1     
GOVERNMENTAL IMMUNITY AMENDMENTS

2     
2017 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: V. Lowry Snow

5     
Senate Sponsor: Curtis S. Bramble

6     

7     LONG TITLE
8     General Description:
9          This bill modifies provisions relating to governmental immunity.
10     Highlighted Provisions:
11          This bill:
12          ▸     provides that governmental immunity is preserved for an injury arising out of or in
13     connection with, or resulting from, certain conduct or conditions even if immunity
14     would otherwise be waived;
15          ▸     enacts language specifying the relationship between an injury and certain conduct or
16     conditions in determining whether immunity applies;
17          ▸     allows a claimant to begin an action after the applicable time limit if a previous
18     timely action failed or was dismissed, other than on the merits, and other conditions
19     are met; and
20          ▸     modifies language relating to a plaintiff's undertaking in an action against a
21     governmental entity.
22     Money Appropriated in this Bill:
23          None
24     Other Special Clauses:
25          None
26     Utah Code Sections Affected:
27     AMENDS:
28          63G-7-101, as last amended by Laws of Utah 2015, Chapter 342
29          63G-7-102, as last amended by Laws of Utah 2016, Chapter 350
30          63G-7-301, as last amended by Laws of Utah 2015, Chapter 342
31          63G-7-403, as renumbered and amended by Laws of Utah 2008, Chapter 382
32          63G-7-601, as renumbered and amended by Laws of Utah 2008, Chapter 382
33     

34     Be it enacted by the Legislature of the state of Utah:
35          Section 1. Section 63G-7-101 is amended to read:
36          63G-7-101. Title -- Scope of waivers and retentions of immunity.
37          (1) This chapter is known as the "Governmental Immunity Act of Utah."
38          (2) The scope of the waivers and retentions of immunity found in this comprehensive
39     chapter:
40          (a) applies to all functions of government, no matter how labeled; and
41          (b) governs all claims against governmental entities or against their employees or agents
42     arising out of the performance of the employee's duties, within the scope of employment, or
43     under color of authority.
44          (3) A governmental entity and an employee of a governmental entity retain immunity
45     from suit unless that immunity has been expressly waived in this chapter.
46          (4) A governmental entity and an employee of a governmental entity retain immunity
47     from suit if an injury arises out of or in connection with, or results from, conduct or a condition
48     described in Subsection 63G-7-201(3) or (4), even if immunity from suit for the injury is
49     waived under Section 63G-7-301.
50          Section 2. Section 63G-7-102 is amended to read:
51          63G-7-102. Definitions.
52          As used in this chapter:
53          (1) "Arises out of or in connection with, or results from," when used to describe the
54     relationship between conduct or a condition and an injury, means that:
55          (a) there is some causal relationship between the conduct or condition and the injury;
56          (b) the causal relationship is more than any causal connection but less than proximate
57     cause; and
58          (c) the causal relationship is sufficient to conclude that the injury originates with, flows
59     from, or is incident to the conduct or condition.
60          [(1)] (2) "Claim" means any asserted demand for or cause of action for money or
61     damages, whether arising under the common law, under state constitutional provisions, or
62     under state statutes, against a governmental entity or against an employee in the employee's
63     personal capacity.
64          [(2)] (3) (a) "Employee" includes:
65          (i) a governmental entity's officers, employees, servants, trustees, or commissioners;
66          (ii) members of a governing body;
67          (iii) members of a government entity board;
68          (iv) members of a government entity commission;
69          (v) members of an advisory body, officers, and employees of a Children's Justice
70     Center created in accordance with Section [67-5b-104] 67-5b-102;
71          (vi) student teachers holding a letter of authorization in accordance with Sections
72     53A-6-103 and 53A-6-104;
73          (vii) educational aides;
74          (viii) students engaged in providing services to members of the public in the course of
75     an approved medical, nursing, or other professional health care clinical training program;
76          (ix) volunteers as defined by Subsection 67-20-2(3); and
77          (x) tutors.
78          (b) "Employee" includes all of the positions identified in Subsection [(2)] (3)(a),
79     whether or not the individual holding that position receives compensation.
80          (c) "Employee" does not include an independent contractor.
81          [(3)] (4) "Governmental entity" means the state and its political subdivisions as both
82     are defined in this section.
83          [(4)] (5) (a) "Governmental function" means each activity, undertaking, or operation of
84     a governmental entity.
85          (b) "Governmental function" includes each activity, undertaking, or operation
86     performed by a department, agency, employee, agent, or officer of a governmental entity.
87          (c) "Governmental function" includes a governmental entity's failure to act.
88          [(5)] (6) "Injury" means death, injury to a person, damage to or loss of property, or any
89     other injury that a person may suffer to the person or estate, that would be actionable if
90     inflicted by a private person or the private person's agent.
91          [(6)] (7) "Personal injury" means an injury of any kind other than property damage.
92          [(7)] (8) "Political subdivision" means any county, city, town, school district,
93     community reinvestment agency, special improvement or taxing district, local district, special
94     service district, an entity created by an interlocal agreement adopted under Title 11, Chapter 13,
95     Interlocal Cooperation Act, or other governmental subdivision or public corporation.
96          [(8)] (9) "Property damage" means injury to, or loss of, any right, title, estate, or
97     interest in real or personal property.
98          [(9)] (10) "State" means the state of Utah, and includes each office, department,
99     division, agency, authority, commission, board, institution, hospital, college, university,
100     Children's Justice Center, or other instrumentality of the state.
101          [(10)] (11) "Willful misconduct" means the intentional doing of a wrongful act, or the
102     wrongful failure to act, without just cause or excuse, where the actor is aware that the actor's
103     conduct will probably result in injury.
104          Section 3. Section 63G-7-301 is amended to read:
105          63G-7-301. Waivers of immunity.
106          (1) (a) Immunity from suit of each governmental entity is waived as to any contractual
107     obligation.
108          (b) Actions arising out of contractual rights or obligations are not subject to the
109     requirements of Sections 63G-7-401, 63G-7-402, 63G-7-403, or 63G-7-601.
110          (c) The Division of Water Resources is not liable for failure to deliver water from a
111     reservoir or associated facility authorized by Title 73, Chapter 26, Bear River Development
112     Act, if the failure to deliver the contractual amount of water is due to drought, other natural
113     condition, or safety condition that causes a deficiency in the amount of available water.
114          (2) Immunity from suit of each governmental entity is waived:
115          (a) as to any action brought to recover, obtain possession of, or quiet title to real or
116     personal property;
117          (b) as to any action brought to foreclose mortgages or other liens on real or personal
118     property, to determine any adverse claim on real or personal property, or to obtain an
119     adjudication about any mortgage or other lien that the governmental entity may have or claim
120     on real or personal property;
121          (c) as to any action based on the negligent destruction, damage, or loss of goods,
122     merchandise, or other property while it is in the possession of any governmental entity or
123     employee, if the property was seized for the purpose of forfeiture under any provision of state
124     law;
125          (d) subject to Subsection 63G-7-302(1), as to any action brought under the authority of
126     Utah Constitution, Article I, Section 22, for the recovery of compensation from the
127     governmental entity when the governmental entity has taken or damaged private property for
128     public uses without just compensation;
129          (e) subject to Subsection 63G-7-302(2), as to any action brought to recover attorney
130     fees under Sections 63G-2-405 and 63G-2-802;
131          (f) for actual damages under Title 67, Chapter 21, Utah Protection of Public Employees
132     Act;
133          (g) as to any action brought to obtain relief from a land use regulation that imposes a
134     substantial burden on the free exercise of religion under Title 63L, Chapter 5, Utah Religious
135     Land Use Act;
136          (h) except as provided in Subsection 63G-7-201(3), as to any injury caused by:
137          (i) a defective, unsafe, or dangerous condition of any highway, road, street, alley,
138     crosswalk, sidewalk, culvert, tunnel, bridge, viaduct, or other structure located on them; or
139          (ii) any defective or dangerous condition of a public building, structure, dam, reservoir,
140     or other public improvement; and
141          (i) subject to [Subsection] Subsections 63G-7-101(4) and 63G-7-201(4), as to any
142     injury proximately caused by a negligent act or omission of an employee committed within the
143     scope of employment.
144          Section 4. Section 63G-7-403 is amended to read:
145          63G-7-403. Notice of claim -- Approval or denial of claim -- Action in district
146     court -- Time for commencing action -- Commencing action after time limit.
147          (1) (a) Within 60 days of the filing of a notice of claim, the governmental entity or its
148     insurance carrier shall inform the claimant in writing that the claim has either been approved or
149     denied.
150          (b) A claim is considered to be denied if, at the end of the 60-day period, the
151     governmental entity or its insurance carrier has failed to approve or deny the claim.
152          (2) (a) If the claim is denied, a claimant may [institute] pursue an action in the district
153     court against the governmental entity or an employee of the entity.
154          (b) [The] Subject to Subsection (3), a claimant shall [begin] commence the action
155     within one year after denial of the claim or within one year after the denial period specified in
156     this chapter has expired, regardless of whether or not the function giving rise to the claim is
157     characterized as governmental.
158          (3) (a) As used in this Subsection (3), "claimant" includes a representative of an
159     individual:
160          (i) who dies before an action is begun under this section; and
161          (ii) whose cause of action survives the individual's death.
162          (b) A claimant may commence an action after the time limit described in Subsection
163     (2)(b) if:
164          (i) the claimant had commenced a previous action within the time limit of Subsection
165     (2)(b);
166          (ii) the previous action failed or was dismissed for a reason other than on the merits;
167     and
168          (iii) the claimant commences the new action within one year after the previous action
169     failed or was dismissed.
170          (c) A claimant may commence a new action under Subsection (3)(b) only once.
171          Section 5. Section 63G-7-601 is amended to read:
172          63G-7-601. Actions governed by Utah Rules of Civil Procedure -- Undertaking
173     required.
174          (1) An action brought under this chapter shall be governed by the Utah Rules of Civil
175     Procedure to the extent that they are consistent with this chapter.
176          (2) At the time the action is filed, the plaintiff shall file an undertaking [in a sum fixed
177     by the court that is]:
178          (a) [not less than $300] in the amount of $300, unless otherwise ordered by the court;
179     and
180          (b) conditioned upon payment by the plaintiff of taxable costs incurred by the
181     governmental entity in the action if the plaintiff fails to prosecute the action or fails to recover
182     judgment.