32-12.1 Governmental Liability - North Dakota Statutes

Download pdf

Loading PDF...

CHAPTER 32-12.1GOVERNMENTAL LIABILITY32-12.1-01. Legislative intent. This chapter creates additional powers and optional andalternative methods for the single and specific purpose of enabling political subdivisions to pay
and to compromise claims and judgments, to issue bonds to fund and satisfy the same, to levy
taxes in amounts necessary for such purposes without respect to limitations otherwise existing,
and to compromise judgments and make periodic payments on such compromised amount.32-12.1-02. Definitions. As used in this chapter, unless the context otherwise requires:1."Claim" means any claim permitted by this chapter brought against a political
subdivision for an injury caused by a political subdivision or an employee of the
political subdivision acting within the scope of the employee's employment or office.2."Commissioner" means the insurance commissioner.3."Employee" means any officer, employee, board member, volunteer, or servant of a
political subdivision, whether elected or appointed and whether or not compensated.
The term does not include an independent contractor, or any person performing
tasks the details of which the political subdivision has no right to control.4."Injury" means personal injury, death, or property damage.5."Personal injury" includes bodily injury, mental injury, sickness, or disease sustained
by a person, and injury to a person's rights or reputation.6."Political subdivision":a.Includes all counties, townships, park districts, school districts, cities, public
nonprofitcorporations,administrativeorlegalentitiesresponsibleforadministration of joint powers agreements, and any other units of local
government which are created either by statute or by the Constitution of North
Dakota for local government or other public purposes, except no new units of
government or political subdivisions are created or authorized by this chapter.b.Does not include nor may it be construed to mean either the state of North
Dakota or any of the several agencies, boards, bureaus, commissions,
councils, courts, departments, institutions, or offices of government which
collectively constitute the government of the state of North Dakota.7."Property damage" includes injury to or destruction of tangible or intangible property.8."Public nonprofit corporation" means a nonprofit corporation that performs a
governmental function and is funded, entirely or partly, by the state, a city, county,
park district, school district, or township.32-12.1-03. Liability of political subdivisions - Limitations.1.Each political subdivision is liable for money damages for injuries when the injuries
are proximately caused by the negligence or wrongful act or omission of any
employee acting within the scope of the employee's employment or office under
circumstances in which the employee would be personally liable to a claimant in
accordance with the laws of this state, or injury caused from some condition or use
of tangible property, real or personal, under circumstances in which the political
subdivision, if a private person, would be liable to the claimant. The enactment of a
law, rule, regulation, or ordinance to protect any person's health, safety, property, orPage No. 1welfare does not create a duty of care on the part of the political subdivision, its
employees, or its agents, if that duty would not otherwise exist.2.The liability of political subdivisions under this chapter is limited to a total of two
hundred fifty thousand dollars per person and five hundred thousand dollars for
injury to three or more persons during any single occurrence regardless of the
number of political subdivisions, or employees of such political subdivisions, which
are involved in that occurrence. A political subdivision may not be held liable, or be
ordered to indemnify an employee held liable, for punitive or exemplary damages.3.A political subdivision or a political subdivision employee may not be held liable
under this chapter for any of the following claims:a.A claim based upon an act or omission of a political subdivision employee
exercising due care in the execution of a valid or invalid statute or regulation.b.The decision to undertake or the refusal to undertake any legislative or
quasi-legislative act, including the decision to adopt or the refusal to adopt any
statute, charter, ordinance, order, regulation, resolution, or resolve.c.The decision to undertake or the refusal to undertake any judicial or
quasi-judicial act, including the decision to grant, to grant with conditions, to
refuse to grant, or to revoke any license, permit, order, or other administrative
approval or denial.d.The decision to perform or the refusal to exercise or perform a discretionary
function or duty, whether or not such discretion is abused and whether or not
the statute, charter, ordinance, order, resolution, regulation, or resolve under
which the discretionary function or duty is performed is valid or invalid.e.Injury directly or indirectly caused by a person who is not employed by the
political subdivision.f.A claim relating to injury directly or indirectly caused by the performance or
nonperformance of a public duty, including:(1)Inspecting, licensing, approving, mitigating, warning, abating, or failing to
so act regarding compliance with or the violation of any law, rule,
regulation, or any condition affecting health or safety.(2)Enforcing, monitoring, or failing to enforce or monitor conditions of
sentencing, parole, probation, or juvenile supervision.(3)Providing or failing to provide law enforcement services in the ordinary
course of a political subdivision's law enforcement operations.(4)Providing or failing to provide fire protection services in the ordinary
course of a political subdivision's fire protection operations.g."Public duty" does not include action of the political subdivision or a political
subdivision employee under circumstances in which a special relationship can
be established between the political subdivision and the injured party. A special
relationship is demonstrated if all of the following elements exist:(1)Direct contact between the political subdivision and the injured party.(2)An assumption by the political subdivision, by means of promises or
actions, of an affirmative duty to act on behalf of the party who allegedly
was injured.Page No. 2(3)Knowledge on the part of the political subdivision that inaction of the
political subdivision could lead to harm.(4)The injured party's justifiable reliance on the political subdivision's
affirmative undertaking, occurrence of the injury while the injured party
was under the direct control of the political subdivision, or the political
subdivision action increases the risk of harm.4.This chapter does not obligate political subdivisions for an amount that is more than
the limitations upon liability imposed by this chapter. Subject to this chapter, any
payments to persons constitute payment in full of any compromised claim or
judgment or any final judgment under this chapter.5.Notwithstanding this chapter, a political subdivision or its insurance carrier is not
liable for any claim arising out of the conduct of a ridesharing arrangement, as
defined in section 8-02-07.6.A political subdivision is not liable for any claim based on an act or omission in the
designation, repair, operation, or maintenance of a minimum maintenance road if
that designation has been made in accordance with sections 24-07-35 through
24-07-37 and if the road has been maintained at a level to serve occasional and
intermittent traffic.32-12.1-04.Political subdivision to be named in action - Personal liability ofemployees - Indemnification of claims and final judgments.1.An action for injuries proximately caused by the alleged negligence, wrongful act, or
omission of an employee of a political subdivision occurring within the scope of the
employee's employment or office shall be brought against the political subdivision. If
there is any question concerning whether the alleged negligence, wrongful act, or
omission occurred within the scope of employment or office of the employee, the
employee may be named as a party to the action and the issue may be tried
separately.A political subdivision must defend the employee until the courtdetermines the employee was acting outside the scope of the employee's
employment or office.2.An employee shall not be personally liable for money damages for injuries when the
injuries are proximately caused by the negligence, wrongful act, or omission of the
employee acting within the scope of the employee's employment or office.3.No employee may be held liable in the employee's personal capacity for acts or
omissions of the employee occurring within the scope of the employee's
employment unless the acts or omissions constitute reckless or grossly negligent
conduct, or willful or wanton misconduct. An employee may be personally liable for
money damages for injuries when the injuries are proximately caused by the
negligence, wrongful act, or omission of the employee acting outside the scope of
the employee's employment or office.The plaintiff in such an action bears theburden of proof to show by clear and convincing evidence that the employee was
either acting outside the scope of the employee's employment or office or the
employee was acting within the scope of employment in a reckless, grossly
negligent, willful, or wanton manner.Employees may be liable for punitive orexemplary damages. The extent to which an employee may be personally liable
pursuant to this section and whether the employee was acting within the scope of
employment or office shall be specifically stated in a final judgment.4.A political subdivision shall indemnify and save harmless an employee for any claim,
whether groundless or not, and final judgment for any act or omission occurring
within the scope of employment or office of the employee. The indemnification shallPage No. 3be made in the manner provided by this chapter and shall be subject to the
limitations herein.32-12.1-05.Liability insurance policy coverage. An insurance policy or insurancecontract purchased by a political subdivision or a government self-insurance pool in which a
political subdivision participates pursuant to this chapter may provide coverage for the types of
liabilities established by this chapter and may provide such additional coverage as the governing
body of the political subdivision determines to be appropriate. The insurer may not assert the
defense of governmental immunity, but this chapter confers no right upon a claimant to sue an
insurer directly. If a dispute exists concerning the amount or nature of the required insurance
coverage, the dispute must be tried separately.The insurance coverage authorized by thischapter may be in addition to any insurance coverage purchased by a political subdivision
pursuant to any other provision of law and if premium savings will result therefrom, any insurance
policy purchased pursuant to this chapter or any other provision of law may be written for a
period which exceeds one year.32-12.1-06. Statement to commissioner. Repealed by S.L. 1987, ch. 407,