CHAPTER 3. TORT CLAIMS AGAINST GOVERNMENTAL ENTITIES AND PUBLIC EMPLOYEES
IC 34-13-3
Chapter 3. Tort Claims Against Governmental Entities and Public
Employees
IC 34-13-3-1
Applicability of chapter
Sec. 1. (a) This chapter applies only to a claim or suit in tort.
(b) The provisions of this chapter also apply to IC 34-30-14.
As added by P.L.1-1998, SEC.8.
IC 34-13-3-2
Applicability of chapter to bureau of motor vehicles
Sec. 2. This chapter applies to a claim or suit in tort against any
of the following:
(1) A member of the bureau of motor vehicles commission
established under IC 9-15-1-1.
(2) An employee of the bureau of motor vehicles commission
who is employed at a license branch under IC 9-16, except for
an employee employed at a license branch operated under a
contract with the commission under IC 9-16.
As added by P.L.1-1998, SEC.8.
IC 34-13-3-3
Immunity of governmental entity or employee
Sec. 3. A governmental entity or an employee acting within the
scope of the employee's employment is not liable if a loss results
from the following:
(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 law (including rules and regulations), 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 discipline policy adopted under IC 20-33-8-12.
(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.
As added by P.L.1-1998, SEC.8. Amended by P.L.142-1999, SEC.2;
P.L.250-2001, SEC.6; P.L.280-2001, SEC.42; P.L.1-2002, SEC.144;
P.L.161-2003, SEC.5; P.L.1-2005, SEC.218; P.L.208-2005, SEC.14;
P.L.47-2006, SEC.48; P.L.121-2009, SEC.15; P.L.86-2010, SEC.10.
IC 34-13-3-4
Limitation on aggregate liability; punitive damages prohibited
Sec. 4. (a) The combined aggregate liability of all governmental
entities and of all public employees, acting within the scope of their
employment and not excluded from liability under section 3 of this
chapter, does not exceed:
(1) for injury to or death of one (1) person in any one (1)
occurrence:
(A) three hundred thousand dollars ($300,000) for a cause of
action that accrues before January 1, 2006;
(B) five hundred thousand dollars ($500,000) for a cause of
action that accrues on or after January 1, 2006, and before
January 1, 2008; or
(C) seven hundred thousand dollars ($700,000) for a cause
of action that accrues on or after January 1, 2008; and
(2) for injury to or death of all persons in that occurrence, five
million dollars ($5,000,000).
(b) A governmental entity or an employee of a governmental
entity acting within the scope of employment is not liable for
punitive damages.
As added by P.L.1-1998, SEC.8. Amended by P.L.108-2003, SEC.2;
P.L.161-2003, SEC.6; P.L.97-2004, SEC.114.
IC 34-13-3-5
Actions against individual members not authorized; judgment
against or settlement by governmental entity
Sec. 5. (a) Civil actions relating to acts taken by a board, a
committee, a commission, an authority, or another instrumentality of
a governmental entity may be brought only against the board, the
committee, the commission, the authority, or the other
instrumentality of a governmental entity. A member of a board, a
committee, a commission, an authority, or another instrumentality of
a governmental entity may not be named as a party in a civil suit that
concerns the acts taken by a board, a committee, a commission, an
authority, or another instrumentality of a governmental entity where
the member was acting within the scope of the member's
employment. For the purposes of this subsection, a member of a
board, a committee, a commission, an authority, or another
instrumentality of a governmental entity is acting within the scope of
the member's employment when the member acts as a member of the
board, committee, commission, authority, or other instrumentality.
(b) A judgment rendered with respect to or a settlement made by
a governmental entity bars an action by the claimant against an
employee, including a member of a board, a committee, a
commission, an authority, or another instrumentality of a
governmental entity, whose conduct gave rise to the claim resulting
in that judgment or settlement. A lawsuit alleging that an employee
acted within the scope of the employee's employment bars an action
by the claimant against the employee personally. However, if the
governmental entity answers that the employee acted outside the
scope of the employee's employment, the plaintiff may amend the
complaint and sue the employee personally. An amendment to the
complaint by the plaintiff under this subsection must be filed not
later than one hundred eighty (180) days from the date the answer
was filed and may be filed notwithstanding the fact that the statute
of limitations has run.
(c) A lawsuit filed against an employee personally must allege
that an act or omission of the employee that causes a loss is:
(1) criminal;
(2) clearly outside the scope of the employee's employment;
(3) malicious;
(4) willful and wanton; or
(5) calculated to benefit the employee personally.
The complaint must contain a reasonable factual basis supporting the
allegations.
(d) This subsection applies when the governmental entity defends
or has received proper legal notice and has the opportunity to defend
an employee for losses resulting from the employee's acts or
omissions. Subject to the provisions of sections 4, 14, 15, and 16 of
this chapter, the governmental entity shall pay any judgment of a
claim or suit against an employee when the act or omission causing
the loss is within the scope of the employee's employment, regardless
of whether the employee can or cannot be held personally liable for
the loss.
(e) The governmental entity shall provide counsel for and pay all
costs and fees incurred by or on behalf of an employee in defense of
a claim or suit for a loss occurring because of acts or omissions
within the scope of the employee's employment, regardless of
whether the employee can or cannot be held personally liable for the
loss.
(f) This chapter shall not be construed as:
(1) a waiver of the eleventh amendment to the Constitution of
the United States;
(2) consent by the state of Indiana or its employees to be sued
in any federal court; or
(3) consent to be sued in any state court beyond the boundaries
of Indiana.
As added by P.L.1-1998, SEC.8. Amended by P.L.192-2001, SEC.2;
P.L.161-2003, SEC.7.
IC 34-13-3-6
Notice to attorney general and state agency involved
Sec. 6. (a) Except as provided in sections 7 and 9 of this chapter,
a claim against the state is barred unless notice is filed with the
attorney general or the state agency involved within two hundred
seventy (270) days after the loss occurs. However, if notice to the
state agency involved is filed with the wrong state agency, that error
does not bar a claim if the claimant reasonably attempts to determine
and serve notice on the right state agency.
(b) The attorney general, by rule adopted under IC 4-22-2, shall
prescribe a claim form to be used to file a notice under this section.
The claim form must specify:
(1) the information required; and
(2) the period of time that a potential claimant has to file a
claim.
(c) Copies of the claim form prescribed under subsection (b) shall
be available from each:
(1) state agency; and
(2) operator of a state vehicle.
As added by P.L.1-1998, SEC.8.
IC 34-13-3-7
Administrative claim for inmate's recovery of property
Sec. 7. (a) An offender must file an administrative claim with the
department of correction to recover compensation for the loss of the
offender's personal property alleged to have occurred during the
offender's confinement as a result of an act or omission of the
department or any of its agents, former officers, employees, or
contractors. A claim must be filed within one hundred eighty (180)
days after the date of the alleged loss.
(b) The department of correction shall evaluate each claim filed
under subsection (a) and determine the amount due, if any. If the
amount due is not more than five thousand dollars ($5,000), the
department shall approve the claim for payment and recommend to
the office of the attorney general payment under subsection (c). The
department shall submit all claims in which the amount due exceeds
five thousand dollars ($5,000), with any recommendation the
department considers appropriate, to the office of the attorney
general. The attorney general, in acting upon the claim, shall
consider recommendations of the department to determine whether
to deny the claim or recommend the claim to the governor for
approval of payment.
(c) Payment of claims under this section shall be made in the same
manner as payment of claims under IC 34-4-16.5-22.
(d) The department of correction shall adopt rules under IC 4-22-2
necessary to carry out this section.
As added by P.L.1-1998, SEC.8.
IC 34-13-3-8
Claims against political subdivisions; notice requirement
Sec. 8. (a) Except as provided in section 9 of this chapter, a claim
against a political subdivision is barred unless notice is filed with:
(1) the governing body of that political subdivision; and
(2) the Indiana political subdivision risk management
commission created under IC 27-1-29;
within one hundred eighty (180) days after the loss occurs.
(b) A claim against a political subdivision is not barred for failure
to file notice with the Indiana political subdivision risk management
commission created under IC 27-1-29-5 if the political subdivision
was not a member of the political subdivision risk management fund
established under IC 27-1-29-10 at the time the act or omission took
place.
As added by P.L.1-1998, SEC.8.
IC 34-13-3-9
Incapacitated plaintiffs; notice requirement
Sec. 9. If a person is incapacitated and cannot give notice as
required in section 6 or 8 of this chapter, the person's claim is barred
unless notice is filed within one hundred eighty (180) days after the
incapacity is removed.
As added by P.L.1-1998, SEC.8.
IC 34-13-3-10
Notice requirement; form of statement
Sec. 10. The notice required by sections 6, 8, and 9 of this chapter
must describe in a short and plain statement the facts on which the
claim is based. The statement must include the circumstances which
brought about the loss, the extent of the loss, the time and place the
loss occurred, the names of all persons involved if known, the
amount of the damages sought, and the residence of the person
making the claim at the time of the loss and at the time of filing the
notice.
As added by P.L.1-1998, SEC.8.
IC 34-13-3-11
Approval or denial of claim by government entity
Sec. 11. Within ninety (90) days of the filing of a claim, the
governmental entity shall notify the claimant in writing of its
approval or denial of the claim. A claim is denied if the
governmental entity fails to approve the claim in its entirety within
ninety (90) days, unless the parties have reached a settlement before
the expiration of that period.
As added by P.L.1-1998, SEC.8.
IC 34-13-3-12
Notice requirements; service
Sec. 12. The notices required by sections 6, 8, 9, and 11 of this
chapter must be in writing and must be delivered in person or by
registered or certified mail.
As added by P.L.1-1998, SEC.8.
IC 34-13-3-13
Denial of claim as prerequisite to suit
Sec. 13. A person may not initiate a suit against a governmental
entity unless the person's claim has been denied in whole or in part.
As added by P.L.1-1998, SEC.8.
IC 34-13-3-14
Compromise or settlement of claim by governor
Sec. 14. Except as provided in section 20 of this chapter, the
governor may compromise or settle a claim or suit brought against
the state or its employees.
As added by P.L.1-1998, SEC.8.
IC 34-13-3-15
Attorney general; powers and duties
Sec. 15. Except as provided in section 20 of this chapter, the
attorney general:
(1) shall advise the governor concerning the desirability of
compromising or settling a claim or suit brought against the
state or its employees;
(2) shall perfect a compromise or settlement which is made by
the governor;
(3) shall submit to the governor on or before January 31 of each
year a report concerning the status of each claim or suit pending
against the state as of January 1 of that year; and
(4) shall defend, as chief counsel, the state and state employees
as required under IC 4-6-2. However, the attorney general may
employ other counsel to aid in defending or settling those
claims or suits.
As added by P.L.1-1998, SEC.8.
IC 34-13-3-16
Compromise or settlement of claim by political subdivision
Sec. 16. Except as provided in section 20 of this chapter, the
governing body of a political subdivision may compromise, settle, or
defend against a claim or suit brought against the political
subdivision or its employees.
As added by P.L.1-1998, SEC.8.
IC 34-13-3-17
Enforcement of judgments against governmental entities
Sec. 17. A court that has rendered a judgment against a
governmental entity may order that governmental entity to:
(1) appropriate funds for the payment of the judgment if funds
are available for that purpose; or
(2) levy and collect a tax to pay the judgment if there are
insufficient funds available for that purpose.
As added by P.L.1-1998, SEC.8.
IC 34-13-3-18
Time for payment of claim or judgment; interest rate
Sec. 18. (a) A claim or suit settled by, or a judgment rendered
against, a governmental entity shall be paid by the governmental
entity not later than one hundred eighty (180) days after the date of
settlement or judgment, unless there is an appeal, in which case not
later than one hundred eighty (180) days after a final decision is
rendered.
(b) If payment is not made within one hundred eighty (180) days
after the date of settlement or judgment, the governmental entity is
liable for interest from the date of settlement or judgment at an
annual rate of six percent (6%). The governmental entity is liable for
interest at that rate and from that date even if the case is appealed,
provided the original judgment is upheld.
As added by P.L.1-1998, SEC.8.
IC 34-13-3-19
Applicability of IC 34-13-3-18; settlement
Sec. 19. Section 18 of this chapter does not apply if there is a
structured settlement under section 23 of this chapter.
As added by P.L.1-1998, SEC.8.
IC 34-13-3-20
Liability insurance; prohibitions
Sec. 20. (a) A political subdivision may purchase insurance to
cover the liability of itself or its employees, including a member of
a board, a committee, a commission, an authority, or another
instrumentality of a governmental entity. Any liability insurance so
purchased shall be purchased by invitation to and negotiation with
providers of insurance and may be purchased with other types of
insurance. If such a policy is purchased, the terms of the policy
govern the rights and obligations of the political subdivision and the
insurer with respect to the investigation, settlement, and defense of
claims or suits brought against the political subdivision or its
employees covered by the policy. However, the insurer may not enter
into a settlement for an amount that exceeds the insurance coverage
without the approval of the mayor, if the claim or suit is against a
city, or the governing body of any other political subdivision, if the
claim or suit is against such political subdivision.
(b) The state may not purchase insurance to cover the liability of
the state or its employees. This subsection does not prohibit any of
the following:
(1) The requiring of contractors to carry insurance.
(2) The purchase of insurance to cover losses occurring on real
property owned by the public employees' retirement fund or the
Indiana state teachers' retirement fund.
(3) The purchase of insurance by a separate body corporate and
politic to cover the liability of itself or its employees.
(4) The purchase of casualty and liability insurance for foster
parents (as defined in IC 27-1-30-4) on a group basis.
As added by P.L.1-1998, SEC.8. Amended by P.L.192-2001, SEC.3.
IC 34-13-3-21
Attorney's fees; allowance to governmental entity; action for abuse
of process
Sec. 21. In any action brought against a governmental entity in
tort, the court may allow attorney's fees as part of the costs to the
governmental entity prevailing as defendant, if the court finds that
plaintiff:
(1) brought the action on a claim that is frivolous, unreasonable,
or groundless;
(2) continued to litigate the action after plaintiff's claim clearly
became frivolous, unreasonable, or groundless; or
(3) litigated its action in bad faith.
This award of fees does not prevent a governmental entity from
bringing an action against the plaintiff for abuse of process arising
in whole or in part on the same facts, but the defendant may not
recover such attorney's fees twice.
As added by P.L.1-1998, SEC.8.
IC 34-13-3-22
Persons or entities considered political subdivisions
Sec. 22. (a) For purposes of this chapter, the following shall be
treated as political subdivisions:
(1) A community action agency (as defined in IC 12-14-23-2).
(2) An individual or corporation rendering public transportation
services under a contract with a commuter transportation
district created under IC 8-5-15.
(3) A volunteer fire department (as defined in IC 36-8-12-2) that
is acting under:
(A) a contract with a unit or a fire protection district; or
(B) IC 36-8-17.
(b) The treatment provided for under subsection (a)(2) shall be
accorded only in relation to a loss that occurs in the course of
rendering public transportation services under contract with a
commuter transportation district.
As added by P.L.1-1998, SEC.8. Amended by P.L.1-1999, SEC.68.
IC 34-13-3-23
Structured settlement; discharge; limits
Sec. 23. (a) With the consent of the claimant, a political
subdivision may compromise or settle a claim or suit by means of a
structured settlement under this section.
(b) A political subdivision may discharge settlement of a claim or
suit brought under this chapter by:
(1) an agreement requiring periodic payments by the political
subdivision over a specified number of years;
(2) the purchase of an annuity;
(3) by making a "qualified assignment" of the liability of the
political subdivision as defined by the provisions of 26 U.S.C.
130(c);
(4) payment in a lump sum; or
(5) any combination of subdivisions (1) through (4).
(c) The present value of a structured settlement shall not exceed
the statutory limits set forth in section 4 of this chapter; however, the
periodic or annuity payments may exceed these statutory limits. The
present value of any periodic payments may be determined by
discounting the periodic payments by the same percentage as that
found in Moody's Corporate Bond Yield Average Monthly Average
Corporates, as published by Moody's Investors Service, Incorporated.
As added by P.L.1-1998, SEC.8.
IC 34-13-3-24
Appropriations for payment of claims and expenses
Sec. 24. There is appropriated from the state general fund
sufficient funds to:
(1) settle claims and satisfy tort judgments obtained against the
state; and
(2) pay expenses authorized by this chapter, including:
(A) liability insurance premiums;
(B) interest on claims and judgments; and
(C) expenses incurred by the attorney general in employing
other counsel to aid in defending or settling claims or civil
actions against the state.
As added by P.L.1-1998, SEC.8.
IC 34-13-3-25
Presentation of vouchers and issuance of warrants for
appropriations
Sec. 25. The attorney general shall present vouchers for the items
or expenses described in section 24 of this chapter to the auditor of
state. The auditor shall issue warrants on the treasury for the amounts
presented.
As added by P.L.1-1998, SEC.8.