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LEGISLATURE OF NEBRASKA
ONE HUNDRED SEVENTH LEGISLATURE
FIRST SESSION
LEGISLATIVE BILL 326
Introduced by Slama, 1.
Read first time January 13, 2021
Committee: Judiciary
1 A BILL FOR AN ACT relating to tort claims; to amend sections 13-911,
2 29-211, and 81-8,215.01, Reissue Revised Statutes of Nebraska, and
3 sections 13-910 and 81-8,219, Revised Statutes Cumulative
4 Supplement, 2020; to provide immunity for first responders operating
5 motor vehicles as prescribed; to provide immunity for claims arising
6 from vehicular pursuits as prescribed; to provide for policies and
7 training on vehicular pursuits; to define terms; to provide duties
8 for the Nebraska Commission on Law Enforcement and Criminal Justice
9 and the Nebraska Police Standards Advisory Council; to harmonize
10 provisions; and to repeal the original sections.
11 Be it enacted by the people of the State of Nebraska,
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1 Section 1. Section 13-910, Revised Statutes Cumulative Supplement,
2 2020, is amended to read:
3 13-910 The Political Subdivisions Tort Claims Act and sections
4 16-727, 16-728, 23-175, 39-809, and 79-610 shall not apply to:
5 (1) Any claim based upon an act or omission of an employee of a
6 political subdivision, exercising due care, in the execution of a
7 statute, ordinance, or officially adopted resolution, rule, or
8 regulation, whether or not such statute, ordinance, resolution, rule, or
9 regulation is valid;
10 (2) Any claim based upon the exercise or performance of or the
11 failure to exercise or perform a discretionary function or duty on the
12 part of the political subdivision or an employee of the political
13 subdivision, whether or not the discretion is abused;
14 (3) Any claim based upon the failure to make an inspection or making
15 an inadequate or negligent inspection of any property other than property
16 owned by or leased to such political subdivision to determine whether the
17 property complies with or violates any statute, ordinance, rule, or
18 regulation or contains a hazard to public health or safety unless the
19 political subdivision had reasonable notice of such hazard or the failure
20 to inspect or inadequate or negligent inspection constitutes a reckless
21 disregard for public health or safety;
22 (4) Any claim based upon the issuance, denial, suspension, or
23 revocation of or failure or refusal to issue, deny, suspend, or revoke
24 any permit, license, certificate, or order. Nothing in this subdivision
25 shall be construed to limit a political subdivision's liability for any
26 claim based upon the negligent execution by an employee of the political
27 subdivision in the issuance of a certificate of title under the Motor
28 Vehicle Certificate of Title Act and the State Boat Act except when such
29 title is issued upon an application filed electronically by an approved
30 licensed dealer participating in the electronic dealer services system
31 pursuant to section 60-1507;
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1 (5) Any claim arising with respect to the assessment or collection
2 of any tax or fee or the detention of any goods or merchandise by any law
3 enforcement officer;
4 (6) Any claim caused by the imposition or establishment of a
5 quarantine by the state or a political subdivision, whether such
6 quarantine relates to persons or property;
7 (7) Any claim arising out of assault, battery, false arrest, false
8 imprisonment, malicious prosecution, abuse of process, libel, slander,
9 misrepresentation, deceit, or interference with contract rights, except
10 that this subdivision does not apply to a claim under the Healthy
11 Pregnancies for Incarcerated Women Act;
12 (8) Any claim by an employee of the political subdivision which is
13 covered by the Nebraska Workers' Compensation Act;
14 (9) Any claim arising out of the malfunction, destruction, or
15 unauthorized removal of any traffic or road sign, signal, or warning
16 device unless it is not corrected by the political subdivision
17 responsible within a reasonable time after actual or constructive notice
18 of such malfunction, destruction, or removal. Nothing in this subdivision
19 shall give rise to liability arising from an act or omission of any
20 political subdivision in placing or removing any traffic or road signs,
21 signals, or warning devices when such placement or removal is the result
22 of a discretionary act of the political subdivision;
23 (10) Any claim arising out of snow or ice conditions or other
24 temporary conditions caused by nature on any highway as defined in
25 section 60-624, bridge, public thoroughfare, or other public place due to
26 weather conditions. Nothing in this subdivision shall be construed to
27 limit a political subdivision's liability for any claim arising out of
28 the operation of a motor vehicle by an employee of the political
29 subdivision while acting within the course and scope of his or her
30 employment by the political subdivision;
31 (11) Any claim arising out of the plan or design for the
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1 construction of or an improvement to any highway as defined in such
2 section or bridge, either in original construction or any improvement
3 thereto, if the plan or design is approved in advance of the construction
4 or improvement by the governing body of the political subdivision or some
5 other body or employee exercising discretionary authority to give such
6 approval;
7 (12) Any claim arising out of the alleged insufficiency or want of
8 repair of any highway as defined in such section, bridge, or other public
9 thoroughfare. Insufficiency or want of repair shall be construed to refer
10 to the general or overall condition and shall not refer to a spot or
11 localized defect. A political subdivision shall be deemed to waive its
12 immunity for a claim due to a spot or localized defect only if (a) the
13 political subdivision has had actual or constructive notice of the defect
14 within a reasonable time to allow repair prior to the incident giving
15 rise to the claim or (b) the claim arose during the time specified in a
16 notice provided by the political subdivision pursuant to subsection (3)
17 of section 39-1359 and the state or political subdivision had actual or
18 constructive notice; or
19 (13)(a) Any claim relating to recreational activities for which no
20 fee is charged (i) resulting from the inherent risk of the recreational
21 activity, (ii) arising out of a spot or localized defect of the premises
22 unless the spot or localized defect is not corrected by the political
23 subdivision leasing, owning, or in control of the premises within a
24 reasonable time after actual or constructive notice of the spot or
25 localized defect, or (iii) arising out of the design of a skatepark or
26 bicycle motocross park constructed for purposes of skateboarding, inline
27 skating, bicycling, or scootering that was constructed or reconstructed,
28 reasonably and in good faith, in accordance with generally recognized
29 engineering or safety standards or design theories in existence at the
30 time of the construction or reconstruction. For purposes of this
31 subdivision, a political subdivision shall be charged with constructive
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1 notice only when the failure to discover the spot or localized defect of
2 the premises is the result of gross negligence.
3 (b) For purposes of this subdivision:
4 (i) Recreational activities include, but are not limited to, whether
5 as a participant or spectator: Hunting, fishing, swimming, boating,
6 camping, picnicking, hiking, walking, running, horseback riding, use of
7 trails, nature study, waterskiing, winter sports, use of playground
8 equipment, biking, roller blading, skateboarding, golfing, athletic
9 contests; visiting, viewing, or enjoying entertainment events, festivals,
10 or historical, archaeological, scenic, or scientific sites; and similar
11 leisure activities;
12 (ii) Inherent risk of recreational activities means those risks that
13 are characteristic of, intrinsic to, or an integral part of the activity;
14 (iii) Gross negligence means the absence of even slight care in the
15 performance of a duty involving an unreasonable risk of harm; and
16 (iv) Fee means a fee to participate in or be a spectator at a
17 recreational activity. A fee shall include payment by the claimant to any
18 person or organization other than the political subdivision only to the
19 extent the political subdivision retains control over the premises or the
20 activity. A fee shall not include payment of a fee or charge for parking
21 or vehicle entry.
22 (c) This subdivision, and not subdivision (3) of this section, shall
23 apply to any claim arising from the inspection or failure to make an
24 inspection or negligent inspection of premises owned or leased by the
25 political subdivision and used for recreational activities; .
26 (14) Any claim against an employee of a political subdivision
27 arising out of the following conduct occurring within the course and
28 scope of the employee's employment by the political subdivision:
29 (a) Except as otherwise provided in subdivision (c) of this
30 subdivision, the operation of an emergency vehicle while responding to an
31 emergency call;
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1 (b) Engaging in a vehicular pursuit as defined in section 13-911; or
2 (c) The operation of an emergency vehicle by a firefighter when
3 responding to a fire alarm or emergency call, but not upon returning from
4 such alarm or call; or
5 (15) Any claim arising from the collision of a motor vehicle being
6 operated by a person fleeing a vehicular pursuit as defined in section
7 13-911 if:
8 (a) The law enforcement agency employing the law enforcement officer
9 involved in the vehicular pursuit has adopted and implemented a policy on
10 vehicular pursuits and provided training on vehicular pursuits; and
11 (b) Such policy and training meet the minimum requirements of
12 sections 4 to 8 of this act.
13 Sec. 2. Section 13-911, Reissue Revised Statutes of Nebraska, is
14 amended to read:
15 13-911 (1) Except as provided in subdivision (15) of section 13-910,
16 in In case of death, injury, or property damage to any innocent third
17 party proximately caused by the action of a law enforcement officer
18 employed by a political subdivision during vehicular pursuit, damages
19 shall be paid to such third party by the political subdivision employing
20 the officer.
21 (2) Upon payment by a political subdivision of those damages
22 sustained by an innocent third party, whether upon voluntary settlement
23 or in satisfaction of a judgment, the political subdivision shall be
24 entitled to reimbursement of the amount of damages paid by the political
25 subdivision from each and all of the following sources:
26 (a) The driver of the fleeing vehicle;
27 (b) Any organization, including a sole proprietorship, partnership,
28 limited liability company, or corporation, liable for the conduct of the
29 driver of the fleeing vehicle;
30 (c) Every insurer or self-insurance surety of either the driver of
31 the fleeing vehicle or any organization, including a sole proprietorship,
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1 partnership, limited liability company, or corporation, liable for the
2 conduct of the driver of the fleeing vehicle, except that no such insurer
3 or self-insurance surety shall be required to pay in excess of the
4 liability limit of its applicable policies or bonds;
5 (d) Any uninsured or underinsured motorist insurer or self-insurance
6 surety legally liable to the innocent third party, except that the sum
7 recoverable from such insurer or self-insurance surety shall not exceed
8 the highest limit of liability determined in accord with the Uninsured
9 and Underinsured Motorist Insurance Coverage Act;
10 (e) The state employing law enforcement officers whose actions
11 contributed to the proximate cause of death, injury, or property damage
12 sustained by the innocent third party, except that the liability of the
13 state shall not exceed the damages sustained by the innocent third party
14 apportioned equally among all political subdivisions employing law
15 enforcement officers whose actions contributed to the proximate cause of
16 the death, injury, or property damage sustained by the innocent third
17 party and the state; and
18 (f) Any political subdivision employing law enforcement officers
19 whose actions contributed to the proximate cause of death, injury, or
20 property damage sustained by the innocent third party, except that the
21 liability of the political subdivision shall not exceed the lesser of (i)
22 its maximum statutory liability pursuant to the Political Subdivisions
23 Tort Claims Act or (ii) damages sustained by the innocent third party
24 apportioned equally among all political subdivisions and the state
25 employing law enforcement officers whose actions contributed to the
26 proximate cause of the death, injury, or property damage sustained by the
27 innocent third party.
28 (3) This section shall not relieve any public or private source
29 required statutorily or contractually to pay benefits for disability or
30 loss of earned income or medical expenses of the duty to pay such
31 benefits when due. No such source of payment shall have any right of
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1 subrogation or contribution against the political subdivision.
2 (4) This section shall be considered part of the Political
3 Subdivisions Tort Claims Act and all provisions of the act apply.
4 (5) For purposes of this section, vehicular pursuit means an active
5 attempt by a law enforcement officer operating a motor vehicle to
6 apprehend one or more occupants of another motor vehicle, when the driver
7 of the fleeing vehicle is or should be aware of such attempt and is
8 resisting apprehension by maintaining or increasing his or her speed,
9 ignoring the officer, or attempting to elude the officer while driving at
10 speeds in excess of those reasonable and proper under the conditions.
11 Sec. 3. Section 29-211, Reissue Revised Statutes of Nebraska, is
12 amended to read:
13 29-211 (1) Except as provided in subsection (2) of this section,
14 each Each law enforcement agency within the State of Nebraska shall adopt
15 and implement a written policy regarding the pursuit of motor vehicles.
16 Such policy shall contain at least the following elements:
17 (a) Standards which describe when a pursuit may be initiated, taking
18 into consideration the nature and severity of the offense involved;
19 (b) Standards which describe when a pursuit is to be discontinued,
20 giving special att