HB 2257--
Session of 1997
By Committee on Transportation

9 AN ACT amending the Kansas tort claims act; exceptions from liability; 10 amending K.S.A. 1996 Supp. 75-6104 and repealing the existing 11 section. 12 13 Be it enacted by the Legislature of the State of Kansas: 14 Section 1. K.S.A. 1996 Supp. 75-6104 is hereby amended to read as 15 follows: 75-6104. A governmental entity or an employee acting within the 16 scope of the employee's employment shall not be liable for damages re- 17 sulting from: 18 (a) Legislative functions, including, but not limited to, the adoption 19 or failure to adopt any statute, regulation, ordinance or resolution; 20 (b) judicial function; 21 (c) enforcement of or failure to enforce a law, whether valid or in- 22 valid, including, but not limited to, any statute, rule and regulation, or- 23 dinance or resolution; 24 (d) adoption or enforcement of, or failure to adopt or enforce, any 25 written personnel policy which protects persons' health or safety unless 26 a duty of care, independent of such policy, is owed to the specific indi- 27 vidual injured, except that the finder of fact may consider the failure to 28 comply with any written personnel policy in determining the question of 29 negligence; 30 (e) any claim based upon the exercise or performance or the failure 31 to exercise or perform a discretionary function or duty on the part of a 32 governmental entity or employee, whether or not the discretion is abused 33 and regardless of the level of discretion involved; 34 (f) the assessment or collection of taxes or special assessments; 35 (g) any claim by an employee of a governmental entity arising from 36 the tortious conduct of another employee of the same governmental en- 37 tity, if such claim is (1) compensable pursuant to the Kansas workers 38 compensation act or (2) not compensable pursuant to the Kansas workers 39 compensation act because the injured employee was a firemen's relief 40 association member who was exempt from such act pursuant to K.S.A. 41 44-505d, and amendments thereto, at the time the claim arose; 42 (h) the malfunction, destruction or unauthorized removal of any traf- 43 fic or road sign, signal or warning device unless it is not corrected by the HB 2257

 1  governmental entity responsible within a reasonable time after actual or
 2  constructive notice of such malfunction, destruction or removal. Nothing
 3  herein shall give rise to liability arising from the act or omission of any
 4  governmental entity in placing or removing any of the above signs, signals
 5  or warning devices when such placement or removal is the result of a
 6  discretionary act of the governmental entity;
 7    (i)  any claim which is limited or barred by any other law or which is
 8  for injuries or property damage against an officer, employee or agent
 9  where the individual is immune from suit or damages;
10    (j)  any claim based upon emergency management activities, except
11  that governmental entities shall be liable for claims to the extent provided
12  in article 9 of chapter 48 of the Kansas Statutes Annotated;
13    (k)  the failure to make an inspection, or making an inadequate or
14  negligent inspection, of any property other than the property of the gov-
15  ernmental entity, to determine whether the property complies with or
16  violates any law or rule and regulation or contains a hazard to public
17  health or safety;
18    (l)  snow or ice conditions or other temporary or natural conditions
19  on any public way or other public place due to weather conditions, unless
20  the condition is affirmatively caused by the negligent act of the govern-
21  mental entity;
22    (m)  the plan or design for the construction of or an improvement to
23  public property, either in its original construction or any improvement
24  thereto, if the plan or design is approved in advance of the construction
25  or improvement by the governing body of the governmental entity or
26  some other body or employee exercising discretionary authority to give
27  such approval and if the plan or design was prepared in conformity with
28  the generally recognized and prevailing standards in existence at the time
29  such plan or design was prepared;
30    (n)  failure to provide, or the method of providing, police or fire pro-
31  tection;
32    (o)  any claim for injuries resulting from the use of any public property
33  intended or permitted to be used as a park, playground or open area for
34  recreational purposes, unless the governmental entity or an employee
35  thereof is guilty of gross and wanton negligence proximately causing such
36  injury;
37    (p)  the natural condition of any unimproved public property of the
38  governmental entity;
39    (q)  any claim for injuries resulting from the use or maintenance of a
40  public cemetery owned and operated by a municipality or an abandoned
41  cemetery, title to which has vested in a governmental entity pursuant to
42  K.S.A. 17-1366 through 17-1368, and amendments thereto, unless the
43  governmental entity or an employee thereof is guilty of gross and wanton
HB 2257

 1  negligence proximately causing the injury;
 2    (r)  the existence, in any condition, of a minimum maintenance road,
 3  after being properly so declared and signed as provided in K.S.A. 68-
 4  5,102, and amendments thereto;
 5    (s)  any claim for damages arising from the performance of community
 6  service work other than damages arising from the operation of a motor
 7  vehicle as defined by K.S.A. 40-3103, and amendments thereto;
 8    (t)  any claim for damages arising from the operation of vending ma-
 9  chines authorized pursuant to K.S.A. 68-432 or K.S.A. 1996 Supp. 75-
10  3343a, and amendments thereto; or
11    (u)  providing, distributing or selling information from geographic in-
12  formation systems which includes an entire formula, pattern, compilation,
13  program, device, method, technique, process, digital database or system
14  which electronically records, stores, reproduces and manipulates by com-
15  puter geographic and factual information which has been developed in-
16  ternally or provided from other sources and compiled for use by a public
17  agency, either alone or in cooperation with other public or private enti-
18  ties.; or
19    (v)  any claim for damages arising from actions of any employee of a
20  county conducting snow or ice removal on any state highway in accor-
21  dance with an agreement with the Kansas department of transportation.
22    A governmental entity shall not be liable for damages under subsection
23    (d) of K.S.A. 65-445 and amendments thereto or subsection (e) of K.S.A.
24  1996 Supp. 65-6804 and amendments thereto for any action of an em-
25  ployee or former employee who has violated the provisions of subsection
26    (d) of K.S.A. 65-445 and amendments thereto or subsection (e) of K.S.A.
27  1996 Supp. 65-6804 and amendments thereto.
28    The enumeration of exceptions to liability in this section shall not be
29  construed to be exclusive nor as legislative intent to waive immunity from
30  liability in the performance or failure to perform any other act or function
31  of a discretionary nature.
32    Sec. 2.  K.S.A. 1996 Supp. 75-6104 is hereby repealed.
33    Sec. 3.  This act shall take effect and be in force from and after its
34  publication in the statute book.