one-year temporal window and the "substantially similar" standard for prior incidents are fact-intensive and susceptible to divergent judicial interpretations. Owners who reasonably thought their premises were safe can still face nuanced litigation over whether prior incidents were similar enough; conversely, plaintiffs injured under mixed-fault circumstances may find their claims extinguished even where their contribution to the harm is modest.
The mandatory apportionment to nonparties and the retrial mechanism will generate broader discovery (targeting nonparties such as other private actors and government agencies), complicating litigation and raising costs for all sides.
Finally, the immigration-related bar on certain damages raises constitutional and federalism questions even though the bill borrows federal immigration definitions; it also has distributional effects—reducing recoveries for a population already facing barriers to compensation. The statute leaves vague terms ("reputable third-party guidelines," the practical mechanics for proving lawful presence at initial disclosure, and the standards for written findings that overcome the presumption of unreasonable apportionment) that courts will have to supply, producing uncertainty during early enforcement and defense planning.
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