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SECTION 1. IC 34-6-2-38, AS AMENDED BY P.L.142-1999,
SECTION 1, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
UPON PASSAGE]: Sec. 38. (a) "Employee" and "public employee",
for purposes of section 91 of this chapter, IC 34-13-2, IC 34-13-3,
IC 34-13-4, and IC 34-30-14, mean a person presently or formerly
acting on behalf of a governmental entity, whether temporarily or
permanently or with or without compensation, including members of
boards, committees, commissions, authorities, and other
instrumentalities of governmental entities, volunteer firefighters (as
defined in IC 36-8-12-2), and elected public officials.
First Regular Session 112th General Assembly (2001)
PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana
Constitution) is being amended, the text of the existing provision will appear in this style type,
additions will appear in this style type, and deletions will appear in this style type.
Additions: Whenever a new statutory provision is being enacted (or a new constitutional
provision adopted), the text of the new provision will appear in this style type. Also, the
word NEW will appear in that style type in the introductory clause of each SECTION that adds
a new provision to the Indiana Code or the Indiana Constitution.
Conflict reconciliation: Text in a statute in this style type or this style type reconciles conflicts
between statutes enacted by the 2000 General Assembly.
SENATE ENROLLED ACT No. 141
AN ACT to amend the Indiana Code concerning civil procedure.
Be it enacted by the General Assembly of the State of Indiana:
SECTION 1. IC 34-6-2-38, AS AMENDED BY P.L.142-1999,
SECTION 1, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
UPON PASSAGE]: Sec. 38. (a) "Employee" and "public employee",
for purposes of section 91 of this chapter, IC 34-13-2, IC 34-13-3,
IC 34-13-4, and IC 34-30-14, mean a person presently or formerly
acting on behalf of a governmental entity, whether temporarily or
permanently or with or without compensation, including members of
boards, committees, commissions, authorities, and other
instrumentalities of governmental entities, volunteer firefighters (as
defined in IC 36-8-12-2), and elected public officials.
(b) The term also includes attorneys at law whether employed by the
governmental entity as employees or independent contractors and
physicians licensed under IC 25-22.5 and optometrists who provide
medical or optical care to confined offenders (as defined in IC 11-8-1)
within the course of their employment by or contractual relationship
with the department of correction. However, the term does not include:
(1) an independent contractor (other than an attorney at law, a
physician, or an optometrist described in this section);
(2) an agent or employee of an independent contractor;
(3) a person appointed by the governor to an honorary advisory or
honorary military position; or
(4) a physician licensed under IC 25-22.5 with regard to a claim
against the physician for an act or omission occurring or allegedly
occurring in the physician's capacity as an employee of a hospital.
(c) A physician licensed under IC 25-22.5 who is an employee of a
governmental entity (as defined in IC 34-6-2-49) shall be considered
a public employee for purposes of IC 34-13-3-3(20). IC 34-13-3-3(21).
SECTION 2. IC 34-6-2-44.5 IS ADDED TO THE INDIANA CODE
AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE
UPON PASSAGE]: Sec. 44.5. (a) "Extreme sport area", for
purposes of IC 34-13-3, means an indoor or outdoor ramp, course,
or area specifically designated for the exclusive recreational or
sporting use of one (1) or more types of extreme sport equipment.
(b) The term does not include property used at any time as a
public sidewalk, footpath, vehicle parking lot, multiple use trail,
multiple use greenway, or other public way.
SECTION 3. IC 34-6-2-44.6 IS ADDED TO THE INDIANA CODE
AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE
UPON PASSAGE]: Sec. 44.6. "Extreme sport equipment", for
purposes of section 44.5 of this chapter and IC 34-13-3, means any
of the following nonmotorized devices:
(1) Skateboards.
(2) Roller skates.
(3) Inline skates.
(4) Freestyle bicycles.
(5) Mountain bicycles.
(6) An apparatus that is:
(A) wheeled;
(B) recreational or sporting in nature;
(C) powered solely by the physical efforts of the user; and
(D) generally known, as the term is used in Rule 201 of the
Indiana Rules of Evidence, as an apparatus used for
extreme sport.
SECTION 4. IC 34-6-2-49 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 49. "Governmental
entity", for purposes of section 91 of this chapter, IC 34-13-2,
IC 34-13-3, and IC 34-13-4, means the state or a political subdivision
of the state.
SECTION 5. IC 34-6-2-91 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 91. (a) "Operator",
for purposes of IC 34-30-3, means a person who is an owner, a lessee,
a tenant, or an occupant of land or premises that are used in the
production of agricultural products.
(b) "Operator", for purposes of IC 34-31-6, means a person or an
entity, other than a governmental entity or an employee of a
governmental entity, that owns, manages, controls, directs, or has
operational responsibility for a roller skating rink.
SECTION 6. IC 34-13-3-3, AS AMENDED BY P.L.142-1999,
SECTION 2, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
UPON PASSAGE]: 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.
(6) (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.
(7) (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.
(8) (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.
(9) (10) The act or omission of anyone other than the
governmental entity or the governmental entity's employee.
(10) (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.
(11) (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.
(12) (13) Entry upon any property where the entry is expressly or
impliedly authorized by law.
(13) (14) Misrepresentation if unintentional.
(14) (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.
(15) (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.
(16) (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, or a community corrections program under
IC 11-12.
(17) (18) Design of a highway (as defined in IC 9-13-2-73) if the
claimed loss occurs at least twenty (20) years after the public
highway 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.
(18) (19) Development, adoption, implementation, operation,
maintenance, or use of an enhanced emergency communication
system.
(19) (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 20-8.1-5.1-7(b). or
(20) (21) An error resulting from or caused by a failure to
recognize the year 1999, 2000, or a subsequent year, including an
incorrect date or incorrect mechanical or electronic interpretation
of a date, that is produced, calculated, or generated by:
(A) a computer;
(B) an information system; or
(C) equipment using microchips;
that is owned or operated by a governmental entity. However, this
subdivision does not apply to acts or omissions amounting to
gross negligence, willful or wanton misconduct, or intentional
misconduct. For purposes of this subdivision, evidence of gross
negligence may be established by a party by showing failure of a
governmental entity to undertake an effort to review, analyze,
remediate, and test its electronic information systems or by
showing failure of a governmental entity to abate, upon notice, an
electronic information system error that caused damage or loss.
However, this subdivision (20) expires on June 30, 2003.
SECTION 7. [EFFECTIVE UPON PASSAGE] (a) The definitions
in IC 34-6-2 apply throughout this SECTION.
(b) IC 34-13-3-3, as amended by this act,
applies
to a cause of
action involving an extreme sport area that accrues after the
effective date of this SECTION, regardless of when the extreme
sport area was developed.
SECTION 8. An emergency is declared for this act.
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