63G-7-202 - Act provisions not construed as admission or denial of liability -- Effect of waiver of immunity -- Exclusive remedy -- Joinder of employee -- Limitations on personal liability.
63G-7-202. Act provisions not construed as admission or denial of liability -- Effectof waiver of immunity -- Exclusive remedy -- Joinder of employee -- Limitations onpersonal liability.
(1) (a) Nothing contained in this chapter, unless specifically provided, may be construedas an admission or denial of liability or responsibility by or for a governmental entity or itsemployees.
(b) If immunity from suit is waived by this chapter, consent to be sued is granted, andliability of the entity shall be determined as if the entity were a private person.
(c) No cause of action or basis of liability is created by any waiver of immunity in thischapter, nor may any provision of this chapter be construed as imposing strict liability or absoluteliability.
(2) Nothing in this chapter may be construed as adversely affecting any immunity fromsuit that a governmental entity or employee may otherwise assert under state or federal law.
(3) (a) Except as provided in Subsection (3)(c), an action under this chapter against agovernmental entity for an injury caused by an act or omission that occurs during theperformance of an employee's duties, within the scope of employment, or under color ofauthority is a plaintiff's exclusive remedy.
(b) Judgment under this chapter against a governmental entity is a complete bar to anyaction by the claimant, based upon the same subject matter, against the employee whose act oromission gave rise to the claim.
(c) A plaintiff may not bring or pursue any civil action or proceeding based upon thesame subject matter against the employee or the estate of the employee whose act or omissiongave rise to the claim, unless:
(i) the employee acted or failed to act through fraud or willful misconduct;
(ii) the injury or damage resulted from the employee driving a vehicle, or being in actualphysical control of a vehicle:
(A) with a blood alcohol content equal to or greater by weight than the established legallimit;
(B) while under the influence of alcohol or any drug to a degree that rendered the personincapable of safely driving the vehicle; or
(C) while under the combined influence of alcohol and any drug to a degree that renderedthe person incapable of safely driving the vehicle;
(iii) injury or damage resulted from the employee being physically or mentally impairedso as to be unable to reasonably perform the employee's job function because of:
(A) the use of alcohol;
(B) the nonprescribed use of a controlled substance as defined in Section 58-37-4; or
(C) the combined influence of alcohol and a nonprescribed controlled substance asdefined by Section 58-37-4;
(iv) in a judicial or administrative proceeding, the employee intentionally or knowinglygave, upon a lawful oath or in any form allowed by law as a substitute for an oath, falsetestimony material to the issue or matter of inquiry under this section; or
(v) the employee intentionally or knowingly:
(A) fabricated evidence; or
(B) except as provided in Subsection (3)(d), with a conscious disregard for the rights ofothers, failed to disclose evidence that:
(I) was known to the employee; and
(II) (Aa) was known by the employee to be relevant to a material issue or matter ofinquiry in a pending judicial or administrative proceeding, if the employee knew of the pendingjudicial or administrative proceeding; or
(Bb) was known by the employee to be relevant to a material issue or matter of inquiry ina judicial or administrative proceeding, if disclosure of the evidence was requested of theemployee by a party to the proceeding or counsel for a party to the proceeding.
(d) The exception, described in Subsection (3)(c)(v)(B), allowing a plaintiff to bring orpursue a civil action or proceeding against an employee, does not apply if the employee failed todisclose evidence described in Subsection (3)(c)(v)(B), because the employee is prohibited bylaw from disclosing the evidence.
(4) Except as permitted in Subsection (3)(c), no employee may be joined or heldpersonally liable for acts or omissions occurring:
(a) during the performance of the employee's duties;
(b) within the scope of employment; or
(c) under color of authority.
Renumbered and Amended by Chapter 382, 2008 General Session
Amended by Chapter 395, 2008 General Session