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To amend sections 723.01, 2744.01, 2744.02, 2744.03, | 1 |
2744.04, 2744.05, 2744.06, 2744.07, 4582.27, | 2 |
5511.01, 5591.36, and 5591.37 of the Revised Code | 3 |
to include as governmental functions under the | 4 |
Political Subdivision Sovereign Immunity Law the | 5 |
design, construction, reconstruction, renovation, | 6 |
repair, maintenance, and operation of any school | 7 |
athletic facility, school auditorium, or gymnasium | 8 |
and the designation, establishment, design, | 9 |
construction, implementation, operation, repair, or | 10 |
maintenance of railroad quiet zones; to expand the | 11 |
motor vehicle operation liability of political | 12 |
subdivisions to include liability for harm caused | 13 |
by negligent operation other than upon public | 14 |
roads; to limit a political subdivision's | 15 |
obligation to defend an employee to acts or | 16 |
omissions that occur while the employee is both | 17 |
acting in good faith and not manifestly outside the | 18 |
scope of employment or official responsibilities; | 19 |
to make changes proposed by Am. Sub. H.B. 350 of | 20 |
the 121st General Assembly to the Political | 21 |
Subdivision Sovereign Immunity Law; and to amend | 22 |
sections 2744.01 and 2744.03 of the Revised Code as | 23 |
scheduled to take effect on January 1, 2002, to | 24 |
continue the amendments of this act on and after | 25 |
that date. | 26 |
Section 1. That sections 723.01, 2744.01, 2744.02, 2744.03, | 27 |
2744.04, 2744.05, 2744.06, 2744.07, 4582.27, 5511.01, 5591.36, and | 28 |
5591.37 of the Revised Code be amended to read as follows: | 29 |
Sec. 723.01. Municipal corporations shall have special power | 30 |
to regulate the use of the streets. Except as provided in section | 31 |
5501.49 of the Revised Code, the legislative authority of a | 32 |
municipal corporation shall have the care, supervision, and | 33 |
control of the public highways, streets, avenues, alleys, | 34 |
sidewalks, public grounds, bridges, aqueducts, and viaducts within | 35 |
the
municipal corporation | 36 |
37 | |
liability or immunity from liability of a municipal corporation | 38 |
for injury, death, or loss to person or property allegedly caused | 39 |
by a failure to perform the responsibilities imposed by this | 40 |
section shall be determined pursuant to divisions (A) and (B)(3) | 41 |
of section 2744.02 of the Revised Code. | 42 |
Sec. 2744.01. As used in this chapter: | 43 |
(A) "Emergency call" means a call to duty, including, but not | 44 |
limited to, communications from citizens, police dispatches, and | 45 |
personal observations by peace officers of inherently dangerous | 46 |
situations that demand an immediate response on the part of a | 47 |
peace officer. | 48 |
(B) "Employee" means an officer, agent, employee, or servant, | 49 |
whether or not compensated or full-time or part-time, who is | 50 |
authorized to act and is acting within the scope of the officer's, | 51 |
agent's, employee's, or servant's employment for a political | 52 |
subdivision. "Employee" does not include an independent contractor | 53 |
and does not include any individual engaged by a school district | 54 |
pursuant to section 3319.301 of the Revised Code. "Employee" | 55 |
includes any elected or appointed official of a political | 56 |
subdivision. "Employee" also includes a person who has been | 57 |
convicted of or pleaded guilty to a criminal offense and who has | 58 |
been sentenced to perform community service work in a political | 59 |
subdivision whether pursuant to section 2951.02 of the Revised | 60 |
Code or otherwise, and a child who is found to be a delinquent | 61 |
child and who is ordered by a juvenile court pursuant to section | 62 |
2151.355 of the Revised Code to perform community service or | 63 |
community work in a political subdivision. | 64 |
(C)(1) "Governmental function" means a function of a | 65 |
political subdivision that is specified in division (C)(2) of this | 66 |
section or that satisfies any of the following: | 67 |
(a) A function that is imposed upon the state as an | 68 |
obligation of sovereignty and that is performed by a political | 69 |
subdivision voluntarily or pursuant to legislative requirement; | 70 |
(b) A function that is for the common good of all citizens | 71 |
of the state; | 72 |
(c) A function that promotes or preserves the public peace, | 73 |
health, safety, or welfare; that involves activities that are not | 74 |
engaged in or not customarily engaged in by nongovernmental | 75 |
persons; and that is not specified in division (G)(2) of this | 76 |
section as a proprietary function. | 77 |
(2) A "governmental function" includes, but is not limited | 78 |
to, the following: | 79 |
(a) The provision or nonprovision of police, fire, emergency | 80 |
medical, ambulance, and rescue services or protection; | 81 |
(b) The power to preserve the peace; to prevent and suppress | 82 |
riots, disturbances, and disorderly assemblages; to prevent, | 83 |
mitigate, and clean up releases of oil and hazardous and extremely | 84 |
hazardous substances as defined in section 3750.01 of the Revised | 85 |
Code; and to protect persons and property; | 86 |
(c) The provision of a system of public education; | 87 |
(d) The provision of a free public library system; | 88 |
(e) The regulation of the use of, and the maintenance and | 89 |
repair of, roads, highways, streets, avenues, alleys, sidewalks, | 90 |
bridges, aqueducts, viaducts, and public grounds; | 91 |
(f) Judicial, quasi-judicial, prosecutorial, legislative, | 92 |
and quasi-legislative functions; | 93 |
(g) The construction, reconstruction, repair, renovation, | 94 |
maintenance, and operation of buildings that are used in | 95 |
connection with the performance of a governmental function, | 96 |
including, but not limited to, office buildings and courthouses; | 97 |
(h) The design, construction, reconstruction, renovation, | 98 |
repair, maintenance, and operation of jails, places of juvenile | 99 |
detention, workhouses, or any other detention facility, as defined | 100 |
in section 2921.01 of the Revised Code; | 101 |
(i) The enforcement or nonperformance of any law; | 102 |
(j) The regulation of traffic, and the erection or | 103 |
nonerection of traffic signs, signals, or control devices; | 104 |
(k) The collection and disposal of solid wastes, as defined | 105 |
in section 3734.01 of the Revised Code, including, but not limited | 106 |
to, the operation of solid waste disposal facilities, as | 107 |
"facilities" is defined in that section, and the collection and | 108 |
management of hazardous waste generated by households. As used in | 109 |
division (C)(2)(k) of this section, "hazardous waste generated by | 110 |
households" means solid waste originally generated by individual | 111 |
households that is listed specifically as hazardous waste in or | 112 |
exhibits one or more characteristics of hazardous waste as defined | 113 |
by rules adopted under section 3734.12 of the Revised Code, but | 114 |
that is excluded from regulation as a hazardous waste by those | 115 |
rules. | 116 |
(l) The provision or nonprovision, planning or design, | 117 |
construction, or reconstruction of a public improvement, | 118 |
including, but not limited to, a sewer system; | 119 |
(m) The operation of a job and family services department | 120 |
or agency, including, but not limited to, the provision of | 121 |
assistance to aged and infirm persons and to persons who are | 122 |
indigent; | 123 |
(n) The operation of a health board, department, or agency, | 124 |
including, but not limited to, any statutorily required or | 125 |
permissive program for the provision of immunizations or other | 126 |
inoculations to all or some members of the public, provided that a | 127 |
"governmental function" does not include the supply, manufacture, | 128 |
distribution, or development of any drug or vaccine employed in | 129 |
any such immunization or inoculation program by any supplier, | 130 |
manufacturer, distributor, or developer of the drug or vaccine; | 131 |
(o) The operation of mental health facilities, mental | 132 |
retardation or developmental disabilities facilities, alcohol | 133 |
treatment and control centers, and children's homes or agencies; | 134 |
(p) The provision or nonprovision of inspection services of | 135 |
all types, including, but not limited to, inspections in | 136 |
connection with building, zoning, sanitation, fire, plumbing, and | 137 |
electrical codes, and the taking of actions in connection with | 138 |
those types of codes, including, but not limited to, the approval | 139 |
of plans for the construction of buildings or structures and the | 140 |
issuance or revocation of building permits or stop work orders in | 141 |
connection with buildings or structures; | 142 |
(q) Urban renewal projects and the elimination of slum | 143 |
conditions; | 144 |
(r) Flood control measures; | 145 |
(s) The design, construction, reconstruction, renovation, | 146 |
operation, care, repair, and maintenance of a township cemetery; | 147 |
(t) The issuance of revenue obligations under section 140.06 | 148 |
of the Revised Code; | 149 |
(u) The design, construction, reconstruction, renovation, | 150 |
repair, maintenance, and operation of any school athletic | 151 |
facility, school auditorium, or gymnasium or any recreational area | 152 |
or facility, including, but not limited to, any of the following: | 153 |
(i) A park, playground, or playfield; | 154 |
(ii) An indoor recreational facility; | 155 |
(iii) A zoo or zoological park; | 156 |
(iv) A bath, swimming pool, pond, water park, wading pool, | 157 |
wave pool, water slide, or other type of aquatic facility; | 158 |
(v) A golf course; | 159 |
(vi) A bicycle motocross facility or other type of | 160 |
recreational area or facility in which bicycling, skating, skate | 161 |
boarding, or scooter riding is engaged; | 162 |
(vii) A rope course or climbing walls; | 163 |
(viii) An all-purpose vehicle facility in which all-purpose | 164 |
vehicles, as defined in section 4519.01 of the Revised Code, are | 165 |
contained, maintained, or operated for recreational activities. | 166 |
(v) The provision of public defender services by a county or | 167 |
joint county public defender's office pursuant to Chapter 120. of | 168 |
the Revised Code; | 169 |
(w)(i) At any time before regulations prescribed pursuant to | 170 |
49 U.S.C.A 20153 become effective, the designation, establishment, | 171 |
design, construction, implementation, operation, repair, or | 172 |
maintenance of a public road rail crossing in a zone within a | 173 |
municipal corporation in which, by ordinance, the legislative | 174 |
authority of the municipal corporation regulates the sounding of | 175 |
locomotive horns, whistles, or bells; | 176 |
(ii) On and after the effective date of regulations | 177 |
prescribed pursuant to 49 U.S.C.A. 20153, the designation, | 178 |
establishment, design, construction, implementation, operation, | 179 |
repair, or maintenance of a public road rail crossing in such a | 180 |
zone or of a supplementary safety measure, as defined in 49 | 181 |
U.S.C.A 20153, at or for a public road rail crossing, if and to | 182 |
the extent that the public road rail crossing is excepted, | 183 |
pursuant to subsection (c) of that section, from the requirement | 184 |
of the regulations prescribed under subsection (b) of that | 185 |
section. | 186 |
(x) A function that the general assembly mandates a political | 187 |
subdivision to perform. | 188 |
(D) "Law" means any provision of the constitution, statutes, | 189 |
or rules of the United States or of this state; provisions of | 190 |
charters, ordinances, resolutions, and rules of political | 191 |
subdivisions; and written policies adopted by boards of education. | 192 |
When used in connection with the "common law," this definition | 193 |
does not apply. | 194 |
(E) "Motor vehicle" has the same meaning as in section | 195 |
4511.01 of the Revised Code. | 196 |
(F) "Political subdivision" or "subdivision" means a | 197 |
municipal corporation, township, county, school district, or other | 198 |
body corporate and politic responsible for governmental activities | 199 |
in a geographic area smaller than that of the state. "Political | 200 |
subdivision" includes, but is not limited to, a county hospital | 201 |
commission appointed under section 339.14 of the Revised Code, | 202 |
regional planning commission created pursuant to section 713.21 of | 203 |
the Revised Code, county planning commission created pursuant to | 204 |
section 713.22 of the Revised Code, joint planning council created | 205 |
pursuant to section 713.231 of the Revised Code, interstate | 206 |
regional planning commission created pursuant to section 713.30 of | 207 |
the Revised Code, port authority created pursuant to section | 208 |
4582.02 or 4582.26 of the Revised Code or in existence on December | 209 |
16, 1964, regional council established by political subdivisions | 210 |
pursuant to Chapter 167. of the Revised Code, emergency planning | 211 |
district and joint emergency planning district designated under | 212 |
section 3750.03 of the Revised Code, joint emergency medical | 213 |
services district created pursuant to section 307.052 of the | 214 |
Revised Code, fire and ambulance district created pursuant to | 215 |
section 505.375 of the Revised Code, joint interstate emergency | 216 |
planning district established by an agreement entered into under | 217 |
that section, county solid waste management district and joint | 218 |
solid waste management district established under section 343.01 | 219 |
or 343.012 of the Revised Code, and community school established | 220 |
under Chapter 3314. of the Revised Code. | 221 |
(G)(1) "Proprietary function" means a function of a political | 222 |
subdivision that is specified in division (G)(2) of this section | 223 |
or that satisfies both of the following: | 224 |
(a) The function is not one described in division (C)(1)(a) | 225 |
or (b) of this section and is not one specified in division (C)(2) | 226 |
of this section; | 227 |
(b) The function is one that promotes or preserves the | 228 |
public peace, health, safety, or welfare and that involves | 229 |
activities that are customarily engaged in by nongovernmental | 230 |
persons. | 231 |
(2) A "proprietary function" includes, but is not limited | 232 |
to, the following: | 233 |
(a) The operation of a hospital by one or more political | 234 |
subdivisions; | 235 |
(b) The design, construction, reconstruction, renovation, | 236 |
repair, maintenance, and operation of a public cemetery other than | 237 |
a township cemetery; | 238 |
(c) The establishment, maintenance, and operation of a | 239 |
utility, including, but not limited to, a light, gas, power, or | 240 |
heat plant, a railroad, a busline or other transit company, an | 241 |
airport, and a municipal corporation water supply system; | 242 |
(d) The maintenance, destruction, operation, and upkeep of a | 243 |
sewer system; | 244 |
(e) The operation and control of a public stadium, | 245 |
auditorium, civic or social center, exhibition hall, arts and | 246 |
crafts center, band or orchestra, or off-street parking facility. | 247 |
(H) "Public roads" means public roads, highways, streets, | 248 |
avenues, alleys, and bridges within a political subdivision. | 249 |
"Public roads" does not include berms, shoulders, rights-of-way, | 250 |
or traffic control devices unless the traffic control devices are | 251 |
mandated by the Ohio manual of uniform traffic control devices. | 252 |
(I) "State" means the state of Ohio, including, but not | 253 |
limited to, the general assembly, the supreme court, the offices | 254 |
of all elected state officers, and all departments, boards, | 255 |
offices, commissions, agencies, colleges and universities, | 256 |
institutions, and other instrumentalities of the state of Ohio. | 257 |
"State" does not include political subdivisions. | 258 |
Sec. 2744.02. (A)(1) For the purposes of this chapter, the | 259 |
functions of political subdivisions are hereby classified as | 260 |
governmental functions and proprietary functions. Except as | 261 |
provided in division (B) of this section, a political subdivision | 262 |
is not liable in damages in a civil action for injury, death, or | 263 |
loss to person or property allegedly caused by any act or omission | 264 |
of the political subdivision or an employee of the political | 265 |
subdivision in connection with a governmental or proprietary | 266 |
function. | 267 |
(2) Subject to statutory limitations upon their monetary | 268 |
jurisdiction, the courts of common pleas, the municipal courts, | 269 |
and the county courts have jurisdiction to hear and determine | 270 |
civil actions governed by or brought pursuant to this chapter. | 271 |
(B) Subject to sections 2744.03 and 2744.05 of the Revised | 272 |
Code, a political subdivision is liable in damages in a civil | 273 |
action for injury, death, or loss to person or property allegedly | 274 |
caused by an act or omission of the political subdivision or of | 275 |
any of its employees in connection with a governmental or | 276 |
proprietary function, as follows: | 277 |
(1) Except as otherwise provided in this division, political | 278 |
subdivisions are liable for injury, death, or loss to person or | 279 |
property caused by the negligent operation of any motor vehicle by | 280 |
their employees
| 281 |
the employees are engaged within the scope of their employment and | 282 |
authority. The following are full defenses to that liability: | 283 |
(a) A member of a municipal corporation police department or | 284 |
any other police agency was operating a motor vehicle while | 285 |
responding to an emergency call and the operation of the vehicle | 286 |
did not constitute willful or wanton misconduct; | 287 |
(b) A member of a municipal corporation fire department or | 288 |
any other firefighting agency was operating a motor vehicle while | 289 |
engaged in duty at a fire, proceeding toward a place where a fire | 290 |
is in progress or is believed to be in progress, or answering any | 291 |
other emergency alarm and the operation of the vehicle did not | 292 |
constitute willful or wanton misconduct; | 293 |
(c) A member of an emergency medical service owned or | 294 |
operated by a political subdivision was operating a motor vehicle | 295 |
while responding to or completing a call for emergency medical | 296 |
care or treatment, the member was holding a valid commercial | 297 |
driver's license issued pursuant to Chapter 4506. or a driver's | 298 |
license issued pursuant to Chapter 4507. of the Revised Code, the | 299 |
operation of the vehicle did not constitute willful or wanton | 300 |
misconduct, and the operation complies with the precautions of | 301 |
section 4511.03 of the Revised Code. | 302 |
(2) Except as otherwise provided in sections 3314.07 and | 303 |
3746.24 of the Revised Code, political subdivisions are liable for | 304 |
injury, death, or loss to person or property caused by the | 305 |
negligent performance of acts by their employees with respect to | 306 |
proprietary functions of the political subdivisions. | 307 |
(3) Except as otherwise provided in section 3746.24 of the | 308 |
Revised Code, political subdivisions are liable for injury, death, | 309 |
or loss to person or property caused by their negligent failure | 310 |
to
keep
public roads | 311 |
312 | |
313 | |
and other negligent failure to remove obstructions from public | 314 |
roads, except that it is a full defense to that liability, when a | 315 |
bridge within a municipal corporation is involved, that the | 316 |
municipal corporation does not have the responsibility for | 317 |
maintaining or inspecting the bridge. | 318 |
(4) Except as otherwise provided in section 3746.24 of the | 319 |
Revised Code, political subdivisions are liable for injury, death, | 320 |
or loss to person or property that is caused by the negligence of | 321 |
their employees and that occurs within or on the grounds of, and | 322 |
is due to physical defects within or on the grounds of, buildings | 323 |
that are used in connection with the performance of a governmental | 324 |
function, including, but not limited to, office buildings and | 325 |
courthouses, but not including jails, places of juvenile | 326 |
detention, workhouses, or any other detention facility, as defined | 327 |
in section 2921.01 of the Revised Code. | 328 |
(5) In addition to the circumstances described in divisions | 329 |
(B)(1) to (4) of this section, a political subdivision is liable | 330 |
for injury, death, or loss to person or property when civil | 331 |
liability is expressly imposed upon the political subdivision by a | 332 |
section of the Revised Code, including, but not limited to, | 333 |
sections 2743.02
and 5591.37 of the Revised Code.
| 334 |
liability shall not be construed to exist under another section of | 335 |
the Revised Code merely because that section imposes a | 336 |
responsibility
| 337 |
subdivision
| 338 |
penalty, because of a general authorization in that section that a | 339 |
political subdivision may sue and be sued, or because that section | 340 |
uses the term "shall" in a provision pertaining to a political | 341 |
subdivision. | 342 |
(C) An order that denies a political subdivision or an | 343 |
employee of a political subdivision the benefit of an alleged | 344 |
immunity from liability as provided in this chapter or any other | 345 |
provision of the law is a final order. | 346 |
Sec. 2744.03. (A) In a civil action brought against a | 347 |
political subdivision or an employee of a political subdivision to | 348 |
recover damages for injury, death, or loss to
| 349 |
property allegedly caused by any act or omission in connection | 350 |
with a governmental or proprietary function, the following | 351 |
defenses or immunities may be asserted to establish nonliability: | 352 |
(1) The political subdivision is immune from liability if | 353 |
the employee involved was engaged in the performance of a | 354 |
judicial, quasi-judicial, prosecutorial, legislative, or | 355 |
quasi-legislative function. | 356 |
(2) The political subdivision is immune from liability if | 357 |
the conduct of the employee involved, other than negligent | 358 |
conduct, that gave rise to the claim of liability was required by | 359 |
law or authorized by law, or if the conduct of the employee | 360 |
involved that gave rise to the claim of liability was necessary or | 361 |
essential to the exercise of powers of the political subdivision | 362 |
or employee. | 363 |
(3) The political subdivision is immune from liability if | 364 |
the action or failure to act by the employee involved that gave | 365 |
rise to the claim of liability was within the discretion of the | 366 |
employee with respect to policy-making, planning, or enforcement | 367 |
powers by virtue of the duties and responsibilities of the office | 368 |
or position of the employee. | 369 |
(4) The political subdivision is immune from liability if | 370 |
the action or failure to act by the political subdivision or | 371 |
employee involved that gave rise to the claim of liability | 372 |
resulted in injury or death to a person who had been convicted of | 373 |
or pleaded guilty to a criminal offense and who, at the time of | 374 |
the injury or death, was serving any portion of the person's | 375 |
sentence by performing community service work for or in the | 376 |
political subdivision whether pursuant to section 2951.02 of the | 377 |
Revised Code or otherwise, or resulted in injury or death to a | 378 |
child who was found to be a delinquent child and who, at the time | 379 |
of the injury or death, was performing community service or | 380 |
community work for or in a political subdivision in accordance | 381 |
with the order of a juvenile court entered pursuant to section | 382 |
2151.355 of the Revised Code, and if, at the time of the person's | 383 |
or child's injury or death, the person or child was covered for | 384 |
purposes of Chapter 4123. of the Revised Code in connection with | 385 |
the community service or community work for or in the political | 386 |
subdivision. | 387 |
(5) The political subdivision is immune from liability if | 388 |
the injury, death, or loss to
| 389 |
from the exercise of judgment or discretion in determining whether | 390 |
to acquire, or how to use, equipment, supplies, materials, | 391 |
personnel, facilities, and other resources unless the judgment or | 392 |
discretion was exercised with malicious purpose, in bad faith, or | 393 |
in a wanton or reckless manner. | 394 |
(6) In addition to any immunity or defense referred to in | 395 |
division (A)(7) of this section and in circumstances not covered | 396 |
by that division or sections 3314.07 and 3746.24 of the Revised | 397 |
Code, the employee is immune from liability unless one of the | 398 |
following applies: | 399 |
(a) The employee's acts or omissions were manifestly outside | 400 |
the scope of the employee's employment or official | 401 |
responsibilities; | 402 |
(b) The employee's acts or omissions were with malicious | 403 |
purpose, in bad faith, or in a wanton or reckless manner; | 404 |
(c)
| 405 |
employee by a section of the Revised Code. Civil liability shall | 406 |
not be construed to exist under another section of the Revised | 407 |
Code merely because that section imposes a responsibility or | 408 |
mandatory duty upon an employee, because that section provides for | 409 |
a criminal penalty, because of a general authorization in that | 410 |
section that an employee may sue and be sued, or because the | 411 |
section uses the term "shall" in a provision pertaining to an | 412 |
employee. | 413 |
(7) The political subdivision, and an employee who is a | 414 |
county prosecuting attorney, city director of law, village | 415 |
solicitor, or similar chief legal officer of a political | 416 |
subdivision, an assistant of any such person, or a judge of a | 417 |
court of this state is entitled to any defense or immunity | 418 |
available at common law or established by the Revised Code. | 419 |
(B) Any immunity or defense conferred upon, or referred to | 420 |
in connection with, an employee by division (A)(6) or (7) of this | 421 |
section does not affect or limit any liability of a political | 422 |
subdivision for an act or omission of the employee as provided in | 423 |
section 2744.02 of the Revised Code. | 424 |
Sec. 2744.04. (A) An action against a political subdivision | 425 |
to recover damages for injury, death, or loss to
| 426 |
property allegedly caused by any act or omission in connection | 427 |
with a governmental or proprietary function, whether brought as an | 428 |
original action, cross-claim, counterclaim, third-party claim, or | 429 |
claim for subrogation, shall be brought within two years after the | 430 |
cause of action
| 431 |
period of time for bringing the action provided by the Revised | 432 |
Code. The period of limitation contained in this division shall be | 433 |
tolled pursuant to section 2305.16 of the Revised Code. This | 434 |
division applies to actions brought against political subdivisions | 435 |
by all persons, governmental entities, and the state. | 436 |
(B) In the complaint filed in a civil action against a | 437 |
political subdivision or an employee of a political subdivision to | 438 |
recover damages for injury, death, or loss to
| 439 |
property allegedly caused by an act or omission in connection with | 440 |
a governmental or proprietary function, whether filed in an | 441 |
original action, cross-claim, counterclaim, third-party claim, or | 442 |
claim for subrogation, the complainant shall include a demand for | 443 |
a judgment for the damages that the judge in a nonjury trial or | 444 |
the jury in a jury trial finds that the complainant is entitled to | 445 |
be awarded, but shall not specify in that demand any monetary | 446 |
amount for damages sought. | 447 |
Sec. 2744.05. Notwithstanding any other provisions of the | 448 |
Revised Code or rules of a court to the contrary, in an action | 449 |
against a political subdivision to recover damages for injury, | 450 |
death, or loss to person or property caused by an act or omission | 451 |
in connection with a governmental or proprietary function: | 452 |
(A) Punitive or exemplary damages shall not be awarded. | 453 |
(B)(1) If a claimant receives or is entitled to receive | 454 |
benefits for injuries or loss allegedly incurred from a policy or | 455 |
policies of insurance or any other source, the benefits shall be | 456 |
disclosed to the court, and the amount of the benefits shall be | 457 |
deducted from any award against a political subdivision recovered | 458 |
by that claimant. No insurer or other person is entitled to bring | 459 |
an action under a subrogation provision in an insurance or other | 460 |
contract against a political subdivision with respect to those | 461 |
benefits. | 462 |
The amount of the benefits shall be deducted from an award | 463 |
against a political subdivision under division (B)(1) of this | 464 |
section regardless of whether the claimant may be under an | 465 |
obligation to pay back the benefits upon recovery, in whole or in | 466 |
part, for the claim. A claimant whose benefits have been deducted | 467 |
from an award under division (B)(1) of this section is not | 468 |
considered fully compensated and shall not be required to | 469 |
reimburse a subrogated claim for benefits deducted from an award | 470 |
pursuant to division (B)(1) of this section. | 471 |
(2) Nothing in
| 472 |
construed to do either of the following: | 473 |
| 474 |
insurance policy or the rights of sureties under fidelity or | 475 |
surety bonds; | 476 |
| 477 |
from recovering from the political subdivision, pursuant to | 478 |
section 5101.58 of the Revised Code, the cost of medical | 479 |
assistance benefits provided under Chapter 5107., 5111., or 5115. | 480 |
of the Revised Code. | 481 |
(C)(1) There shall not be any limitation on compensatory | 482 |
damages that represent the actual loss of the person who is | 483 |
awarded the damages. However, except in wrongful death actions | 484 |
brought pursuant to Chapter 2125. of the Revised Code, damages | 485 |
that arise from the same cause of action, transaction or | 486 |
occurrence, or series of transactions or occurrences and that do | 487 |
not represent the actual loss of the person who is awarded the | 488 |
damages shall not exceed two hundred fifty thousand dollars in | 489 |
favor of any one person. The limitation on damages that do not | 490 |
represent the actual loss of the person who is awarded the damages | 491 |
provided in this division does not apply to court costs that are | 492 |
awarded to a plaintiff, or to interest on a judgment rendered in | 493 |
favor of a plaintiff, in an action against a political | 494 |
subdivision. | 495 |
(2) As used in this division, "the actual loss of the person | 496 |
who is awarded the damages" includes all of the following: | 497 |
(a) All wages, salaries, or other compensation lost by the | 498 |
person injured as a result of the injury, including wages, | 499 |
salaries, or other compensation lost as of the date of a judgment | 500 |
and future expected lost earnings of the person injured; | 501 |
(b) All expenditures of the person injured or another person | 502 |
on behalf of the person injured for medical care or treatment, for | 503 |
rehabilitation services, or for other care, treatment, services, | 504 |
products, or accommodations that were necessary because of the | 505 |
injury; | 506 |
(c) All expenditures to be incurred in the future, as | 507 |
determined by the court, by the person injured or another person | 508 |
on behalf of the person injured for medical care or treatment, for | 509 |
rehabilitation services, or for other care, treatment, services, | 510 |
products, or accommodations that will be necessary because of the | 511 |
injury; | 512 |
(d) All expenditures of a person whose property was injured | 513 |
or destroyed or of another person on behalf of the person whose | 514 |
property was injured or destroyed in order to repair or replace | 515 |
the property that was injured or destroyed; | 516 |
(e) All expenditures of the person injured or of the person | 517 |
whose property was injured or destroyed or of another person on | 518 |
behalf of the person injured or of the person whose property was | 519 |
injured or destroyed in relation to the actual preparation or | 520 |
presentation of the claim involved; | 521 |
(f) Any other expenditures of the person injured or of the | 522 |
person whose property was injured or destroyed or of another | 523 |
person on behalf of the person injured or of the person whose | 524 |
property was injured or destroyed that the court determines | 525 |
represent an actual loss experienced because of the personal or | 526 |
property injury or property loss. | 527 |
"The actual loss of the person who is awarded the damages" | 528 |
does not include any fees paid or owed to an attorney for any | 529 |
services rendered in relation to a personal or property injury or | 530 |
property loss, and does not include any damages awarded for pain | 531 |
and suffering, for the loss of society, consortium, companionship, | 532 |
care, assistance, attention, protection, advice, guidance, | 533 |
counsel, instruction, training, or education of the person | 534 |
injured, for mental anguish, or for any other intangible loss. | 535 |
Sec. 2744.06. (A) Real or personal property, and moneys, | 536 |
accounts, deposits, or investments of a political subdivision are | 537 |
not subject to execution, judicial sale, garnishment, or | 538 |
attachment to satisfy a judgment rendered against a political | 539 |
subdivision in a civil action to recover damages for injury, | 540 |
death, or loss to person or property caused by an act or omission | 541 |
of the political subdivision or any of its employees in connection | 542 |
with a governmental or proprietary function.
| 543 |
shall be paid from funds of the political subdivisions that have | 544 |
been appropriated for that purpose, but, if sufficient funds are | 545 |
not currently appropriated for the payment of judgments, the | 546 |
fiscal officer of a political subdivision shall certify the amount | 547 |
of any unpaid judgments to the taxing authority of the political | 548 |
subdivision for inclusion in the next succeeding budget and annual | 549 |
appropriation measure and payment in the next succeeding fiscal | 550 |
year as provided by section 5705.08 of the Revised Code, unless | 551 |
any
| 552 |
pursuant to section 133.14 of the Revised Code or pursuant to | 553 |
annual installments authorized by division (B) or (C) of this | 554 |
section. | 555 |
(B)(1)(a) As used in this division, "the actual loss of the | 556 |
person who is awarded the damages" includes all of the following: | 557 |
(i) All wages, salaries, or other compensation lost by the | 558 |
person injured as a result of the injury, as of the date of the | 559 |
judgment; | 560 |
(ii) All expenditures of the person injured or of another | 561 |
person on behalf of the person injured for medical care or | 562 |
treatment, for rehabilitation services, or for other care, | 563 |
treatment, services, products, or accommodations that were | 564 |
necessary because of the injury; | 565 |
(iii) All expenditures of a person whose property was | 566 |
injured or destroyed or of another person on behalf of the person | 567 |
whose property was injured or destroyed in order to repair or | 568 |
replace the property that was injured or destroyed; | 569 |
(iv) All expenditures of the person injured or whose | 570 |
property was injured or destroyed or of another person on behalf | 571 |
of the person injured or whose property was injured or destroyed | 572 |
in relation to the actual preparation or presentation of the | 573 |
person's claim; | 574 |
(v) Any other expenditures of the person injured or whose | 575 |
property was injured or destroyed or of another person on behalf | 576 |
of the person injured or whose property was injured or destroyed | 577 |
that the court determines represent an actual loss experienced | 578 |
because of the personal or property injury or property loss. | 579 |
(b) As used in this division, "the actual loss of the person | 580 |
who is awarded the damages" does not include any of the following: | 581 |
(i) Wages, salaries, or other compensation lost by the | 582 |
person injured as a result of the injury, that are future expected | 583 |
earnings of
| 584 |
(ii) Expenditures to be incurred in the future, as | 585 |
determined by the court, by the person injured or by another | 586 |
person on behalf of the person injured for medical care or | 587 |
treatment, for rehabilitation services, or for other care, | 588 |
treatment, services, products, or accommodations that will be | 589 |
necessary because of the injury; | 590 |
(iii) Any fees paid or owed to an attorney for any services | 591 |
rendered in relation to a personal or property injury or property | 592 |
loss; | 593 |
(iv) Any damages awarded for pain and suffering, for the | 594 |
loss of society, consortium, companionship, care, assistance, | 595 |
attention, protection, advice, guidance, counsel, instruction, | 596 |
training, or education of the person injured, for mental anguish, | 597 |
or for any other intangible loss. | 598 |
(2) Except as specifically provided to the contrary in this | 599 |
division, a court that renders a judgment against a political | 600 |
subdivision as described in division (A) of this section and that | 601 |
is not in favor of the state may authorize the political | 602 |
subdivision, upon the motion of the political subdivision, to pay | 603 |
the judgment or a specified portion of the judgment in annual | 604 |
installments over a period not to exceed ten years, subject to the | 605 |
payment of interest at the rate specified in division (A) of | 606 |
section 1343.03 of the Revised Code. A court shall not authorize | 607 |
the payment in installments under this division of any portion of | 608 |
a judgment or entire judgment that represents the actual loss of | 609 |
the person who is awarded the damages. | 610 |
Additionally, a court shall not authorize the payment in | 611 |
installments under this division of any portion of a judgment or | 612 |
entire judgment that does not represent the actual loss of the | 613 |
person who is awarded the damages unless the court, after | 614 |
balancing the interests of the political subdivision and of the | 615 |
person in whose favor the judgment was rendered, determines that | 616 |
installment payments would be appropriate under the circumstances | 617 |
and would not be unjust to the person in whose favor the judgment | 618 |
was rendered. If a court makes
| 619 |
shall
fix
the amount of the installment payments in
| 620 |
621 | |
judgment was rendered, the same economic result over the period as | 622 |
that person would have received if the judgment or portion of the | 623 |
judgment subject to the installment payments had been paid in a | 624 |
lump sum payment. | 625 |
(C) At the option of a political subdivision, a judgment as | 626 |
described in division (A) of this section and that is rendered in | 627 |
favor of the state may be paid in equal annual installments over a | 628 |
period not to exceed ten years, without the payment of interest. | 629 |
Sec. 2744.07. (A)(1) Except as otherwise provided in this | 630 |
division, a political subdivision shall provide for the defense of | 631 |
an employee, in any state or federal court, in any civil action or | 632 |
proceeding to recover damages for injury, death, or loss to | 633 |
634 | |
of the employee in connection with a governmental or proprietary | 635 |
function if the act or omission occurred
| 636 |
637 | |
manifestly outside the scope of
| 638 |
responsibilities. Amounts expended by a political subdivision in | 639 |
the defense of its employees shall be from funds appropriated for | 640 |
this purpose or from proceeds of insurance. The duty to provide | 641 |
for the defense of an employee specified in this division does not | 642 |
apply in a civil action or proceeding that is commenced by or on | 643 |
behalf of a political subdivision. | 644 |
(2) Except as otherwise provided in this division, a | 645 |
political subdivision shall indemnify and hold harmless an | 646 |
employee in the amount of any judgment, other than a judgment for | 647 |
punitive or exemplary damages, that is obtained against the | 648 |
employee in a state or federal court or as a result of a law of a | 649 |
foreign jurisdiction and that is for damages for injury, death, or | 650 |
loss to
| 651 |
connection with a governmental or proprietary function, if at the | 652 |
time of the act or omission the employee was acting in good faith | 653 |
and within the scope of
| 654 |
responsibilities. | 655 |
(B)(1) A political subdivision may enter into a consent | 656 |
judgment or settlement and may secure releases from liability for | 657 |
itself or an employee, with respect to any claim for injury, | 658 |
death, or loss to
| 659 |
omission in connection with a governmental or proprietary | 660 |
function. | 661 |
(2) No action or appeal of any kind shall be brought by any | 662 |
person, including any employee or a taxpayer, with respect to the | 663 |
decision of a political subdivision pursuant to division (B)(1) of | 664 |
this section whether to enter into a consent judgment or | 665 |
settlement or to secure releases, or concerning the amount and | 666 |
circumstances of a consent judgment or settlement. Amounts | 667 |
expended for any settlement shall be from funds appropriated for | 668 |
this purpose. | 669 |
(C) If a political subdivision refuses to provide an | 670 |
employee with a defense in a civil action or proceeding as | 671 |
described in division (A)(1) of this section, the employee may | 672 |
file, in the court of common pleas of the county in which the | 673 |
political subdivision is located, an action seeking a | 674 |
determination as to the appropriateness of the refusal of the | 675 |
political subdivision to provide
| 676 |
under that division. The court shall determine a refusal to be | 677 |
appropriate unless it finds there was an abuse of discretion on | 678 |
the part of the political subdivision in acting under that | 679 |
division. | 680 |
Sec. 4582.27. | 681 |
with section 4582.22 of the Revised Code shall be governed by a | 682 |
board of directors. Members of a board of directors of a port | 683 |
authority created by the exclusive action of a municipal | 684 |
corporation shall consist of the number of members it considers | 685 |
necessary and shall be appointed by the mayor with the advice and | 686 |
consent of the council. Members of a board of directors of a port | 687 |
authority created by the exclusive action of a township shall | 688 |
consist of such members as it considers necessary and shall be | 689 |
appointed by the township trustees of the township. Members of a | 690 |
board of directors of a port authority created by the exclusive | 691 |
action of a county shall consist of such members as it considers | 692 |
necessary and shall be appointed by the board of county | 693 |
commissioners of the county. Members of a board of directors of a | 694 |
port authority created by a combination of political subdivisions | 695 |
shall be divided among the political subdivisions in such | 696 |
proportions as the political subdivisions may agree and shall be | 697 |
appointed by the participating political subdivisions in the same | 698 |
manner as this section provides for the appointment of members by | 699 |
a political subdivision creating its own port authority. If a | 700 |
participating political subdivision is not authorized by section | 701 |
4582.22 of the Revised Code to create its own port authority, the | 702 |
political subdivision's elected legislative body, if the political | 703 |
subdivision has an elected legislative body, or the political | 704 |
subdivision's elected official or officials who appoint the | 705 |
legislative body of the political subdivision shall appoint the | 706 |
members of a board of directors of a port authority that are to be | 707 |
appointed by that political subdivision. If the electors of a | 708 |
participating political subdivision do not elect either the | 709 |
legislative body of the political subdivision or the official or | 710 |
officials who appoint the legislative body of the political | 711 |
subdivision, the participating political subdivision may not | 712 |
appoint any member of a board of directors of a port authority. | 713 |
When a port authority is created by a combination of political | 714 |
subdivisions, the number of directors comprising the board shall | 715 |
be determined by agreement between the political subdivisions, | 716 |
which number may be changed from time to time by amendment of the | 717 |
agreement. The appointing body may at any time remove a director | 718 |
appointed by it for misfeasance, nonfeasance, or malfeasance in | 719 |
office. | 720 |
A majority of the directors shall have been qualified | 721 |
electors of, or shall have had their businesses or places of | 722 |
employment in, one or more political subdivisions within the area | 723 |
of the jurisdiction of the port authority, for a period of at | 724 |
least three years next preceding their appointment. | 725 |
The directors of any port authority first appointed shall | 726 |
serve staggered terms. Thereafter each successor shall serve for | 727 |
a term of four years, except that any person appointed to fill a | 728 |
vacancy shall be appointed to only the unexpired term and any | 729 |
director is eligible for reappointment. | 730 |
The board of directors by rule may provide for the removal of | 731 |
a director who fails to attend three consecutive regular meetings | 732 |
of the board. If a director is so removed, a successor shall be | 733 |
appointed for the remaining term of the removed director in the | 734 |
same manner provided for the original appointment. | 735 |
The directors shall elect one of their membership as | 736 |
chairperson and another as vice-chairperson, and shall designate | 737 |
their terms of office, and shall appoint a secretary who need not | 738 |
be a director. A majority of the board of directors shall | 739 |
constitute a quorum, the affirmative vote of which shall be | 740 |
necessary for any action taken by the port authority. No vacancy | 741 |
in the membership of the board shall impair the rights of a quorum | 742 |
to exercise all the rights and perform all the duties of the port | 743 |
authority. | 744 |
Each member of the board of directors of a port authority | 745 |
shall be entitled to receive from the port authority such sum of | 746 |
money as the board of directors may determine as compensation for | 747 |
services as director and reimbursement for reasonable expenses in | 748 |
the performance of official duties. | 749 |
| 750 |
751 | |
752 | |
753 | |
754 | |
755 | |
756 | |
757 | |
758 | |
759 |
| 760 |
761 | |
762 | |
763 |
| 764 |
765 | |
766 | |
767 | |
768 | |
769 | |
770 | |
771 | |
772 | |
773 | |
774 | |
775 | |
776 |
| 777 |
778 |
| 779 |
780 | |
781 |
| 782 |
783 | |
784 | |
785 |
| 786 |
787 |
| 788 |
789 |
| 790 |
791 | |
792 | |
793 | |
794 | |
795 | |
796 | |
797 | |
798 |
| 799 |
| 800 |
801 | |
802 |
| 803 |
Sec. 5511.01. All state highways established by law shall | 804 |
continue to be known as state highways, and the state highway | 805 |
system established by law shall continue to be known as the state | 806 |
highway system. | 807 |
Before establishing any additional highways as part of the | 808 |
state highway system, or making any significant changes in | 809 |
existing highways comprising the system, the director of | 810 |
transportation shall notify the general community of the project | 811 |
and offer an opportunity for appropriate public involvement in the | 812 |
project process. | 813 |
The opportunity for public involvement shall satisfy the | 814 |
requirements of the "National Environmental Policy Act of 1969," | 815 |
83 Stat. 852, 42 U.S.C.A. 4321 et seq., as amended, and may | 816 |
consist of activities including public meetings or hearings, small | 817 |
group meetings with local officials, individual meetings, news | 818 |
releases, public notices, workshops, newsletters, electronic | 819 |
communications, radio announcements, mail notification, and other | 820 |
activities considered appropriate for the exchange of information. | 821 |
The director or the director's designee shall provide the public | 822 |
involvement activities in each of the counties in which the | 823 |
highway proposed to be established is to be located or in which it | 824 |
is proposed to make
| 825 |
Any changes made in existing highways by the director or any | 826 |
additional highways established by the director following the | 827 |
public involvement activities shall be certified to the following | 828 |
authorities interested
| 829 |
of municipalities, the board of county commissioners, the board of | 830 |
township trustees, the municipal, county, and regional planning | 831 |
commissions, and the municipal, township, or county officer | 832 |
authorized to issue land use or building permits. Before any | 833 |
zoning change or subdivision plat is approved and before any | 834 |
permit for land use or the erection, alteration, or moving of a | 835 |
building is granted affecting any land within three hundred feet | 836 |
of the center line of a proposed new highway or highway for which | 837 |
changes are proposed, as described in the certification by the | 838 |
director, or within a radius of five hundred feet from the point | 839 |
of intersection of that center line with any public road or | 840 |
highway, the authority authorized to approve the zoning change or | 841 |
subdivision plat or the authority authorized to grant the permit | 842 |
for land use or the erection, alteration, or moving of the | 843 |
building shall give notice, by certified mail, to the director, | 844 |
and shall not approve a zoning change or subdivision plat or grant | 845 |
a permit for land use or the erection, alteration, or moving of a | 846 |
building for one hundred twenty days from date notice is received | 847 |
by the director. During the one hundred twenty-day period and any | 848 |
extension of it as may be agreed to between the director and any | 849 |
property owner, notice of which has been given to the authority to | 850 |
which the application has been made, the director shall proceed to | 851 |
acquire any land needed by purchase or gift, or by initiating | 852 |
proceedings to appropriate, or make a finding that acquisition at | 853 |
such time is not in the public interest. Upon purchase, | 854 |
initiation of appropriation proceedings, or a finding that | 855 |
acquisition is not in the public interest, the director shall | 856 |
notify the authority from which notice was received of that | 857 |
action. Upon being notified that the director has purchased or | 858 |
initiated proceedings to appropriate the land that authority shall | 859 |
refuse to rezone land or to approve any subdivision plat that | 860 |
includes the land which the director has purchased or has | 861 |
initiated proceedings to appropriate, and that authority shall | 862 |
refuse to grant a permit for land use or the erection, alteration, | 863 |
or moving of a building on the land which the director has | 864 |
purchased or initiated proceedings to appropriate. Upon | 865 |
notification that the director has found acquisition at that time | 866 |
not to be in the public interest, or upon the expiration of the | 867 |
one hundred twenty-day
period or any
extension
| 868 |
no notice has been received from the director, that authority | 869 |
shall proceed in accordance with law. | 870 |
A report of the change or addition shall be filed in the | 871 |
office of the director, and the report of the director making the | 872 |
change or establishing the highway shall be placed on file in the | 873 |
office of the department of transportation. | 874 |
In no event shall the total mileage of the state highway | 875 |
system be increased under this section to exceed two hundred miles | 876 |
in one year. | 877 |
The director, upon petition of the boards of the counties | 878 |
traversed
| 879 |
counties, may officially assign to a highway of the state highway | 880 |
system a distinctive
name | 881 |
personage, or
officially assign
| 882 |
highway system a commonly accepted and appropriate name by which | 883 |
the highway is known. | 884 |
The director may, upon giving appropriate notice and offering | 885 |
the opportunity for public involvement and comment, abandon a | 886 |
highway on the
state highway system or part
| 887 |
highway which the director determines is of minor importance or | 888 |
which traverses territory adequately served by another state | 889 |
highway, and the abandoned highway shall revert to a county or | 890 |
township
road or
municipal street. A report
covering
| 891 |
action shall be filed in the office of the director, and the | 892 |
director shall certify the action to the board of the county in | 893 |
which the
highway or portion
| 894 |
is situated. | 895 |
The director shall make a map showing
| 896 |
numbering or other designation, all the state highways. The map | 897 |
shall be kept on file in the director's office, and the director | 898 |
shall cause the
| 899 |
changes and additions to the date of
| 900 |
of the map, certified by the director as a correct copy of the map | 901 |
on file in the director's office, shall be admissible as evidence | 902 |
in any court to prove the existence and location of the several | 903 |
highways and roads of the state highway system. | 904 |
The state highway routes into or through municipal | 905 |
corporations, as designated or indicated by state highway route | 906 |
markers erected
| 907 |
part of the state highway system. The director may erect state | 908 |
highway route
markers and
| 909 |
the director thinks proper upon those portions of the state | 910 |
highway system lying within municipal corporations, and the | 911 |
consent of the
municipal
corporations to
| 912 |
marking shall not be necessary. However, the director may erect | 913 |
traffic signs in villages in accordance with section 5521.01 of | 914 |
the Revised Code. No change in the route of any highway through a | 915 |
municipal corporation shall be made except after providing public | 916 |
involvement activities. | 917 |
Except as provided in sections 5501.49 and 5517.04 of the | 918 |
Revised Code, no duty of constructing, reconstructing, | 919 |
maintaining, and repairing such state highways within municipal | 920 |
corporations shall attach to or rest upon the director. The | 921 |
director may enter upon such state highways within any municipal | 922 |
corporation and construct, reconstruct, widen, improve, maintain, | 923 |
and repair them, provided the municipal corporation first consents | 924 |
925 | |
the director need not obtain the consent of the municipal | 926 |
corporation if the existing highway being changed or the location | 927 |
of an additional highway being established was not within the | 928 |
corporate limits of the municipal corporation at the time
| 929 |
establishment or change is approved by the director, or if the | 930 |
director is acting pursuant to section 5501.49 of the Revised | 931 |
Code. | 932 |
The director shall place in the files of the department a | 933 |
record of the routes of all such state highways within municipal | 934 |
corporations, and shall cause them to be corrected and revised to | 935 |
show all changes and additions to the date of the correction. A | 936 |
copy of the record or any pertinent part
| 937 |
by the director to be a true and correct copy, shall be admissible | 938 |
in evidence in any court of the state for the purpose of proving | 939 |
the existence and location of any state highway within a municipal | 940 |
corporation. | 941 |
When the director proposes to change an existing state | 942 |
highway and there exists upon the highway a separated railroad | 943 |
crossing, the director shall mail to the interested railroad | 944 |
company a copy of the notice, which shall be mailed by first-class | 945 |
mail, postage prepaid, and certified with return receipt | 946 |
requested, at least two weeks before the time fixed for any | 947 |
public involvement activity. When the director proposes to change | 948 |
an existing state highway within a municipal corporation, the | 949 |
director shall mail to the mayor or other chief executive officer | 950 |
of the municipal corporation a copy of the notice, which shall be | 951 |
mailed by first-class mail, postage prepaid, and certified with | 952 |
return receipt requested, at least two weeks before the time fixed | 953 |
for any public involvement activity. | 954 |
Nothing in this section shall be construed to require | 955 |
providing public involvement activities before the construction, | 956 |
reconstruction, maintenance, improvement, or widening of an | 957 |
existing highway where no relocation is involved. | 958 |
With the exception of the authority conferred upon the | 959 |
director by this section | 960 |
signs directing traffic | 961 |
Code, Chapters 5501., 5503., 5511., 5513., 5515., 5516., 5517., | 962 |
5519., 5521., 5523., 5525., 5527., 5528., 5529., 5531., 5533., and | 963 |
5535. of the Revised Code | 964 |
restrict the authority conferred by section 723.01 of the Revised | 965 |
Code upon municipal corporations to regulate the use of streets | 966 |
and to have the care, supervision, and control of the public | 967 |
highways, streets, avenues, alleys, sidewalks, public grounds, | 968 |
bridges, aqueducts, and viaducts within the municipal corporations | 969 |
970 | |
division (B)(3) of section 2744.02 of the Revised Code for | 971 |
negligent failure to keep
| 972 |
973 | |
and
| 974 |
obstructions from public roads. | 975 |
Sec. 5591.36. The board of county commissioners shall erect | 976 |
and maintain on county roads, where not already done, one or more | 977 |
guardrails on each end of a county bridge, viaduct, or culvert | 978 |
more than five
feet high
| 979 |
980 | |
981 | |
982 | |
a rise of more than eight feet in height and with a downward slope | 983 |
of greater than seventy degrees, where
| 984 |
have an
immediate connection
with a
| 985 |
986 | |
987 |
| 988 |
989 | |
990 | |
991 | |
992 | |
for a guardrail required under this section shall be paid out of | 993 |
the county bridge fund. | 994 |
Sec. 5591.37. | 995 |
section 5591.36 of the Revised Code shall render the county liable | 996 |
for all accidents or
damages
| 997 |
that failure. | 998 |
Section 2. That existing sections 723.01, 2744.01, 2744.02, | 999 |
2744.03, 2744.04, 2744.05, 2744.06, 2744.07, 4582.27, 5511.01, | 1000 |
5591.36, and 5591.37 of the Revised Code are hereby repealed. | 1001 |
Section 3. That sections 2744.01 and 2744.03 of the Revised | 1002 |
Code as scheduled to take effect on January 1, 2002, be amended to | 1003 |
read as follows: | 1004 |
Sec. 2744.01. As used in this chapter: | 1005 |
(A) "Emergency call" means a call to duty, including, but not | 1006 |
limited to, communications from citizens, police dispatches, and | 1007 |
personal observations by peace officers of inherently dangerous | 1008 |
situations that demand an immediate response on the part of a | 1009 |
peace officer. | 1010 |
(B) "Employee" means an officer, agent, employee, or servant, | 1011 |
whether or not compensated or full-time or part-time, who is | 1012 |
authorized to act and is acting within the scope of the officer's, | 1013 |
agent's, employee's, or servant's employment for a political | 1014 |
subdivision. "Employee" does not include an independent contractor | 1015 |
and does not include any individual engaged by a school district | 1016 |
pursuant to section 3319.301 of the Revised Code. "Employee" | 1017 |
includes any elected or appointed official of a political | 1018 |
subdivision. "Employee" also includes a person who has been | 1019 |
convicted of or pleaded guilty to a criminal offense and who has | 1020 |
been sentenced to perform community service work in a political | 1021 |
subdivision whether pursuant to section 2951.02 of the Revised | 1022 |
Code or otherwise, and a child who is found to be a delinquent | 1023 |
child and who is ordered by a juvenile court pursuant to section | 1024 |
2152.19 or 2152.20 of the Revised Code to perform community | 1025 |
service or community work in a political subdivision. | 1026 |
(C)(1) "Governmental function" means a function of a | 1027 |
political subdivision that is specified in division (C)(2) of this | 1028 |
section or that satisfies any of the following: | 1029 |
(a) A function that is imposed upon the state as an | 1030 |
obligation of sovereignty and that is performed by a political | 1031 |
subdivision voluntarily or pursuant to legislative requirement; | 1032 |
(b) A function that is for the common good of all citizens | 1033 |
of the state; | 1034 |
(c) A function that promotes or preserves the public peace, | 1035 |
health, safety, or welfare; that involves activities that are not | 1036 |
engaged in or not customarily engaged in by nongovernmental | 1037 |
persons; and that is not specified in division (G)(2) of this | 1038 |
section as a proprietary function. | 1039 |
(2) A "governmental function" includes, but is not limited | 1040 |
to, the following: | 1041 |
(a) The provision or nonprovision of police, fire, emergency | 1042 |
medical, ambulance, and rescue services or protection; | 1043 |
(b) The power to preserve the peace; to prevent and suppress | 1044 |
riots, disturbances, and disorderly assemblages; to prevent, | 1045 |
mitigate, and clean up releases of oil and hazardous and extremely | 1046 |
hazardous substances as defined in section 3750.01 of the Revised | 1047 |
Code; and to protect persons and property; | 1048 |
(c) The provision of a system of public education; | 1049 |
(d) The provision of a free public library system; | 1050 |
(e) The regulation of the use of, and the maintenance and | 1051 |
repair of, roads, highways, streets, avenues, alleys, sidewalks, | 1052 |
bridges, aqueducts, viaducts, and public grounds; | 1053 |
(f) Judicial, quasi-judicial, prosecutorial, legislative, | 1054 |
and quasi-legislative functions; | 1055 |
(g) The construction, reconstruction, repair, renovation, | 1056 |
maintenance, and operation of buildings that are used in | 1057 |
connection with the performance of a governmental function, | 1058 |
including, but not limited to, office buildings and courthouses; | 1059 |
(h) The design, construction, reconstruction, renovation, | 1060 |
repair, maintenance, and operation of jails, places of juvenile | 1061 |
detention, workhouses, or any other detention facility, as defined | 1062 |
in section 2921.01 of the Revised Code; | 1063 |
(i) The enforcement or nonperformance of any law; | 1064 |
(j) The regulation of traffic, and the erection or | 1065 |
nonerection of traffic signs, signals, or control devices; | 1066 |
(k) The collection and disposal of solid wastes, as defined | 1067 |
in section 3734.01 of the Revised Code, including, but not limited | 1068 |
to, the operation of solid waste disposal facilities, as | 1069 |
"facilities" is defined in that section, and the collection and | 1070 |
management of hazardous waste generated by households. As used in | 1071 |
division (C)(2)(k) of this section, "hazardous waste generated by | 1072 |
households" means solid waste originally generated by individual | 1073 |
households that is listed specifically as hazardous waste in or | 1074 |
exhibits one or more characteristics of hazardous waste as defined | 1075 |
by rules adopted under section 3734.12 of the Revised Code, but | 1076 |
that is excluded from regulation as a hazardous waste by those | 1077 |
rules. | 1078 |
(l) The provision or nonprovision, planning or design, | 1079 |
construction, or reconstruction of a public improvement, | 1080 |
including, but not limited to, a sewer system; | 1081 |
(m) The operation of a job and family services department | 1082 |
or agency, including, but not limited to, the provision of | 1083 |
assistance to aged and infirm persons and to persons who are | 1084 |
indigent; | 1085 |
(n) The operation of a health board, department, or agency, | 1086 |
including, but not limited to, any statutorily required or | 1087 |
permissive program for the provision of immunizations or other | 1088 |
inoculations to all or some members of the public, provided that a | 1089 |
"governmental function" does not include the supply, manufacture, | 1090 |
distribution, or development of any drug or vaccine employed in | 1091 |
any such immunization or inoculation program by any supplier, | 1092 |
manufacturer, distributor, or developer of the drug or vaccine; | 1093 |
(o) The operation of mental health facilities, mental | 1094 |
retardation or developmental disabilities facilities, alcohol | 1095 |
treatment and control centers, and children's homes or agencies; | 1096 |
(p) The provision or nonprovision of inspection services of | 1097 |
all types, including, but not limited to, inspections in | 1098 |
connection with building, zoning, sanitation, fire, plumbing, and | 1099 |
electrical codes, and the taking of actions in connection with | 1100 |
those types of codes, including, but not limited to, the approval | 1101 |
of plans for the construction of buildings or structures and the | 1102 |
issuance or revocation of building permits or stop work orders in | 1103 |
connection with buildings or structures; | 1104 |
(q) Urban renewal projects and the elimination of slum | 1105 |
conditions; | 1106 |
(r) Flood control measures; | 1107 |
(s) The design, construction, reconstruction, renovation, | 1108 |
operation, care, repair, and maintenance of a township cemetery; | 1109 |
(t) The issuance of revenue obligations under section 140.06 | 1110 |
of the Revised Code; | 1111 |
(u) The design, construction, reconstruction, renovation, | 1112 |
repair, maintenance, and operation of any school athletic | 1113 |
facility, school auditorium, or gymnasium or any recreational area | 1114 |
or facility, including, but not limited to, any of the following: | 1115 |
(i) A park, playground, or playfield; | 1116 |
(ii) An indoor recreational facility; | 1117 |
(iii) A zoo or zoological park; | 1118 |
(iv) A bath, swimming pool, pond, water park, wading pool, | 1119 |
wave pool, water slide, or other type of aquatic facility; | 1120 |
(v) A golf course; | 1121 |
(vi) A bicycle motocross facility or other type of | 1122 |
recreational area or facility in which bicycling, skating, skate | 1123 |
boarding, or scooter riding is engaged; | 1124 |
(vii) A rope course or climbing walls; | 1125 |
(viii) An all-purpose vehicle facility in which all-purpose | 1126 |
vehicles, as defined in section 4519.01 of the Revised Code, are | 1127 |
contained, maintained, or operated for recreational activities. | 1128 |
(v) The provision of public defender services by a county or | 1129 |
joint county public defender's office pursuant to Chapter 120. of | 1130 |
the Revised Code; | 1131 |
(w)(i) At any time before regulations prescribed pursuant to | 1132 |
49 U.S.C.A 20153 become effective, the designation, establishment, | 1133 |
design, construction, implementation, operation, repair, or | 1134 |
maintenance of a public road rail crossing in a zone within a | 1135 |
municipal corporation in which, by ordinance, the legislative | 1136 |
authority of the municipal corporation regulates the sounding of | 1137 |
locomotive horns, whistles, or bells; | 1138 |
(ii) On and after the effective date of regulations | 1139 |
prescribed pursuant to 49 U.S.C.A. 20153, the designation, | 1140 |
establishment, design, construction, implementation, operation, | 1141 |
repair, or maintenance of a public road rail crossing in such a | 1142 |
zone or of a supplementary safety measure, as defined in 49 | 1143 |
U.S.C.A 20153, at or for a public road rail crossing, if and to | 1144 |
the extent that the public road rail crossing is excepted, | 1145 |
pursuant to subsection (c) of that section, from the requirement | 1146 |
of the regulations prescribed under subsection (b) of that | 1147 |
section. | 1148 |
(x) A function that the general assembly mandates a political | 1149 |
subdivision to perform. | 1150 |
(D) "Law" means any provision of the constitution, statutes, | 1151 |
or rules of the United States or of this state; provisions of | 1152 |
charters, ordinances, resolutions, and rules of political | 1153 |
subdivisions; and written policies adopted by boards of education. | 1154 |
When used in connection with the "common law," this definition | 1155 |
does not apply. | 1156 |
(E) "Motor vehicle" has the same meaning as in section | 1157 |
4511.01 of the Revised Code. | 1158 |
(F) "Political subdivision" or "subdivision" means a | 1159 |
municipal corporation, township, county, school district, or other | 1160 |
body corporate and politic responsible for governmental activities | 1161 |
in a geographic area smaller than that of the state. "Political | 1162 |
subdivision" includes, but is not limited to, a county hospital | 1163 |
commission appointed under section 339.14 of the Revised Code, | 1164 |
regional planning commission created pursuant to section 713.21 of | 1165 |
the Revised Code, county planning commission created pursuant to | 1166 |
section 713.22 of the Revised Code, joint planning council created | 1167 |
pursuant to section 713.231 of the Revised Code, interstate | 1168 |
regional planning commission created pursuant to section 713.30 of | 1169 |
the Revised Code, port authority created pursuant to section | 1170 |
4582.02 or 4582.26 of the Revised Code or in existence on December | 1171 |
16, 1964, regional council established by political subdivisions | 1172 |
pursuant to Chapter 167. of the Revised Code, emergency planning | 1173 |
district and joint emergency planning district designated under | 1174 |
section 3750.03 of the Revised Code, joint emergency medical | 1175 |
services district created pursuant to section 307.052 of the | 1176 |
Revised Code, fire and ambulance district created pursuant to | 1177 |
section 505.375 of the Revised Code, joint interstate emergency | 1178 |
planning district established by an agreement entered into under | 1179 |
that section, county solid waste management district and joint | 1180 |
solid waste management district established under section 343.01 | 1181 |
or 343.012 of the Revised Code, and community school established | 1182 |
under Chapter 3314. of the Revised Code. | 1183 |
(G)(1) "Proprietary function" means a function of a political | 1184 |
subdivision that is specified in division (G)(2) of this section | 1185 |
or that satisfies both of the following: | 1186 |
(a) The function is not one described in division (C)(1)(a) | 1187 |
or (b) of this section and is not one specified in division (C)(2) | 1188 |
of this section; | 1189 |
(b) The function is one that promotes or preserves the | 1190 |
public peace, health, safety, or welfare and that involves | 1191 |
activities that are customarily engaged in by nongovernmental | 1192 |
persons. | 1193 |
(2) A "proprietary function" includes, but is not limited | 1194 |
to, the following: | 1195 |
(a) The operation of a hospital by one or more political | 1196 |
subdivisions; | 1197 |
(b) The design, construction, reconstruction, renovation, | 1198 |
repair, maintenance, and operation of a public cemetery other than | 1199 |
a township cemetery; | 1200 |
(c) The establishment, maintenance, and operation of a | 1201 |
utility, including, but not limited to, a light, gas, power, or | 1202 |
heat plant, a railroad, a busline or other transit company, an | 1203 |
airport, and a municipal corporation water supply system; | 1204 |
(d) The maintenance, destruction, operation, and upkeep of a | 1205 |
sewer system; | 1206 |
(e) The operation and control of a public stadium, | 1207 |
auditorium, civic or social center, exhibition hall, arts and | 1208 |
crafts center, band or orchestra, or off-street parking facility. | 1209 |
(H) "Public roads" means public roads, highways, streets, | 1210 |
avenues, alleys, and bridges within a political subdivision. | 1211 |
"Public roads" does not include berms, shoulders, rights-of-way, | 1212 |
or traffic control devices unless the traffic control devices are | 1213 |
mandated by the Ohio manual of uniform traffic control devices. | 1214 |
(I) "State" means the state of Ohio, including, but not | 1215 |
limited to, the general assembly, the supreme court, the offices | 1216 |
of all elected state officers, and all departments, boards, | 1217 |
offices, commissions, agencies, colleges and universities, | 1218 |
institutions, and other instrumentalities of the state of Ohio. | 1219 |
"State" does not include political subdivisions. | 1220 |
Sec. 2744.03. (A) In a civil action brought against a | 1221 |
political subdivision or an employee of a political subdivision to | 1222 |
recover damages for injury, death, or loss to
| 1223 |
property allegedly caused by any act or omission in connection | 1224 |
with a governmental or proprietary function, the following | 1225 |
defenses or immunities may be asserted to establish nonliability: | 1226 |
(1) The political subdivision is immune from liability if | 1227 |
the employee involved was engaged in the performance of a | 1228 |
judicial, quasi-judicial, prosecutorial, legislative, or | 1229 |
quasi-legislative function. | 1230 |
(2) The political subdivision is immune from liability if | 1231 |
the conduct of the employee involved, other than negligent | 1232 |
conduct, that gave rise to the claim of liability was required by | 1233 |
law or authorized by law, or if the conduct of the employee | 1234 |
involved that gave rise to the claim of liability was necessary or | 1235 |
essential to the exercise of powers of the political subdivision | 1236 |
or employee. | 1237 |
(3) The political subdivision is immune from liability if | 1238 |
the action or failure to act by the employee involved that gave | 1239 |
rise to the claim of liability was within the discretion of the | 1240 |
employee with respect to policy-making, planning, or enforcement | 1241 |
powers by virtue of the duties and responsibilities of the office | 1242 |
or position of the employee. | 1243 |
(4) The political subdivision is immune from liability if | 1244 |
the action or failure to act by the political subdivision or | 1245 |
employee involved that gave rise to the claim of liability | 1246 |
resulted in injury or death to a person who had been convicted of | 1247 |
or pleaded guilty to a criminal offense and who, at the time of | 1248 |
the injury or death, was serving any portion of the person's | 1249 |
sentence by performing community service work for or in the | 1250 |
political subdivision whether pursuant to section 2951.02 of the | 1251 |
Revised Code or otherwise, or resulted in injury or death to a | 1252 |
child who was found to be a delinquent child and who, at the time | 1253 |
of the injury or death, was performing community service or | 1254 |
community work for or in a political subdivision in accordance | 1255 |
with the order of a juvenile court entered pursuant to section | 1256 |
2152.19 or 2152.20 of the Revised Code, and if, at the time of the | 1257 |
person's or child's injury or death, the person or child was | 1258 |
covered for purposes of Chapter 4123. of the Revised Code in | 1259 |
connection with the community service or community work for or in | 1260 |
the political subdivision. | 1261 |
(5) The political subdivision is immune from liability if | 1262 |
the injury, death, or loss to
| 1263 |
from the exercise of judgment or discretion in determining whether | 1264 |
to acquire, or how to use, equipment, supplies, materials, | 1265 |
personnel, facilities, and other resources unless the judgment or | 1266 |
discretion was exercised with malicious purpose, in bad faith, or | 1267 |
in a wanton or reckless manner. | 1268 |
(6) In addition to any immunity or defense referred to in | 1269 |
division (A)(7) of this section and in circumstances not covered | 1270 |
by that division or sections 3314.07 and 3746.24 of the Revised | 1271 |
Code, the employee is immune from liability unless one of the | 1272 |
following applies: | 1273 |
(a) The employee's acts or omissions were manifestly outside | 1274 |
the scope of the employee's employment or official | 1275 |
responsibilities; | 1276 |
(b) The employee's acts or omissions were with malicious | 1277 |
purpose, in bad faith, or in a wanton or reckless manner; | 1278 |
(c)
| 1279 |
employee by a section of the Revised Code. Civil liability shall | 1280 |
not be construed to exist under another section of the Revised | 1281 |
Code merely because that section imposes a responsibility or | 1282 |
mandatory duty upon an employee, because that section provides for | 1283 |
a criminal penalty, because of a general authorization in that | 1284 |
section that an employee may sue and be sued, or because the | 1285 |
section uses the term "shall" in a provision pertaining to an | 1286 |
employee. | 1287 |
(7) The political subdivision, and an employee who is a | 1288 |
county prosecuting attorney, city director of law, village | 1289 |
solicitor, or similar chief legal officer of a political | 1290 |
subdivision, an assistant of any such person, or a judge of a | 1291 |
court of this state is entitled to any defense or immunity | 1292 |
available at common law or established by the Revised Code. | 1293 |
(B) Any immunity or defense conferred upon, or referred to | 1294 |
in connection with, an employee by division (A)(6) or (7) of this | 1295 |
section does not affect or limit any liability of a political | 1296 |
subdivision for an act or omission of the employee as provided in | 1297 |
section 2744.02 of the Revised Code. | 1298 |
Section 4. That existing sections 2744.01 and 2744.03 of the | 1299 |
Revised Code as scheduled to take effect on January 1, 2002, are | 1300 |
hereby repealed. | 1301 |
Section 5. Sections 3 and 4 of this act take effect on | 1302 |
January 1, 2002. | 1303 |
Section 6. Sections 723.01, 2744.01, 2744.02, 2744.03, | 1304 |
2744.04, 2744.05, 2744.06, 2744.07, 4582.27, 5511.01, 5591.36, and | 1305 |
5591.37 of the Revised Code, as amended by this act, apply only to | 1306 |
causes of action that accrue on or after the effective date of | 1307 |
this act. Any cause of action that accrues prior to the effective | 1308 |
date of this act is governed by the law in effect when the cause | 1309 |
of action accrued. | 1310 |
Section 7. (A) Section 2744.01 of the Revised Code, | 1311 |
effective until January 1, 2002, is presented in Section 1 of this | 1312 |
act as a composite of the section as amended by both Sub. S.B. 24 | 1313 |
and Sub. S.B. 108 of the 124th General Assembly. The General | 1314 |
Assembly, applying the principle stated in division (B) of section | 1315 |
1.52 of the Revised Code that amendments are to be harmonized if | 1316 |
reasonably capable of simultaneous operation, finds that the | 1317 |
composite is the resulting version of the section in effect prior | 1318 |
to the effective date of the section as presented in this act. | 1319 |
(B) Section 2744.01 of the Revised Code, effective January | 1320 |
1, 2002, is presented in Section 3 of this act as a composite of | 1321 |
the section as amended by both Sub. S.B. 24 and Sub. S.B. 108 of | 1322 |
the 124th General Assembly. The General Assembly, applying the | 1323 |
principle stated in division (B) of section 1.52 of the Revised | 1324 |
Code that amendments are to be harmonized if reasonably capable of | 1325 |
simultaneous operation, finds that the composite is the resulting | 1326 |
version of the section in effect prior to the effective date of | 1327 |
the section as presented in this act. | 1328 |