As Reported by the Senate Judiciary Committee

125th General Assembly Regular Session 2003-2004

Sub. H. B. No. 316

Representatives Wolpert, McGregor, Hughes, Reidelbach, Cirelli, Raussen, Kearns, Williams, Latta, Brinkman, Seitz, Willamowski, D. Evans, Widener, Aslanides, Buehrer, Calvert, Carmichael, Chandler, Collier, Daniels, Domenick, C. Evans, Faber, Flowers, Gibbs, Gilb, Hagan, Hollister, Niehaus, Olman, T. Patton, Reinhard, Schaffer, Schmidt, Schneider, Setzer, Sferra, G. Smith, J. Stewart, Walcher, Young 

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A BILL

To amend sections 9.87, 2743.01, 2743.02, and 5502.52

1

and to enact sections 341.27 and 753.06 of the

2

Revised Code to provide sheriffs, deputy sheriffs,

3

municipal police officers, and county and

4

municipal correctional officers with qualified

5

immunity from damages caused or suffered by county

6

or municipal prisoners or adult offenders

7

imprisoned for offenses other than felonies of the

8

first or second degree who are working on a work

9

detail and volunteered for the work detail; to

10

provide counties and municipal corporations in

11

which such prisoners or offenders work on a work

12

detail and that employ the sheriff, deputy

13

sheriff, or officer and townships in which such

14

prisoners work on a work detail with a similar

15

qualified immunity; to adopt the "public duty

16

rule" for lawsuits against the state in the Court

17

of Claims pursuant to which the state generally is

18

immune from liability in any civil action or

19

proceeding involving the performance or

20

nonperformance of a public duty; and to provide

21

radio stations, television systems, cable systems,

22

and their officials and employees with immunity

23

from damages related to the broadcast or

24

cablecast, or failure to broadcast or cablecast,

25

information under an Amber Alert program.

26

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

Section 1. That sections 9.87, 2743.01, 2743.02, and 5502.52	27
be amended and sections 341.27 and 753.06 of the Revised Code be	28
enacted to read as follows:	29

Sec. 9.87.  (A) The state, except as provided in division (B)	30
of this section, shall indemnify an officer or employee from	31
liability incurred in the performance of hisofficial duties by	32
paying any judgment in, or amount negotiated in settlement of, any	33
civil action arising under federal law, the law of another state,	34
or the law of a foreign jurisdiction. The reasonableness of the	35
amount of any consent judgment or settlement is subject to the	36
review and approval of the attorney general and of the director,	37
administrative chief, or governing body of the employer of the	38
officer or employee who is to be indemnified. The maximum	39
aggregate amount of indemnification paid directly from state funds	40
to or on behalf of any officer or employee pursuant to this	41
division shall be one million dollars per occurrence, regardless	42
of the number of persons who suffer damage, injury, or death as a	43
result of the occurrence.	44

(B) The state shall not indemnify an officer or employee	45
under any of the following circumstances:	46

(1) To the extent the officer or employee is covered by a	47
policy of insurance for civil liability purchased by the state;	48

(2) When the officer or employee acts manifestly outside the	49
scope of histhe officer's or employee's employment or official	50
responsibilities, with malicious purpose, in bad faith, or in a	51
wanton or reckless manner, as determined by the employer of the	52
officer or employee or by the attorney general.	53

(3) For any portion of a judgment that represents punitive or	54
exemplary damages, except that this prohibition does not apply if	55
the employer of the officer or employee and the attorney general	56
determine that the acts or omissions of the officer or employee	57
were not within the terms of division (B)(2) of this section;	58

(4) For any portion of a consent judgment or settlement that	59
is unreasonable.	60

(C) The director of administrative services may purchase a	61
policy or policies of insurance on behalf of officers and	62
employees of the state from an insurer or insurers licensed to do	63
business in this state providing coverage for amounts in excess of	64
one million dollars per occurrence incurred in connection with any	65
civil action, demand, or claim against the officer or employee by	66
reason of an act or omission by the officer or employee occurring	67
in the performance of histhe officer's or employee's duties and	68
not coming within the terms of division (B)(2) of this section.	69

(D) This section does not affect any of the following:

70

(1) The waiver arising under division (A)(1) of section	71
2743.02 of the Revised Code;	72

(2) Any defense that would otherwise be available in an	73
action alleging personal liability of an officer or employee;	74

(3) The operation of section 9.83 of the Revised Code.

75

(E) The indemnification of officers or employees against	76
judgments or settlements pursuant to this section shall be	77
accomplished only through the following procedure:	78

(1) If the employer of the defendant officer or employee to	79
be indemnified determines that the actions or omissions of its	80
officer or employee giving rise to the claim were not within the	81
terms of division (B)(2) of this section, an indemnity agreement	82
shall be prepared by the attorney general, specifying that the	83
employer will indemnify the officer or employee from a particular	84
judgment that has been rendered or a particular settlement amount	85
that has been negotiated. The agreement shall name the person or	86
entity to whom payment by the state of the judgment or settlement	87
amount will be made, and the agreement shall not be effective	88
until it is approved by the officer or employee to be indemnified,	89
the director, administrative chief, or other governing body of the	90
employer, and by the attorney general. The attorney general shall	91
approve the indemnity agreement, unless hethe attorney general	92
finds that division (B) of this section prohibits the state from	93
indemnifying the officer or employee, or prohibits the state from	94
indemnifying the officer or employee for a portion of a judgment	95
or settlement and the indemnity agreement would indemnify the	96
officer or employee for all or a part of that portion.	97

(2) The attorney general shall forward a copy of the	98
agreement to the director of budget and management.	99

(3) Any indemnification paid shall be charged by the director	100
of budget and management against available unencumbered moneys in	101
the appropriations of the employer of the officer or employee to	102
be indemnified. The director of budget and management shall have	103
sole discretion to determine whether or not unencumbered moneys in	104
a particular appropriation are available for payment of the	105
indemnification.	106

(4) The director of budget and management shall, upon receipt	107
of the agreement from the attorney general pursuant to division	108
(E)(2) of this section, provide for payment to the person or	109
entity named in the agreement, in the amount specified in the	110
agreement.	111

(5) If the director of budget and management determines that	112
sufficient unencumbered moneys do not exist in the particular	113
appropriations to pay the indemnification, hethe director shall	114
make application for payment of the indemnification out of the	115
emergency purposes account or any other appropriation for	116
emergencies or contingencies, and payment out of this account or	117
other appropriation shall be authorized if there are sufficient	118
moneys greater than the sum total of then pending emergency	119
purposes account requests, or requests for releases from the other	120
appropriation.	121

(6) If sufficient moneys do not exist in the emergency	122
purposes account or any other appropriation for emergencies or	123
contingencies to pay the indemnification, the employer named in	124
the agreement shall request the general assembly to make an	125
appropriation sufficient to pay the indemnification, and no	126
payment shall be made until the appropriation has been made. The	127
employer shall make this appropriation request during the current	128
biennium and during each succeeding biennium until a sufficient	129
appropriation is made.	130

(7) If the indemnification is to be made by an employer whose	131
funds are not handled by the director of budget and management,	132
the employer shall pay the person or entity named in the	133
agreement.	134

If the employer determines that sufficient unencumbered	135
moneys do not exist to pay the indemnification, the employer shall	136
make application for payment of the indemnification out of the	137
emergency purposes account or any other appropriation for	138
emergencies or contingencies, and payment out of this account or	139
other appropriation shall be authorized if there are sufficient	140
moneys greater than the sum total of then pending emergency	141
purposes account requests, or requests for releases from the other	142
appropriation.	143

If sufficient moneys do not exist in the emergency purposes	144
account or any other appropriation for emergencies or	145
contingencies to pay the indemnification, the employer named in	146
the agreement shall request the general assembly to make an	147
appropriation sufficient to pay the indemnification, and no	148
payment shall be made until such an appropriation has been made.	149
The employer shall make this appropriation request during the	150
current biennium and during each succeeding biennium until a	151
sufficient appropriation is made.	152

(F)(1) Subject to division (F)(2) of this section, if an	153
employer or the attorney general fails to approve indemnification	154
or limits indemnification of an officer or employee of the	155
employer, the officer or employee may commence an action against	156
the employer in the court of claims pursuant to sections 2743.01	157
to 2743.20 of the Revised Code to prove that hethe officer or	158
employee is entitled to indemnification pursuant to division (A)	159
of this section and that division (B) of this section does not	160
prohibit or limit histhe officer's or employee's indemnification	161
and seeking either a judgment against the employer for a sum of	162
money that the officer or employee has paid to satisfy a judgment	163
or settlement or an order directing the employer to pay a judgment	164
or settlement against the officer or employee that has not been	165
satisfied. Section 109.365 of the Revised Code does not prohibit	166
any information obtained by the attorney general in histhe	167
attorney general's investigation conducted pursuant to division	168
(A) of section 109.362 of the Revised Code to determine whether to	169
defend the officer or employee from being admitted as evidence in	170
any action brought pursuant to this section.	171

An action brought pursuant to division (F)(1) of this section	172
shall be commenced no later than two years after the cause of	173
action arising under division (F)(1) of this section accrues. A	174
cause of action arising under this section accrues upon the entry	175
of a money judgment against the officer or employee if the time	176
for filing an appeal in the action lapses without the filing of an	177
appeal, upon the conclusion of the final appeal in any action in	178
which a money judgment is entered against the officer or employee	179
if an appeal is filed in the action, or upon execution of any	180
settlement agreement requiring payment of money by the officer or	181
employee.	182

(2) Notwithstanding division (F)(1) of this section, an	183
officer or employee may not commence an action against the	184
employer in the court of claims or in any other court regarding a	185
refusal of the employer or the attorney general to indemnify	186
punitive or exemplary damages pursuant to this section.	187

Sec. 341.27.  (A) As used in this section:

188

(1) "County correctional facility" has the same meaning as in	189
section 341.42 of the Revised Code.	190

(2) "County correctional officer" has the same meaning as in	191
section 341.41 of the Revised Code.	192

(B) If all the prisoners or adult offenders working on a work	193
detail administered by a county correctional facility and outside	194
the facility have volunteered for the work detail and are	195
imprisoned or reside in that facility for an offense other than a	196
felony of the first or second degree and if the applicable county	197
correctional officer complies with division (C) of this section,	198
both of the following apply:	199

(1) No sheriff, deputy sheriff, or county correctional	200
officer is liable for civil damages for injury, death, or loss to	201
person or property caused or suffered by a prisoner or adult	202
offender working on the work detail unless the injury, death, or	203
loss results from malice or wanton or reckless misconduct of the	204
sheriff, deputy sheriff, or county correctional officer.	205

(2) The county in which the prisoners or adult offenders work	206
on the work detail and that employs the sheriff, deputy sheriff,	207
or county correctional officer is not liable for civil damages for	208
injury, death, or loss to person or property caused or suffered by	209
a prisoner or adult offender working on the work detail unless the	210
injury, death, or loss results from malice or wanton or reckless	211
misconduct of the sheriff or any deputy sheriff or county	212
correctional officer.	213

(C) To qualify for the immunity described in division (B)(1)	214
of this section regarding a work detail, a county correctional	215
officer, prior to having the prisoners or adult offenders of the	216
county correctional facility, work outside the facility on the	217
work detail, shall inform each prisoner or adult offender on the	218
work detail of the provisions of this section, including notifying	219
the prisoner or adult offender that, by volunteering for the work	220
detail, the prisoner or adult offender cannot hold the sheriff,	221
deputy sheriff, or county correctional officer or the county	222
liable for civil damages for injury, death, or loss to person or	223
property unless the injury, death, or loss results from malice or	224
wanton or reckless misconduct of the sheriff, deputy sheriff, or	225
county correctional officer.	226

Sec. 753.06.  (A) As used in this section:

227

(1) "Municipal correctional facility" has the same meaning as	228
in section 753.32 of the Revised Code.	229

(2) "Municipal correctional officer" has the same meaning as	230
in section 753.31 of the Revised Code.	231

(B) If all the prisoners working on a work detail	232
administered by a municipal correctional facility and outside the	233
facility have volunteered for the work detail and are imprisoned	234
in that facility for an offense other than a felony of the first	235
or second degree and if the applicable municipal correctional	236
officer complies with division (C) of this section, both of the	237
following apply:	238

(1) No member of the organized police department of the	239
municipal corporation and no municipal correctional officer is	240
liable for civil damages for injury, death, or loss to person or	241
property caused or suffered by a prisoner working on the work	242
detail unless the injury, death, or loss results from malice or	243
wanton or reckless misconduct of the member of the organized	244
police department of the municipal corporation or the municipal	245
correctional officer.	246

(2) A municipal corporation in which the prisoners work on	247
the work detail and that employs the member of the organized	248
police department or the municipal correctional officer or a	249
township in which the prisoners work on the work detail is not	250
liable for civil damages for injury, death, or loss to person or	251
property caused or suffered by a prisoner working on the work	252
detail unless the injury, death, or loss results from malice or	253
wanton or reckless misconduct of the member of the organized	254
police department of the municipal corporation or a municipal	255
correctional officer.	256

(C) To qualify for the immunity described in division (B)(1)	257
of this section regarding a work detail, a municipal correctional	258
officer, prior to having the prisoners of the municipal	259
correctional facility work outside the facility on the work	260
detail, shall inform each prisoner on the work detail of the	261
provisions of this section, including notifying the prisoner that,	262
by volunteering for the work detail, the prisoner cannot hold any	263
member of the organized police department of the municipal	264
corporation or any municipal correctional officer or the municipal	265
corporation or township liable for civil damages for injury,	266
death, or loss to person or property unless the injury, death, or	267
loss results from malice or wanton or reckless misconduct of the	268
member of the organized police department of the municipal	269
corporation or the municipal correctional officer.	270

Sec. 2743.01.  As used in this chapter:

271

(A) "State" means the state of Ohio, including, but not	272
limited to, the general assembly, the supreme court, the offices	273
of all elected state officers, and all departments, boards,	274
offices, commissions, agencies, institutions, and other	275
instrumentalities of the state of Ohio. "State" does not include	276
political subdivisions.	277

(B) "Political subdivisions" means municipal corporations,	278
townships, counties, school districts, and all other bodies	279
corporate and politic responsible for governmental activities only	280
in geographic areas smaller than that of the state to which the	281
sovereign immunity of the state attaches.	282

(C) "Claim for an award of reparations" or "claim" means a	283
claim for an award of reparations made under sections 2743.51 to	284
2743.72 of the Revised Code.	285

(D) "Award of reparations" or "award" means an award made	286
under sections 2743.51 to 2743.72 of the Revised Code.	287

(E)(1) "Public duty" includes, but is not limited to, any	288
statutory, regulatory, or assumed duty concerning any action or	289
omission of the state involving any of the following:	290

(a) Permitting, certifying, licensing, inspecting,	291
investigating, supervising, regulating, auditing, monitoring, law	292
enforcement, or emergency response activity;	293

(b) Supervising, rehabilitating, or liquidating corporations	294
or other business entities.	295

(2) "Public duty" does not include any action of the state	296
under circumstances in which a special relationship can be	297
established between the state and an injured party as provided in	298
division (A)(3) of section 2743.02 of the Revised Code.	299

Sec. 2743.02.  (A)(1) The state hereby waives its immunity	300
from liability, except as provided for the office of the state	301
fire marshal in division (G)(1) of section 9.60 and division (B)	302
of section 3737.221 of the Revised Code and subject to division	303
(H) of this section, and consents to be sued, and have its	304
liability determined, in the court of claims created in this	305
chapter in accordance with the same rules of law applicable to	306
suits between private parties, except that the determination of	307
liability is subject to the limitations set forth in this chapter	308
and, in the case of state universities or colleges, in section	309
3345.40 of the Revised Code, and except as provided in division	310
(A)(2) or (3) of this section. To the extent that the state has	311
previously consented to be sued, this chapter has no	312
applicability.	313

Except in the case of a civil action filed by the state,	314
filing a civil action in the court of claims results in a complete	315
waiver of any cause of action, based on the same act or omission,	316
which the filing party has against any officer or employee, as	317
defined in section 109.36 of the Revised Code. The waiver shall be	318
void if the court determines that the act or omission was	319
manifestly outside the scope of the officer's or employee's office	320
or employment or that the officer or employee acted with malicious	321
purpose, in bad faith, or in a wanton or reckless manner.	322

(2) If a claimant proves in the court of claims that an	323
officer or employee, as defined in section 109.36 of the Revised	324
Code, would have personal liability for the officer's or	325
employee's acts or omissions but for the fact that the officer or	326
employee has personal immunity under section 9.86 of the Revised	327
Code, the state shall be held liable in the court of claims in any	328
action that is timely filed pursuant to section 2743.16 of the	329
Revised Code and that is based upon the acts or omissions.	330

(3)(a) Except as provided in division (A)(3)(b) of this	331
section, the state is immune from liability in any civil action or	332
proceeding involving the performance or nonperformance of a public	333
duty, including the performance or nonperformance of a public duty	334
that is owed by the state in relation to any action of an	335
individual who is committed to the custody of the state.	336

(b) The state immunity provided in division (A)(3)(a) of this	337
section does not apply to any action of the state under	338
circumstances in which a special relationship can be established	339
between the state and an injured party. A special relationship	340
under this division is demonstrated if all of the following	341
elements exist:	342

(i) An assumption by the state, by means of promises or	343
actions, of an affirmative duty to act on behalf of the party who	344
was allegedly injured;	345

(ii) Knowledge on the part of the state's agents that	346
inaction of the state could lead to harm;	347

(iii) Some form of direct contact between the state's agents	348
and the injured party;	349

(iv) The injured party's justifiable reliance on the state's	350
affirmative undertaking.	351

(B) The state hereby waives the immunity from liability of	352
all hospitals owned or operated by one or more political	353
subdivisions and consents for them to be sued, and to have their	354
liability determined, in the court of common pleas, in accordance	355
with the same rules of law applicable to suits between private	356
parties, subject to the limitations set forth in this chapter.	357
This division is also applicable to hospitals owned or operated by	358
political subdivisions which have been determined by the supreme	359
court to be subject to suit prior to July 28, 1975.	360

(C) Any hospital, as defined in section 2305.113 of the	361
Revised Code, may purchase liability insurance covering its	362
operations and activities and its agents, employees, nurses,	363
interns, residents, staff, and members of the governing board and	364
committees, and, whether or not such insurance is purchased, may,	365
to such extent as its governing board considers appropriate,	366
indemnify or agree to indemnify and hold harmless any such person	367
against expense, including attorney's fees, damage, loss, or other	368
liability arising out of, or claimed to have arisen out of, the	369
death, disease, or injury of any person as a result of the	370
negligence, malpractice, or other action or inaction of the	371
indemnified person while acting within the scope of the	372
indemnified person's duties or engaged in activities at the	373
request or direction, or for the benefit, of the hospital. Any	374
hospital electing to indemnify such persons, or to agree to so	375
indemnify, shall reserve such funds as are necessary, in the	376
exercise of sound and prudent actuarial judgment, to cover the	377
potential expense, fees, damage, loss, or other liability. The	378
superintendent of insurance may recommend, or, if such hospital	379
requests the superintendent to do so, the superintendent shall	380
recommend, a specific amount for any period that, in the	381
superintendent's opinion, represents such a judgment. This	382
authority is in addition to any authorization otherwise provided	383
or permitted by law.	384

(D) Recoveries against the state shall be reduced by the	385
aggregate of insurance proceeds, disability award, or other	386
collateral recovery received by the claimant. This division does	387
not apply to civil actions in the court of claims against a state	388
university or college under the circumstances described in section	389
3345.40 of the Revised Code. The collateral benefits provisions of	390
division (B)(2) of that section apply under those circumstances.	391

(E) The only defendant in original actions in the court of	392
claims is the state. The state may file a third-party complaint or	393
counterclaim in any civil action, except a civil action for two	394
thousand five hundred dollars or less, that is filed in the court	395
of claims.	396

(F) A civil action against an officer or employee, as defined	397
in section 109.36 of the Revised Code, that alleges that the	398
officer's or employee's conduct was manifestly outside the scope	399
of the officer's or employee's employment or official	400
responsibilities, or that the officer or employee acted with	401
malicious purpose, in bad faith, or in a wanton or reckless manner	402
shall first be filed against the state in the court of claims,	403
which has exclusive, original jurisdiction to determine,	404
initially, whether the officer or employee is entitled to personal	405
immunity under section 9.86 of the Revised Code and whether the	406
courts of common pleas have jurisdiction over the civil action.	407

The filing of a claim against an officer or employee under	408
this division tolls the running of the applicable statute of	409
limitations until the court of claims determines whether the	410
officer or employee is entitled to personal immunity under section	411
9.86 of the Revised Code.	412

(G) Whenever a claim lies against an officer or employee who	413
is a member of the Ohio national guard, and the officer or	414
employee was, at the time of the act or omission complained of,	415
subject to the "Federal Tort Claims Act," 60 Stat. 842 (1946), 28	416
U.S.C. 2671, et seq., then the Federal Tort Claims Act is the	417
exclusive remedy of the claimant and the state has no liability	418
under this section.	419

(H) If an inmate of a state correctional institution has a	420
claim against the state for the loss of or damage to property and	421
the amount claimed does not exceed three hundred dollars, before	422
commencing an action against the state in the court of claims, the	423
inmate shall file a claim for the loss or damage under the rules	424
adopted by the director of rehabilitation and correction pursuant	425
to this division. The inmate shall file the claim within the time	426
allowed for commencement of a civil action under section 2743.16	427
of the Revised Code. If the state admits or compromises the claim,	428
the director shall make payment from a fund designated by the	429
director for that purpose. If the state denies the claim or does	430
not compromise the claim at least sixty days prior to expiration	431
of the time allowed for commencement of a civil action based upon	432
the loss or damage under section 2743.16 of the Revised Code, the	433
inmate may commence an action in the court of claims under this	434
chapter to recover damages for the loss or damage.	435

The director of rehabilitation and correction shall adopt	436
rules pursuant to Chapter 119. of the Revised Code to implement	437
this division.	438

Sec. 5502.52. (A) There is hereby created the statewide	439
emergency alert program to aid in the identification and location	440
of children who are under eighteen years of age, who are abducted,	441
and whose abduction, as determined by a law enforcement agency,	442
poses a credible threat of immediate danger of serious bodily harm	443
or death to a child. The program shall be a coordinated effort	444
among the governor's office, the department of public safety, the	445
attorney general, law enforcement agencies, the state's public and	446
commercial television and radio broadcasters, and others as deemed	447
necessary by the governor.	448

(B) The statewide emergency alert program shall not be	449
implemented unless all of the following activation criteria are	450
met:	451

(1) The local investigating law enforcement agency confirms	452
that an abduction has occurred.	453

(2) An abducted child is under eighteen years of age.

454

(3) The abduction poses a credible threat of immediate danger	455
of serious bodily harm or death to a child.	456

(4) A law enforcement agency determines that the child is not	457
a runaway and has not been abducted as a result of a child custody	458
dispute, unless the dispute poses a credible threat of immediate	459
danger of serious bodily harm or death to the child.	460

(5) There is sufficient descriptive information about the	461
child, the abductor, and the circumstances surrounding the	462
abduction to indicate that activation of the alert will help	463
locate the child.	464

(C) Nothing in division (B) of this section prevents the	465
activation of a local or regional emergency alert program that may	466
impose different criteria for the activation of a local or	467
regional plan.	468

(D) Any radio broadcast station, television broadcast	469
station, or cable television system participating in the statewide	470
emergency alert program or in any local or regional emergency	471
alert program, and any director, officer, employee, or agent of	472
any such station or system, shall not be liable to any person for	473
damages for any loss allegedly caused by or resulting from the	474
station's or system's broadcast or cablecast of, or failure to	475
broadcast or cablecast, any information pursuant to the statewide	476
emergency alert program or the local or regional emergency alert	477
program.	478

(E) As used in this section:

479

(1) "Abducted child" means a child for whom there is credible	480
evidence to believe that the child has been abducted in violation	481
of section 2905.01, 2905.02, 2905.03, or 2905.05 of the Revised	482
Code.	483

(2) "Cable television system" means a cable system, as	484
defined in section 2913.04 of the Revised Code.	485

(3) "Law enforcement agency" includes, but is not limited to,	486
a county sheriff's office, the office of a village marshal, a	487
police department of a municipal corporation, a police force of a	488
regional transit authority, a police force of a metropolitan	489
housing authority, the state highway patrol, a state university	490
law enforcement agency, the office of a township police constable,	491
and the police department of a township or joint township police	492
district.	493

Section 2. That existing sections 9.87, 2743.01, 2743.02, and	494
5502.52 of the Revised Code are hereby repealed.	495