H.B. 131

1

GOVERNMENTAL IMMUNITY AMENDMENTS
2 2003 GENERAL SESSION
3 STATE OF UTAH
4 Sponsor: Jackie Biskupski
5 This act modifies statutes governing governmental immunity. The act clarifies the
6 application and waiver of governmental immunity in certain circumstances, including
7 assault and battery. The act modifies requirements governing extensions of notices of
8 claim. The act provides for prospective application and makes technical changes.
9 This act affects sections of Utah Code Annotated 1953 as follows:
10 AMENDS:
11 63-30-4, as last amended by Chapter 206, Laws of Utah 2002
12 63-30-10, as last amended by Chapter 185, Laws of Utah 2001
13 63-30-11, as last amended by Chapter 157, Laws of Utah 2000
14 63-30-12, as last amended by Chapter 164, Laws of Utah 1998
15 63-30-13, as last amended by Chapter 164, Laws of Utah 1998
16 This act enacts uncodified material.
17 Be it enacted by the Legislature of the state of Utah:
18 Section 1. Section 63-30-4 is amended to read:
19 63-30-4. Act provisions not construed as admission or denial of liability -- Effect
20 of waiver of immunity -- Exclusive remedy -- Joinder of employee -- Limitations on
21 personal liability.
22 (1) (a) Nothing contained in this chapter, unless specifically provided, may be
23 construed as an admission or denial of liability or responsibility by or for governmental entities
24 or their employees.
25 (b) If immunity from suit is waived by this chapter, consent to be sued is granted, and
26 liability of the entity shall be determined as if the entity were a private person.
27 (c) No cause of action or basis of liability is created by any waiver of immunity in this

28 chapter, nor may any provision of this chapter be construed as imposing strict liability or
29 absolute liability.
30 (2) Nothing in this chapter may be construed as adversely affecting any immunity from
31 suit that a governmental entity or employee may otherwise assert under state or federal law.
32 (3) (a) Except as provided in Subsection (3)(b), an action under this chapter against a
33 governmental entity [or its employee] for an injury caused by an act or omission of an
34 employee that [occurs] occurred during the performance of the employee's duties, within the
35 scope of employment, or under color of authority is a plaintiff's exclusive remedy.
36 (b) A plaintiff may not bring or pursue any other civil action or proceeding based upon
37 the same subject matter against the employee or the estate of the employee whose act or
38 omission gave rise to the claim, unless:
39 (i) the employee acted or failed to act through fraud or malice;
40 (ii) the injury or damage resulted from the conditions set forth in Subsection
41 63-30-36 (3)(c); or
42 (iii) in a judicial or administrative proceeding the employee intentionally or knowingly
43 gave, upon a lawful oath or in any form allowed by law as a substitute for an oath, false
44 testimony material to the issue or matter of inquiry under this section.
45 (4) (a) An [employee] action for money or damages may not be [joined in an action]
46 maintained against an employee of a governmental entity in a representative or official capacity
47 [if the act or omission complained of is one for which the governmental entity may be liable,
48 but no].
49 (b) An employee may not be held personally liable for acts or omissions occurring
50 during the performance of the employee's duties, within the scope of employment, or under
51 color of authority, unless it is established that:
52 [(a)] (i) the employee acted or failed to act due to fraud or malice;
53 [(b)] (ii) the injury or damage resulted from the conditions set forth in Subsection
54 63-30-36 (3)(c); or
55 [(c)] (iii) in a judicial or administrative proceeding the employee intentionally or
56 knowingly gave, upon a lawful oath or in any form allowed by law as a substitute for an oath,
57 false testimony material to the issue or matter of inquiry under this section.
58 Section 2. Section 63-30-10 is amended to read:

59 63-30-10. Waiver of immunity for injury caused by negligent act or omission of
60 employee -- Exceptions.
61 Immunity from suit of all governmental entities is waived for injury proximately caused
62 by a negligent act or omission of an employee committed within the scope of employment
63 except that immunity is not waived if the injury arises out of, in connection with, or results
64 from:
65 (1) the exercise or performance or the failure to exercise or perform a discretionary
66 function, whether or not the discretion is abused;
67 (2) [assault, battery,] false imprisonment, false arrest, malicious prosecution,
68 intentional trespass, abuse of process, libel, slander, deceit, interference with contract rights,
69 infliction of mental anguish, or violation of civil rights;
70 (3) (a) assault or battery, except that immunity is waived when:
71 (i) the governmental entity knew or reasonably should have known of a risk of assault
72 or battery to a specific claimant;
73 (ii) the assault or battery was committed by someone other than an employee of a
74 governmental entity; and
75 (iii) a law enforcement agency is not alleged to be at fault; or
76 (b) the governmental entity was negligent in hiring or retaining the employee that
77 committed the assault or battery;
78 [(3)] (4) the issuance, denial, suspension, or revocation of or by the failure or refusal to
79 issue, deny, suspend, or revoke any permit, license, certificate, approval, order, or similar
80 authorization;
81 [(4)] (5) a failure to make an inspection or by making an inadequate or negligent
82 inspection;
83 [(5)] (6) the institution or prosecution of any judicial or administrative proceeding,
84 even if malicious or without probable cause;
85 [(6)] (7) a misrepresentation by an employee whether or not it is negligent or
86 intentional;
87 [(7)] (8) riots, unlawful assemblies, public demonstrations, mob violence, and civil
88 disturbances;
89 [(8)] (9) the collection of and assessment of taxes;

90 [(9)] (10) the activities of the Utah National Guard;
91 [(10)] (11) the incarceration of any person in or the escape of any person from any state
92 prison, county or city jail, medical treatment facility, or other place of legal confinement;
93 [(11)] (12) any natural condition on publicly owned or controlled lands, any condition
94 existing in connection with an abandoned mine or mining operation, or any activity authorized
95 by the School and Institutional Trust Lands Administration or the Division of Forestry, Fire
96 and State Lands;
97 [(12)] (13) research or implementation of cloud management or seeding for the
98 clearing of fog;
99 [(13)] (14) the management of flood waters, earthquakes, or natural disasters;
100 [(14)] (15) the construction, repair, or operation of flood or storm systems;
101 [(15)] (16) the operation of an emergency vehicle, while being driven in accordance
102 with the requirements of Section 41-6-14 ;
103 [(16)] (17) a latent dangerous or latent defective condition of any highway, road, street,
104 alley, crosswalk, sidewalk, culvert, tunnel, bridge, viaduct, or other structure located on them;
105 [(17)] (18) a latent dangerous or latent defective condition of any public building,
106 structure, dam, reservoir, or other public improvement;
107 [(18)] (19) the activities of:
108 (a) providing emergency medical assistance;
109 (b) fighting fire;
110 (c) regulating, mitigating, or handling hazardous materials or hazardous wastes;
111 (d) emergency evacuations;
112 (e) transporting or removing injured persons to a place where emergency medical
113 assistance can be rendered or where the person can be transported by a licensed ambulance
114 service; or
115 (f) intervening during dam emergencies; or
116 [(19)] (20) the exercise or performance or the failure to exercise or perform any
117 function pursuant to Title 73, Chapter 5a, Dam Safety, or Title 73, Chapter 10, Board of Water
118 Resources - Division of Water Resources, which immunity is in addition to all other
119 immunities granted by law.
120 Section 3. Section 63-30-11 is amended to read:

121 63-30-11. Claim for injury -- Notice -- Contents -- Service -- Legal disability --
122 Appointment of guardian ad litem.
123 (1) A claim arises when the statute of limitations that would apply if the claim were
124 against a private person begins to run.
125 (2) Any person having a claim for injury against a governmental entity, or against its
126 employee for an act or omission occurring during the performance of the employee's duties,
127 within the scope of employment, or under color of authority shall file a written notice of claim
128 with the entity before maintaining an action, regardless of whether or not the function giving
129 rise to the claim is characterized as governmental.
130 (3) (a) The notice of claim shall set forth:
131 (i) a brief statement of the facts;
132 (ii) the nature of the claim asserted; and
133 (iii) the damages incurred by the claimant so far as they are known.
134 (b) The notice of claim shall be:
135 (i) signed by the person making the claim or that person's agent, attorney, parent, or
136 legal guardian; and
137 (ii) directed and delivered to:
138 (A) the city or town recorder, when the claim is against an incorporated city or town;
139 (B) the county clerk, when the claim is against a county;
140 (C) the superintendent or business administrator of the board, when the claim is against
141 a school district or board of education;
142 (D) the president or secretary of the board, when the claim is against a special district;
143 (E) the attorney general, when the claim is against the State of Utah; or
144 (F) a member of the governing board, the executive director, or executive secretary,
145 when the claim is against any other public board, commission, or body.
146 (4) (a) If the claimant is under the age of majority, or mentally incompetent and
147 without a legal guardian at the time the claim arises, the claimant may apply to the court [to
148 extend the time for service of notice of claim .] for leave to file a notice of claim any time
149 within four years from the time the claim arose, but no later than one year after:
150 (i) the claimant reaches the age of majority;
151 (ii) the claimant is declared to be mentally competent; or

152 (iii) a legal guardian is appointed to represent the minor claimant or the mentally
153 incompetent claimant.
154 (b) [(i)] After hearing and notice to the governmental entity in the manner prescribed
155 by Subsection (3) and Section 63-30-12 or 63-30-13 , the court may [extend the time for service
156 of notice of claim.] grant permission to file a notice of claim if:
157 (i) less than four years have elapsed since the claim arose; and
158 (ii) less than one year has elapsed since:
159 (A) the claimant reached the age of majority;
160 (B) the claimant is declared to be mentally competent; or
161 (C) a legal guardian is appointed to represent the minor claimant or the mentally
162 incompetent claimant.
163 [(ii) The court may not grant an extension that exceeds the applicable statute of
164 limitations.]
165 (c) In determining whether or not to grant [an extension] permission to file a notice of
166 claim more than one year after the claim arose, the court shall consider whether the delay in
167 [serving] filing the notice of claim will substantially prejudice the governmental entity in
168 maintaining its defense on the merits.
169 (d) (i) If an injury that may reasonably be expected to result in a claim against a
170 governmental entity is sustained by a potential claimant described in Subsection (4)(a), that
171 government entity may file a request with the court for the appointment of a guardian ad litem
172 for the potential claimant.
173 (ii) If a guardian ad litem is appointed under this Subsection (4)(d), the time for filing a
174 claim under Sections 63-30-12 and 63-30-13 begins when the order appointing the guardian is
175 issued.
176 Section 4. Section 63-30-12 is amended to read:
177 63-30-12. Claim against state or its employee -- Time for filing notice.
178 A claim against the state, or against its employee for an act or omission occurring
179 during the performance of the employee's duties, within the scope of employment, or under
180 color of authority, is barred unless notice of claim is filed with the attorney general and the
181 individual alleged to be at fault within one year after the claim arises, or before the expiration
182 of any extension of time granted under Section 63-30-11 , regardless of whether or not the

183 function giving rise to the claim is characterized as governmental.
184 Section 5. Section 63-30-13 is amended to read:
185 63-30-13. Claim against political subdivision or its employee -- Time for filing
186 notice.
187 A claim against a political subdivision, or against its employee for an act or omission
188 occurring during the performance of the employee's duties, within the scope of employment, or
189 under color of authority, is barred unless notice of claim is filed with the governing body of the
190 political subdivision according to the requirements of Section 63-30-11 and the individual
191 alleged to be a fault within one year after the claim arises, or before the expiration of any
192 extension of time granted under Section 63-30-11 , regardless of whether or not the function
193 giving rise to the claim is characterized as governmental.
194 Section 6. Application of act -- Prospective operation.
195 This act has prospective effect only and any changes to the law caused by this act do not
196 apply to any claims based upon injuries or losses that occurred before the effective date of this
197 act.




Legislative Review Note
as of 2-4-03 7:38 AM

A limited legal review of this legislation raises no obvious constitutional or statutory concerns.

Office of Legislative Research and General Counsel