Bill Text: IN HB1159 | 2013 | Regular Session | Enrolled
Bill Title: School liability.
Spectrum: Slight Partisan Bill (Republican 2-1)
Status: (Passed) 2013-05-13 - Public Law 220 [HB1159 Detail]
Download: Indiana-2013-HB1159-Enrolled.html
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AN ACT to amend the Indiana Code concerning civil procedure.
(b) "Governmental entity", for purposes of section 103(j) of this chapter, means the state or a political subdivision of the state.
(1) The natural condition of unimproved property.
(2) The condition of a reservoir, dam, canal, conduit, drain, or similar structure when used by a person for a purpose that is not foreseeable.
(3) The temporary condition of a public thoroughfare or extreme sport area that results from weather.
(4) The condition of an unpaved road, trail, or footpath, the purpose of which is to provide access to a recreation or scenic
area.
(5) The design, construction, control, operation, or normal
condition of an extreme sport area, if all entrances to the extreme
sport area are marked with:
(A) a set of rules governing the use of the extreme sport area;
(B) a warning concerning the hazards and dangers associated
with the use of the extreme sport area; and
(C) a statement that the extreme sport area may be used only
by persons operating extreme sport equipment.
This subdivision shall not be construed to relieve a governmental
entity from liability for the continuing duty to maintain extreme
sports areas in a reasonably safe condition.
(6) The initiation of a judicial or an administrative proceeding.
(7) The performance of a discretionary function; however, the
provision of medical or optical care as provided in IC 34-6-2-38
shall be considered as a ministerial act.
(8) The adoption and enforcement of or failure to adopt or
enforce:
(A) a law (including rules and regulations); or
(B) in the case of a public school or charter school, a
policy;
unless the act of enforcement constitutes false arrest or false
imprisonment.
(9) An act or omission performed in good faith and without
malice under the apparent authority of a statute which is invalid
if the employee would not have been liable had the statute been
valid.
(10) The act or omission of anyone other than the governmental
entity or the governmental entity's employee.
(11) The issuance, denial, suspension, or revocation of, or failure
or refusal to issue, deny, suspend, or revoke any permit, license,
certificate, approval, order, or similar authorization, where the
authority is discretionary under the law.
(12) Failure to make an inspection, or making an inadequate or
negligent inspection, of any property, other than the property of
a governmental entity, to determine whether the property
complied with or violates any law or contains a hazard to health
or safety.
(13) Entry upon any property where the entry is expressly or
impliedly authorized by law.
(14) Misrepresentation if unintentional.
(15) Theft by another person of money in the employee's official
custody, unless the loss was sustained because of the employee's
own negligent or wrongful act or omission.
(16) Injury to the property of a person under the jurisdiction and
control of the department of correction if the person has not
exhausted the administrative remedies and procedures provided
by section 7 of this chapter.
(17) Injury to the person or property of a person under supervision
of a governmental entity and who is:
(A) on probation; or
(B) assigned to an alcohol and drug services program under
IC 12-23, a minimum security release program under
IC 11-10-8, a pretrial conditional release program under
IC 35-33-8, or a community corrections program under
IC 11-12.
(18) Design of a highway (as defined in IC 9-13-2-73), toll road
project (as defined in IC 8-15-2-4(4)), tollway (as defined in
IC 8-15-3-7), or project (as defined in IC 8-15.7-2-14) if the
claimed loss occurs at least twenty (20) years after the public
highway, toll road project, tollway, or project was designed or
substantially redesigned; except that this subdivision shall not be
construed to relieve a responsible governmental entity from the
continuing duty to provide and maintain public highways in a
reasonably safe condition.
(19) Development, adoption, implementation, operation,
maintenance, or use of an enhanced emergency communication
system.
(20) Injury to a student or a student's property by an employee of
a school corporation if the employee is acting reasonably under a:
(A) discipline policy adopted under IC 20-33-8-12; or
(B) restraint and seclusion plan adopted under IC 20-20-40-14.
(21) An act or omission performed in good faith under the
apparent authority of a court order described in IC 35-46-1-15.1
that is invalid, including an arrest or imprisonment related to the
enforcement of the court order, if the governmental entity or
employee would not have been liable had the court order been
valid.
(22) An act taken to investigate or remediate hazardous
substances, petroleum, or other pollutants associated with a
brownfield (as defined in IC 13-11-2-19.3) unless:
(A) the loss is a result of reckless conduct; or
(B) the governmental entity was responsible for the initial
placement of the hazardous substances, petroleum, or other
pollutants on the brownfield.
(23) The operation of an off-road vehicle (as defined in
IC 14-8-2-185) by a nongovernmental employee, or by a
governmental employee not acting within the scope of the
employment of the employee, on a public highway in a county
road system outside the corporate limits of a city or town, unless
the loss is the result of an act or omission amounting to:
(A) gross negligence;
(B) willful or wanton misconduct; or
(C) intentional misconduct.
This subdivision shall not be construed to relieve a governmental
entity from liability for the continuing duty to maintain highways
in a reasonably safe condition for the operation of motor vehicles
licensed by the bureau of motor vehicles for operation on public
highways.
(24) Any act or omission rendered in connection with a request,
investigation, assessment, or opinion provided under
IC 36-9-28.7.
Chapter 10. Limited Liability Arising From the Public Use of School Facilities for Physical Fitness Activities
Sec. 1. The limited liability provided in this chapter is in addition to any immunity or limited liability provided by the Indiana tort claims act (IC 34-13-3).
Sec. 2. This chapter does not apply to an activity if the participant is paid by the school to participate in the activity.
Sec. 3. As used in this chapter, "community use physical fitness activity" means an activity in which the general public is invited to use:
(1) school property;
(2) school equipment; or
(3) a school facility;
to participate in a physical fitness activity that is approved as described in section 12 of this chapter.
Sec. 4. (a) As used in this chapter, "inherent risk of a physical fitness activity" means a condition, danger, or hazard that is an integral part of:
(1) a physical fitness activity;
(2) the use of exercise equipment; or
(3) the use of a facility provided by a school;
as determined by a reasonable person considering the nature of the activity, equipment, or facility.
(b) The term includes the negligent acts of a participant that may contribute to injury to the participant or others, including:
(1) failing to follow instructions;
(2) failing to exercise reasonable caution while engaging in an activity; or
(3) failing to obey written warnings or postings.
Sec. 5. (a) As used in this chapter, "participant" means a person who is engaging in a community use physical fitness activity.
(b) The term does not include the following individuals if the individual is using the school's facilities in the course of school employment or is participating in an activity as part of an official school function:
(1) A school employee.
(2) A person providing, directing, or supervising a physical fitness activity.
(3) A student who attends the school or another school in the school corporation of the school.
Sec. 6. As used in this chapter, "school" means:
(1) a public school (as defined in IC 20-18-2-15); or
(2) an accredited nonpublic school (as defined in IC 20-18-2-12).
Sec. 7. Except as provided in sections 8 through 10 of this chapter, a school is not liable for the death or injury of a participant that results from an inherent risk of a physical fitness activity. A participant or the representative of a participant may not:
(1) make a claim against;
(2) bring or maintain an action against; or
(3) recover damages from;
a school for injury, loss, damage, or death of a participant that results from the inherent risk of a physical fitness activity.
Sec. 8. Section 7 of this chapter does not prevent or limit the liability of a school:
(1) that has actual knowledge of, or that knows or reasonably should have known of, a dangerous condition on the property, facilities, or equipment used in the community use physical fitness activity;
(2) that fails to properly train a school employee or other person providing, directing, or supervising the community use physical fitness activity, if the school provides an employee or
other person to provide, direct, or supervise the activity and
the act or omission of the school employee or other person
proximately causes the injury, loss, damage, or death; or
(3) for an act or omission that is the result of willful, wanton,
or intentional misconduct.
Sec. 9. Section 7 of this chapter does not prevent or limit the
liability of a school that receives monetary consideration for a
community use physical fitness activity from any person other than
a government agency unless the school:
(1) posts and maintains a sign on which is printed the warning
notice set forth in section 11 of this chapter; or
(2) has received a signed release from the participant
indicating that the participant has received written notice of
the warning set forth in section 11 of this chapter.
Sec. 10. If there is a written contract between a school and a
participant for the provision of a community use physical fitness
activity, section 7 of this chapter does not prevent or limit the
liability of a school unless the contract contains the warning notice
set forth in section 11 of this chapter.
Sec. 11. (a) The warning notice described in sections 9 through
10 of this chapter must state the following:
Inherent risks of physical fitness activities include risks of injury inherent in exercise, the nature of a sport, the use of exercise equipment, or the use of a facility provided by a school. Inherent risks also include the potential that you may act in a negligent manner that may contribute to your injury or death, or that other participants may act in a manner that may result in injury or death to you.
You are assuming the risk of participating in this physical fitness activity.
(b) If the warning notice set forth in subsection (a) is posted on a sign as described in section 9(1) of this chapter, the warning must be posted on the sign in letters at least one (1) inch in height and the sign must be placed in a location where participants will likely be present during the school physical fitness activity.
(c) If the warning notice set forth in subsection (a) is included in a written contract as described section 10 of this chapter, the notice
must be in at least 14 point boldface type.
Sec. 12. A board of school trustees, a board of school
commissioners, a school board of an incorporated town and city,
or township school trustees must approve the types of activities
that may occur at a school as a community use physical fitness
activity under section 3 of this chapter.
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