Session of 1999
SENATE BILL No. 118
By Senator Clark
1-22
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-
44 valid, including, but not limited to, any statute, rule and regulation, or-
45 dinance or resolution;
46 (d) adoption or enforcement of, or failure to adopt or enforce, any
47 written personnel policy which protects persons' health or safety unless
48 a duty of care, independent of such policy, is owed to the specific indi-
49 vidual injured, except that the finder of fact may consider the failure to
50 comply with any written personnel policy in determining the question of
51 negligence;
52 (e) any claim based upon the exercise or performance or the failure
53 to exercise or perform a discretionary function or duty on the part of a
54 governmental entity or employee, whether or not the discretion is abused
55 and regardless of the level of discretion involved;
56 (f) the assessment or collection of taxes or special assessments;
57 (g) any claim by an employee of a governmental entity arising from
58 the tortious conduct of another employee of the same governmental en-
59 tity, if such claim is (1) compensable pursuant to the Kansas workers
60 compensation act or (2) not compensable pursuant to the Kansas workers
61 compensation act because the injured employee was a firemen's relief
62 association member who was exempt from such act pursuant to K.S.A.
63 44-505d, and amendments thereto, at the time the claim arose;
64 (h) the malfunction, destruction or unauthorized removal of any traf-
65 fic or road sign, signal or warning device unless it is not corrected by the
66 governmental entity responsible within a reasonable time after actual or
67 constructive notice of such malfunction, destruction or removal. Nothing
68 herein shall give rise to liability arising from the act or omission of any
69 governmental entity in placing or removing any of the above signs, signals
70 or warning devices when such placement or removal is the result of a
71 discretionary act of the governmental entity;
72 (i) any claim which is limited or barred by any other law or which is
73 for injuries or property damage against an officer, employee or agent
74 where the individual is immune from suit or damages;
75 (j) any claim based upon emergency management activities, except
76 that governmental entities shall be liable for claims to the extent provided
77 in article 9 of chapter 48 of the Kansas Statutes Annotated;
78 (k) the failure to make an inspection, or making an inadequate or
79 negligent inspection, of any property other than the property of the gov-
80 ernmental entity, to determine whether the property complies with or
81 violates any law or rule and regulation or contains a hazard to public
82 health or safety;
83 (l) snow or ice conditions or other temporary or natural conditions
84 on any public way or other public place due to weather conditions, unless
85 the condition is affirmatively caused by the negligent act of the govern-
86 mental entity;
87 (m) the plan or design for the construction of or an improvement to
88 public property, either in its original construction or any improvement
89 thereto, if the plan or design is approved in advance of the construction
90 or improvement by the governing body of the governmental entity or
91 some other body or employee exercising discretionary authority to give
92 such approval and if the plan or design was prepared in conformity with
93 the generally recognized and prevailing standards in existence at the time
94 such plan or design was prepared;
95 (n) failure to provide, or the method of providing, police or fire
96 protection;
97 (o) any claim for injuries resulting from the use of any public property
98 intended or permitted to be used as a park, playground or open area for
99 recreational purposes, unless the governmental entity or an employee
100 thereof is guilty of gross and wanton negligence proximately causing such
101 injury;
102 (p) the natural condition of any unimproved public property of the
103 governmental entity;
104 (q) any claim for injuries resulting from the use or maintenance of a
105 public cemetery owned and operated by a municipality or an abandoned
106 cemetery, title to which has vested in a governmental entity pursuant to
107 K.S.A. 17-1366 through 17-1368, and amendments thereto, unless the
108 governmental entity or an employee thereof is guilty of gross and wanton
109 negligence proximately causing the injury;
110 (r) the existence, in any condition, of a minimum maintenance road,
111 after being properly so declared and signed as provided in K.S.A. 68-
112 5,102, and amendments thereto;
113 (s) any claim for damages arising from the performance of community
114 service work other than damages arising from the operation of a motor
115 vehicle as defined by K.S.A. 40-3103, and amendments thereto;
116 (t) any claim for damages arising from the operation of vending ma-
117 chines authorized pursuant to K.S.A. 68-432 or K.S.A. 75-3343a, and
118 amendments thereto;
119 (u) providing, distributing or selling information from geographic in-
120 formation systems which includes an entire formula, pattern, compilation,
121 program, device, method, technique, process, digital database or system
122 which electronically records, stores, reproduces and manipulates by com-
123 puter geographic and factual information which has been developed in-
124 ternally or provided from other sources and compiled for use by a public
125 agency, either alone or in cooperation with other public or private entities;
126 or
127 (v) any claim arising from providing a juvenile justice program to
128 juvenile offenders, if such juvenile justice program has contracted with
129 the commissioner of juvenile justice or with another nonprofit program
130 that has contracted with the commissioner of juvenile justice.; or
131 (w) any claim for damages arising from an act of God, under the
132 provisions of section 1 of this act.
133 The enumeration of exceptions to liability in this section shall not be
134 construed to be exclusive nor as legislative intent to waive immunity from
135 liability in the performance or failure to perform any other act or function
136 of a discretionary nature.
137 Sec. 3. K.S.A. 1998 Supp. 75-6104 is hereby repealed.
138 Sec. 4. This act shall take effect and be in force from and after its
139 publication in the statute book.