Senator Curtis S. Bramble proposes the following substitute bill:


1     
GOVERNMENTAL IMMUNITY ACT AMENDMENTS

2     
2015 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Curtis S. Bramble

5     
House Sponsor: Keven J. Stratton

6     

7     LONG TITLE
8     General Description:
9          This bill modifies provisions of the Governmental Immunity Act of Utah.
10     Highlighted Provisions:
11          This bill:
12          ▸     provides that immunity is retained unless expressly waived;
13          ▸     modifies provisions relating to governmental immunity;
14          ▸     modifies language relating to actions that constitute an exception to a waiver of
15     governmental immunity, replacing that language with language indicating that
16     immunity is not waived for an injury under specified conditions; and
17          ▸     makes other technical and conforming changes.
18     Money Appropriated in this Bill:
19          None
20     Other Special Clauses:
21          None
22     Utah Code Sections Affected:
23     AMENDS:
24          53A-3-413, as last amended by Laws of Utah 2014, Chapter 73
25          63G-7-101, as renumbered and amended by Laws of Utah 2008, Chapter 382
26          63G-7-201, as last amended by Laws of Utah 2012, Chapter 24
27          63G-7-301, as last amended by Laws of Utah 2014, Chapter 145
28     

29     Be it enacted by the Legislature of the state of Utah:
30          Section 1. Section 53A-3-413 is amended to read:
31          53A-3-413. Use of public school buildings and grounds as civic centers.
32          (1) As used in this section, "civic center" means a public school building or ground that
33     is established and maintained as a limited public forum to district residents for supervised
34     recreational activities and meetings.
35          (2) Except as provided in Subsection (3), all public school buildings and grounds shall
36     be civic centers.
37          (3) The use of school property for a civic center purpose:
38          (a) may not interfere with a school function or purpose; and
39          (b) is considered a permit for governmental immunity purposes for a governmental
40     entity under Subsection [63G-7-301(5)(c)] 63G-7-201(4)(c).
41          Section 2. Section 63G-7-101 is amended to read:
42          63G-7-101. Title -- Scope of waivers and retentions of immunity.
43          (1) This chapter is known as the "Governmental Immunity Act of Utah."
44          (2) [(a)] The scope of the waivers and retentions of immunity found in this
45     comprehensive chapter [apply]:
46          (a) applies to all functions of government, no matter how labeled[.]; and
47          (b) [This single, comprehensive chapter] governs all claims against governmental
48     entities or against their employees or agents arising out of the performance of the employee's
49     duties, within the scope of employment, or under color of authority.
50          (3) A governmental entity and an employee of a governmental entity retain immunity
51     from suit unless that immunity has been expressly waived in this chapter.
52          Section 3. Section 63G-7-201 is amended to read:
53          63G-7-201. Immunity of governmental entities and employees from suit.
54          (1) Except as [may be] otherwise provided in this chapter, each governmental entity
55     and each employee of a governmental entity are immune from suit for any injury that results
56     from the exercise of a governmental function.
57          (2) Notwithstanding the waiver of immunity provisions of Section 63G-7-301, a
58     governmental entity, its officers, and its employees are immune from suit for any injury or
59     damage resulting from the implementation of or the failure to implement measures to:
60          (a) control the causes of epidemic and communicable diseases and other conditions
61     significantly affecting the public health or necessary to protect the public health as set out in
62     Title 26A, Chapter 1, Local Health Departments;
63          (b) investigate and control suspected bioterrorism and disease as set out in Title 26,
64     Chapter 23b, Detection of Public Health Emergencies Act;
65          (c) respond to a national, state, or local emergency, a public health emergency as
66     defined in Section 26-23b-102, or a declaration by the President of the United States or other
67     federal official requesting public health related activities; and
68          (d) adopt methods or measures, in accordance with Section 26-1-30, for health care
69     providers, public health entities, and health care insurers to coordinate among themselves to
70     verify the identity of the individuals they serve.
71          (3) A governmental entity, its officers, and its employees are immune from suit, and
72     immunity is not waived, for any injury if the injury arises out of or in connection with, or
73     results from:
74          (a) a latent dangerous or latent defective condition of:
75          (i) any highway, road, street, alley, crosswalk, sidewalk, culvert, tunnel, bridge, or
76     viaduct; or
77          (ii) another structure located on any of the items listed in Subsection (3)(a)(i); or
78          (b) a latent dangerous or latent defective condition of any public building, structure,
79     dam, reservoir, or other public improvement.
80          (4) A governmental entity, its officers, and its employees are immune from suit, and
81     immunity is not waived, for any injury proximately caused by a negligent act or omission of an
82     employee committed within the scope of employment, if the injury arises out of or in
83     connection with, or results from:
84          (a) the exercise or performance, or the failure to exercise or perform, a discretionary
85     function, whether or not the discretion is abused;
86          (b) assault, battery, false imprisonment, false arrest, malicious prosecution, intentional
87     trespass, abuse of process, libel, slander, deceit, interference with contract rights, infliction of
88     mental anguish, or violation of civil rights;
89          (c) the issuance, denial, suspension, or revocation of, or the failure or refusal to issue,
90     deny, suspend, or revoke, any permit, license, certificate, approval, order, or similar
91     authorization;
92          (d) a failure to make an inspection or making an inadequate or negligent inspection;
93          (e) the institution or prosecution of any judicial or administrative proceeding, even if
94     malicious or without probable cause;
95          (f) a misrepresentation by an employee whether or not the misrepresentation is
96     negligent or intentional;
97          (g) a riot, unlawful assembly, public demonstration, mob violence, or civil disturbance;
98          (h) the collection or assessment of taxes;
99          (i) an activity of the Utah National Guard;
100          (j) the incarceration of a person in a state prison, county or city jail, or other place of
101     legal confinement;
102          (k) a natural condition on publicly owned or controlled land;
103          (l) a condition existing in connection with an abandoned mine or mining operation;
104          (m) an activity authorized by the School and Institutional Trust Lands Administration
105     or the Division of Forestry, Fire, and State Lands;
106          (n) the operation or existence of a pedestrian or equestrian trail that is along a ditch,
107     canal, stream, or river, regardless of ownership or operation of the ditch, canal, stream, or river,
108     if:
109          (i) the trail is designated under a general plan adopted by a municipality under Section
110     10-9a-401 or by a county under Section 17-27a-401;
111          (ii) the trail right-of-way or the right-of-way where the trail is located is open to public
112     use as evidenced by a written agreement between:
113          (A) the owner or operator of the trail right-of-way or of the right-of-way where the trail
114     is located; and
115          (B) the municipality or county where the trail is located; and
116          (iii) the written agreement:
117          (A) contains a plan for operation and maintenance of the trail; and
118          (B) provides that an owner or operator of the trail right-of-way or of the right-of-way
119     where the trail is located has, at a minimum, the same level of immunity from suit as the
120     governmental entity in connection with or resulting from the use of the trail;
121          (o) research or implementation of cloud management or seeding for the clearing of fog;
122          (p) the management of flood waters, earthquakes, or natural disasters;
123          (q) the construction, repair, or operation of flood or storm systems;
124          (r) the operation of an emergency vehicle, while being driven in accordance with the
125     requirements of Section 41-6a-212;
126          (s) the activity of:
127          (i) providing emergency medical assistance;
128          (ii) fighting fire;
129          (iii) regulating, mitigating, or handling hazardous materials or hazardous wastes;
130          (iv) an emergency evacuation;
131          (v) transporting or removing an injured person to a place where emergency medical
132     assistance can be rendered or where the person can be transported by a licensed ambulance
133     service; or
134          (vi) intervening during a dam emergency;
135          (t) the exercise or performance, or the failure to exercise or perform, any function
136     pursuant to Title 73, Chapter 10, Board of Water Resources - Division of Water Resources;
137          (u) an unauthorized access to government records, data, or electronic information
138     systems by any person or entity; or
139          (v) an activity of wildlife, as defined in Section 23-13-2, that arises during the use of a
140     public or private road.
141          Section 4. Section 63G-7-301 is amended to read:
142          63G-7-301. Waivers of immunity.
143          (1) (a) Immunity from suit of each governmental entity is waived as to any contractual
144     obligation.
145          (b) Actions arising out of contractual rights or obligations are not subject to the
146     requirements of Sections 63G-7-401, 63G-7-402, 63G-7-403, or 63G-7-601.
147          (c) The Division of Water Resources is not liable for failure to deliver water from a
148     reservoir or associated facility authorized by Title 73, Chapter 26, Bear River Development
149     Act, if the failure to deliver the contractual amount of water is due to drought, other natural
150     condition, or safety condition that causes a deficiency in the amount of available water.
151          (2) Immunity from suit of each governmental entity is waived:
152          (a) as to any action brought to recover, obtain possession of, or quiet title to real or
153     personal property;
154          (b) as to any action brought to foreclose mortgages or other liens on real or personal
155     property, to determine any adverse claim on real or personal property, or to obtain an
156     adjudication about any mortgage or other lien that the governmental entity may have or claim
157     on real or personal property;
158          (c) as to any action based on the negligent destruction, damage, or loss of goods,
159     merchandise, or other property while it is in the possession of any governmental entity or
160     employee, if the property was seized for the purpose of forfeiture under any provision of state
161     law;
162          (d) subject to Subsection 63G-7-302(1), as to any action brought under the authority of
163     [Article I, Section 22, of the] Utah Constitution, Article I, Section 22, for the recovery of
164     compensation from the governmental entity when the governmental entity has taken or
165     damaged private property for public uses without just compensation;
166          (e) subject to Subsection 63G-7-302(2), as to any action brought to recover attorney
167     fees under Sections 63G-2-405 and 63G-2-802;
168          (f) for actual damages under Title 67, Chapter 21, Utah Protection of Public Employees
169     Act; [or]
170          (g) as to any action brought to obtain relief from a land use regulation that imposes a
171     substantial burden on the free exercise of religion under Title 63L, Chapter 5, Utah Religious
172     Land Use Act[.];
173          [(3) (a) Except as provided in Subsection (3)(b), immunity from suit of each
174     governmental entity is waived as to any injury caused by:]
175          [(i) a defective, unsafe, or dangerous condition of any highway, road, street, alley,
176     crosswalk, sidewalk, culvert, tunnel, bridge, viaduct, or other structure located on them; or]
177          [(ii) any defective or dangerous condition of a public building, structure, dam,
178     reservoir, or other public improvement.]
179          [(b) Immunity from suit of each governmental entity is not waived if the injury arises
180     out of, in connection with, or results from:]
181          [(i) a latent dangerous or latent defective condition of any highway, road, street, alley,
182     crosswalk, sidewalk, culvert, tunnel, bridge, viaduct, or other structure located on them; or]
183          [(ii) a latent dangerous or latent defective condition of any public building, structure,
184     dam, reservoir, or other public improvement.]
185          [(4) Immunity from suit of each governmental entity is waived]
186          (h) except as provided in Subsection 63G-7-201(3), as to any injury caused by:
187          (i) a defective, unsafe, or dangerous condition of any highway, road, street, alley,
188     crosswalk, sidewalk, culvert, tunnel, bridge, viaduct, or other structure located on them; or
189          (ii) any defective or dangerous condition of a public building, structure, dam, reservoir,
190     or other public improvement; and
191          (i) subject to Subsection 63G-7-201(4), as to any injury proximately caused by a
192     negligent act or omission of an employee committed within the scope of employment.
193          [(5) Immunity from suit of each governmental entity is not waived under Subsections
194     (3) and (4) if the injury arises out of, in connection with, or results from:]
195          [(a) the exercise or performance, or the failure to exercise or perform, a discretionary
196     function, whether or not the discretion is abused;]
197          [(b) assault, battery, false imprisonment, false arrest, malicious prosecution, intentional
198     trespass, abuse of process, libel, slander, deceit, interference with contract rights, infliction of
199     mental anguish, or violation of civil rights;]
200          [(c) the issuance, denial, suspension, or revocation of, or by the failure or refusal to
201     issue, deny, suspend, or revoke, any permit, license, certificate, approval, order, or similar
202     authorization;]
203          [(d) a failure to make an inspection or by making an inadequate or negligent
204     inspection;]
205          [(e) the institution or prosecution of any judicial or administrative proceeding, even if
206     malicious or without probable cause;]
207          [(f) a misrepresentation by an employee whether or not it is negligent or intentional;]
208          [(g) riots, unlawful assemblies, public demonstrations, mob violence, and civil
209     disturbances;]
210          [(h) the collection of and assessment of taxes;]
211          [(i) the activities of the Utah National Guard;]
212          [(j) the incarceration of any person in any state prison, county or city jail, or other place
213     of legal confinement;]
214          [(k) any natural condition on publicly owned or controlled lands;]
215          [(l) any condition existing in connection with an abandoned mine or mining operation;]
216          [(m) any activity authorized by the School and Institutional Trust Lands Administration
217     or the Division of Forestry, Fire, and State Lands;]
218          [(n) the operation or existence of a pedestrian or equestrian trail that is along a ditch,
219     canal, stream, or river, regardless of ownership or operation of the ditch, canal, stream, or river,
220     if:]
221          [(i) the trail is designated under a general plan adopted by a municipality under Section
222     10-9a-401 or by a county under Section 17-27a-401;]
223          [(ii) the trail right-of-way or the right-of-way where the trail is located is open to public
224     use as evidenced by a written agreement between the owner or operator of the trail
225     right-of-way, or of the right-of-way where the trail is located, and the municipality or county
226     where the trail is located; and]
227          [(iii) the written agreement:]
228          [(A) contains a plan for operation and maintenance of the trail; and]
229          [(B) provides that an owner or operator of the trail right-of-way or of the right-of-way
230     where the trail is located has, at minimum, the same level of immunity from suit as the
231     governmental entity in connection with or resulting from the use of the trail.]
232          [(o) research or implementation of cloud management or seeding for the clearing of
233     fog;]
234          [(p) the management of flood waters, earthquakes, or natural disasters;]
235          [(q) the construction, repair, or operation of flood or storm systems;]
236          [(r) the operation of an emergency vehicle, while being driven in accordance with the
237     requirements of Section 41-6a-212;]
238          [(s) the activities of:]
239          [(i) providing emergency medical assistance;]
240          [(ii) fighting fire;]
241          [(iii) regulating, mitigating, or handling hazardous materials or hazardous wastes;]
242          [(iv) emergency evacuations;]
243          [(v) transporting or removing injured persons to a place where emergency medical
244     assistance can be rendered or where the person can be transported by a licensed ambulance
245     service; or]
246          [(vi) intervening during dam emergencies;]
247          [(t) the exercise or performance, or the failure to exercise or perform, any function
248     pursuant to Title 73, Chapter 10, Board of Water Resources - Division of Water Resources;]
249          [(u) unauthorized access to government records, data, or electronic information
250     systems by any person or entity; or]
251          [(v) injury related to the activity of wildlife, as defined in Section 23-13-2, that arises
252     during the use of a public or private road.]