Rep. Norm Thurston — Voting Record

Bill

Number

H.B. 391 Second Substitute (2019GS)

Sponsor

Rep. Ivory, K.

Final action

Governor Signed 3/25/2019

Outcome

Became law — signed by Gov. Gary R. Herbert

Summary

What it does

• This bill:
• waives governmental immunity for an injury claim resulting from a sexual battery or sexual abuse of a child against a student by a school employee unless the school was subject to a specified policy and had taken reasonable steps to implement and enforce the policy; and
• waives governmental immunity for an injury claim resulting from a sexual battery of a student by an employee of an institution of higher education, under certain circumstances.

Every vote on this bill

Bill text

MODIFICATIONS TO GOVERNMENTAL IMMUNITY
PROVISIONS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Ken Ivory
Senate Sponsor: 
Deidre M. Henderson
Cosponsors:
Patrice M. Arent
Brian S. King
Karianne Lisonbee
V. Lowry Snow
LONG TITLE
General Description:
This bill modifies provisions relating to governmental immunity.
Highlighted Provisions:
This bill:
▸ waives governmental immunity for an injury claim resulting from a sexual battery
or sexual abuse of a child against a student by a school employee unless the school
was subject to a specified policy and had taken reasonable steps to implement and
enforce the policy; and
▸ waives governmental immunity for an injury claim resulting from a sexual battery
of a student by an employee of an institution of higher education, under certain
circumstances.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
63G-7-201
, as last amended by Laws of Utah 2016, Chapter 181
63G-7-301
, as amended by Statewide Initiative -- Proposition 4, Nov. 6, 2018
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
63G-7-201
 is amended to read:
63G-7-201.
Immunity of governmental entities and employees from suit.
(1) Except as otherwise provided in this chapter, each governmental entity and each
employee of a governmental entity are immune from suit for any injury that results from the
exercise of a governmental function.
(2) Notwithstanding the waiver of immunity provisions of Section 
63G-7-301
, a
governmental entity, its officers, and its employees are immune from suit for any injury or
damage resulting from the implementation of or the failure to implement measures to:
(a) control the causes of epidemic and communicable diseases and other conditions
significantly affecting the public health or necessary to protect the public health as set out in
Title 26A, Chapter 1, Local Health Departments;
(b) investigate and control suspected bioterrorism and disease as set out in Title 26,
Chapter 23b, Detection of Public Health Emergencies Act;
(c) respond to a national, state, or local emergency, a public health emergency as
defined in Section 
26-23b-102
, or a declaration by the President of the United States or other
federal official requesting public health related activities, including the use, provision,
operation, and management of:
(i) an emergency shelter;
(ii) housing;
(iii) a staging place; or
(iv) a medical facility; and
(d) adopt methods or measures, in accordance with Section 
26-1-30
, for health care
providers, public health entities, and health care insurers to coordinate among themselves to
verify the identity of the individuals they serve.
(3) A governmental entity, its officers, and its employees are immune from suit, and
immunity is not waived, for any injury if the injury arises out of or in connection with, or
results from:
(a) a latent dangerous or latent defective condition of:
(i) any highway, road, street, alley, crosswalk, sidewalk, culvert, tunnel, bridge, or
viaduct; or
(ii) another structure located on any of the items listed in Subsection (3)(a)(i); or
(b) a latent dangerous or latent defective condition of any public building, structure,
dam, reservoir, or other public improvement.
(4) A governmental entity, its officers, and its employees are immune from suit, and
immunity is not waived, for any injury proximately caused by a negligent act or omission of an
employee committed within the scope of employment, if the injury arises out of or in
connection with, or results from:
(a) the exercise or performance, or the failure to exercise or perform, a discretionary
function, whether or not the discretion is abused;
(b) 
except as provided in Subsections 
63G-7-301
(3) and (4),
 assault, battery, false
imprisonment, false arrest, malicious prosecution, intentional trespass, abuse of process, libel,
slander, deceit, interference with contract rights, infliction of mental anguish, or violation of
civil rights;
(c) the issuance, denial, suspension, or revocation of, or the failure or refusal to issue,
deny, suspend, or revoke, any permit, license, certificate, approval, order, or similar
authorization;
(d) a failure to make an inspection or making an inadequate or negligent inspection;
(e) the institution or prosecution of any judicial or administrative proceeding, even if
malicious or without probable cause;
(f) a misrepresentation by an employee whether or not the misrepresentation is
negligent or intentional;
(g) a riot, unlawful assembly, public demonstration, mob violence, or civil disturbance;
(h) the collection or assessment of taxes;
(i) an activity of the Utah National Guard;
(j) the incarceration of a person in a state prison, county or city jail, or other place of
legal confinement;
(k) a natural condition on publicly owned or controlled land;
(l) a condition existing in connection with an abandoned mine or mining operation;
(m) an activity authorized by the School and Institutional Trust Lands Administration
or the Division of Forestry, Fire, and State Lands;
(n) the operation or existence of a pedestrian or equestrian trail that is along a ditch,
canal, stream, or river, regardless of ownership or operation of the ditch, canal, stream, or river,
if:
(i) the trail is designated under a general plan adopted by a municipality under Section
10-9a-401
 or by a county under Section 
17-27a-401
;
(ii) the trail right-of-way or the right-of-way where the trail is located is open to public
use as evidenced by a written agreement between:
(A) the owner or operator of the trail right-of-way or of the right-of-way where the trail
is located; and
(B) the municipality or county where the trail is located; and
(iii) the written agreement:
(A) contains a plan for operation and maintenance of the trail; and
(B) provides that an owner or operator of the trail right-of-way or of the right-of-way
where the trail is located has, at a minimum, the same level of immunity from suit as the
governmental entity in connection with or resulting from the use of the trail;
(o) research or implementation of cloud management or seeding for the clearing of fog;
(p) the management of flood waters, earthquakes, or natural disasters;
(q) the construction, repair, or operation of flood or storm systems;
(r) the operation of an emergency vehicle, while being driven in accordance with the
requirements of Section 
41-6a-212
;
(s) the activity of:
(i) providing emergency medical assistance;
(ii) fighting fire;
(iii) regulating, mitigating, or handling hazardous materials or hazardous wastes;
(iv) an emergency evacuation;
(v) transporting or removing an injured person to a place where emergency medical
assistance can be rendered or where the person can be transported by a licensed ambulance
service; or
(vi) intervening during a dam emergency;
(t) the exercise or performance, or the failure to exercise or perform, any function
pursuant to Title 73, Chapter 10, Board of Water Resources - Division of Water Resources;
(u) an unauthorized access to government records, data, or electronic information
systems by any person or entity; or
(v) an activity of wildlife, as defined in Section 
23-13-2
, that arises during the use of a
public or private road.
Section 2. Section 
63G-7-301
 is amended to read:
63G-7-301.
Waivers of immunity.
(1) (a) Immunity from suit of each governmental entity is waived as to any contractual
obligation.
(b) Actions arising out of contractual rights or obligations are not subject to the
requirements of Sections 
63G-7-401
, 
63G-7-402
, 
63G-7-403
, or 
63G-7-601
.
(c) The Division of Water Resources is not liable for failure to deliver water from a
reservoir or associated facility authorized by Title 73, Chapter 26, Bear River Development
Act, if the failure to deliver the contractual amount of water is due to drought, other natural
condition, or safety condition that causes a deficiency in the amount of available water.
(2) Immunity from suit of each governmental entity is waived:
(a) as to any action brought to recover, obtain possession of, or quiet title to real or
personal property;
(b) as to any action brought to foreclose mortgages or other liens on real or personal
property, to determine any adverse claim on real or personal property, or to obtain an
adjudication about any mortgage or other lien that the governmental entity may have or claim
on real or personal property;
(c) as to any action based on the negligent destruction, damage, or loss of goods,
merchandise, or other property while it is in the possession of any governmental entity or
employee, if the property was seized for the purpose of forfeiture under any provision of state
law;
(d) subject to Subsection 
63G-7-302
(1), as to any action brought under the authority of
Utah Constitution, Article I, Section 22, for the recovery of compensation from the
governmental entity when the governmental entity has taken or damaged private property for
public uses without just compensation;
(e) subject to Subsection 
63G-7-302
(2), as to any action brought to recover attorney
fees under Sections 
63G-2-405
 and 
63G-2-802
;
(f) for actual damages under Title 67, Chapter 21, Utah Protection of Public Employees
Act;
(g) as to any action brought to obtain relief from a land use regulation that imposes a
substantial burden on the free exercise of religion under Title 63L, Chapter 5, Utah Religious
Land Use Act;
(h) except as provided in Subsection 
63G-7-201
(3), as to any injury caused by:
(i) a defective, unsafe, or dangerous condition of any highway, road, street, alley,
crosswalk, sidewalk, culvert, tunnel, bridge, viaduct, or other structure located on them; or
(ii) any defective or dangerous condition of a public building, structure, dam, reservoir,
or other public improvement;
(i) subject to Subsections 
63G-7-101
(4) and 
63G-7-201
(4), as to any injury
proximately caused by a negligent act or omission of an employee committed within the scope
of employment; and
(j) as to any action or suit brought under Section 
20A-19-301
 and as to any
compensation or expenses awarded under Section 
20A-19-301
(5).
(3) (a) As used in this Subsection (3):
(i) "Appropriate behavior policy" means a policy that:
(A) is not less stringent than a model policy, created by the State Board of Education,
establishing a professional standard of care for preventing the conduct described in Subsection
(3)(a)(i)(D);
(B) is adopted by the applicable local education governing body;
(C) regulates behavior of a school employee toward a student; and
(D) includes a prohibition against any sexual conduct between an employee and a
student and against the employee and student sharing any sexually explicit or lewd
communication, image, or photograph.
(ii) "Local education agency" means:
(A) a school district;
(B) a charter school; or
(C) the Utah Schools for the Deaf and the Blind.
(iii) "Local education governing board" means:
(A) for a school district, the local school board;
(B) for a charter school, the charter school governing board; or
(C) for the Utah Schools for the Deaf and the Blind, the state board.
(iv) "Public school" means a public elementary or secondary school.
(v) "Sexual abuse" means the offense described in Subsection 
76-5-404.1
(2).
(vi) "Sexual battery" means the offense described in Section 
76-9-702.1
, considering
the term "child" in that section to include an individual under age 18.
(b) Notwithstanding Subsection 
63G-7-101
(4), immunity from suit is waived as to a
claim against a local education agency for an injury resulting from a sexual battery or sexual
abuse committed against a student of a public school by a paid employee of the public school
who is criminally charged in connection with the sexual battery or sexual abuse, unless:
(i) at the time of the sexual battery or sexual abuse, the public school was subject to an
appropriate behavior policy; and
(ii) before the sexual battery or sexual abuse occurred, the public school had:
(A) provided training on the policy to the employee; and
(B) required the employee to sign a statement acknowledging that the employee has
read and understands the policy.
(4) (a) As used in this Subsection (4):
(i) "Higher education institution" means an institution included within the state system
of higher education under Section 
53B-1-102
.
(ii) "Policy governing behavior" means a policy adopted by a higher education
institution or the State Board of Regents that:
(A) establishes a professional standard of care for preventing the conduct described in
Subsections (4)(a)(ii)(C) and (D);
(B) regulates behavior of a special trust employee toward a subordinate student;
(C) includes a prohibition against any sexual conduct between a special trust employee
and a subordinate student; and
(D) includes a prohibition against a special trust employee and subordinate student
sharing any sexually explicit or lewd communication, image, or photograph.
(iii) "Sexual battery" means the offense described in Section 
76-9-702.1
.
(iv) "Special trust employee" means an employee of a higher education institution who
is in a position of special trust, as defined in Section 
76-5-404.1
, with a higher education
student.
(v) "Subordinate student" means a student:
(A) of a higher education institution; and
(B) whose educational opportunities could be adversely impacted by a special trust
employee.
(b) Notwithstanding Subsection 
63G-7-101
(4), immunity from suit is waived as to a
claim for an injury resulting from a sexual battery committed against a subordinate student by a
special trust employee, unless:
(i) the institution proves that the special trust employee's behavior that otherwise would
constitute a sexual battery was:
(A) with a subordinate student who was at least 18 years old at the time of the
behavior; and
(B) with the student's consent; or
(ii) (A) at the time of the sexual battery, the higher education institution was subject to
a policy governing behavior; and
(B) before the sexual battery occurred, the higher education institution had taken steps
to implement and enforce the policy governing behavior.