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(125th General Assembly)(Substitute House Bill Number 316)
AN ACTTo amend sections 9.87, 2743.01, 2743.02, and 5502.52 and to enact sections 341.27 and 753.06 of the Revised Code to provide sheriffs, deputy sheriffs, municipal police officers, and county and municipal correctional officers with qualified immunity from damages caused or suffered by county or municipal prisoners or adult offenders imprisoned for offenses other than felonies of the first or second degree who are working on a work detail and volunteered for the work detail; to provide counties and municipal corporations in which such prisoners or offenders work on a work detail and that employ the sheriff, deputy sheriff, or officer and townships in which such prisoners work on a work detail with a similar qualified immunity; to adopt the "public duty rule" for lawsuits against the state in the Court of Claims pursuant to which the state generally is immune from liability in any civil action or proceeding involving the performance or nonperformance of a public duty; and to provide radio stations, television systems, cable systems, and their officials and employees with immunity from damages related to the broadcast or cablecast, or failure to broadcast or cablecast, information under an Amber Alert program. Be it enacted by the General Assembly of the State of Ohio:
SECTION 1. That sections 9.87, 2743.01, 2743.02, and 5502.52 be amended and sections 341.27 and 753.06 of the Revised Code be enacted to read as follows:
Sec. 9.87. (A) The state, except as provided in
division (B) of this section, shall indemnify an officer or employee
from liability incurred in the performance of his official
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 attorney general and of the
director, administrative chief, or governing body of the employer
of the officer or employee who is to be indemnified. The maximum
aggregate amount of indemnification paid directly from state
funds to or on behalf of any 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. (B) The state shall not indemnify an officer or employee
under any of the following circumstances: (1) To the extent the officer or employee is covered by a
policy of insurance for civil liability purchased by the state; (2) When the officer or employee acts manifestly outside
the scope of his the officer's or employee's employment or
official responsibilities, with
malicious purpose, in bad faith, or in a wanton or reckless
manner, as determined by the employer of the officer or employee or by the
attorney general. (3) For any portion of a judgment that represents punitive
or exemplary damages, except that this prohibition does not apply if the
employer of the officer or employee and the attorney general determine that
the acts or omissions of the officer or employee were not within the terms of
division (B)(2) of this section; (4) For any portion of a consent judgment or settlement
that is unreasonable. (C) The director of administrative services may purchase a
policy or policies of insurance on behalf of officers and
employees of the state from an insurer or insurers licensed to do
business in this state providing coverage for amounts in excess
of one million dollars per occurrence incurred in connection with
any civil action, demand, or claim against the officer or
employee by reason of an act or omission by the officer or
employee occurring in the performance of his the officer's or
employee's duties and not
coming within the terms of division (B)(2) of this section. (D) This section does not affect any of the following: (1) The waiver arising under division (A)(1) of section
2743.02 of the Revised Code; (2) Any defense that would otherwise be available in an
action alleging personal liability of an officer or employee; (3) The operation of section 9.83 of the Revised Code. (E) The indemnification of officers or employees against
judgments or settlements pursuant to this section shall be
accomplished only through the following procedure: (1) If the employer of the defendant officer or employee
to be indemnified determines that the actions or omissions of its
officer or employee giving rise to the claim were not within the
terms of division (B)(2) of this section, an indemnity agreement
shall be prepared by the attorney general, specifying that the
employer will indemnify the officer or employee from a particular
judgment that has been rendered or a particular settlement amount
that has been negotiated. The agreement shall name the person or
entity to whom payment by the state of the judgment or settlement
amount will be made, and the agreement shall not be effective
until it is approved by the officer or employee to be
indemnified, the director, administrative chief, or other
governing body of the employer, and by the attorney general. The
attorney general shall approve the indemnity agreement, unless he
the attorney general
finds that division (B) of this section prohibits the state from
indemnifying the officer or employee, or prohibits the state from
indemnifying the officer or employee for a portion of a judgment
or settlement and the indemnity agreement would indemnify the
officer or employee for all or a part of that portion. (2) The attorney general shall forward a copy of the
agreement to the director of budget and management. (3) Any indemnification paid shall be charged by the
director of budget and management against available unencumbered
moneys in the appropriations of the employer of the officer or
employee to be indemnified. The director of budget and
management shall have sole discretion to determine whether or not
unencumbered moneys in a particular appropriation are available
for payment of the indemnification. (4) The director of budget and management shall, upon
receipt of the agreement from the attorney general pursuant to
division (E)(2) of this section, provide for payment to the
person or entity named in the agreement, in the amount specified
in the agreement. (5) If the director of budget and management determines
that sufficient unencumbered moneys do not exist in the
particular appropriations to pay the indemnification, he the
director shall
make application for payment of the indemnification out of the
emergency purposes account or any other appropriation for
emergencies or contingencies, and payment out of this account or
other appropriation shall be authorized if there are sufficient
moneys greater than the sum total of then pending emergency
purposes account requests, or requests for releases from the
other appropriation. (6) If sufficient moneys do not exist in the emergency
purposes account or any other appropriation for emergencies or
contingencies to pay the indemnification, the employer named in
the agreement shall request the general assembly to make an
appropriation sufficient to pay the indemnification, and no
payment shall be made until the appropriation has been made. The
employer shall make this appropriation request during the current
biennium and during each succeeding biennium until a sufficient
appropriation is made. (7) If the indemnification is to be made by an employer
whose funds are not handled by the director of budget and
management, the employer shall pay the person or entity named in
the agreement. If the employer determines that sufficient unencumbered
moneys do not exist to pay the indemnification, the employer
shall make application for payment of the indemnification out of
the emergency purposes account or any other appropriation for
emergencies or contingencies, and payment out of this account or
other appropriation shall be authorized if there are sufficient
moneys greater than the sum total of then pending emergency
purposes account requests, or requests for releases from the
other appropriation. If sufficient moneys do not exist in the emergency purposes
account or any other appropriation for emergencies or
contingencies to pay the indemnification, the employer named in
the agreement shall request the general assembly to make an
appropriation sufficient to pay the indemnification, and no
payment shall be made until such an appropriation has been made.
The employer shall make this appropriation request during the
current biennium and during each succeeding biennium until a
sufficient appropriation is made. (F)(1) Subject to division (F)(2) of this section, if an employer or the
attorney general fails to
approve indemnification or limits indemnification of an officer
or employee of the employer, the officer or employee may commence
an action against the employer in the court of claims pursuant to
sections 2743.01 to 2743.20 of the Revised Code to prove that he the
officer or employee
is entitled to indemnification pursuant to division (A) of this
section and that division (B) of this section does not prohibit
or limit his the officer's or employee's indemnification and
seeking either a judgment
against the employer for a sum of money that the officer or
employee has paid to satisfy a judgment or settlement or an order
directing the employer to pay a judgment or settlement against
the officer or employee that has not been satisfied. Section
109.365 of the Revised Code does not prohibit any information
obtained by the attorney general in his the attorney general's
investigation conducted
pursuant to division (A) of section 109.362 of the Revised Code
to determine whether to defend the officer or employee from being
admitted as evidence in any action brought pursuant to this
section. An action brought pursuant to division (F)(1) of this section shall be
commenced no later than two years after the cause of action
arising under division (F)(1) of this section accrues. A cause of action
arising
under this section accrues upon the entry of a money judgment
against the officer or employee if the time for filing an appeal
in the action lapses without the filing of an appeal, upon the
conclusion of the final appeal in any action in which a money
judgment is entered against the officer or employee if an appeal
is filed in the action, or upon execution of any settlement
agreement requiring payment of money by the officer or employee. (2) Notwithstanding division (F)(1) of this section, an officer or employee
may not commence an action against the employer in the court of claims or in
any other court regarding a refusal of the employer or the attorney general to
indemnify punitive or exemplary damages pursuant to this section. Sec. 341.27. (A) As used in this section:
(1) "County correctional facility" has the same meaning as in section 341.42 of the Revised Code.
(2) "County correctional officer" has the same meaning as in section 341.41 of the Revised Code.
(B)
If all the prisoners or adult offenders working on a work detail administered by a county correctional facility and outside the facility have volunteered for the work detail and are imprisoned or reside in that facility for an offense other than a felony of the first or second degree and if the applicable county correctional officer complies with division (C) of this section, both of the following apply: (1) No sheriff, deputy sheriff, or county correctional officer is liable for civil damages for injury, death, or loss to person or property caused or suffered by a prisoner or adult offender working on the work detail unless the injury, death, or loss results from malice or wanton or reckless misconduct of the sheriff, deputy sheriff, or county correctional officer. (2) The county in which the prisoners or adult offenders work on the work detail and that employs the sheriff, deputy sheriff, or county correctional officer is not liable for civil damages for injury, death, or loss to person or property caused or suffered by a prisoner or adult offender working on the work detail unless the injury, death, or loss results from malice or wanton or reckless misconduct of the sheriff or any deputy sheriff or county correctional officer. (C) To qualify for the immunity described in division (B)(1) of this section regarding a work detail, a county correctional officer, prior to having the prisoners or adult offenders of the county correctional facility, work outside the facility on the work detail, shall inform each prisoner or adult offender on the work detail of the provisions of this section, including notifying the prisoner or adult offender that, by volunteering for the work detail, the prisoner or adult offender cannot hold the sheriff, deputy sheriff, or county correctional officer or the county liable for civil damages for injury, death, or loss to person or property unless the injury, death, or loss results from malice or wanton or reckless misconduct of the sheriff, deputy sheriff, or county correctional officer.
Sec. 753.06. (A) As used in this section:
(1) "Municipal correctional facility" has the same meaning as in section 753.32 of the Revised Code.
(2) "Municipal correctional officer" has the same meaning as in section 753.31 of the Revised Code.
(B) If all the prisoners working on a work detail administered by a municipal correctional facility and outside the facility have volunteered for the work detail and are imprisoned in that facility for an offense other than a felony of the first or second degree and if the applicable municipal correctional officer complies with division (C) of this section, both of the following apply: (1) No member of the organized police department of the municipal corporation and no municipal correctional officer is liable for civil damages for injury, death, or loss to person or property caused or suffered by a prisoner working on the work detail unless the injury, death, or loss results from malice or wanton or reckless misconduct of the member of the organized police department of the municipal corporation or the municipal correctional officer. (2) A municipal corporation in which the prisoners work on the work detail and that employs the member of the organized police department or the municipal correctional officer or a township in which the prisoners work on the work detail is not liable for civil damages for injury, death, or loss to person or property caused or suffered by a prisoner working on the work detail unless the injury, death, or loss results from malice or wanton or reckless misconduct of the member of the organized police department of the municipal corporation or a municipal correctional officer.
(C) To qualify for the immunity described in division (B)(1) of this section regarding a work detail, a municipal correctional officer, prior to having the prisoners of the municipal correctional facility work outside the facility on the work detail, shall inform each prisoner on the work detail of the provisions of this section, including notifying the prisoner that, by volunteering for the work detail, the prisoner cannot hold any member of the organized police department of the municipal corporation or any municipal correctional officer or the municipal corporation or township liable for civil damages for injury, death, or loss to person or property unless the injury, death, or loss results from malice or wanton or reckless misconduct of the member of the organized police department of the municipal corporation or the municipal correctional officer.
Sec. 2743.01. As used in this chapter: (A) "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, institutions, and other
instrumentalities of the state of Ohio. "State" does not include
political subdivisions. (B) "Political subdivisions" means municipal corporations,
townships, counties, school districts, and all other bodies
corporate and politic responsible for governmental activities
only in geographic areas smaller than that of the state to which
the sovereign immunity of the state attaches. (C) "Claim for an award of reparations" or "claim" means a
claim for an award of reparations made under sections 2743.51 to
2743.72 of the Revised Code. (D) "Award of reparations" or "award" means an award made
under sections 2743.51 to 2743.72 of the Revised Code. (E)(1) "Public duty" includes, but is not limited to, any statutory, regulatory, or assumed duty concerning any action or omission of the state involving any of the following:
(a) Permitting, certifying, licensing, inspecting, investigating, supervising, regulating, auditing, monitoring, law enforcement, or emergency response activity;
(b) Supervising, rehabilitating, or liquidating corporations or other business entities.
(2) "Public duty" does not include any action of the state under circumstances in which a special relationship can be established between the state and an injured party as provided in division (A)(3) of section 2743.02 of the Revised Code.
Sec. 2743.02. (A)(1) The state hereby waives its immunity
from liability, except as provided for the office of the state fire marshal in division (G)(1) of section 9.60 and division (B) of section 3737.221 of the Revised Code and subject to division (H) of this section, and consents to be sued, and have its liability
determined, in the court of claims created in this chapter in
accordance with the same rules of law applicable to suits between
private parties, except that the determination of liability is
subject to the limitations set forth in this chapter and, in the
case of state universities or colleges, in section 3345.40 of the
Revised Code, and except as provided in division (A)(2) or (3) of this
section. To the extent that the state has previously consented
to
be sued, this chapter has no applicability. Except in the case of a civil action filed by the state,
filing a civil action in the court of claims results in a
complete
waiver of any cause of action, based on the same act or
omission,
which the filing party has against any officer or
employee, as
defined in section 109.36 of the Revised Code. The
waiver shall
be void if the court determines that the act or
omission was
manifestly outside the scope of the officer's or
employee's office
or employment or that the officer or employee
acted with malicious
purpose, in bad faith, or in a wanton or
reckless manner. (2) If a claimant proves in the court of claims that an
officer or employee, as defined in section 109.36 of the Revised
Code, would have personal liability for
the officer's or
employee's acts or omissions but
for the fact that the officer or
employee has personal immunity
under section 9.86 of the Revised
Code, the state shall be held
liable in the court of claims in any
action that is timely filed
pursuant to section 2743.16 of the
Revised Code and that is based
upon the acts or omissions. (3)(a) Except as provided in division (A)(3)(b) of this section, the state is immune from liability in any civil action or proceeding involving the performance or nonperformance of a public duty, including the performance or nonperformance of a public duty that is owed by the state in relation to any action of an individual who is committed to the custody of the state.
(b) The state immunity provided in division (A)(3)(a) of this section does not apply to any action of the state under circumstances in which a special relationship can be established between the state and an injured party. A special relationship under this division is demonstrated if all of the following elements exist:
(i) An assumption by the state, by means of promises or actions, of an affirmative duty to act on behalf of the party who was allegedly injured;
(ii) Knowledge on the part of the state's agents that inaction of the state could lead to harm;
(iii) Some form of direct contact between the state's agents and the injured party;
(iv) The injured party's justifiable reliance on the state's affirmative undertaking. (B) The state hereby waives the immunity from liability of
all hospitals owned or operated by one or more political
subdivisions and consents for them to be sued, and to have their
liability determined, in the court of common pleas, in accordance
with the same rules of law applicable to suits between private
parties, subject to the limitations set forth in this chapter.
This division is also applicable to hospitals owned or operated
by
political subdivisions which have been determined by the
supreme
court to be subject to suit prior to July 28, 1975. (C) Any hospital, as defined
in section
2305.113 of the
Revised Code, may purchase liability insurance
covering its
operations and activities and its agents, employees,
nurses,
interns, residents, staff, and members of the governing
board and
committees, and, whether or not such insurance is
purchased, may,
to such extent as its governing board considers
appropriate,
indemnify or agree to indemnify and hold harmless any
such person
against expense, including attorney's fees, damage,
loss, or
other liability arising out of, or claimed to have arisen
out of,
the death, disease, or injury of any person as a result of
the
negligence, malpractice, or other action or inaction of the
indemnified person while acting within the scope of
the
indemnified person's duties or engaged in activities at the
request or
direction, or for the benefit, of the hospital. Any
hospital electing to
indemnify
such persons, or to agree to so
indemnify, shall reserve such
funds as are necessary, in the
exercise of sound and prudent
actuarial judgment, to cover the
potential expense, fees, damage,
loss, or other liability. The
superintendent of insurance may
recommend, or, if such hospital
requests
the superintendent
to do so, the
superintendent shall
recommend, a specific amount for any period
that, in
the
superintendent's opinion, represents such a
judgment. This
authority is in addition to any authorization otherwise
provided
or
permitted by law. (D) Recoveries against the state shall be reduced by the
aggregate of insurance proceeds, disability award, or other
collateral recovery received by the claimant. This division does
not apply to civil actions in the court of claims against a state
university or college under the circumstances described in
section
3345.40 of the Revised Code. The collateral benefits
provisions
of division (B)(2) of that section apply under those
circumstances. (E) The only defendant in original actions in the court of
claims is the state. The state may file a third-party complaint
or counterclaim in any civil action, except a civil action for
two
thousand five hundred dollars or less, that is filed in the
court
of claims. (F) A civil action against an officer or employee, as
defined in section 109.36 of the Revised Code, that alleges that
the officer's or employee's conduct was manifestly outside the
scope of
the officer's or employee's employment or official
responsibilities, or that the
officer or employee acted with
malicious purpose, in bad faith,
or in a wanton or reckless manner
shall first be filed against
the state in the court of claims,
which has exclusive, original
jurisdiction to determine,
initially, whether the officer or
employee is entitled to personal
immunity under section 9.86 of
the Revised Code and whether the
courts of common pleas have
jurisdiction over the civil action. The filing of a claim against an officer or employee under
this division tolls the running of the applicable statute of
limitations until the court of claims determines whether the
officer or employee is entitled to personal immunity under
section
9.86 of the Revised Code. (G) Whenever a claim lies against an officer or employee who
is a member of
the Ohio national guard, and the officer or
employee was, at the time of the
act or omission complained of,
subject to the "Federal Tort Claims Act," 60
Stat. 842 (1946), 28
U.S.C. 2671, et seq., then the Federal Tort Claims Act is
the
exclusive remedy of the claimant and the state has no liability
under this
section. (H) If an inmate of a state correctional institution has a claim against the state for the loss of or damage to property and the amount claimed does not exceed three hundred dollars, before commencing an action against the state in the court of claims, the inmate shall file a claim for the loss or damage under the rules adopted by the director of rehabilitation and correction pursuant to this division. The inmate shall file the claim within the time allowed for commencement of a civil action under section 2743.16 of the Revised Code. If the state admits or compromises the claim, the director shall make payment from a fund designated by the director for that purpose. If the state denies the claim or does not compromise the claim at least sixty days prior to expiration of the time allowed for commencement of a civil action based upon the loss or damage under section 2743.16 of the Revised Code, the inmate may commence an action in the court of claims under this chapter to recover damages for the loss or damage. The director of rehabilitation and correction shall adopt rules pursuant to Chapter 119. of the Revised Code to implement this division.
Sec. 5502.52. (A) There is hereby created the statewide
emergency
alert program
to aid in the identification and location
of
children who are
under eighteen years of age, who are abducted,
and whose
abduction, as determined by a law enforcement agency,
poses a
credible threat of immediate danger of serious bodily harm
or death to a child. The
program shall be a coordinated effort
among the governor's office, the department of public safety, the
attorney general, law
enforcement agencies, the state's public
and
commercial
television and radio broadcasters, and others as
deemed
necessary by the governor. (B) The statewide emergency alert program shall not be
implemented
unless all of the following activation criteria are
met: (1) The local investigating law enforcement agency confirms
that an abduction has occurred. (2) An abducted child is under eighteen years of age. (3) The abduction poses a credible threat of immediate
danger of serious bodily harm or death to a child. (4) A law enforcement agency determines that the child
is not
a runaway and has not been abducted as a result of a child
custody
dispute, unless the dispute poses a credible threat of immediate
danger of serious bodily harm or death to the child. (5) There is sufficient descriptive information about the
child, the abductor, and the circumstances surrounding the
abduction to indicate that activation of the alert will help
locate the child. (C) Nothing in division (B) of this section prevents the
activation of a local or regional emergency alert program that may
impose different criteria for the activation of a local or
regional plan. (D) Any radio broadcast station, television broadcast station, or cable television system participating in the statewide emergency alert program or in any local or regional emergency alert program, and any director, officer, employee, or agent of any such station or system, shall not be liable to any person for damages for any loss allegedly caused by or resulting from the station's or system's broadcast or cablecast of, or failure to broadcast or cablecast, any information pursuant to the statewide emergency alert program or the local or regional emergency alert program. (E) As used in this section: (1) "Abducted child" means a child for whom there is
credible evidence to believe that the child has been abducted in
violation of section 2905.01, 2905.02, 2905.03, or 2905.05 of the
Revised Code. (2) "Cable television system" means a cable system, as defined in section 2913.04 of the Revised Code. (3) "Law enforcement agency" includes, but is not limited
to, a county sheriff's office, the office of a village
marshal, a
police department of a municipal corporation, a police
force of a
regional transit authority, a police force of a
metropolitan
housing authority, the state highway patrol, a state
university
law enforcement agency, the office of a township police
constable,
and the police department of a township or joint
township police
district.
SECTION 2. That existing sections 9.87, 2743.01, 2743.02, and 5502.52 of the Revised Code are hereby repealed.
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