This document includes Senate 3rd Reading Floor Amendments incorporated into the bill on Wed, Mar 13, 2019 at 7:05 PM by lpoole.
Senator Todd Weiler proposes the following substitute bill:





Chief Sponsor: Ken Ivory

Senate Sponsor: Deidre M. Henderson

7     Cosponsors:
8     Patrice M. Arent
Brian S. King
Karianne Lisonbee
V. Lowry Snow

11     General Description:
12          This bill modifies provisions relating to governmental immunity.
13     Highlighted Provisions:
14          This bill:
15          ▸     waives governmental immunity for an injury claim resulting from a sexual battery
16     or sexual abuse of a child against a student by a school employee unless the school
17     was subject to a specified policy and had taken reasonable steps to implement and
18     enforce the policy; Ŝ→ and ←Ŝ
19          ▸     waives governmental immunity for an injury claim resulting from a sexual battery
20     of a student by an employee of an institution of higher education, under certain
21     circumstances Ŝ→ [
: and] . ←Ŝ
22     Ŝ→ [
     ▸     provides for an award of attorney fees, under certain circumstances.] ←Ŝ
23     Money Appropriated in this Bill:
24          None

25     Other Special Clauses:
26          None
27     Utah Code Sections Affected:
28     AMENDS:
29          63G-7-201, as last amended by Laws of Utah 2016, Chapter 181
30          63G-7-301, as amended by Statewide Initiative -- Proposition 4, Nov. 6, 2018
31     Ŝ→ [
     63G-7-603, as last amended by Laws of Utah 2017, Chapter 152] ←Ŝ

33     Be it enacted by the Legislature of the state of Utah:
34          Section 1. Section 63G-7-201 is amended to read:
35          63G-7-201. Immunity of governmental entities and employees from suit.
36          (1) Except as otherwise provided in this chapter, each governmental entity and each
37     employee of a governmental entity are immune from suit for any injury that results from the
38     exercise of a governmental function.
39          (2) Notwithstanding the waiver of immunity provisions of Section 63G-7-301, a
40     governmental entity, its officers, and its employees are immune from suit for any injury or
41     damage resulting from the implementation of or the failure to implement measures to:
42          (a) control the causes of epidemic and communicable diseases and other conditions
43     significantly affecting the public health or necessary to protect the public health as set out in
44     Title 26A, Chapter 1, Local Health Departments;
45          (b) investigate and control suspected bioterrorism and disease as set out in Title 26,
46     Chapter 23b, Detection of Public Health Emergencies Act;
47          (c) respond to a national, state, or local emergency, a public health emergency as
48     defined in Section 26-23b-102, or a declaration by the President of the United States or other
49     federal official requesting public health related activities, including the use, provision,
50     operation, and management of:
51          (i) an emergency shelter;
52          (ii) housing;
53          (iii) a staging place; or
54          (iv) a medical facility; and
55          (d) adopt methods or measures, in accordance with Section 26-1-30, for health care

56     providers, public health entities, and health care insurers to coordinate among themselves to
57     verify the identity of the individuals they serve.
58          (3) A governmental entity, its officers, and its employees are immune from suit, and
59     immunity is not waived, for any injury if the injury arises out of or in connection with, or
60     results from:
61          (a) a latent dangerous or latent defective condition of:
62          (i) any highway, road, street, alley, crosswalk, sidewalk, culvert, tunnel, bridge, or
63     viaduct; or
64          (ii) another structure located on any of the items listed in Subsection (3)(a)(i); or
65          (b) a latent dangerous or latent defective condition of any public building, structure,
66     dam, reservoir, or other public improvement.
67          (4) A governmental entity, its officers, and its employees are immune from suit, and
68     immunity is not waived, for any injury proximately caused by a negligent act or omission of an
69     employee committed within the scope of employment, if the injury arises out of or in
70     connection with, or results from:
71          (a) the exercise or performance, or the failure to exercise or perform, a discretionary
72     function, whether or not the discretion is abused;
73          (b) except as provided in Subsections 63G-7-301(3) and (4), assault, battery, false
74     imprisonment, false arrest, malicious prosecution, intentional trespass, abuse of process, libel,
75     slander, deceit, interference with contract rights, infliction of mental anguish, or violation of
76     civil rights;
77          (c) the issuance, denial, suspension, or revocation of, or the failure or refusal to issue,
78     deny, suspend, or revoke, any permit, license, certificate, approval, order, or similar
79     authorization;
80          (d) a failure to make an inspection or making an inadequate or negligent inspection;
81          (e) the institution or prosecution of any judicial or administrative proceeding, even if
82     malicious or without probable cause;
83          (f) a misrepresentation by an employee whether or not the misrepresentation is
84     negligent or intentional;
85          (g) a riot, unlawful assembly, public demonstration, mob violence, or civil disturbance;
86          (h) the collection or assessment of taxes;

87          (i) an activity of the Utah National Guard;
88          (j) the incarceration of a person in a state prison, county or city jail, or other place of
89     legal confinement;
90          (k) a natural condition on publicly owned or controlled land;
91          (l) a condition existing in connection with an abandoned mine or mining operation;
92          (m) an activity authorized by the School and Institutional Trust Lands Administration
93     or the Division of Forestry, Fire, and State Lands;
94          (n) the operation or existence of a pedestrian or equestrian trail that is along a ditch,
95     canal, stream, or river, regardless of ownership or operation of the ditch, canal, stream, or river,
96     if:
97          (i) the trail is designated under a general plan adopted by a municipality under Section
98     10-9a-401 or by a county under Section 17-27a-401;
99          (ii) the trail right-of-way or the right-of-way where the trail is located is open to public
100     use as evidenced by a written agreement between:
101          (A) the owner or operator of the trail right-of-way or of the right-of-way where the trail
102     is located; and
103          (B) the municipality or county where the trail is located; and
104          (iii) the written agreement:
105          (A) contains a plan for operation and maintenance of the trail; and
106          (B) provides that an owner or operator of the trail right-of-way or of the right-of-way
107     where the trail is located has, at a minimum, the same level of immunity from suit as the
108     governmental entity in connection with or resulting from the use of the trail;
109          (o) research or implementation of cloud management or seeding for the clearing of fog;
110          (p) the management of flood waters, earthquakes, or natural disasters;
111          (q) the construction, repair, or operation of flood or storm systems;
112          (r) the operation of an emergency vehicle, while being driven in accordance with the
113     requirements of Section 41-6a-212;
114          (s) the activity of:
115          (i) providing emergency medical assistance;
116          (ii) fighting fire;
117          (iii) regulating, mitigating, or handling hazardous materials or hazardous wastes;

118          (iv) an emergency evacuation;
119          (v) transporting or removing an injured person to a place where emergency medical
120     assistance can be rendered or where the person can be transported by a licensed ambulance
121     service; or
122          (vi) intervening during a dam emergency;
123          (t) the exercise or performance, or the failure to exercise or perform, any function
124     pursuant to Title 73, Chapter 10, Board of Water Resources - Division of Water Resources;
125          (u) an unauthorized access to government records, data, or electronic information
126     systems by any person or entity; or
127          (v) an activity of wildlife, as defined in Section 23-13-2, that arises during the use of a
128     public or private road.
129          Section 2. Section 63G-7-301 is amended to read:
130          63G-7-301. Waivers of immunity.
131          (1) (a) Immunity from suit of each governmental entity is waived as to any contractual
132     obligation.
133          (b) Actions arising out of contractual rights or obligations are not subject to the
134     requirements of Sections 63G-7-401, 63G-7-402, 63G-7-403, or 63G-7-601.
135          (c) The Division of Water Resources is not liable for failure to deliver water from a
136     reservoir or associated facility authorized by Title 73, Chapter 26, Bear River Development
137     Act, if the failure to deliver the contractual amount of water is due to drought, other natural
138     condition, or safety condition that causes a deficiency in the amount of available water.
139          (2) Immunity from suit of each governmental entity is waived:
140          (a) as to any action brought to recover, obtain possession of, or quiet title to real or
141     personal property;
142          (b) as to any action brought to foreclose mortgages or other liens on real or personal
143     property, to determine any adverse claim on real or personal property, or to obtain an
144     adjudication about any mortgage or other lien that the governmental entity may have or claim
145     on real or personal property;
146          (c) as to any action based on the negligent destruction, damage, or loss of goods,
147     merchandise, or other property while it is in the possession of any governmental entity or
148     employee, if the property was seized for the purpose of forfeiture under any provision of state

149     law;
150          (d) subject to Subsection 63G-7-302(1), as to any action brought under the authority of
151     Utah Constitution, Article I, Section 22, for the recovery of compensation from the
152     governmental entity when the governmental entity has taken or damaged private property for
153     public uses without just compensation;
154          (e) subject to Subsection 63G-7-302(2), as to any action brought to recover attorney
155     fees under Sections 63G-2-405 and 63G-2-802;
156          (f) for actual damages under Title 67, Chapter 21, Utah Protection of Public Employees
157     Act;
158          (g) as to any action brought to obtain relief from a land use regulation that imposes a
159     substantial burden on the free exercise of religion under Title 63L, Chapter 5, Utah Religious
160     Land Use Act;
161          (h) except as provided in Subsection 63G-7-201(3), as to any injury caused by:
162          (i) a defective, unsafe, or dangerous condition of any highway, road, street, alley,
163     crosswalk, sidewalk, culvert, tunnel, bridge, viaduct, or other structure located on them; or
164          (ii) any defective or dangerous condition of a public building, structure, dam, reservoir,
165     or other public improvement;
166          (i) subject to Subsections 63G-7-101(4) and 63G-7-201(4), as to any injury
167     proximately caused by a negligent act or omission of an employee committed within the scope
168     of employment; and
169          (j) as to any action or suit brought under Section 20A-19-301 and as to any
170     compensation or expenses awarded under Section 20A-19-301(5).
171          (3) (a) As used in this Subsection (3):
172          (i) "Appropriate behavior policy" means a policy that:
173          (A) is not less stringent than a model policy, created by the State Board of Education,
174     establishing a professional standard of care for preventing the conduct described in Subsection
175     (3)(a)(i)(D);
176          (B) is adopted by the applicable local education governing body;
177          (C) regulates behavior of a school employee toward a student; and
178          (D) includes a prohibition against any sexual conduct between an employee and a
179     student and against the employee and student sharing any sexually explicit or lewd

180     communication, image, or photograph.
181          (ii) "Local education agency" means:
182          (A) a school district;
183          (B) a charter school; or
184          (C) the Utah Schools for the Deaf and the Blind.
185          (iii) "Local education governing board" means:
186          (A) for a school district, the local school board;
187          (B) for a charter school, the charter school governing board; or
188          (C) for the Utah Schools for the Deaf and the Blind, the state board.
189          (iv) "Public school" means a public elementary or secondary school.
190          (v) "Sexual abuse" means the offense described in Subsection 76-5-404.1(2).
191          (vi) "Sexual battery" means the offense described in Section 76-9-702.1, considering
192     the term "child" in that section to include an individual under age 18.
193          (b) Notwithstanding Subsection 63G-7-101(4), immunity from suit is waived as to a
194     claim against a local education agency for an injury resulting from a sexual battery or sexual
195     abuse committed against a student of a public school by a paid employee of the public school
196     who is criminally charged in connection with the sexual battery or sexual abuse, unless:
197          (i) at the time of the sexual battery or sexual abuse, the public school was subject to an
198     appropriate behavior policy; and
199          (ii) before the sexual battery or sexual abuse occurred, the public school had:
200          (A) provided training on the policy to the employee; and
201          (B) required the employee to sign a statement acknowledging that the employee has
202     read and understands the policy.
203          (4) (a) As used in this Subsection (4):
204          (i) "Higher education institution" means an institution included within the state system
205     of higher education under Section 53B-1-102.
206          (ii) "Policy governing behavior" means a policy adopted by a higher education
207     institution or the State Board of Regents that:
208          (A) establishes a professional standard of care for preventing the conduct described in
209     Subsections (4)(a)(ii)(C) and (D);
210          (B) regulates behavior of a special trust employee toward a subordinate student;

211          (C) includes a prohibition against any sexual conduct between a special trust employee
212     and a subordinate student; and
213          (D) includes a prohibition against a special trust employee and subordinate student
214     sharing any sexually explicit or lewd communication, image, or photograph.
215          (iii) "Sexual battery" means the offense described in Section 76-9-702.1.
216          (iv) "Special trust employee" means an employee of a higher education institution who
217     is in a position of special trust, as defined in Section 76-5-404.1, with a higher education
218     student.
219          (v) "Subordinate student" means a student:
220          (A) of a higher education institution; and
221          (B) whose educational opportunities could be adversely impacted by a special trust
222     employee.
223          (b) Notwithstanding Subsection 63G-7-101(4), immunity from suit is waived as to a
224     claim for an injury resulting from a sexual battery committed against a subordinate student by a
225     special trust employee, unless:
226          (i) the institution proves that the special trust employee's behavior that otherwise would
227     constitute a sexual battery was:
228          (A) with a subordinate student who was at least 18 years old at the time of the
229     behavior; and
230          (B) with the student's consent; or
231          (ii) (A) at the time of the sexual battery, the higher education institution was subject to
232     a policy governing behavior; and
233          (B) before the sexual battery occurred, the higher education institution had taken steps
234     to implement and enforce the policy governing behavior.
235          Ŝ→ [
Section 3. Section 63G-7-603 is amended to read:
236          63G-7-603. Exemplary or punitive damages prohibited -- Governmental entity
237     not subject to execution, attachment, or garnishment -- Exception.
238          (1) (a) A judgment may not be rendered against a governmental entity for exemplary or
239     punitive damages.
240          (b) If a governmental entity would be required to pay the judgment under Section
241     63G-7-902 or 63G-7-903, the governmental entity shall pay any judgment or portion of any☆

242     ☆judgment entered against its employee in the employee's personal capacity even if the judgment
243     is for or includes exemplary or punitive damages.
244          (2) (a) Except as provided in Subsection (2)(b), execution, attachment, or garnishment
245     may not issue against a governmental entity.
246          (b) A judgment creditor may garnish a state income tax refund owing to the judgment
247     debtor.
248          (3) In an action to recover for an injury described in Subsection 63G-7-301(3) or (4),
249     the court may award a prevailing plaintiff the plaintiff's reasonable attorney fees and costs,
250     apportioned to the local education agency or higher education institution, as applicable,
251     according to the degree of fault of the local education agency or higher education institution.
] ←Ŝ