39A.280 Nature of disaster and emergency response functions provided by state or local management agency -- Immunity, exceptions. - Kentucky Statutes

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Page 1 of 3 39A.280 Nature of disaster and emergency response functions provided by state or local management agency -- Immunity, exceptions. (1) Disaster and emergency response functions provided by a state or local emergency management agency, or any emergency management agency-supervised operating
units or personnel officially affiliated with a local disaster and emergency services
organization pursuant to KRS 39B.070, shall not, in itself, be deemed to be the
making of a promise, or the undertaking of a special duty, towards any person for
the services, or any particular level of, or manner of providing, the services; nor
shall the provision of or failure to provide these services be deemed to create a
special relationship or duty towards any person upon which an action in negligence
or other tort might be founded. Specifically:
(a) The failure to respond to a disaster or other emergency, or to undertake particular inspections or types of inspections, or to maintain any particular
level of personnel, equipment, or facilities, shall not be a breach of any duty to
persons affected by any disaster or other emergency. (b) When a state or local emergency management agency, or local emergency management agency-supervised operating unit officially affiliated with a local
disaster and emergency services organization, does undertake to respond to a
disaster or other emergency, the failure to provide the same level or manner of
service, or equivalent availability or allocation of resources as may or could be
provided, shall not be a breach of any duty to persons affected by that disaster
or other emergency. (c) A state or local emergency management agency, or local emergency management agency-supervised operating unit officially affiliated with a local
disaster and emergency services organization shall not have or assume any
duty towards any person to adopt, use, or avoid any particular strategy or
tactic in responding to a disaster or other emergency. (d) A state or local emergency management agency, or local emergency management agency-supervised operating unit officially affiliated with a local
disaster and emergency services organization, in undertaking disaster and
emergency preparedness or prevention activities including inspections, or in
undertaking to respond to a disaster or other emergency, shall not have
voluntarily assumed any special duty with respect to any risks which were not
created or caused by it, nor with respect to any risks which might have existed
even in the absence of that activity or response, nor shall any person have a
right to rely on such an assumption of duty. (2) Neither the state nor any political subdivision of the state, nor the agents or representatives of the state or any of its political subdivisions, shall be liable for
personal injury or property damage sustained by any person appointed or acting as a
volunteer emergency management agency member, or disaster and emergency
services member, or disaster and emergency response worker, or member of any
agency engaged in any emergency management or disaster and emergency services
or disaster and emergency response activity. The immunity provided by this
subsection shall not apply to the extent that the state, a political subdivision of the Page 2 of 3 state, or a person or organization maintains liability insurance or self-insurance for
an act or omission covered by this subsection. To the extent that the state, a political
subdivision of the state, or a person or an organization maintains liability insurance
or self-insurance, sovereign immunity shall not be claimed with regard to an act or
omission covered by this subsection. This immunity shall not affect the right of any
person to receive benefits or compensation to which the person might otherwise be
entitled under the Workers' Compensation Law, or this chapter, or any pension law,
or any Act of Congress. (3) Subject to subsection (6) of this section, neither the state nor any political subdivision of the state nor, except in cases of willful misconduct, gross negligence,
or bad faith, the employees, agents, or representatives of the state or any of its
political divisions, nor any volunteer or auxiliary emergency management agency or
disaster and emergency services organization member or disaster and emergency
response worker or member of any agency engaged in any emergency management
or disaster and emergency services or disaster and emergency response activity,
complying with or reasonably attempting to comply with this chapter or any order
or administrative regulation promulgated pursuant to the provisions of this chapter,
or other precautionary measures enacted by any city of the state, shall be liable for
the death of or injury to persons, or for damage to property, as a result of that
activity. The immunity provided by this subsection shall not apply to the extent that
the state, a political subdivision of the state, or a person or organization maintains
liability insurance or self-insurance for an act or omission covered by this
subsection. To the extent that the state, a political subdivision of the state, or a
person or an organization maintains liability insurance or self-insurance, sovereign
immunity shall not be claimed with regard to an act or omission covered by this
subsection. (4) Decisions of the director, his subordinates or employees, a local emergency management director, or the local director's subordinates or employees, a rescue
chief or the chief's subordinates, concerning the allocation and assignment of
personnel and equipment, and the strategies and tactics used, shall be the exercise of
a discretionary, policy function for which neither the officer nor the state, county,
urban-county, charter county, or city, or local emergency management agency-
supervised operating unit formally affiliated with a local disaster and emergency
services organization, shall be held liable in the absence of malice or bad faith, even
when those decisions are made rapidly in response to the exigencies of an
emergency. (5) Any person owning or controlling real estate or other premises who voluntarily and without compensation grants a license or privilege, or otherwise permits the
designation or use of the whole or any part of the real estate or premises for the
purpose of sheltering persons during an actual, impending, mock, or practice
disaster or emergency, together with his or her successors in interest, shall not be
civilly liable for negligently causing the death of, or injury to, any person on or
about the real estate or premises for loss of, or damage to, the property of that
person. The immunity provided by this subsection shall not apply to the extent that
the state, a political subdivision of the state, or a person or organization maintains Page 3 of 3 liability insurance or self-insurance for an act or omission covered by this
subsection. To the extent that the state, a political subdivision of the state, or a
person or organization maintains liability insurance or self-insurance, sovereign
immunity shall not be claimed with regard to an act or omission covered by this
subsection. (6) Subsection (3) of this section shall apply to a volunteer or auxiliary disaster and emergency response worker only if the volunteer or worker is enrolled or registered
with a local disaster and emergency services organization or with the division in
accordance with the division's administrative regulations. (7) While engaged in disaster and emergency response activity, volunteers and auxiliary disaster and emergency response workers enrolled or registered with a local disaster
and emergency service organization or with the division in accordance with
subsection (6) of this section shall have the same degree of responsibility for their
actions and enjoy the same immunities as officers and employees of the state and its
political subdivisions performing similar work, including the provisions of KRS
12.211, 12.212, and 12.215, allowing the Attorney General to provide defense of
any civil action brought against a volunteer enrolled or registered with a local
disaster or emergency service organization or with the division due to an act or
omission made in the scope and course of a disaster and emergency response
activity. Effective: July 15, 1998
History: Created 1998 Ky. Acts ch. 488, sec. 2, effective July 15, 1998, superseding 1998 Ky. Acts ch. 226, sec. 24, effective July 15, 1998.