Session of 1999
         
HOUSE BILL No. 2118
         
By Representative Morrison
          
1-26
          
  9             AN  ACT concerning tort liability; relating to liability for natural events;
10             amending K.S.A. 1998 Supp. 75-6104 and repealing the existing
11             section.
12      
13       Be it enacted by the Legislature of the State of Kansas:
14             New Section  1. (a) Notwithstanding any provisions of law to the con-
15       trary, a person, association, corporation or governmental entity shall not
16       be liable in any civil action for damages resulting from an act of God.
17             (b) Notwithstanding any provisions of law to the contrary, a person,
18       association, corporation or governmental entity shall not be liable in any
19       civil action for damages caused by negligent acts of commission or omis-
20       sion in the implementation of procedures or the operation of equipment
21       designed to detect or warn of the occurrence of an act of God or to
22       mitigate the effects of an act of God. Acts covered by this subsection shall
23       include but are not limited to the stationing of lifeguards at pools or
24       beaches, the posting of warning signs and the installation of lightning
25       warning devices.
26             (c) As used in this section:
27             (1) "Act of God" means an act, event, happening or occurrence due
28       to natural causes and includes, but is not limited to, weather conditions
29       such as lightning, hurricanes, tornadoes, squalls of wind, freezing tem-
30       peratures and drought; and
31             (2) "governmental entity" means a governmental entity as defined in
32       K.S.A. 75-6102, and amendments thereto.
33             (d) This section shall not bar an action based upon gross negligence
34       or willful misconduct on the part of any person, association, corporation
35       or governmental entity.
36             Sec.  2. K.S.A. 1998 Supp. 75-6104 is hereby amended to read as
37       follows: 75-6104. A governmental entity or an employee acting within the
38       scope of the employee's employment shall not be liable for damages re-
39       sulting from:
40             (a) Legislative functions, including, but not limited to, the adoption
41       or failure to adopt any statute, regulation, ordinance or resolution;
42             (b) judicial function;
43             (c) enforcement of or failure to enforce a law, whether valid or in-

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  1       valid, including, but not limited to, any statute, rule and regulation, or-
  2       dinance or resolution;
  3             (d) adoption or enforcement of, or failure to adopt or enforce, any
  4       written personnel policy which protects persons' health or safety unless
  5       a duty of care, independent of such policy, is owed to the specific indi-
  6       vidual injured, except that the finder of fact may consider the failure to
  7       comply with any written personnel policy in determining the question of
  8       negligence;
  9             (e) any claim based upon the exercise or performance or the failure
10       to exercise or perform a discretionary function or duty on the part of a
11       governmental entity or employee, whether or not the discretion is abused
12       and regardless of the level of discretion involved;
13             (f) the assessment or collection of taxes or special assessments;
14             (g) any claim by an employee of a governmental entity arising from
15       the tortious conduct of another employee of the same governmental en-
16       tity, if such claim is (1) compensable pursuant to the Kansas workers
17       compensation act or (2) not compensable pursuant to the Kansas workers
18       compensation act because the injured employee was a firemen's relief
19       association member who was exempt from such act pursuant to K.S.A.
20       44-505d, and amendments thereto, at the time the claim arose;
21             (h) the malfunction, destruction or unauthorized removal of any traf-
22       fic or road sign, signal or warning device unless it is not corrected by the
23       governmental entity responsible within a reasonable time after actual or
24       constructive notice of such malfunction, destruction or removal. Nothing
25       herein shall give rise to liability arising from the act or omission of any
26       governmental entity in placing or removing any of the above signs, signals
27       or warning devices when such placement or removal is the result of a
28       discretionary act of the governmental entity;
29             (i) any claim which is limited or barred by any other law or which is
30       for injuries or property damage against an officer, employee or agent
31       where the individual is immune from suit or damages;
32             (j) any claim based upon emergency management activities, except
33       that governmental entities shall be liable for claims to the extent provided
34       in article 9 of chapter 48 of the Kansas Statutes Annotated;
35             (k) the failure to make an inspection, or making an inadequate or
36       negligent inspection, of any property other than the property of the gov-
37       ernmental entity, to determine whether the property complies with or
38       violates any law or rule and regulation or contains a hazard to public
39       health or safety;
40             (l) snow or ice conditions or other temporary or natural conditions
41       on any public way or other public place due to weather conditions, unless
42       the condition is affirmatively caused by the negligent act of the govern-
43       mental entity;

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  1             (m) the plan or design for the construction of or an improvement to
  2       public property, either in its original construction or any improvement
  3       thereto, if the plan or design is approved in advance of the construction
  4       or improvement by the governing body of the governmental entity or
  5       some other body or employee exercising discretionary authority to give
  6       such approval and if the plan or design was prepared in conformity with
  7       the generally recognized and prevailing standards in existence at the time
  8       such plan or design was prepared;
  9             (n) failure to provide, or the method of providing, police or fire
10       protection;
11             (o) any claim for injuries resulting from the use of any public property
12       intended or permitted to be used as a park, playground or open area for
13       recreational purposes, unless the governmental entity or an employee
14       thereof is guilty of gross and wanton negligence proximately causing such
15       injury;
16             (p) the natural condition of any unimproved public property of the
17       governmental entity;
18             (q) any claim for injuries resulting from the use or maintenance of a
19       public cemetery owned and operated by a municipality or an abandoned
20       cemetery, title to which has vested in a governmental entity pursuant to
21       K.S.A. 17-1366 through 17-1368, and amendments thereto, unless the
22       governmental entity or an employee thereof is guilty of gross and wanton
23       negligence proximately causing the injury;
24             (r) the existence, in any condition, of a minimum maintenance road,
25       after being properly so declared and signed as provided in K.S.A. 68-
26       5,102, and amendments thereto;
27             (s) any claim for damages arising from the performance of community
28       service work other than damages arising from the operation of a motor
29       vehicle as defined by K.S.A. 40-3103, and amendments thereto;
30             (t) any claim for damages arising from the operation of vending ma-
31       chines authorized pursuant to K.S.A. 68-432 or K.S.A. 75-3343a, and
32       amendments thereto;
33             (u) providing, distributing or selling information from geographic in-
34       formation systems which includes an entire formula, pattern, compilation,
35       program, device, method, technique, process, digital database or system
36       which electronically records, stores, reproduces and manipulates by com-
37       puter geographic and factual information which has been developed in-
38       ternally or provided from other sources and compiled for use by a public
39       agency, either alone or in cooperation with other public or private entities;
40       or
41             (v) any claim arising from providing a juvenile justice program to
42       juvenile offenders, if such juvenile justice program has contracted with
43       the commissioner of juvenile justice or with another nonprofit program

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  1       that has contracted with the commissioner of juvenile justice.; or
  2             (w) any claim for damages arising from an act of God, under the
  3       provisions of section 1 of this act.
  4             The enumeration of exceptions to liability in this section shall not be
  5       construed to be exclusive nor as legislative intent to waive immunity from
  6       liability in the performance or failure to perform any other act or function
  7       of a discretionary nature. 
  8       Sec.  3. K.S.A. 1998 Supp. 75-6104 is hereby repealed.
  9        Sec.  4. This act shall take effect and be in force from and after its
10       publication in the statute book.