H.B. 33

This document includes House Committee Amendments incorporated into the bill on Mon, Jan 28, 2008 at 1:05 PM by jeyring. --> This document includes House Committee Amendments (CORRECTED) incorporated into the bill on Wed, Jan 30, 2008 at 4:11 PM by jeyring. --> This document includes House Floor Amendments incorporated into the bill on Thu, Jan 31, 2008 at 1:45 PM by ddonat. --> 1

WAIVERS OF IMMUNITY - EXCEPTIONS
2 2008 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: Gregory H. Hughes
5 Senate Sponsor: Dan R. Eastman
6
7 LONG TITLE
8 Committee Note:
9 The Child Welfare Legislative Oversight Panel recommended this bill.
10 General Description:
11 This bill amends the Utah Human Services Code and the Governmental Immunity Act
12 of Utah to provide exceptions to the immunity granted to government employees and
13 certain persons, officials, and institutions.
14 Highlighted Provisions:
15 This bill:
16 . provides that the immunity of a person, official, or institution who participates or
17 assists in a child protection matter does not apply if the person intentionally,
18 willfully, or knowingly engages in certain misconduct;
19 . provides that the immunity of a government employee during the performance of an
20 employee's duties, within the scope of employment, or under color of authority does
21 not apply if the employee intentionally or knowingly engages in certain misconduct;
22 and
23 . makes technical changes.
24 Monies Appropriated in this Bill:
25 None
26 Other Special Clauses:
27 None

28 Utah Code Sections Affected:
29 AMENDS:
30 62A-4a-410, as last amended by Laws of Utah 2005, Chapter 102
31 63-30d-202, as enacted by Laws of Utah 2004, Chapter 267
32
33 Be it enacted by the Legislature of the state of Utah:
34 Section 1. Section 62A-4a-410 is amended to read:
35 62A-4a-410. Immunity from liability -- Exceptions.
36 (1) [Any] Except as provided in Subsection (3), any person, official, or institution
37 participating in good faith in making a report, taking photographs or X-rays, assisting an
38 investigator from the division, serving as a member of a child protection team, or taking a child
39 into protective custody pursuant to this part, is immune from any liability, civil or criminal, that
40 otherwise might result by reason of those actions.
41 (2) This section does not provide immunity with respect to acts or omissions of a
42 governmental employee except as provided in Title 63, Chapter 30d, Governmental Immunity
43 Act of Utah.
44 (3) The immunity described in Subsection (1) does not apply if the person, official, or
45 institution:
46 (a) acted or failed to act through fraud or willful misconduct;
47 (b) in a judicial or administrative proceeding, intentionally or knowingly gave, upon a
48 lawful oath or in any form allowed by law as a substitute for an oath, false testimony material
49 to the issue or matter of inquiry in the proceeding; or
50 (c) intentionally or knowingly:
51 (i) fabricated evidence; or
52 (ii) H. except as provided in Subsection (4), .H with a conscious disregard for the
52a rights of others, failed to disclose evidence that:
53 (A) was known to the person, official, or institution; and
54 (B) was known by the person, official, or institution to be relevant to an issue or matter
55 of inquiry in a judicial or administrative proceeding.
55a H. (4) Immunity is not lost under Subsection (3)(c)(ii), if the person, official, or
55b institution:
55c (a) failed to disclose evidence described in Subsection (3)(c)(ii), because the person,
55d official, or institution is prohibited by law from disclosing the evidence; or
55e (b) (i) pursuant to the provisions of 45 CFR 164.502(g)(5), refused to

55f disclose evidence described in Subsection (3)(c)(ii) to a person who requested the evidence; and
55g (ii) after refusing to disclose the evidence under Subsection (4)(b)(i),
55h complied with or responded to a valid court order or valid subpoena received by the person,
55i official, or institution to disclose the evidence described in Subsection (3)(c)(ii). .H
56 Section 2. Section 63-30d-202 is amended to read:
57 63-30d-202. Act provisions not construed as admission or denial of liability --
58 Effect of waiver of immunity -- Exclusive remedy -- Joinder of employee -- Limitations on

59 personal liability.
60 (1) (a) Nothing contained in this chapter, unless specifically provided, may be
61 construed as an admission or denial of liability or responsibility by or for a governmental entity
62 or its employees.
63 (b) If immunity from suit is waived by this chapter, consent to be sued is granted, and
64 liability of the entity shall be determined as if the entity were a private person.
65 (c) No cause of action or basis of liability is created by any waiver of immunity in this
66 chapter, nor may any provision of this chapter be construed as imposing strict liability or
67 absolute liability.
68 (2) Nothing in this chapter may be construed as adversely affecting any immunity from
69 suit that a governmental entity or employee may otherwise assert under state or federal law.
70 (3) (a) Except as provided in Subsection (3)(c), an action under this chapter against a
71 governmental entity for an injury caused by an act or omission that occurs during the
72 performance of an employee's duties, within the scope of employment, or under color of
73 authority is a plaintiff's exclusive remedy.
74 (b) Judgment under this chapter against a governmental entity is a complete bar to any
75 action by the claimant, based upon the same subject matter, against the employee whose act or
76 omission gave rise to the claim.
77 (c) A plaintiff may not bring or pursue any civil action or proceeding based upon the
78 same subject matter against the employee or the estate of the employee whose act or omission
79 gave rise to the claim, unless:
80 (i) the employee acted or failed to act through fraud or willful misconduct;
81 (ii) the injury or damage resulted from the employee driving a vehicle, or being in
82 actual physical control of a vehicle:
83 (A) with a blood alcohol content equal to or greater by weight than the established
84 legal limit;
85 (B) while under the influence of alcohol or any drug to a degree that rendered the
86 person incapable of safely driving the vehicle; or
87 (C) while under the combined influence of alcohol and any drug to a degree that
88 rendered the person incapable of safely driving the vehicle;
89 (iii) injury or damage resulted from the employee being physically or mentally

90 impaired so as to be unable to reasonably perform [his or her] the employee's job function
91 because of:
92 (A) the use of alcohol;
93 (B) the nonprescribed use of a controlled substance as defined in Section 58-37-4 ; or
94 (C) the combined influence of alcohol and a nonprescribed controlled substance as
95 defined by Section 58-37-4 ; [or]
96 (iv) in a judicial or administrative proceeding, the employee intentionally or knowingly
97 gave, upon a lawful oath or in any form allowed by law as a substitute for an oath, false
98 testimony material to the issue or matter of inquiry under this section[.]; or
99 (v) the employee intentionally or knowingly:
100 (A) fabricated evidence; or
101 (B) H. except as provided in Subsection (3)(d), .H with a conscious disregard for the
101a rights of others, failed to disclose evidence that:
102 (I) was known to the employee; and
103 (II) was known by the employee to be relevant to an issue or matter of inquiry in a
104 judicial or administrative proceeding.
104a H. (d) The exception, described in Subsection (3)(c)(v)(B), allowing a plaintiff to bring
104b or pursue a civil action or proceeding against an employee, does not apply if the employee [ :
104c (i)] failed to disclose evidence described in Subsection (3)(c)(v)(B), because the
104d employee is prohibited by law from disclosing the evidence [ ; or
104e (ii) (A) pursuant to the provisions of 45 CFR 164.502(g)(5), refused to disclose
104f evidence described in Subsection (3)(c)(v)(B) to a person who requested the evidence; and
104g (B) after refusing to disclose the evidence under Subsection (3)(d)(ii)(A),
104h complied
104i with or responded to a valid court order or valid subpoena received by the employee to
104j disclose the evidence described in Subsection (3)(c)(v)(B). ] .H
105 (4) Except as permitted in Subsection (3)(c), no employee may be joined or held
106 personally liable for acts or omissions occurring:
107 (a) during the performance of the employee's duties;
108 (b) within the scope of employment; or
109 (c) under color of authority.




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as of 11-6-07 11:21 AM

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