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H. B. No. 121 As IntroducedAs Introduced
128th General Assembly | Regular Session | 2009-2010 |
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Cosponsors:
Representatives Huffman, Mecklenborg, Amstutz, Hagan, Grossman, Harris, Hackett, Stebelton, Brown, Okey, Balderson, Williams, B., Ujvagi, Domenick
A BILL
To amend sections 2743.02 and 2744.01 and to enact
section 4510.121 of the Revised Code to permit a
person who is issued a ticket for operating a
motor vehicle other than a commercial motor
vehicle with an expired driver's or commercial
driver's license to be issued a seven-day field
driving permit.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 2743.02 and 2744.01 be amended and
section 4510.121 of the Revised Code be enacted to read as
follows:
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 except as provided in
division (I) of this section 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 officer or employee may participate in the immunity
determination proceeding before the court of claims to determine
whether the officer or employee is entitled to personal immunity
under section 9.86 of the Revised Code.
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.
(I) The state is immune from liability in any civil action or
proceeding arising from any incident or set of facts or
circumstances that involve a person to whom a state highway patrol
trooper has issued a seven-day field driving permit under section
4510.121 of the Revised Code and that occurs subsequent to such
issuance.
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;
(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) Issuance of a seven-day field driving permit under
section 4510.121 of the Revised Code by a law enforcement officer
employed by a law enforcement agency of a political subdivision;
(y)
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,
board of hospital commissioners appointed for a municipal hospital
under section 749.04 of the Revised Code, board of hospital
trustees appointed for a municipal hospital under section 749.22
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,
community
school established
under Chapter 3314. of the Revised Code, the
county or counties served by a community-based correctional
facility and program or district community-based correctional
facility and program established and operated under sections
2301.51 to 2301.58 of the Revised Code, a community-based
correctional facility and program or district community-based
correctional facility and program that is so established and
operated, and the facility governing board of a community-based
correctional facility and program or district community-based
correctional facility and program that is so established and
operated.
(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. 4510.121. (A) If a law enforcement officer issues a
person a ticket, citation, or summons for a violation of section
4510.12 of the Revised Code because the offender was operating a
motor vehicle other than a commercial motor vehicle with a
driver's or commercial driver's license issued by this state that
was expired and the person's driver's or commercial driver's
license otherwise has not been suspended or canceled and therefore
but for the fact that the person's driver's or commercial driver's
license had expired the person's operation of the motor vehicle
would not have been in violation of section 4510.12 of the Revised
Code, the law enforcement officer shall issue to the person a
seven-day field driving permit. The
ticket, citation, or summons
that the officer issues to the person shall serve as the person's
seven-day field driving permit. The law enforcement officer shall
make the necessary markings and notations on the ticket, citation,
or summons in order to indicate that it is to serve as a seven-day
field driving permit for the person listed on the ticket,
citation, or summons. The law enforcement officer shall
issue the
combination ticket, citation, or summons and seven-day field
driving permit to the person if the
person has not been arrested,
the
motor vehicle the person was operating at the time of the
violation of section 4510.12 of the Revised Code can be lawfully
operated on the public roads and is not a commercial motor
vehicle, and the person presents to the law enforcement officer
valid proof of financial responsibility in a form described in
division (G) of section 4509.101 of the Revised Code. The ticket,
citation, or summons shall include all language and spaces
necessary in order for it to serve as the
person's seven-day
field driving permit, including spaces in which the law
enforcement officer shall
enter the date and time of issuance of
the permit and the date and
time that the permit expires.
(B) A person who is issued a seven-day field driving permit
under this section may operate a motor vehicle as follows if the
person has the permit in the person's possession:
(1) During the three hours immediately following the time of
issuance of the permit to enable the person to travel directly to
the person's residence;
(2) During the seven-day period commencing from the time and
date of issuance of the permit and prior to issuance by the
registrar or a deputy registrar of a driver's or commercial
driver's license to the person, the person may travel directly to
and from the person's residence and the person's place of
employment, but the person shall not operate a motor vehicle in
the course of the person's employment;
(3) During the seven-day period commencing from the time and
date of issuance of the permit, the person may travel to an office
of the registrar or a deputy registrar to obtain a driver's or
commercial driver's license.
(C) Issuance of a seven-day field driving permit to a person
does not invalidate, supersede, or otherwise affect in any manner
or to any degree any suspension or cancellation of the person's
driver's or commercial driver's license that is in effect at the
time of issuance of the permit. A person who is issued a seven-day
field driving permit
under this section shall be deemed to
possess a valid driver's
license issued by this state only if the
person operates a motor
vehicle as specified in division (B) of
this section and only if the person's driver's or commercial
driver's license otherwise has not been suspended or canceled.
(D) No state highway patrol trooper or other law enforcement
officer shall be personally liable or subject to any suit,
judgment, or claim or damages arising from any incident or set of
facts or circumstances that involve a person to whom the trooper
or officer issued a seven-day field driving permit under section
4510.121 of the Revised Code and that occurs subsequent to such
issuance.
(E)
No person shall be issued more than one seven-day field
driving permit in any sixty-month period, commencing on the date
such a permit is issued.
(F) No person who is issued a seven-day field driving permit
shall operate a motor vehicle other than as specified in division
(B) of this section.
(G) If a person who has been issued a seven-day field driving
permit under this section submits an application to the registrar
or a deputy registrar for a driver's license or commercial
driver's license and, on the date of such application, the
person's previous driver's or commercial driver's license expired
more than forty-eight months prior to the date of the application,
the person shall not be issued a driver's or commercial driver's
license unless the person pays not only all the applicable fees
associated with the issuance of a driver's or commercial driver's
license on that date but also all the fees the person would have
paid to the registrar or deputy registrar had the person applied
for renewal of the person's previous driver's or commercial
driver's license on the expiration date of that previous license.
(H) Whoever violates division (F) of this section is guilty
of a misdemeanor of the first degree.
Section 2. That existing sections 2743.02 and 2744.01 of the
Revised Code are hereby repealed.
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