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H.B. 395
This document includes House Committee Amendments incorporated into the bill on Mon,
Feb 12, 2007 at 10:15 AM by jeyring. -->
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WAIVERS OF IMMUNITY - EXCEPTIONS
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2007 GENERAL SESSION
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STATE OF UTAH
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Chief Sponsor: Gregory H. Hughes
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Senate Sponsor:
Dan R. Eastman
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LONG TITLE
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General Description:
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This bill amends the Utah Human Services Code and the Governmental Immunity Act
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of Utah to provide exceptions to the immunity granted to government employees and
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certain persons, officials, and institutions.
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Highlighted Provisions:
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This bill:
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. provides that the immunity of a person, official, or institution who participates or
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assists in a child protection matter does not apply if the person intentionally,
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willfully, or knowingly engages in certain misconduct;
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. provides that the immunity of a government employee during the performance of an
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employee's duties, within the scope of employment, or under color of authority does
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not apply if the employee intentionally or knowingly engages in certain misconduct;
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and
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. makes technical changes.
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Monies Appropriated in this Bill:
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None
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Other Special Clauses:
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None
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Utah Code Sections Affected:
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AMENDS:
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62A-4a-410, as last amended by Chapter 102, Laws of Utah 2005
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63-30d-202, as enacted by Chapter 267, Laws of Utah 2004
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Be it enacted by the Legislature of the state of Utah:
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Section 1.
Section
62A-4a-410
is amended to read:
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62A-4a-410. Immunity from liability -- Exceptions.
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(1) [Any] Except as provided in Subsection (3), any person, official, or institution
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participating in good faith in making a report, taking photographs or X-rays, assisting an
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investigator from the division, serving as a member of a child protection team, or taking a child
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into protective custody pursuant to this part, is immune from any liability, civil or criminal, that
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otherwise might result by reason of those actions.
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(2) This section does not provide immunity with respect to acts or omissions of a
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governmental employee except as provided in Title 63, Chapter 30d, Governmental Immunity
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Act of Utah.
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(3) The immunity described in Subsection (1) does not apply if the person, official, or
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institution:
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(a) acted or failed to act through fraud or willful misconduct;
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(b) in a judicial or administrative proceeding, intentionally or knowingly gave, upon a
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lawful oath or in any form allowed by law as a substitute for an oath, false testimony material
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to the issue or matter of inquiry in the proceeding; or
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(c) intentionally or knowingly:
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(i) fabricated evidence; H. or .H
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(ii) with a conscious disregard for the rights of others, failed to disclose
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H. [
exculpatory
] .H
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evidence that:
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(A) was known to the person, official, or institution; and
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(B) was known by the person, official, or institution to be relevant to an issue or matter
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of inquiry in a judicial or administrative proceeding H. [
; or
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(iii) obtained testimony by duress or undue influence
] .H .
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Section 2.
Section
63-30d-202
is amended to read:
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63-30d-202. Act provisions not construed as admission or denial of liability --
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Effect of waiver of immunity -- Exclusive remedy -- Joinder of employee -- Limitations on
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personal liability.
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(1) (a) Nothing contained in this chapter, unless specifically provided, may be
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construed as an admission or denial of liability or responsibility by or for a governmental entity
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or its employees.
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(b) If immunity from suit is waived by this chapter, consent to be sued is granted, and
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liability of the entity shall be determined as if the entity were a private person.
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(c) No cause of action or basis of liability is created by any waiver of immunity in this
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chapter, nor may any provision of this chapter be construed as imposing strict liability or
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absolute liability.
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(2) Nothing in this chapter may be construed as adversely affecting any immunity from
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suit that a governmental entity or employee may otherwise assert under state or federal law.
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(3) (a) Except as provided in Subsection (3)(c), an action under this chapter against a
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governmental entity for an injury caused by an act or omission that occurs during the
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performance of an employee's duties, within the scope of employment, or under color of
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authority is a plaintiff's exclusive remedy.
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(b) Judgment under this chapter against a governmental entity is a complete bar to any
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action by the claimant, based upon the same subject matter, against the employee whose act or
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omission gave rise to the claim.
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(c) A plaintiff may not bring or pursue any civil action or proceeding based upon the
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same subject matter against the employee or the estate of the employee whose act or omission
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gave rise to the claim, unless:
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(i) the employee acted or failed to act through fraud or willful misconduct;
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(ii) the injury or damage resulted from the employee driving a vehicle, or being in
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actual physical control of a vehicle:
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(A) with a blood alcohol content equal to or greater by weight than the established
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legal limit;
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(B) while under the influence of alcohol or any drug to a degree that rendered the
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person incapable of safely driving the vehicle; or
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(C) while under the combined influence of alcohol and any drug to a degree that
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rendered the person incapable of safely driving the vehicle;
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(iii) injury or damage resulted from the employee being physically or mentally
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impaired so as to be unable to reasonably perform his or her job function because of:
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(A) the use of alcohol;
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(B) the nonprescribed use of a controlled substance as defined in Section
58-37-4
; or
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(C) the combined influence of alcohol and a nonprescribed controlled substance as
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defined by Section
58-37-4
; [or]
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(iv) in a judicial or administrative proceeding, the employee intentionally or knowingly
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gave, upon a lawful oath or in any form allowed by law as a substitute for an oath, false
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testimony material to the issue or matter of inquiry under this section[.]; or
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(v) the employee intentionally or knowingly:
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(A) fabricated evidence; H. or .H
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(B) with a conscious disregard for the rights of others, failed to disclose
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H. [
exculpatory
] .H
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evidence that:
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(I) was known to the employee; and
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(II) was known by the employee to be relevant to an issue or matter of inquiry in a
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judicial or administrative proceeding H. [
; or
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(C) obtained testimony by duress or undue influence
] .H .
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(4) Except as permitted in Subsection (3)(c), no employee may be joined or held
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personally liable for acts or omissions occurring:
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(a) during the performance of the employee's duties;
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(b) within the scope of employment; or
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(c) under color of authority.
Legislative Review Note
as of 1-29-07 3:58 PM