Session Law

Identifying Information:L. 2003 ch. 107
Other Identifying Information:2003 House Bill 2068
Tax Type:Other
Brief Description:An Act concerning certain municipalities; relating to the Kansas tort claims act; amending K.S.A. 2002 Supp. 75-6102 and 75-6104 and repealing the existing sections.
Keywords:


Body:

CHAPTER 107

HOUSE BILL No. 2068

(Amended by Chapter 158)


An Act concerning certain municipalities; relating to the Kansas tort claims act; amending

K.S.A. 2002 Supp. 75-6102 and 75-6104 and repealing the existing sections.

Be it enacted by the Legislature of the State of Kansas:

Section 1. K.S.A. 2002 Supp. 75-6102 is hereby amended to read as

follows: 75-6102. As used in K.S.A. 75-6101 through 75-6118, and amend-

ments thereto, unless the context clearly requires otherwise:

(a) ``State'' means the state of Kansas and any department or branch

of state government, or any agency, authority, institution or other instru-

mentality thereof.

(b) ``Municipality'' means any county, township, city, school district

or other political or taxing subdivision of the state, or any agency, au-

thority, institution or other instrumentality thereof.

(c) ``Governmental entity'' means state or municipality.

(d) ``Employee'' means any officer, employee, servant or member of

a board, commission, committee, division, department, branch or council

of a governmental entity, including elected or appointed officials and

persons acting on behalf or in service of a governmental entity in any

official capacity, whether with or without compensation and a charitable

health care provider. Employee includes any steward or racing judge ap-

pointed pursuant to K.S.A. 74-8818, and amendments thereto, regardless

of whether the services of such steward or racing judge are rendered

pursuant to contract as an independent contractor, but does not otherwise

include any independent contractor under contract with a governmental

entity except (1) employees of the United States marshal's service en-

gaged in the transportation of inmates on behalf of the secretary of cor-

rections, (2) a person who is an employee of a nonprofit independent

contractor, other than a municipality, under contract to provide educa-

tional or vocational training to inmates in the custody of the secretary of

corrections and who is engaged in providing such service in an institution

under the control of the secretary of corrections provided that such em-

ployee does not otherwise have coverage for such acts and omissions

within the scope of their employment through a liability insurance con-

tract of such independent contractor; and (3) a person who is an employee

or volunteer of a nonprofit program, other than a municipality, who has

contracted with the commissioner of juvenile justice or with another non-

profit program that has contracted with the commissioner of juvenile

justice to provide a juvenile justice program for juvenile offenders in a

judicial district provided that such employee or volunteer does not oth-

erwise have coverage for such acts and omissions within the scope of their

employment or volunteer activities through a liability insurance contract

of such nonprofit program. ``Employee'' also includes an employee of an

indigent health care clinic. ``Employee'' also includes former employees

for acts and omissions within the scope of their employment during their

former employment with the governmental entity.

(e) ``Community service work'' means public or community service

performed by a person (1) as a result of a contract of diversion entered

into by such person as authorized by law, (2) pursuant to the assignment

of such person by a court to a community corrections program, (3) as a

result of suspension of sentence or as a condition of probation pursuant

to court order, (4) in lieu of a fine imposed by court order or (5) as a

condition of placement ordered by a court pursuant to K.S.A. 38-1663,

and amendments thereto.

(f) ``Charitable health care provider'' means a person licensed by the

state board of healing arts as an exempt licensee or a federally active

licensee, a person issued a limited permit by the state board of healing

arts, a physician assistant licensed by the state board of healing arts or a

health care provider as the term ``health care provider'' is defined under

K.S.A. 65-4921, and amendments thereto, who has entered into an agree-

ment with:

(1) The secretary of health and environment under K.S.A. 75-6120,

and amendments thereto, who, pursuant to such agreement, gratuitously

renders professional services to a person who has provided information

which would reasonably lead the health care provider to make the good

faith assumption that such person meets the definition of medically in-

digent person as defined by this section or to a person receiving medical

assistance from the programs operated by the department of social and

rehabilitation services, and who is considered an employee of the state of

Kansas under K.S.A. 75-6120, and amendments thereto;

(2) the secretary of health and environment and who, pursuant to

such agreement, gratuitously renders professional services in conducting

children's immunization programs administered by the secretary; or

(3) a local health department or indigent health care clinic, which

renders professional services to medically indigent persons or persons

receiving medical assistance from the programs operated by the depart-

ment of social and rehabilitation services gratuitously or for a fee paid by

the local health department or indigent health care clinic to such provider

and who is considered an employee of the state of Kansas under K.S.A.

75-6120 and amendments thereto. Professional services rendered by a

provider under this paragraph (3) shall be considered gratuitous notwith-

standing fees based on income eligibility guidelines charged by a local

health department or indigent health care clinic and notwithstanding any

fee paid by the local health department or indigent health care clinic to

a provider in accordance with this paragraph (3).

(g) ``Medically indigent person'' means a person who lacks resources

to pay for medically necessary health care services and who meets the

eligibility criteria for qualification as a medically indigent person estab-

lished by the secretary of health and environment under K.S.A. 75-6120,

and amendments thereto.

(h) ``Indigent health care clinic'' means an outpatient medical care

clinic operated on a not-for-profit basis which has a contractual agreement

in effect with the secretary of health and environment to provide health

care services to medically indigent persons.

(i) ``Local health department'' shall have the meaning ascribed to such

term under K.S.A. 65-241 and amendments thereto.

(j) ``Fire control, fire rescue or emergency medical services equip-

ment'' means any vehicle, firefighting tool, protective clothing, breathing

apparatus and any other supplies, tools or equipment used in firefighting

or fire rescue or in the provision of emergency medical services.

Sec. 2. K.S.A. 2002 Supp. 75-6104 is hereby amended to read as

follows: 75-6104. A governmental entity or an employee acting within the

scope of the employee's employment shall not be liable for damages re-

sulting from:

(a) Legislative functions, including, but not limited to, the adoption

or failure to adopt any statute, regulation, ordinance or resolution;

(b) judicial function;

(c) enforcement of or failure to enforce a law, whether valid or in-

valid, including, but not limited to, any statute, rule and regulation, or-

dinance or resolution;

(d) adoption or enforcement of, or failure to adopt or enforce, any

written personnel policy which protects persons' health or safety unless

a duty of care, independent of such policy, is owed to the specific indi-

vidual injured, except that the finder of fact may consider the failure to

comply with any written personnel policy in determining the question of

negligence;

(e) any claim based upon the exercise or performance or the failure

to exercise or perform a discretionary function or duty on the part of a

governmental entity or employee, whether or not the discretion is abused

and regardless of the level of discretion involved;

(f) the assessment or collection of taxes or special assessments;

(g) any claim by an employee of a governmental entity arising from

the tortious conduct of another employee of the same governmental en-

tity, if such claim is (1) compensable pursuant to the Kansas workers

compensation act or (2) not compensable pursuant to the Kansas workers

compensation act because the injured employee was a firemen's relief

association member who was exempt from such act pursuant to K.S.A.

44-505d, and amendments thereto, at the time the claim arose;

(h) the malfunction, destruction or unauthorized removal of any traf-

fic or road sign, signal or warning device unless it is not corrected by the

governmental entity responsible within a reasonable time after actual or

constructive notice of such malfunction, destruction or removal. Nothing

herein shall give rise to liability arising from the act or omission of any

governmental entity in placing or removing any of the above signs, signals

or warning devices when such placement or removal is the result of a

discretionary act of the governmental entity;

(i) any claim which is limited or barred by any other law or which is

for injuries or property damage against an officer, employee or agent

where the individual is immune from suit or damages;

(j) any claim based upon emergency management activities, except

that governmental entities shall be liable for claims to the extent provided

in article 9 of chapter 48 of the Kansas Statutes Annotated;

(k) the failure to make an inspection, or making an inadequate or

negligent inspection, of any property other than the property of the gov-

ernmental entity, to determine whether the property complies with or

violates any law or rule and regulation or contains a hazard to public

health or safety;

(l) snow or ice conditions or other temporary or natural conditions

on any public way or other public place due to weather conditions, unless

the condition is affirmatively caused by the negligent act of the govern-

mental entity;

(m) the plan or design for the construction of or an improvement to

public property, either in its original construction or any improvement

thereto, if the plan or design is approved in advance of the construction

or improvement by the governing body of the governmental entity or

some other body or employee exercising discretionary authority to give

such approval and if the plan or design was prepared in conformity with

the generally recognized and prevailing standards in existence at the time

such plan or design was prepared;

(n) failure to provide, or the method of providing, police or fire pro-

tection;

(o) any claim for injuries resulting from the use of any public property

intended or permitted to be used as a park, playground or open area for

recreational purposes, unless the governmental entity or an employee

thereof is guilty of gross and wanton negligence proximately causing such

injury;

(p) the natural condition of any unimproved public property of the

governmental entity;

(q) any claim for injuries resulting from the use or maintenance of a

public cemetery owned and operated by a municipality or an abandoned

cemetery, title to which has vested in a governmental entity pursuant to

K.S.A. 17-1366 through 17-1368, and amendments thereto, unless the

governmental entity or an employee thereof is guilty of gross and wanton

negligence proximately causing the injury;

(r) the existence, in any condition, of a minimum maintenance road,

after being properly so declared and signed as provided in K.S.A. 68-

5,102, and amendments thereto;

(s) any claim for damages arising from the performance of community

service work other than damages arising from the operation of a motor

vehicle as defined by K.S.A. 40-3103, and amendments thereto;

(t) any claim for damages arising from the operation of vending ma-

chines authorized pursuant to K.S.A. 68-432 or K.S.A. 75-3343a, and

amendments thereto;

(u) providing, distributing or selling information from geographic in-

formation systems which includes an entire formula, pattern, compilation,

program, device, method, technique, process, digital database or system

which electronically records, stores, reproduces and manipulates by com-

puter geographic and factual information which has been developed in-

ternally or provided from other sources and compiled for use by a public

agency, either alone or in cooperation with other public or private entities;

(v) any claim arising from providing a juvenile justice program to

juvenile offenders, if such juvenile justice program has contracted with

the commissioner of juvenile justice or with another nonprofit program

that has contracted with the commissioner of juvenile justice; or

(w) performance of, or failure to perform, any activity pursuant to

K.S.A. 74-8922, and amendments thereto, including, but not limited to,

issuance and enforcement of a consent decree agreement, oversight of

contaminant remediation and taking title to any or all of the federal en-

clave described in such statute.;

(x) any claim arising from the making of a donation of used or excess

fire control, fire rescue, or emergency medical services equipment to a fire

department, fire district, volunteer fire department, medical emergency

response team or the Kansas forest service if at the time of making the

donation the donor believes that the equipment is serviceable or may be

made serviceable. This subsection also applies to equipment that is ac-

quired through the Federal Excess Personal Property Program established

by the Federal Property and Administrative Services Act of 1949 (P.L.

81-152; 63 stat. 377; 40 United States Code Section 483). This subsection

shall apply to any breathing apparatus or any mechanical or electrical

device which functions to monitor, evaluate, or restore basic life functions,

only if it is recertified to the manufacturer's specifications by a technician

certified by the manufacturer; or

(y) any claim arising from the acceptance of a donation of fire control,

fire rescue or emergency medical services equipment, if at the time of the

donation the donee reasonably believes that the equipment is serviceable

or may be made serviceable and if after placing the donated equipment

into service, the donee maintains the donated equipment in a safe and

serviceable manner.

The enumeration of exceptions to liability in this section shall not be

construed to be exclusive nor as legislative intent to waive immunity from

liability in the performance or failure to perform any other act or function

of a discretionary nature.

Sec. 3. K.S.A. 2002 Supp. 75-6102 and 75-6104 are hereby repealed.

Sec. 4. This act shall take effect and be in force from and after its

publication in the statute book.

Approved April 21, 2002.


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Date Composed: 10/29/2003 Date Modified: 10/29/2003