Session of 1999
By Senator Clark

  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.
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.