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(124th General Assembly)
(Amended Substitute Senate Bill Number 106)
AN ACT
To amend sections 723.01, 1533.18, 2744.01, 2744.02, 2744.03,
2744.04, 2744.05, 2744.06, 2744.07,
4582.27,
5511.01,
5591.36, and 5591.37 of the
Revised Code
to
include
as governmental functions
under the
Political
Subdivision Sovereign Immunity
Law the
design,
construction, reconstruction,
renovation,
repair,
maintenance, and operation of
any school
athletic
facility, school auditorium, or
gymnasium
and the designation, establishment,
design,
construction, implementation, operation,
repair, or
maintenance of railroad quiet zones; to
expand the
motor vehicle operation liability of
political
subdivisions to include liability for
harm caused
by negligent operation other than upon
public
roads; to provide a procedure to determine when a political subdivision
is obliged to defend an employee during a civil action;
to make
changes proposed by Am. Sub.
H.B. 350
of
the 121st
General Assembly to the
Political
Subdivision
Sovereign Immunity Law; and to specify that the operation of a snowmobile or all-purpose vehicle is a recreational activity subject to a landowner's immunity from liability for a recreational user's injuries.
Be it enacted by the General Assembly of the State of Ohio:
SECTION 1. That sections 723.01, 1533.18, 2744.01, 2744.02, 2744.03,
2744.04, 2744.05, 2744.06, 2744.07, 4582.27, 5511.01,
5591.36, and
5591.37
of the Revised Code be amended to read as
follows: Sec. 723.01. Municipal corporations shall have special power
to regulate the
use of the streets. Except as provided in section
5501.49 of the Revised
Code, the legislative authority of a
municipal corporation shall have the
care, supervision, and
control of the public highways, streets, avenues,
alleys,
sidewalks, public grounds, bridges, aqueducts, and viaducts within
the
municipal corporation, and the municipal corporation shall
cause them to be kept open, in repair, and free from nuisance.
The
liability or
immunity from liability of a municipal corporation
for injury,
death, or loss to person or property allegedly caused
by a failure
to perform the responsibilities imposed by this
section shall be
determined pursuant to divisions (A) and (B)(3)
of section 2744.02
of the Revised Code.
Sec. 1533.18. As used in sections 1533.18 and 1533.181 of
the Revised Code: (A) "Premises" means all privately-owned lands, ways,
and
waters, and any buildings and structures thereon, and all
state-owned lands, ways, and waters leased to a private person,
firm,
or organization,
or corporation, including any buildings and
structures thereon. (B) "Recreational user" means a person to whom permission
has been granted, without the payment of a fee or consideration
to
the owner, lessee, or occupant of premises, other than a fee
or
consideration paid to the state or any agency
thereof
of the
state, to
enter
upon premises to hunt, fish, trap, camp, hike,
swim,
operate a
snowmobile or all-purpose vehicle, or
engage in
other recreational
pursuits.
(C) "All-purpose vehicle" has the same meaning as in
section
4519.01 of the Revised Code.
Sec. 2744.01. As used in this chapter: (A)
"Emergency call" means a call to duty, including, but
not
limited to, communications from citizens, police dispatches,
and
personal observations by peace officers of inherently
dangerous
situations that demand an immediate response on the
part
of a
peace officer. (B)
"Employee" means an officer, agent, employee, or
servant,
whether or not compensated or full-time or part-time,
who
is
authorized to act and is acting within the scope of
the
officer's,
agent's, employee's, or servant's
employment for a
political
subdivision.
"Employee" does not
include an independent
contractor
and does not include any
individual engaged by a school
district
pursuant to section
3319.301 of the Revised Code.
"Employee"
includes any elected or
appointed official of a
political
subdivision.
"Employee" also
includes a person who has
been
convicted of or pleaded guilty to
a criminal offense and who
has
been sentenced to perform
community service work in a
political
subdivision whether
pursuant to section 2951.02 of the
Revised
Code or otherwise, and
a child who is found to be a
delinquent
child and who is ordered
by a juvenile court pursuant
to section
2152.19
or 2152.20 of the Revised
Code to perform
community
service or community work in a
political subdivision. (C)(1)
"Governmental function" means a function of a
political subdivision that is specified in division (C)(2) of
this
section or that satisfies any of the following: (a) A function that is imposed upon the state as an
obligation of sovereignty and that is performed by a political
subdivision voluntarily or pursuant to legislative requirement; (b) A function that is for the common good of all citizens
of the state; (c) A function that promotes or preserves the public
peace,
health, safety, or welfare; that involves activities that
are not
engaged in or not customarily engaged in by
nongovernmental
persons; and that is not specified in division
(G)(2) of this
section as a proprietary function. (2) A
"governmental function" includes, but is not limited
to, the following: (a) The provision or nonprovision of police, fire,
emergency
medical, ambulance, and rescue services or protection; (b) The power to preserve the peace; to prevent and
suppress
riots, disturbances, and disorderly assemblages; to
prevent,
mitigate, and clean up releases of oil and hazardous and
extremely
hazardous substances as defined in section 3750.01 of
the Revised
Code; and to protect persons and property; (c) The provision of a system of public education; (d) The provision of a free public library system; (e) The regulation of the use of, and the maintenance and
repair of, roads, highways, streets, avenues, alleys, sidewalks,
bridges, aqueducts, viaducts, and public grounds; (f) Judicial, quasi-judicial, prosecutorial, legislative,
and quasi-legislative functions; (g) The construction, reconstruction, repair, renovation,
maintenance, and operation of buildings that are used in
connection with the performance of a governmental function,
including, but not limited to, office buildings and courthouses; (h) The design, construction, reconstruction, renovation,
repair, maintenance, and operation of jails, places of juvenile
detention, workhouses, or any other detention facility, as
defined
in section 2921.01 of the Revised Code; (i) The enforcement or nonperformance of any law; (j) The regulation of traffic, and the erection or
nonerection of traffic signs, signals, or control devices; (k) The collection and disposal of solid wastes, as
defined
in section 3734.01 of the Revised Code, including, but
not limited
to, the operation of solid waste disposal facilities,
as
"facilities" is defined in that section, and the collection
and
management of hazardous waste generated by households. As
used in
division (C)(2)(k) of this section,
"hazardous waste
generated by
households" means solid waste originally generated
by individual
households that is listed specifically as hazardous
waste in or
exhibits one or more characteristics of hazardous
waste as defined
by rules adopted under section 3734.12 of the
Revised Code, but
that is excluded from regulation as a hazardous
waste by those
rules. (l) The provision or nonprovision, planning or design,
construction, or reconstruction of a public improvement,
including, but not limited to, a sewer system; (m) The operation of a
job and family services
department
or
agency, including, but not limited to, the provision
of
assistance to aged and infirm persons and to persons who are
indigent; (n) The operation of a health board, department, or
agency,
including, but not limited to, any statutorily required
or
permissive program for the provision of immunizations or other
inoculations to all or some members of the public, provided that
a
"governmental function" does not include the supply,
manufacture,
distribution, or development of any drug or vaccine
employed in
any such immunization or inoculation program by any
supplier,
manufacturer, distributor, or developer of the drug or
vaccine; (o) The operation of mental health facilities, mental
retardation or developmental disabilities facilities, alcohol
treatment and control centers, and children's homes or agencies; (p) The provision or nonprovision of inspection services
of
all types, including, but not limited to, inspections in
connection with building, zoning, sanitation, fire, plumbing, and
electrical codes, and the taking of actions in connection with
those types of codes, including, but not limited to, the approval
of plans for the construction of buildings or structures and the
issuance or revocation of building permits or stop work orders in
connection with buildings or structures; (q) Urban renewal projects and the elimination of slum
conditions; (r) Flood control measures; (s) The design, construction, reconstruction, renovation,
operation, care, repair, and maintenance of a township cemetery; (t) The issuance of revenue obligations under section
140.06
of the Revised Code; (u) The design, construction, reconstruction, renovation,
repair, maintenance, and operation of any
school athletic
facility, school auditorium, or gymnasium or any
recreational area
or
facility, including, but not limited to, any of the following: (i) A park, playground,
or
playfield; (ii) An indoor recreational facility; (iii) A zoo
or zoological park; (iv) A
bath, swimming pool, pond, water park, wading pool,
wave pool,
water
slide,
or other type of
aquatic facility; (v) A golf course;
(vi) A bicycle motocross facility or other type of
recreational area or facility in which bicycling, skating, skate
boarding, or scooter riding is engaged; (vii) A rope course or climbing walls; (viii) An all-purpose vehicle facility in which all-purpose
vehicles, as defined in section 4519.01 of the Revised Code, are
contained, maintained, or operated for recreational activities. (v) The provision of public defender services by a county
or
joint county public defender's office pursuant to Chapter 120.
of
the Revised Code; (w)(i) At any time before regulations prescribed pursuant
to
49 U.S.C.A 20153 become effective, the designation,
establishment,
design, construction, implementation, operation,
repair, or
maintenance of a public road rail crossing in a zone
within a
municipal corporation in which, by ordinance, the
legislative
authority of the municipal corporation regulates the
sounding of
locomotive horns, whistles, or bells;
(ii) On and after the effective date of regulations
prescribed pursuant to 49 U.S.C.A. 20153, the designation,
establishment, design, construction, implementation, operation,
repair, or maintenance of a public road rail crossing in such a
zone or of a supplementary safety measure, as defined in 49
U.S.C.A 20153, at or for a public road rail crossing, if and to
the extent that the public road rail crossing is excepted,
pursuant to subsection (c) of that section, from the requirement
of the regulations prescribed under subsection (b) of that
section.
(x)
A function that the general assembly mandates a
political
subdivision to perform. (D)
"Law" means any provision of the constitution,
statutes,
or rules of the United States or of this state;
provisions of
charters, ordinances, resolutions, and rules of
political
subdivisions; and written policies adopted by boards of
education.
When used in connection with the
"common law," this
definition
does not apply. (E)
"Motor vehicle" has the same meaning as in section
4511.01 of the Revised Code. (F)
"Political subdivision" or
"subdivision" means a
municipal corporation, township, county, school district, or
other
body corporate and politic responsible for governmental
activities
in a geographic area smaller than that of the state.
"Political
subdivision" includes, but is not limited to, a county
hospital
commission appointed under section 339.14 of the Revised
Code,
regional planning commission created pursuant to section
713.21 of
the Revised Code, county planning commission created
pursuant to
section 713.22 of the Revised Code, joint planning
council created
pursuant to section 713.231 of the Revised Code,
interstate
regional planning commission created pursuant to
section 713.30 of
the Revised Code, port authority created
pursuant to section
4582.02 or 4582.26 of the Revised Code or in
existence on December
16, 1964, regional council established by
political subdivisions
pursuant to Chapter 167. of the Revised
Code, emergency planning
district and joint emergency planning
district designated under
section 3750.03 of the Revised Code,
joint emergency medical
services district created pursuant to section 307.052
of the
Revised Code, fire and ambulance district created pursuant to
section
505.375 of the Revised Code, joint interstate emergency
planning district
established
by an agreement entered into under
that section, county solid waste
management district and joint
solid waste management district
established under section 343.01
or 343.012 of the Revised Code, and
community school established
under Chapter 3314. of the Revised Code. (G)(1)
"Proprietary function" means a function of a
political
subdivision that is specified in division (G)(2) of
this
section
or that satisfies both of the following: (a) The function is not one described in division
(C)(1)(a)
or (b) of this section and is not one specified in
division (C)(2)
of this section; (b) The function is one that promotes or preserves the
public peace, health, safety, or welfare and that involves
activities that are customarily engaged in by nongovernmental
persons. (2) A
"proprietary function" includes, but is not limited
to, the following: (a) The operation of a hospital by one or more political
subdivisions; (b) The design, construction, reconstruction, renovation,
repair, maintenance, and operation of a public cemetery other
than
a township cemetery; (c) The establishment, maintenance, and operation of a
utility, including, but not limited to, a light, gas, power, or
heat plant, a railroad, a busline or other transit company, an
airport, and a municipal corporation water supply system; (d) The maintenance, destruction, operation, and upkeep of
a
sewer system; (e) The operation and control of a public stadium,
auditorium, civic or social center, exhibition hall, arts and
crafts center, band or orchestra, or off-street parking facility. (H)
"Public roads" means public roads, highways, streets,
avenues, alleys, and bridges within a political subdivision.
"Public roads" does not include berms, shoulders, rights-of-way,
or traffic control devices unless the traffic control devices are
mandated by the Ohio manual of uniform traffic control devices. (I) "State" means the state of Ohio, including, but not
limited to, the general assembly, the supreme court, the offices
of all elected state officers, and all departments, boards,
offices, commissions, agencies, colleges and universities,
institutions, and other instrumentalities of the state of Ohio.
"State" does
not include political subdivisions.
Sec. 2744.02. (A)(1) For the purposes of this chapter,
the
functions of political subdivisions are hereby classified as
governmental functions and proprietary functions. Except as
provided in division (B) of this section, a political subdivision
is not liable in damages in a civil action for injury, death, or
loss to person or property allegedly caused by any act or
omission
of the political subdivision or an employee of the
political
subdivision in connection with a governmental or
proprietary
function. (2) Subject to statutory limitations upon their monetary
jurisdiction, the courts of common pleas, the municipal courts,
and the county courts have jurisdiction to hear and determine
civil actions governed by or brought pursuant to this chapter. (B) Subject to sections 2744.03 and 2744.05 of the Revised
Code, a political subdivision is liable in damages in a civil
action for injury, death, or loss to person or property
allegedly
caused by an act or omission of the political
subdivision or of
any of its employees in connection with a
governmental or
proprietary function, as follows: (1) Except as otherwise provided in this division,
political
subdivisions are liable for injury, death, or loss to
person or
property caused by the negligent operation of any
motor vehicle by
their employees
upon the public roads, highways, or streets when
the employees are
engaged within the scope of their employment and
authority. The following are
full defenses to that liability: (a) A member of a municipal corporation police department
or
any other police agency was operating a motor vehicle while
responding to an emergency call and the operation of the vehicle
did not constitute willful or wanton misconduct; (b) A member of a municipal corporation fire department or
any other firefighting agency was operating a motor vehicle while
engaged in duty at a fire, proceeding toward a place where a fire
is in progress or is believed to be in progress, or answering
any
other emergency alarm and the operation of the vehicle did
not
constitute willful or wanton misconduct; (c) A member of an emergency medical service owned or
operated by a political subdivision was operating a motor vehicle
while responding to or completing a call for emergency medical
care or treatment, the member was holding a valid commercial
driver's license issued pursuant to Chapter 4506. or a driver's
license issued pursuant to Chapter 4507. of the Revised Code, the
operation of the vehicle did not constitute willful or wanton
misconduct, and the operation complies with the precautions of
section 4511.03 of the Revised Code. (2) Except as otherwise provided in sections 3314.07
and
3746.24 of the Revised Code,
political subdivisions are liable for
injury, death,
or loss to person or property caused by the
negligent
performance of acts by their employees with respect to
proprietary functions of the political subdivisions. (3) Except as otherwise provided in section 3746.24 of the
Revised Code,
political subdivisions are liable for injury, death,
or loss to person or property caused by their
negligent
failure
to
keep
public roads, highways, streets, avenues, alleys,
sidewalks,
bridges, aqueducts, viaducts, or public grounds within
the
political subdivisions open, in repair, and free from
nuisance
and other negligent failure to remove obstructions from
public
roads,
except that it is a full defense to that liability,
when a
bridge
within a municipal corporation is involved, that the
municipal
corporation does not have the responsibility for
maintaining or
inspecting the bridge. (4) Except as otherwise provided in section 3746.24 of the
Revised Code,
political subdivisions are liable for injury, death,
or loss to person or property that is caused by the negligence
of
their employees and that occurs within or on the grounds of, and
is due to physical defects within or on the grounds of,
buildings
that are used in connection with the performance of a
governmental
function, including, but not limited to, office
buildings and
courthouses, but not including jails, places of
juvenile
detention, workhouses, or any other detention facility,
as defined
in section 2921.01 of the Revised Code. (5) In addition to the circumstances described in
divisions
(B)(1) to (4) of this section, a political subdivision
is liable
for injury, death, or loss to person or property when
civil
liability is
expressly imposed upon the political subdivision by
a
section of
the Revised Code, including, but not limited to,
sections 2743.02
and 5591.37 of the Revised Code.
Liability
Civil
liability
shall not be construed
to exist under another section of
the
Revised Code merely because
that section imposes
a
responsibility
is imposed
or mandatory duty
upon a political
subdivision
or,
because that section provides for a criminal
penalty,
because of a general
authorization
in that section
that a
political subdivision
may sue
and be sued, or because that
section
uses the term "shall" in a provision pertaining to a
political
subdivision.
(C) An order that denies a political subdivision or an
employee of a political subdivision the benefit of an alleged
immunity from liability as provided in this chapter or any other
provision of the law is a final order.
Sec. 2744.03. (A) In a civil action brought against a
political subdivision or an employee of a political subdivision
to
recover damages for injury, death, or loss to
persons
person or
property
allegedly caused by any act or omission in connection
with a
governmental or proprietary function, the following
defenses or
immunities may be asserted to establish nonliability: (1) The political subdivision is immune from liability if
the employee involved was engaged in the performance of a
judicial, quasi-judicial, prosecutorial, legislative, or
quasi-legislative function. (2) The political subdivision is immune from liability if
the conduct of the employee involved, other than negligent
conduct, that gave rise to the claim of liability was required by
law or authorized by law, or if the conduct of the employee
involved that gave rise to the claim of liability was necessary
or
essential to the exercise of powers of the political
subdivision
or employee. (3) The political subdivision is immune from liability if
the action or failure to act by the employee involved that gave
rise to the claim of liability was within the discretion of the
employee with respect to policy-making, planning, or enforcement
powers by virtue of the duties and responsibilities of the office
or position of the employee. (4) The political subdivision is immune from liability if
the action or failure to act by the political subdivision or
employee involved that gave rise to the claim of liability
resulted in injury or death to a person who had been convicted of
or pleaded guilty to a criminal offense and who, at the time of
the injury or death, was serving any portion of the person's
sentence by
performing community service work for or in the
political
subdivision whether pursuant to section 2951.02 of the
Revised
Code or otherwise, or resulted in injury or death to a
child who
was found to be a delinquent child and who, at the time
of the
injury or death, was performing community service or
community
work for or in a political subdivision in accordance
with the
order of a juvenile court entered pursuant to section
2152.19 or 2152.20 of the Revised Code, and if, at
the
time of the
person's or
child's injury or death, the
person or child was
covered for purposes of Chapter 4123. of the
Revised Code in
connection with the community service or
community work for or in
the political subdivision. (5) The political subdivision is immune from liability if
the injury, death, or loss to
persons
person or property resulted
from
the exercise of judgment or discretion in determining whether
to
acquire, or how to use, equipment, supplies, materials,
personnel,
facilities, and other resources unless the judgment
or
discretion
was exercised with malicious purpose, in bad faith,
or
in a wanton
or reckless manner. (6) In addition to any immunity or defense referred to in
division (A)(7) of this section and in circumstances not covered
by that division or sections 3314.07 and 3746.24 of the
Revised
Code, the employee is
immune from liability unless
one of the
following applies: (a) The employee's acts or omissions were manifestly
outside
the scope of the employee's employment or official
responsibilities; (b) The employee's acts or omissions were with malicious
purpose, in bad faith, or in a wanton or reckless manner; (c)
Liability
Civil liability is expressly imposed upon the
employee by a
section of the Revised Code.
Civil liability
shall
not be construed to exist under
another section of the
Revised
Code merely because that section
imposes a responsibility
or
mandatory duty upon an employee,
because that section provides for
a criminal penalty, because of a general
authorization in that
section that an
employee may sue and be
sued, or because the
section uses the term
"shall" in a provision
pertaining to an
employee. (7) The political subdivision, and an employee who is a
county prosecuting attorney, city director of law, village
solicitor, or similar chief legal officer of a political
subdivision, an assistant of any such person, or a judge of a
court of this state is entitled to any defense or immunity
available at common law or established by the Revised Code. (B) Any immunity or defense conferred upon, or referred to
in connection with, an employee by division (A)(6) or (7) of this
section does not affect or limit any liability of a political
subdivision for an act or omission of the employee as provided in
section 2744.02 of the Revised Code. Sec. 2744.04. (A) An action against a political
subdivision
to recover damages for injury, death, or loss to
persons
person or
property allegedly caused by any act or omission in
connection
with a governmental or proprietary function, whether
brought as an
original action, cross-claim, counterclaim,
third-party claim, or
claim for subrogation, shall be brought
within two years after the
cause of action
arose
accrues, or
within any
applicable shorter
period of
time for bringing the action
provided by the Revised
Code.
The period of limitation contained in this division shall be
tolled pursuant to section 2305.16 of the Revised Code. This
division applies to actions
brought against political subdivisions
by all persons,
governmental entities, and the state. (B) In the complaint filed in a civil action against a
political subdivision or an employee of a political subdivision
to
recover damages for injury, death, or loss to
persons
person or
property
allegedly caused by an act or omission in connection
with
a
governmental or proprietary function, whether filed in an
original
action, cross-claim, counterclaim, third-party claim, or
claim for
subrogation, the complainant shall include a demand for
a judgment
for the damages that the judge in a nonjury trial or
the jury in a
jury trial finds that the complainant is entitled
to
be awarded,
but shall not specify in that demand any monetary
amount for
damages sought.
Sec. 2744.05. Notwithstanding any other provisions of the
Revised Code or rules of a court to the contrary, in an action
against a political subdivision to recover damages for injury,
death, or loss to person or property caused by an act or
omission
in connection with a governmental or proprietary
function: (A) Punitive or exemplary damages shall not be awarded.
(B)(1) If a claimant receives or is entitled to receive
benefits for injuries or loss allegedly incurred from a policy or
policies of insurance or any other source, the benefits shall be
disclosed to the court, and the amount of the benefits shall be
deducted from any award against a political subdivision
recovered
by that claimant. No insurer or other person is
entitled to bring
an action under a subrogation provision in an
insurance or other
contract against a political subdivision with
respect to those
benefits.
The amount of the benefits shall be deducted
from an award
against a political subdivision under division
(B)(1) of this
section regardless of whether the claimant may be
under an
obligation to pay back the benefits upon recovery, in
whole or in
part, for the claim. A claimant whose benefits have
been deducted
from an award under division (B)(1) of this section
is not
considered fully compensated and shall not be required to
reimburse a subrogated claim for benefits deducted from an award
pursuant to division (B)(1) of this section. (2) Nothing in
this division
(B)(1) of this section
shall be
construed to do either of
the following: (1)(a) Limit the rights of
a beneficiary under a life
insurance
policy or the rights of sureties under fidelity or
surety bonds;
(2)(b) Prohibit the department of job and family services
from
recovering
from the political subdivision, pursuant to
section
5101.58 of the Revised
Code, the cost of
medical
assistance
benefits provided under Chapter 5107., 5111., or
5115.
of the
Revised Code.
(C)(1) There shall not be any limitation on compensatory
damages that represent the actual loss of the person who is
awarded the damages. However, except in wrongful death actions
brought pursuant to Chapter 2125. of the Revised Code, damages
that arise from the same cause of action, transaction or
occurrence, or series of transactions or occurrences and that do
not represent the actual loss of the person who is awarded the
damages shall not exceed two hundred fifty thousand dollars in
favor of any one person. The limitation on damages that do not
represent the actual loss of the person who is awarded the
damages
provided in this division does not apply to court costs
that are
awarded to a plaintiff, or to interest on a judgment
rendered in
favor of a plaintiff, in an action against a
political
subdivision. (2) As used in this division, "the actual loss of the
person
who is awarded the damages" includes all of the following: (a) All wages, salaries, or other compensation lost by the
person injured as a result of the injury, including wages,
salaries, or other compensation lost as of the date of a judgment
and future expected lost earnings of the person injured; (b) All expenditures of the person injured or another
person
on behalf of the person injured for medical care or
treatment, for
rehabilitation services, or for other care, treatment, services,
products, or accommodations that were necessary because of the
injury; (c) All expenditures to be incurred in the future, as
determined by the court, by the person injured or another person
on behalf of the person injured for medical care or
treatment, for
rehabilitation
services, or for other care, treatment, services,
products, or
accommodations that will be necessary because of the
injury; (d) All expenditures of a person whose property was
injured
or destroyed or of another person on behalf of the
person whose
property was injured or destroyed in order to repair or
replace
the property that was injured or destroyed; (e) All expenditures of the person injured or of the person
whose
property was injured or destroyed or of another person on
behalf
of the person injured or of the person whose property was
injured or
destroyed in relation to the actual preparation or
presentation of
the claim involved; (f) Any other expenditures of the person injured or of the
person
whose property was injured or destroyed or of another
person on behalf
of the person injured or of the person whose
property was injured or
destroyed that the court determines
represent an actual loss
experienced because of the personal or
property injury or
property loss. "The actual loss of the person who is awarded the damages"
does not include any fees paid or owed to an attorney for any
services rendered in relation to a personal or property injury or
property loss, and does not include any damages awarded for pain
and suffering, for the loss of society, consortium,
companionship,
care, assistance, attention, protection, advice,
guidance,
counsel, instruction, training, or education of the
person
injured, for mental anguish, or for any other intangible
loss.
Sec. 2744.06. (A) Real or personal property, and moneys,
accounts, deposits, or investments of a political subdivision are
not subject to execution, judicial sale, garnishment, or
attachment to satisfy a judgment rendered against a political
subdivision in a civil action to recover damages for injury,
death, or loss to
person or property caused by an act or
omission
of the political subdivision or any of its employees in
connection
with a governmental or proprietary function.
Such
Those
judgments
shall
be paid from funds of the political
subdivisions
that have
been
appropriated for that purpose, but, if
sufficient
funds are
not
currently appropriated for the payment of
judgments,
the
fiscal
officer of a political subdivision shall
certify the
amount
of any
unpaid judgments to the taxing
authority
of the
political
subdivision for inclusion in the next
succeeding
budget
and annual
appropriation measure and payment in
the next
succeeding fiscal
year as provided by section 5705.08 of
the
Revised Code, unless
any
such judgment is to
be
paid from the
proceeds of bonds issued
pursuant to section 133.14
of the
Revised
Code or pursuant to
annual installments authorized
by
division (B)
or (C) of this
section. (B)(1)(a) As used in this division,
"the actual loss of
the
person who is awarded the damages" includes all of the
following: (i) All wages, salaries, or other compensation lost by the
person injured as a result of the injury, as of the date of the
judgment; (ii) All expenditures of the person injured or of another
person on
behalf
of the person injured for medical care or
treatment, for
rehabilitation services, or for other care,
treatment, services,
products, or accommodations that were
necessary because of the
injury; (iii) All expenditures of a person whose property was
injured or destroyed or of another person on
behalf
of the
person
whose property was injured or destroyed in order
to repair
or
replace the property that was injured or destroyed; (iv) All expenditures of the person injured or whose
property was injured or destroyed or of another person on
behalf
of the person injured or whose property was injured or
destroyed
in relation to the actual preparation or presentation of
the
person's claim; (v) Any other expenditures of the person injured or
whose
property was injured or destroyed or of another
person on
behalf
of the person injured or whose property was
injured or destroyed
that the court determines represent an
actual
loss experienced
because of the personal or property
injury or
property loss. (b) As used in this division,
"the actual loss of the
person
who is awarded the damages" does not include any of the
following: (i) Wages, salaries, or other compensation lost by the
person injured as a result of the injury, that are future
expected
earnings of
such a
that person; (ii) Expenditures to be incurred in the future, as
determined by the court, by the person injured or by another
person on
behalf
of the person injured for medical care or
treatment, for
rehabilitation services, or for other care,
treatment, services,
products, or accommodations that will be
necessary because of the
injury; (iii) Any fees paid or owed to an attorney for any
services
rendered in relation to a personal or property injury or
property
loss; (iv) Any damages awarded for pain and suffering, for the
loss of society, consortium, companionship, care, assistance,
attention, protection, advice, guidance, counsel, instruction,
training, or education of the person injured, for mental anguish,
or for any other intangible loss. (2) Except as specifically provided to the contrary in
this
division, a court that renders a judgment against a
political
subdivision as described in division (A) of this
section and that
is not in favor of the state may authorize the
political
subdivision, upon the motion of the political
subdivision, to pay
the judgment or a specified portion of the
judgment in annual
installments over a period not to exceed ten
years, subject to the
payment of interest at the rate specified
in
division (A) of
section 1343.03 of
the Revised Code. A
court shall not
authorize
the payment in
installments under this division of any
portion of
a judgment or
entire judgment that represents the
actual loss of
the person who
is awarded the damages. Additionally, a court shall not authorize the payment in
installments under this division of any portion of a judgment or
entire judgment that does not represent the actual loss of the
person who is awarded the damages unless the court, after
balancing the interests of the political subdivision and of the
person in whose favor the judgment was rendered, determines that
installment payments would be appropriate under the circumstances
and would not be unjust to the person in whose favor the judgment
was rendered. If a court makes
such a
that determination, it
shall
fix
the amount of the installment payments in
such a manner
as to
achieve
that achieves for the person in whose
favor the
judgment
was rendered,
the same economic result over the
period as
that person would
have
received if the judgment or
portion of the
judgment subject
to
the installment payments had
been paid in a
lump sum payment. (C) At the option of a political subdivision, a judgment
as
described in division (A) of this section and that is rendered
in
favor of the state may be paid in equal annual installments
over a
period not to exceed ten years, without the payment of
interest.
Sec. 2744.07. (A)(1) Except as otherwise provided in
this
division, a political subdivision shall provide for the
defense of
an employee, in any state or federal court, in any
civil action or
proceeding
to recover
which contains an allegation for damages for injury, death,
or loss to
persons
person
or property
allegedly caused by an act or
omission
of the employee in connection with a governmental or
proprietary
function. The political subdivision has the duty to defend the employee if the act or omission occurred
or is
alleged to have
occurred while the employee was acting
both
in good
faith and not
manifestly outside the scope of
his employment or
official
responsibilities. Amounts expended by a political
subdivision in
the defense of its employees shall be from funds
appropriated for
this purpose or from proceeds of insurance. The
duty to provide
for the defense of an employee specified in this
division does not
apply in a civil action or proceeding that is
commenced by or on
behalf of a political subdivision. (2) Except as otherwise provided in this division, a
political subdivision shall indemnify and hold harmless an
employee in the amount of any judgment, other than a judgment for
punitive or exemplary damages, that is obtained against the
employee in a state or federal court or as a result of a law of a
foreign jurisdiction and that is for damages for injury, death,
or
loss to
persons
person
or property caused by an act or omission in
connection with a governmental or proprietary function, if at the
time of the act or omission the employee was acting in good faith
and within the scope of
his employment or official
responsibilities. (B)(1) A political subdivision may enter into a consent
judgment or settlement and may secure releases from liability for
itself or an employee, with respect to any claim for injury,
death, or loss to
persons
person
or property caused by an act or
omission in connection with a governmental or proprietary
function. (2) No action or appeal of any kind shall be brought by
any
person, including any employee or a taxpayer, with respect to
the
decision of a political subdivision pursuant to division
(B)(1) of
this section whether to enter into a consent judgment
or
settlement or to secure releases, or concerning the amount and
circumstances of a consent judgment or settlement. Amounts
expended for any settlement shall be from funds appropriated for
this purpose. (C) If a political subdivision refuses to provide an
employee with a defense in a civil action or proceeding as
described in division (A)(1) of this section,
the employee may
file, in the court of common pleas of the county in which the
political subdivision is located, an action seeking a
determination as to the appropriateness of the refusal of the
political subdivision to provide
him with a defense
under that
division.
upon the motion of the political subdivision, the court shall conduct a hearing regarding the political subdivision's duty to defend the employee in that civil action. The political subdivision shall file the motion within thirty days of the close of discovery in the action. After the motion is filed, the employee shall have not less than thirty days to respond to the motion. At the request of the political subdivision or the employee, the court shall order the motion to be heard at an oral hearing. At the hearing on the motion, the court shall consider all evidence and arguments submitted by the parties. In determining whether a political subdivision has a duty
to defend the employee in the action, the court shall determine whether the employee was acting both in good faith and not manifestly outside the scope of employment or official responsibilities. The pleadings shall not be determinative of whether the employee acted in good faith or was manifestly outside the scope of employment or official responsibilities. If the court determines that the employee was acting both in good faith and not manifestly outside the scope of employment or official responsibilities, the court shall order the political subdivision to defend the employee in the action.
Sec. 4582.27.
(A) A port authority created in accordance
with section 4582.22 of the Revised Code shall be governed by a
board of directors. Members of a board of directors of a port
authority created by the exclusive action of a municipal
corporation shall consist of the number of members it
considers
necessary and shall be appointed by the mayor with the
advice and
consent of the council. Members of a board of directors of a
port
authority created by the exclusive action of a township
shall
consist of such members as it considers necessary
and shall be
appointed by the township trustees of the township. Members of a
board of directors of a port authority created by the exclusive
action of a county shall consist of such members as it
considers
necessary and shall be appointed by the board of
county
commissioners of the county. Members of a board of
directors of a
port
authority created by a combination of political subdivisions
shall be divided among the political subdivisions in such
proportions as the political subdivisions may agree and shall be
appointed by the participating political subdivisions in the same
manner as this section provides for the appointment
of members by
a political subdivision
creating its own port authority. If a
participating political
subdivision is not authorized by section
4582.22 of the Revised Code to create its own port authority, the
political
subdivision's
elected legislative body, if the political
subdivision has an elected
legislative body, or the political
subdivision's elected official or officials
who appoint the
legislative body of the political subdivision shall appoint
the
members of a board of directors of a port authority that are to be
appointed
by
that political subdivision. If the electors of a
participating political
subdivision do not elect either the
legislative body of the political
subdivision or the official or
officials who appoint the legislative body of
the political
subdivision, the participating political subdivision may not
appoint any member of a board of directors of a port authority.
When a port
authority is created by a combination of political
subdivisions, the number of directors comprising the
board shall
be determined by agreement between the political
subdivisions,
which number may be changed from time to time by
amendment of the
agreement. The appointing body may at any time remove a
director
appointed
by it for misfeasance, nonfeasance, or malfeasance in
office. A majority of the directors shall have been
qualified
electors of, or
shall have had their businesses or
places of
employment in, one or
more political subdivisions within the area
of the jurisdiction
of the port authority, for a period of at
least three years next
preceding their appointment. The directors of any port authority first appointed shall
serve staggered terms. Thereafter each successor shall serve for
a term of four years, except that any person appointed to fill a
vacancy shall be appointed to only the unexpired term and any
director is eligible for reappointment. The board of directors by rule may provide for the removal
of
a director who fails to attend three consecutive regular
meetings
of the board. If a director is so removed, a successor
shall be
appointed for the remaining term of the removed
director in the
same manner provided for the original
appointment. The directors shall elect one of their membership as
chairperson and another as
vice-chairperson, and shall designate
their
terms of office, and shall appoint a secretary who need not
be a
director. A majority of the board of directors shall
constitute
a quorum, the affirmative vote of which shall be
necessary for
any action taken by the port authority. No vacancy
in the
membership of the board shall impair the rights of a quorum
to
exercise all the rights and perform all the duties of the port
authority. Each member of the board of directors of a port authority
shall be entitled to receive from the port authority such sum of
money as the board of directors may determine as compensation for
services as director and reimbursement for reasonable
expenses in
the performance of official duties. (B) Except for civil actions that arise out of the
operation
of a motor vehicle and civil actions in which the port
authority
is the plaintiff, no director, officer, or employee of
a port
authority shall be liable in any civil action that arises
under
the law of this state for damage or injury caused in the
performance of his duties, unless the director's, officer's, or
employee's actions were manifestly outside the scope of his
employment or official responsibilities, or unless the director,
officer, or employee acted with malicious purpose, in bad faith,
or in a wanton or reckless manner.
This division does not eliminate, limit, or reduce any
immunity from civil liability that is conferred upon a director,
officer, or employee by any other provision of the Revised Code
or
by case law.
(C)(1) A port authority shall, except as provided in
division (B) of this section, indemnify a director, officer, or
employee from liability incurred in the performance of his duties
by paying any judgment in, or amount negotiated in settlement of,
any civil action arising under federal law, the law of another
state, or the law of a foreign jurisdiction. The reasonableness
of the amount of any consent judgment or settlement is subject to
the review and approval of the board of the port authority. The
maximum aggregate amount of indemnification paid directly from
funds to or on behalf of any director, officer or employee
pursuant to this division shall be one million dollars per
occurrence, regardless of the number of persons who suffer
damage,
injury, or death as a result of the occurrence.
(2) A port authority shall not indemnify a director,
officer, or employee under any of the following circumstances:
(a) To the extent the director, officer, or employee is
covered by a policy of insurance for civil liability purchased by
the port authority; (b) When the director, officer, or employee acts
manifestly
outside the scope of his employment or official
responsibilities,
with malicious purpose, in bad faith, or in a
wanton or reckless
manner;
(c) For any portion of a judgment that represents punitive
or exemplary damages;
(d) For any portion of a consent judgment or settlement
that
is unreasonable.
(3) The port authority may purchase a policy or policies
of
insurance on behalf of directors, officers, and employees of
the
port authority from an insurer or insurers licensed to do
business
in this state providing coverage for damages in
connection with
any civil action, demand, or claim against the
director, officer,
or employee by reason of an act or omission by
the director,
officer, or employee occurring in the performance
of his duties
and not coming within the terms of division
(C)(2)(b) of this
section.
(4) This section does not affect either of the following:
(a) Any defense that would otherwise be available in an
action alleging personal liability of a director, officer, or
employee;
(b) The operation of section 9.83 of the Revised Code.
Sec. 5511.01. All state highways established by law shall
continue to be known as state highways, and the state highway
system established by law shall continue to be known as the state
highway system. Before establishing any additional highways as part of the
state highway system, or making any significant changes in
existing
highways
comprising the system, the director of
transportation shall
notify the general community of the project
and offer an
opportunity for appropriate public involvement in the
project
process. The opportunity for public involvement shall satisfy the
requirements of the "National Environmental Policy
Act of 1969,"
83 Stat. 852, 42 U.S.C.A. 4321 et seq., as amended, and may
consist of activities including public meetings or hearings, small
group
meetings with local officials, individual meetings, news
releases, public notices, workshops, newsletters, electronic
communications,
radio announcements, mail notification,
and other
activities considered appropriate for the exchange of
information.
The director or the director's designee shall
provide the public
involvement activities in
each of the counties in which the
highway proposed to be
established is to be located or in which it
is proposed to make
such
those changes. Any changes made in existing highways by the director or any
additional highways established by the director following
the
public involvement activities
shall be certified to the following
authorities interested
therein
in them: the legislative authority
of
municipalities,
the board of
county commissioners,
the board of
township
trustees,
the municipal,
county, and regional planning
commissions,
and the municipal,
township, or county officer
authorized to issue
land use or
building permits. Before any
zoning change or
subdivision plat
is approved and before any
permit for land use or
the erection,
alteration, or moving of a
building is granted
affecting any land
within three hundred feet
of the center line of
a proposed new
highway or highway for which
changes are proposed,
as described
in the certification by the
director, or within a
radius of five
hundred feet from the point
of intersection of that
center line
with any public road or
highway, the authority
authorized to
approve the zoning change or
subdivision plat or the
authority
authorized to grant the permit
for land use or the
erection,
alteration, or moving of the
building shall give notice,
by
certified mail, to the director,
and shall not approve a zoning
change or subdivision plat or grant
a permit for land use or the
erection, alteration, or moving of a
building for one hundred
twenty days from date notice is received
by the director. During
the one hundred twenty-day period and any
extension of it as may
be agreed to between the director and any
property owner, notice
of which has been given to the authority to
which the application
has been made, the director shall proceed to
acquire any land
needed by purchase or gift, or by initiating
proceedings to
appropriate, or make a finding that acquisition at
such time is
not in the public interest. Upon purchase,
initiation of
appropriation proceedings, or a finding that
acquisition is not
in
the public interest, the director shall
notify the authority
from
which notice was received of that
action. Upon being
notified
that the director has purchased or
initiated proceedings
to
appropriate the land that authority shall
refuse to rezone
land or
to approve any subdivision plat that
includes the land
which the
director has purchased or has
initiated proceedings to
appropriate, and that authority shall
refuse to grant a permit
for
land use or the erection, alteration,
or moving of a building
on
the land which the director has
purchased or initiated
proceedings
to appropriate. Upon
notification that the director
has found
acquisition at that time
not to be in the public
interest, or upon
the expiration of the
one hundred twenty-day
period or any
extension
thereof
of it, if
no notice has been received
from the
director, that authority
shall proceed in accordance
with law. A report of the change or addition shall be filed in the
office of the director, and the report of the director making the
change or establishing the highway shall be placed on file in the
office of the department of transportation. In no event shall the total mileage of the state highway
system be increased under this section to exceed two hundred
miles
in one year. The director, upon petition of the boards of the counties
traversed
thereby
by a highway or of citizens of
such
those
counties, may officially
assign to a highway of the state highway
system a distinctive
name, commemorative of a historical event or
personage, or
officially assign
thereto
to a highway of the state
highway system a commonly accepted and appropriate
name
by which
the highway is known.
The director may, upon
giving appropriate notice and
offering
the
opportunity for public involvement and comment,
abandon a
highway on the
state highway system or part
thereof
of such a
highway
which the
director
determines is of
minor importance or
which
traverses
territory adequately served
by another state
highway,
and the
abandoned highway shall revert
to a county or
township
road or
municipal street. A report
covering
such
that
action shall be
filed in
the office of the
director, and the
director shall
certify the
action to the
board
of the county in
which the
highway or portion
thereof
of the highway so
abandoned
is situated. The director shall make a map showing
thereon, by
appropriate
numbering or other designation, all the state
highways. The map
shall be kept on file in the director's
office, and the director
shall cause the
same
map to be corrected
and revised to show all
changes and additions to the date of
such
the correction. A copy
of
the map, certified by the director as a correct copy of the map
on
file in the director's office, shall be admissible as
evidence
in
any
court to prove the existence and location of the several
highways
and roads of the state highway system. The state highway routes into or through municipal
corporations, as designated or indicated by state highway route
markers erected
thereon
on the routes, are state highways and a
part of the
state highway system. The director may erect state
highway route
markers and
such other signs directing traffic as
the
director
thinks
proper upon those portions of the state
highway system
lying
within municipal corporations, and the
consent of the
municipal
corporations to
such
that erection and
marking
shall not be
necessary.
However, the director may erect
traffic
signs in
villages in
accordance with section 5521.01 of
the
Revised Code.
No change
in the route of any highway through a
municipal
corporation shall
be made except after providing public
involvement
activities. Except as provided in sections 5501.49 and 5517.04 of the
Revised Code, no duty of constructing, reconstructing,
maintaining, and repairing such state highways within municipal
corporations shall attach to or rest upon the director. The
director may enter upon such state highways within any municipal
corporation and construct, reconstruct, widen, improve, maintain,
and repair them, provided the municipal corporation first
consents
thereto by resolution of its legislative authority,
except that
the director need not obtain the consent of the
municipal
corporation if the existing highway being changed or the location
of an additional highway being established was not within the
corporate limits of the municipal corporation at the time
such
the
establishment or change is approved by the
director, or if
the
director is acting pursuant to section 5501.49 of the Revised
Code. The director shall place in the files of the department a
record of the routes of all such state highways within municipal
corporations, and shall cause them to be corrected and revised to
show all changes and additions to the date of the correction. A
copy of the record or any pertinent part
thereof
of it, certified
by
the
director to be a true and correct copy, shall be admissible
in
evidence in any court of the state for the purpose of proving
the
existence and location of any state highway within a
municipal
corporation. When the director proposes to change an existing state
highway and there exists upon the highway a separated railroad
crossing, the director shall mail to the interested railroad
company a copy of the notice, which shall be mailed by first-class
mail, postage prepaid, and certified with return receipt
requested, at least two weeks before the time fixed for any
public involvement activity.
When the director proposes to change
an existing state highway
within a municipal corporation, the
director shall
mail to the
mayor or
other chief executive officer
of the municipal corporation a copy
of the notice, which shall be
mailed by first-class mail, postage
prepaid, and certified with
return receipt requested, at least
two weeks before the time fixed
for any public involvement
activity. Nothing in this section shall be construed to require
providing public involvement activities
before the construction,
reconstruction,
maintenance, improvement, or widening of an
existing highway
where no relocation is involved. With the exception of the authority conferred upon the
director by this section, to erect state highway route markers
and
signs directing traffic, and by section 5501.49 of the
Revised
Code, Chapters 5501., 5503., 5511., 5513., 5515., 5516.,
5517.,
5519., 5521., 5523., 5525., 5527., 5528., 5529., 5531.,
5533., and
5535. of the Revised Code, shall not in any way
modify, limit, or
restrict the authority conferred by section
723.01 of the Revised
Code upon municipal corporations to
regulate the use of streets
and to have the care, supervision,
and control of the public
highways, streets, avenues, alleys,
sidewalks, public grounds,
bridges, aqueducts, and viaducts
within the municipal corporations
and, or the liability imposed upon municipal corporations by
division (B)(3) of section 2744.02 of the Revised Code for
negligent failure to keep
them, subject to
division (B)(3) of
section 2744.02 of
the Revised Code, open,
public roads in
repair,
and
free from nuisance
other negligent failure to remove
obstructions from public roads. Sec. 5591.36. The board of county
commissioners shall
erect
and maintain
on county roads, where not already done,
one or more
guardrails on
each end of a county bridge, viaduct, or
culvert
more than five
feet high
and on each side of every
approach to a
county bridge,
viaduct, or culvert, if the approach
or embankment
is more than
six feet high. The board
also shall
also
protect, by
suitable
guardrails, all
perpendicular wash banks
embankments with
a rise of
more than eight
feet in
height
and with a downward slope
of greater than seventy degrees, where
such
banks
the embankments
have an
immediate connection
with a
public highway other than
state
highways, or are adjacent
thereto
in an unprotected
condition
county road. It shall be a sufficient compliance with this section, if
the
board causes to be erected and maintained a good stockproof
hedge
fence where a quardrail is required. Such guardrails or
hedge
fences shall be erected in a substantial manner, having
sufficient
strength to protect life and property, the
The expense
thereof to
for a guardrail required under this section shall be
paid out of
the county bridge fund.
Sec. 5591.37.
Failure
Negligent failure to comply with
section
5591.36 of the
Revised Code
shall render the county liable
for all accidents or
damages
as a result of
such
resulting from
that failure.
SECTION 2. That existing sections 723.01, 1533.18, 2744.01, 2744.02,
2744.03, 2744.04, 2744.05, 2744.06, 2744.07, 4582.27,
5511.01,
5591.36, and
5591.37 of the Revised Code are hereby
repealed.
SECTION 3. Sections 723.01, 1533.18, 2744.01, 2744.02, 2744.03,
2744.04, 2744.05, 2744.06, 2744.07, 4582.27, 5511.01,
5591.36, and
5591.37
of the
Revised
Code, as amended by this act,
apply only to
causes
of
action that
accrue on or after the
effective date of
this act.
Any
cause of
action that accrues prior
to the effective
date of
this
act is
governed by the law in effect
when the cause
of action
accrued. SECTION 4. Section 2744.01 of the Revised Code is presented
in
this act as a composite of
the
section as amended by both
Sub.
S.B. 24 and Sub. S.B. 108 of
the
124th General Assembly. The
General Assembly, applying the
principle stated in division (B) of
section 1.52 of the Revised
Code that amendments are to be
harmonized if reasonably capable of
simultaneous operation, finds
that the composite is the resulting
version of the section in
effect prior to the effective date of
the section as presented in
this act.
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