2
3
4
5
6
7 LONG TITLE
8 General Description:
9 This bill modifies provisions related to governmental immunity.
10 Highlighted Provisions:
11 This bill:
12 ▸ modifies the requirements for causation in relation to waiving a local education
13 agency's governmental immunity for sexual battery or abuse committed by an
14 employee against a student;
15 ▸ removes a local education agency's immunity from suit if the local education agency
16 has failed to provide ongoing supervision of employees for compliance with a code
17 of conduct; and
18 ▸ requires a local education agency to pay any attorney fees and court costs incurred
19 by an injured student if immunity is waived.
20 Money Appropriated in this Bill:
21 None
22 Other Special Clauses:
23 None
24 Utah Code Sections Affected:
25 AMENDS:
26 63G-7-301, as last amended by Laws of Utah 2022, Chapters 388, 428
27
28 Be it enacted by the Legislature of the state of Utah:
29 Section 1. Section 63G-7-301 is amended to read:
30 63G-7-301. Waivers of immunity.
31 (1) (a) Immunity from suit of each governmental entity is waived as to any contractual
32 obligation.
33 (b) Actions arising out of contractual rights or obligations are not subject to the
34 requirements of Section 63G-7-401, 63G-7-402, 63G-7-403, or 63G-7-601.
35 (c) The Division of Water Resources is not liable for failure to deliver water from a
36 reservoir or associated facility authorized by Title 73, Chapter 26, Bear River Development
37 Act, if the failure to deliver the contractual amount of water is due to drought, other natural
38 condition, or safety condition that causes a deficiency in the amount of available water.
39 (2) Immunity from suit of each governmental entity is waived:
40 (a) as to any action brought to recover, obtain possession of, or quiet title to real or
41 personal property;
42 (b) as to any action brought to foreclose mortgages or other liens on real or personal
43 property, to determine any adverse claim on real or personal property, or to obtain an
44 adjudication about any mortgage or other lien that the governmental entity may have or claim
45 on real or personal property;
46 (c) as to any action based on the negligent destruction, damage, or loss of goods,
47 merchandise, or other property while it is in the possession of any governmental entity or
48 employee, if the property was seized for the purpose of forfeiture under any provision of state
49 law;
50 (d) subject to Section 63G-7-302, as to any action brought under the authority of Utah
51 Constitution, Article I, Section 22, for the recovery of compensation from the governmental
52 entity when the governmental entity has taken or damaged private property for public uses
53 without just compensation;
54 (e) as to any claim for attorney fees or costs under Sections 63G-2-405 and 63G-2-802;
55 (f) for actual damages under Title 67, Chapter 21, Utah Protection of Public Employees
56 Act;
57 (g) as to any action brought to obtain relief from a land use regulation that imposes a
58 substantial burden on the free exercise of religion under Title 63L, Chapter 5, Utah Religious
59 Land Use Act;
60 (h) except as provided in Subsection 63G-7-201(3), as to any injury caused by:
61 (i) a defective, unsafe, or dangerous condition of any highway, road, street, alley,
62 crosswalk, sidewalk, culvert, tunnel, bridge, viaduct, or other structure located on them; or
63 (ii) any defective or dangerous condition of a public building, structure, dam, reservoir,
64 or other public improvement;
65 (i) subject to Subsections 63G-7-101(4) and 63G-7-201(4), as to any injury
66 proximately caused by a negligent act or omission of an employee committed within the scope
67 of employment;
68 (j) notwithstanding Subsection 63G-7-101(4), as to a claim for an injury resulting from
69 a sexual battery, as provided in Section 76-9-702.1, committed:
70 (i) against a student of a public elementary or secondary school, including a charter
71 school; and
72 (ii) by an employee of a public elementary or secondary school or charter school who:
73 (A) at the time of the sexual battery, held a position of special trust, as defined in
74 Section 76-5-404.1, with respect to the student;
75 (B) is criminally charged in connection with the sexual battery; and
76 (C) the public elementary or secondary school or charter school knew or in the exercise
77 of reasonable care should have known, at the time of the employee's hiring, to be a sex
78 offender, as defined in Section 77-41-102, required to register under Title 77, Chapter 41, Sex
79 and Kidnap Offender Registry, whose status as a sex offender would have been revealed in a
80 background check under Section 53G-11-402; and
81 (k) as to any action brought under Section 78B-6-2303.
82 (3) (a) As used in this Subsection (3):
83 (i) "Code of conduct" means a code of conduct that:
84 (A) is not less stringent than a model code of conduct, created by the State Board of
85 Education, establishing a professional standard of care for preventing the conduct described in
86 Subsection (3)(a)(i)(D);
87 (B) is adopted by the applicable local education governing body;
88 (C) regulates behavior of a school employee toward a student; and
89 (D) includes a prohibition against any sexual conduct between an employee and a
90 student and against the employee and student sharing any sexually explicit or lewd
91 communication, image, or photograph.
92 (ii) "Local education agency" means:
93 (A) a school district;
94 (B) a charter school; or
95 (C) the Utah Schools for the Deaf and the Blind.
96 (iii) "Local education governing board" means:
97 (A) for a school district, the local school board;
98 (B) for a charter school, the charter school governing board; or
99 (C) for the Utah Schools for the Deaf and the Blind, the state board.
100 (iv) "Public school" means a public elementary or secondary school.
101 (v) "Sexual abuse" means the offense described in Subsection 76-5-404.1(2).
102 (vi) "Sexual battery" means the offense described in Section 76-9-702.1, considering
103 the term "child" in that section to include an individual under age 18.
104 (b) Notwithstanding Subsection 63G-7-101(4), immunity from suit is waived as to a
105 claim against a local education agency for [
106 arises out of or in connection with, or results from:
107 (i) a sexual battery or sexual abuse committed against a student of a public school by a
108 paid employee of the public school who is criminally charged in connection with the sexual
109 battery or sexual abuse, unless:
110 [
111 to a code of conduct; and
112 [
113 [
114 [
115 has read and understands the code of conduct[
116 (ii) failure of a local education agency to provide ongoing supervision of paid
117 employees to ensure compliance with a code of conduct's prohibition of sexual conduct or
118 sexual relations.
119 (c) A court shall order that a local education agency pay any attorney fees and court
120 costs incurred by an injured student if the court determines that immunity has been waived
121 under the provisions of this Subsection (3).
122 (4) (a) As used in this Subsection (4):
123 (i) "Higher education institution" means an institution included within the state system
124 of higher education under Section 53B-1-102.
125 (ii) "Policy governing behavior" means a policy adopted by a higher education
126 institution or the Utah Board of Higher Education that:
127 (A) establishes a professional standard of care for preventing the conduct described in
128 Subsections (4)(a)(ii)(C) and (D);
129 (B) regulates behavior of a special trust employee toward a subordinate student;
130 (C) includes a prohibition against any sexual conduct between a special trust employee
131 and a subordinate student; and
132 (D) includes a prohibition against a special trust employee and subordinate student
133 sharing any sexually explicit or lewd communication, image, or photograph.
134 (iii) "Sexual battery" means the offense described in Section 76-9-702.1.
135 (iv) "Special trust employee" means an employee of a higher education institution who
136 is in a position of special trust, as defined in Section 76-5-404.1, with a higher education
137 student.
138 (v) "Subordinate student" means a student:
139 (A) of a higher education institution; and
140 (B) whose educational opportunities could be adversely impacted by a special trust
141 employee.
142 (b) Notwithstanding Subsection 63G-7-101(4), immunity from suit is waived as to a
143 claim for an injury resulting from a sexual battery committed against a subordinate student by a
144 special trust employee, unless:
145 (i) the institution proves that the special trust employee's behavior that otherwise would
146 constitute a sexual battery was:
147 (A) with a subordinate student who was at least 18 years old at the time of the
148 behavior; and
149 (B) with the student's consent; or
150 (ii) (A) at the time of the sexual battery, the higher education institution was subject to
151 a policy governing behavior; and
152 (B) before the sexual battery occurred, the higher education institution had taken steps
153 to implement and enforce the policy governing behavior.