Sub. H. B. No. 25 As Reported by the Senate Judiciary--Civil Justice Committee

Representatives Wagner, J. Stewart, Hartnett, Carano, Otterman, Latta, Widener, Aslanides, S. Patton, Buehrer, Wolpert, Combs, Kearns, Webster, McGregor, Reidelbach, Law, Core, Schaffer, Faber, Chandler, Cassell, Hagan, Wagoner, Martin, Gilb, Allen, Barrett, Blessing, Book, Carmichael, Coley, Collier, Daniels, DeBose, Dolan, Domenick, C. Evans, Fessler, Flowers, Gibbs, Harwood, Hughes, Key, Mason, Miller, Perry, Schneider, Seaver, Seitz, D. Stewart, Strahorn, Taylor, Walcher, Willamowski, Williams, Yates, Yuko

A BILL

To amend sections 145.06, 742.05, 2743.02, 3307.06, 1
3309.06, and 5505.042 of the Revised Code and to 2
amend Section 5 of Sub. S.B. 133 of the 125th 3
General Assembly to allow a state officer or 4
employee who in a civil action is alleged to lack 5
immunity from personal liability to participate in 6
proceedings to determine whether the officer or 7
employee is entitled to personal immunity, to 8
revise the law governing the filling of a vacancy 9
on a state retirement system board, and to declare 10
an emergency. 11

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

       Section 1. That sections 145.06, 742.05, 2743.02, 3307.06, 12
3309.06, and 5505.042 of the Revised Code be amended to read as 13
follows: 14

       Sec. 145.06. (A) If a vacancy occurs in the term of any 15
employee member of the public employees retirement board, the 16
remaining members of the board shall elect a successor employee 17
member from the employee group lacking representation because of 18
the vacancy. On certification of the election results in 19
accordance with rules adopted under section 145.058 of the Revised 20
Code, the successor employee member shall hold office until the 21
first day of the new term that follows the next board election 22
that occurs not less than ninety days after the successor employee 23
member's election. 24

       Any employee member of the board who fails to attend the 25
meetings of the board for three months or longer, without valid 26
excuse, shall be considered as having resigned, and the board 27
shall declare the employee member's office vacated as of the date 28
of the adoption of a proper resolution. 29

       (B) If a vacancy occurs during the term of office of a 30
retirant member of the board, the remaining members of the board 31
shall elect a successor retirant member who shall be a former 32
member of the public employees retirement system who is eligible 33
for election under section 145.04 of the Revised Code as a 34
retirant member of the board. On certification of the election 35
results in accordance with rules adopted under section 145.058 of 36
the Revised Code, the successor retirant member shall hold office 37
until the first day of the new term that follows the next board 38
election that occurs not less than ninety days after the successor 39
retirant member's election. 40

       If a retirant member of the board fails to attend the 41
meetings of the board for three months or longer, without valid 42
excuse, the retirant member shall be considered as having 43
resigned, and the board shall declare the member's office vacated 44
as of the date of the adoption of a proper resolution. 45

       If as a result of changed circumstances a retirant member 46
would no longer qualify for membership on the board as the 47
retirant member, the retirant member's office shall be considered 48
vacant, and a successor retirant member shall be chosen in the 49
manner specified in this division. 50

       (C) Elections under this section to fill a vacancy on the 51
board shall be conducted in accordance with rules adopted under 52
section 145.058 of the Revised Code. 53

       Sec. 742.05. Any vacancy occurring in the term of a member 54
of the board of trustees of the Ohio police and fire pension fund 55
who is the fiscal officer of a municipal corporation shall be 56
filled by appointment by the governor for the unexpired term of 57
such member. 58

        If a vacancy occurs in the term of an employee or retirant 59
member of the board, all the remaining members of the board shall 60
elect a successor employee or retirant member. On certification of 61
the election results in accordance with rules adopted under 62
section 742.045 of the Revised Code, the successor member shall 63
hold office until the first day of the new term that follows the 64
next board election that occurs not less than ninety days after 65
the successor member's election. 66

       Elections under this section to fill a vacancy on the board 67
shall be conducted in accordance with rules adopted under section 68
742.045 of the Revised Code. 69

       If a member of the board who is the fiscal officer of a 70
municipal corporation ceases to be a fiscal officer of a municipal 71
corporation, a vacancy shall exist. 72

       If an employee member of the board ceases to be a member of 73
the fund, a vacancy shall exist. 74

       If as a result of changed circumstances a retirant member no 75
longer qualifies for membership on the board as a retirant member, 76
a vacancy shall exist. 77

       Any elected or appointed member of the board who fails to 78
attend three consecutive meetings of the board, without valid 79
excuse, shall be considered as having resigned from the board and 80
the board shall declare the member's office vacated and as of the 81
date of the adoption of a proper resolution a vacancy shall exist. 82

       Sec. 2743.02. (A)(1) The state hereby waives its immunity 83
from liability, except as provided for the office of the state 84
fire marshal in division (G)(1) of section 9.60 and division (B) 85
of section 3737.221 of the Revised Code and subject to division 86
(H) of this section, and consents to be sued, and have its 87
liability determined, in the court of claims created in this 88
chapter in accordance with the same rules of law applicable to 89
suits between private parties, except that the determination of 90
liability is subject to the limitations set forth in this chapter 91
and, in the case of state universities or colleges, in section 92
3345.40 of the Revised Code, and except as provided in division 93
(A)(2) or (3) of this section. To the extent that the state has 94
previously consented to be sued, this chapter has no 95
applicability. 96

       Except in the case of a civil action filed by the state, 97
filing a civil action in the court of claims results in a complete 98
waiver of any cause of action, based on the same act or omission, 99
which the filing party has against any officer or employee, as 100
defined in section 109.36 of the Revised Code. The waiver shall be 101
void if the court determines that the act or omission was 102
manifestly outside the scope of the officer's or employee's office 103
or employment or that the officer or employee acted with malicious 104
purpose, in bad faith, or in a wanton or reckless manner. 105

       (2) If a claimant proves in the court of claims that an 106
officer or employee, as defined in section 109.36 of the Revised 107
Code, would have personal liability for the officer's or 108
employee's acts or omissions but for the fact that the officer or 109
employee has personal immunity under section 9.86 of the Revised 110
Code, the state shall be held liable in the court of claims in any 111
action that is timely filed pursuant to section 2743.16 of the 112
Revised Code and that is based upon the acts or omissions. 113

       (3)(a) Except as provided in division (A)(3)(b) of this 114
section, the state is immune from liability in any civil action or 115
proceeding involving the performance or nonperformance of a public 116
duty, including the performance or nonperformance of a public duty 117
that is owed by the state in relation to any action of an 118
individual who is committed to the custody of the state. 119

       (b) The state immunity provided in division (A)(3)(a) of this 120
section does not apply to any action of the state under 121
circumstances in which a special relationship can be established 122
between the state and an injured party. A special relationship 123
under this division is demonstrated if all of the following 124
elements exist: 125

       (i) An assumption by the state, by means of promises or 126
actions, of an affirmative duty to act on behalf of the party who 127
was allegedly injured; 128

       (ii) Knowledge on the part of the state's agents that 129
inaction of the state could lead to harm; 130

       (iii) Some form of direct contact between the state's agents 131
and the injured party; 132

       (iv) The injured party's justifiable reliance on the state's 133
affirmative undertaking. 134

       (B) The state hereby waives the immunity from liability of 135
all hospitals owned or operated by one or more political 136
subdivisions and consents for them to be sued, and to have their 137
liability determined, in the court of common pleas, in accordance 138
with the same rules of law applicable to suits between private 139
parties, subject to the limitations set forth in this chapter. 140
This division is also applicable to hospitals owned or operated by 141
political subdivisions which have been determined by the supreme 142
court to be subject to suit prior to July 28, 1975. 143

       (C) Any hospital, as defined in section 2305.113 of the 144
Revised Code, may purchase liability insurance covering its 145
operations and activities and its agents, employees, nurses, 146
interns, residents, staff, and members of the governing board and 147
committees, and, whether or not such insurance is purchased, may, 148
to such extent as its governing board considers appropriate, 149
indemnify or agree to indemnify and hold harmless any such person 150
against expense, including attorney's fees, damage, loss, or other 151
liability arising out of, or claimed to have arisen out of, the 152
death, disease, or injury of any person as a result of the 153
negligence, malpractice, or other action or inaction of the 154
indemnified person while acting within the scope of the 155
indemnified person's duties or engaged in activities at the 156
request or direction, or for the benefit, of the hospital. Any 157
hospital electing to indemnify such persons, or to agree to so 158
indemnify, shall reserve such funds as are necessary, in the 159
exercise of sound and prudent actuarial judgment, to cover the 160
potential expense, fees, damage, loss, or other liability. The 161
superintendent of insurance may recommend, or, if such hospital 162
requests the superintendent to do so, the superintendent shall 163
recommend, a specific amount for any period that, in the 164
superintendent's opinion, represents such a judgment. This 165
authority is in addition to any authorization otherwise provided 166
or permitted by law. 167

       (D) Recoveries against the state shall be reduced by the 168
aggregate of insurance proceeds, disability award, or other 169
collateral recovery received by the claimant. This division does 170
not apply to civil actions in the court of claims against a state 171
university or college under the circumstances described in section 172
3345.40 of the Revised Code. The collateral benefits provisions of 173
division (B)(2) of that section apply under those circumstances. 174

       (E) The only defendant in original actions in the court of 175
claims is the state. The state may file a third-party complaint or 176
counterclaim in any civil action, except a civil action for two 177
thousand five hundred dollars or less, that is filed in the court 178
of claims. 179

       (F) A civil action against an officer or employee, as defined 180
in section 109.36 of the Revised Code, that alleges that the 181
officer's or employee's conduct was manifestly outside the scope 182
of the officer's or employee's employment or official 183
responsibilities, or that the officer or employee acted with 184
malicious purpose, in bad faith, or in a wanton or reckless manner 185
shall first be filed against the state in the court of claims, 186
which has exclusive, original jurisdiction to determine, 187
initially, whether the officer or employee is entitled to personal 188
immunity under section 9.86 of the Revised Code and whether the 189
courts of common pleas have jurisdiction over the civil action. 190
The officer or employee may participate in the immunity 191
determination proceeding before the court of claims to determine 192
whether the officer or employee is entitled to personal immunity 193
under section 9.86 of the Revised Code. 194

       The filing of a claim against an officer or employee under 195
this division tolls the running of the applicable statute of 196
limitations until the court of claims determines whether the 197
officer or employee is entitled to personal immunity under section 198
9.86 of the Revised Code. 199

       (G) Whenever a claim lies against an officer or employee who 200
is a member of the Ohio national guard, and the officer or 201
employee was, at the time of the act or omission complained of, 202
subject to the "Federal Tort Claims Act," 60 Stat. 842 (1946), 28 203
U.S.C. 2671, et seq., then the Federal Tort Claims Act is the 204
exclusive remedy of the claimant and the state has no liability 205
under this section. 206

       (H) If an inmate of a state correctional institution has a 207
claim against the state for the loss of or damage to property and 208
the amount claimed does not exceed three hundred dollars, before 209
commencing an action against the state in the court of claims, the 210
inmate shall file a claim for the loss or damage under the rules 211
adopted by the director of rehabilitation and correction pursuant 212
to this division. The inmate shall file the claim within the time 213
allowed for commencement of a civil action under section 2743.16 214
of the Revised Code. If the state admits or compromises the claim, 215
the director shall make payment from a fund designated by the 216
director for that purpose. If the state denies the claim or does 217
not compromise the claim at least sixty days prior to expiration 218
of the time allowed for commencement of a civil action based upon 219
the loss or damage under section 2743.16 of the Revised Code, the 220
inmate may commence an action in the court of claims under this 221
chapter to recover damages for the loss or damage. 222

       The director of rehabilitation and correction shall adopt 223
rules pursuant to Chapter 119. of the Revised Code to implement 224
this division. 225

       Sec. 3307.06. (A) Annually on the first Monday of May, one 226
contributing member, as defined in division (D) of section 3307.05 227
of the Revised Code, shall be elected by ballot to the state 228
teachers retirement board, except that, beginning with the annual 229
election for contributing members in May, 1978, and in the annual 230
election of each fourth year thereafter, two contributing members 231
shall be elected to the board. Elected contributing members shall 232
begin their respective terms of office on the first day of 233
September following their election and shall serve for a term of 234
four years. 235

       (B) The retired teacher members of the board, as defined in 236
division (E) of section 3307.05 of the Revised Code, shall be 237
elected for a term of four years. The retired teacher members 238
shall be elected to the board at the annual election for 239
contributing members of the board, as provided in division (A) of 240
this section, in the year in which the term of the current retired 241
teacher members would expire. The retired teacher members shall 242
begin their respective terms of office on the first day of 243
September following their election. 244

       No contributing member of the board who retires while a 245
member of the board shall be eligible to become a retired teacher 246
member of the board for three years after the date of the member's 247
retirement. 248

       (C) If a vacancy occurs during the term of office of any 249
elected member of the board, the remaining members of the board 250
shall elect a successor member. On certification of the election 251
results in accordance with rules adopted under section 3307.075 of 252
the Revised Code the successor member shall hold office until the 253
first day of the new term that follows the next board election 254
that occurs not less than ninety days after the successor member's 255
election. The successor member shall qualify for board membership 256
under the same division of section 3307.05 of the Revised Code as 257
the member's predecessor in office. Elections under this division 258
shall be conducted in accordance with rules adopted under section 259
3307.075 of the Revised Code. 260

       (D) If as a result of changed circumstances an elected member 261
of the board would no longer qualify for board membership under 262
that division of section 3307.05 of the Revised Code on the basis 263
of which the member was elected, or if such a member fails to 264
attend the meetings of the board for four months or longer, 265
without being excused, the member's position on the board shall be 266
considered vacant, and a successor member shall be elected, under 267
division (C) of this section, for the remainder of the unexpired 268
term. 269

       Sec. 3309.06. (A) Elections for employee and retirant members 270
of the school employees retirement board shall be held on the 271
first Monday of March. Terms of office of the employee and 272
retirant members of the board shall be for four years each, 273
commencing on the first day of July following the election and 274
ending on the thirtieth day of June. The initial terms of the 275
first retirant member and the new employee member shall commence 276
on July 1, 1984, and end on June 30, 1988. 277

       (B) The initial election of the second retirant member shall 278
be held at the first election that occurs later than ninety days 279
after ~~the effective date of this amendment~~September 15, 2004. 280
Subsequent elections shall be held each fourth year thereafter. 281

       (C) If a vacancy occurs during the term of an elected member 282
of the board, the remaining members of the board shall elect a 283
successor member. On certification of the election results in 284
accordance with rules adopted under section 3309.075 of the 285
Revised Code, the successor member shall hold office until the 286
first day of the new term that follows the next board election 287
that occurs not less than ninety days after the successor member's 288
election. The successor member shall qualify for board membership 289
under the same division of section 3309.05 of the Revised Code as 290
the member's predecessor in office. Elections under this division 291
shall be conducted in accordance with rules adopted under section 292
3309.075 of the Revised Code. 293

        (D) Employee members or retirant members of the board who 294
fail to attend the meetings of the board for four months or 295
longer, without being excused, shall be considered as having 296
resigned and successors shall be elected for their unexpired terms 297
pursuant to division (C) of this section. If as a result of 298
changed circumstances the retirant member would no longer qualify 299
for membership on the board as a retirant member, the office shall 300
be considered vacant, and a successor retirant member shall be 301
elected pursuant to division (C) of this section. 302

       Sec. 5505.042. Except as provided in section 5505.043 of the 303
Revised Code, any vacancy occurring in the term of a retirant 304
member of the state highway patrol retirement board or an employee 305
member of the board shall be filled by an election conducted in 306
the same manner as other retirant member and employee member 307
elections under section 5505.041 of the Revised Code. On 308
certification of the election results in accordance with rules 309
adopted under section 5505.047 of the Revised Code, the retirant 310
member or employee member elected shall hold office until the 311
first day of the new term that follows the next board election 312
that occurs not less than ninety days after the member's election. 313

       Section 2. That existing sections 145.06, 742.05, 2743.02, 314
3307.06, 3309.06, and 5505.042 of the Revised Code are hereby 315
repealed. 316

       Section 3. That Section 5 of Sub. S.B. 133 of the 125th 317
General Assembly be amended to read as follows: 318

       Sec. 5. Nothing in ~~this act~~Sub. S.B. 133 of the 125th 319
General Assembly shall affect the term of any elected member of a 320
state retirement board serving on the effective date of ~~this act~~ 321
Sub. S.B. 133 of the 125th General Assembly. 322

       The additional members of the state retirement systems to be 323
appointed pursuant to ~~this act~~Sub. S.B. 133 of the 125th General 324
Assembly shall be appointed and take office not later than ninety 325
days after the effective date of ~~this act~~Sub. S.B. 133 of the 326
125th General Assembly, except that an investment expert member 327
appointed jointly by the Speaker of the House of Representatives 328
and the President of the Senate shall not immediately take office 329
if taking office would result in an even number of members on that 330
state retirement board. The member shall take office at the 331
earliest time that taking office will result in an odd number of 332
members on that board. 333

       Not later than ninety days after the effective date of ~~this~~ 334
~~act~~Sub. S.B. 133 of the 125th General Assembly, the Governor 335
shall appoint the initial additional retirant member of the public 336
employees retirement board created by ~~this act~~Sub. S.B. 133 of 337
the 125th General Assembly. The retirant member shall hold office 338
until the first day of the new term that follows the next board 339
election that occurs not less than ninety days after the 340
appointment. 341

        Not later than ninety days after the effective date of ~~this~~ 342
~~act~~Sub. S.B. 133 of the 125th General Assembly, the Governor 343
shall appoint the initial additional retired teacher member 344
position created by ~~this act~~Sub. S.B. 133 of the 125th General 345
Assembly. The retired teacher member shall hold office until the 346
first day of the new term that follows the next board election 347
that occurs not less than ninety days after the appointment. 348

       Not later than ninety days after the effective date of ~~this~~ 349
~~act~~Sub. S.B. 133 of the 125th General Assembly, the Governor 350
shall appoint the initial additional retirant member of the school 351
employees retirement board created by ~~this act~~Sub. S.B. 133 of 352
the 125th General Assembly. The retirant member shall hold office 353
~~until the next board election that occurs not less than ninety~~ 354
~~days after the appointment~~through June 30, 2005, as directed in 355
Section 6 of Am. H.B. 10 of the 126th General Assembly. 356

       Not later than ninety days after the effective date of ~~this~~ 357
~~act~~Sub. S.B. 133 of the 125th General Assembly, the Governor 358
shall appoint the initial additional retirant member of the state 359
highway patrol retirement board created by ~~this act~~Sub. S.B. 133 360
of the 125th General Assembly. The retirant member shall hold 361
office until the first day of the new term that follows the next 362
board election that occurs not less than ninety days after the 363
appointment. 364

       Section 4. That existing Section 5 of Sub. S.B. 133 of the 365
125th General Assembly is hereby repealed. 366

       Section 5. Section 2743.02 of the Revised Code as amended by 367
this act shall take effect on the ninety-first day after the 368
effective date of this act. 369

       Section 6. This act is hereby declared to be an emergency 370
measure necessary for the immediate preservation of the public 371
peace, health, and safety. The reason for such necessity is that, 372
to provide consistent governance of the Public Employees 373
Retirement System, State Teachers Retirement System, School 374
Employees Retirement System, and State Highway Patrol Retirement 375
System, the continuity of the membership of the systems' boards 376
must be maintained. Therefore, this act shall go into immediate 377
effect. 378

Section 1. That sections 145.06, 742.05, 2743.02, 3307.06,	12
3309.06, and 5505.042 of the Revised Code be amended to read as	13
follows:	14

Sec. 145.06. (A) If a vacancy occurs in the term of any	15
employee member of the public employees retirement board, the	16
remaining members of the board shall elect a successor employee	17
member from the employee group lacking representation because of	18
the vacancy. On certification of the election results in	19
accordance with rules adopted under section 145.058 of the Revised	20
Code, the successor employee member shall hold office until the	21
first day of the new term that follows the next board election	22
that occurs not less than ninety days after the successor employee	23
member's election.	24

Any employee member of the board who fails to attend the	25
meetings of the board for three months or longer, without valid	26
excuse, shall be considered as having resigned, and the board	27
shall declare the employee member's office vacated as of the date	28
of the adoption of a proper resolution.	29

(B) If a vacancy occurs during the term of office of a	30
retirant member of the board, the remaining members of the board	31
shall elect a successor retirant member who shall be a former	32
member of the public employees retirement system who is eligible	33
for election under section 145.04 of the Revised Code as a	34
retirant member of the board. On certification of the election	35
results in accordance with rules adopted under section 145.058 of	36
the Revised Code, the successor retirant member shall hold office	37
until the first day of the new term that follows the next board	38
election that occurs not less than ninety days after the successor	39
retirant member's election.	40

If a retirant member of the board fails to attend the	41
meetings of the board for three months or longer, without valid	42
excuse, the retirant member shall be considered as having	43
resigned, and the board shall declare the member's office vacated	44
as of the date of the adoption of a proper resolution.	45

If as a result of changed circumstances a retirant member	46
would no longer qualify for membership on the board as the	47
retirant member, the retirant member's office shall be considered	48
vacant, and a successor retirant member shall be chosen in the	49
manner specified in this division.	50

(C) Elections under this section to fill a vacancy on the	51
board shall be conducted in accordance with rules adopted under	52
section 145.058 of the Revised Code.	53

Sec. 742.05. Any vacancy occurring in the term of a member	54
of the board of trustees of the Ohio police and fire pension fund	55
who is the fiscal officer of a municipal corporation shall be	56
filled by appointment by the governor for the unexpired term of	57
such member.	58

If a vacancy occurs in the term of an employee or retirant	59
member of the board, all the remaining members of the board shall	60
elect a successor employee or retirant member. On certification of	61
the election results in accordance with rules adopted under	62
section 742.045 of the Revised Code, the successor member shall	63
hold office until the first day of the new term that follows the	64
next board election that occurs not less than ninety days after	65
the successor member's election.	66

Elections under this section to fill a vacancy on the board	67
shall be conducted in accordance with rules adopted under section	68
742.045 of the Revised Code.	69

If a member of the board who is the fiscal officer of a	70
municipal corporation ceases to be a fiscal officer of a municipal	71
corporation, a vacancy shall exist.	72

If an employee member of the board ceases to be a member of	73
the fund, a vacancy shall exist.	74

If as a result of changed circumstances a retirant member no	75
longer qualifies for membership on the board as a retirant member,	76
a vacancy shall exist.	77

Any elected or appointed member of the board who fails to	78
attend three consecutive meetings of the board, without valid	79
excuse, shall be considered as having resigned from the board and	80
the board shall declare the member's office vacated and as of the	81
date of the adoption of a proper resolution a vacancy shall exist.	82

Sec. 2743.02. (A)(1) The state hereby waives its immunity	83
from liability, except as provided for the office of the state	84
fire marshal in division (G)(1) of section 9.60 and division (B)	85
of section 3737.221 of the Revised Code and subject to division	86
(H) of this section, and consents to be sued, and have its	87
liability determined, in the court of claims created in this	88
chapter in accordance with the same rules of law applicable to	89
suits between private parties, except that the determination of	90
liability is subject to the limitations set forth in this chapter	91
and, in the case of state universities or colleges, in section	92
3345.40 of the Revised Code, and except as provided in division	93
(A)(2) or (3) of this section. To the extent that the state has	94
previously consented to be sued, this chapter has no	95
applicability.	96

Except in the case of a civil action filed by the state,	97
filing a civil action in the court of claims results in a complete	98
waiver of any cause of action, based on the same act or omission,	99
which the filing party has against any officer or employee, as	100
defined in section 109.36 of the Revised Code. The waiver shall be	101
void if the court determines that the act or omission was	102
manifestly outside the scope of the officer's or employee's office	103
or employment or that the officer or employee acted with malicious	104
purpose, in bad faith, or in a wanton or reckless manner.	105

(2) If a claimant proves in the court of claims that an	106
officer or employee, as defined in section 109.36 of the Revised	107
Code, would have personal liability for the officer's or	108
employee's acts or omissions but for the fact that the officer or	109
employee has personal immunity under section 9.86 of the Revised	110
Code, the state shall be held liable in the court of claims in any	111
action that is timely filed pursuant to section 2743.16 of the	112
Revised Code and that is based upon the acts or omissions.	113

(3)(a) Except as provided in division (A)(3)(b) of this	114
section, the state is immune from liability in any civil action or	115
proceeding involving the performance or nonperformance of a public	116
duty, including the performance or nonperformance of a public duty	117
that is owed by the state in relation to any action of an	118
individual who is committed to the custody of the state.	119

(b) The state immunity provided in division (A)(3)(a) of this	120
section does not apply to any action of the state under	121
circumstances in which a special relationship can be established	122
between the state and an injured party. A special relationship	123
under this division is demonstrated if all of the following	124
elements exist:	125

(i) An assumption by the state, by means of promises or	126
actions, of an affirmative duty to act on behalf of the party who	127
was allegedly injured;	128

(ii) Knowledge on the part of the state's agents that	129
inaction of the state could lead to harm;	130

(iii) Some form of direct contact between the state's agents	131
and the injured party;	132

(iv) The injured party's justifiable reliance on the state's	133
affirmative undertaking.	134

(B) The state hereby waives the immunity from liability of	135
all hospitals owned or operated by one or more political	136
subdivisions and consents for them to be sued, and to have their	137
liability determined, in the court of common pleas, in accordance	138
with the same rules of law applicable to suits between private	139
parties, subject to the limitations set forth in this chapter.	140
This division is also applicable to hospitals owned or operated by	141
political subdivisions which have been determined by the supreme	142
court to be subject to suit prior to July 28, 1975.	143

(C) Any hospital, as defined in section 2305.113 of the	144
Revised Code, may purchase liability insurance covering its	145
operations and activities and its agents, employees, nurses,	146
interns, residents, staff, and members of the governing board and	147
committees, and, whether or not such insurance is purchased, may,	148
to such extent as its governing board considers appropriate,	149
indemnify or agree to indemnify and hold harmless any such person	150
against expense, including attorney's fees, damage, loss, or other	151
liability arising out of, or claimed to have arisen out of, the	152
death, disease, or injury of any person as a result of the	153
negligence, malpractice, or other action or inaction of the	154
indemnified person while acting within the scope of the	155
indemnified person's duties or engaged in activities at the	156
request or direction, or for the benefit, of the hospital. Any	157
hospital electing to indemnify such persons, or to agree to so	158
indemnify, shall reserve such funds as are necessary, in the	159
exercise of sound and prudent actuarial judgment, to cover the	160
potential expense, fees, damage, loss, or other liability. The	161
superintendent of insurance may recommend, or, if such hospital	162
requests the superintendent to do so, the superintendent shall	163
recommend, a specific amount for any period that, in the	164
superintendent's opinion, represents such a judgment. This	165
authority is in addition to any authorization otherwise provided	166
or permitted by law.	167

(D) Recoveries against the state shall be reduced by the	168
aggregate of insurance proceeds, disability award, or other	169
collateral recovery received by the claimant. This division does	170
not apply to civil actions in the court of claims against a state	171
university or college under the circumstances described in section	172
3345.40 of the Revised Code. The collateral benefits provisions of	173
division (B)(2) of that section apply under those circumstances.	174

(E) The only defendant in original actions in the court of	175
claims is the state. The state may file a third-party complaint or	176
counterclaim in any civil action, except a civil action for two	177
thousand five hundred dollars or less, that is filed in the court	178
of claims.	179

(F) A civil action against an officer or employee, as defined	180
in section 109.36 of the Revised Code, that alleges that the	181
officer's or employee's conduct was manifestly outside the scope	182
of the officer's or employee's employment or official	183
responsibilities, or that the officer or employee acted with	184
malicious purpose, in bad faith, or in a wanton or reckless manner	185
shall first be filed against the state in the court of claims,	186
which has exclusive, original jurisdiction to determine,	187
initially, whether the officer or employee is entitled to personal	188
immunity under section 9.86 of the Revised Code and whether the	189
courts of common pleas have jurisdiction over the civil action.	190
The officer or employee may participate in the immunity	191
determination proceeding before the court of claims to determine	192
whether the officer or employee is entitled to personal immunity	193
under section 9.86 of the Revised Code.	194

The filing of a claim against an officer or employee under	195
this division tolls the running of the applicable statute of	196
limitations until the court of claims determines whether the	197
officer or employee is entitled to personal immunity under section	198
9.86 of the Revised Code.	199

(G) Whenever a claim lies against an officer or employee who	200
is a member of the Ohio national guard, and the officer or	201
employee was, at the time of the act or omission complained of,	202
subject to the "Federal Tort Claims Act," 60 Stat. 842 (1946), 28	203
U.S.C. 2671, et seq., then the Federal Tort Claims Act is the	204
exclusive remedy of the claimant and the state has no liability	205
under this section.	206