2021 Kentucky Revised Statutes Chapter 39A - Statewide emergency management programs 39A.280 Nature of disaster and emergency response functions provided by state or local management agency, licensed professional engineer, or licensed architect -- Immunity, exceptions.
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39A.280 Nature of disaster and emergency response functions provided by
state or local management agency, licensed professional engineer, or
licensed architect -- Immunity, exceptions.
(1)
Disaster and emergency response functions provided by a state or local
emergency management agency, or any emergency management
agency-supervised operating units or personnel officially affiliated with a local
disaster and emergency services organization pursuant to KRS 39B.070, shall
not, in itself, be deemed to be the making of a promise, or the undertaking of a
special duty, towards any person for the services, or any particular level of, or
manner of providing, the services; nor shall the provision of or failure to provide
these services be deemed to create a special relationship or duty towards any
person upon which an action in negligence or other tort might be founded.
Specifically:
(a)
(2)
The failure to respond to a disaster or other emergency, or to undertake
particular inspections or types of inspections, or to maintain any particular
level of personnel, equipment, or facilities, shall not be a breach of any
duty to persons affected by any disaster or other emergency.
(b) When a state or local emergency management agency, or local
emergency management agency-supervised operating unit officially
affiliated with a local disaster and emergency services organization, does
undertake to respond to a disaster or other emergency, the failure to
provide the same level or manner of service, or equivalent availability or
allocation of resources as may or could be provided, shall not be a breach
of any duty to persons affected by that disaster or other emergency.
(c) A state or local emergency management agency, or local emergency
management agency-supervised operating unit officially affiliated with a
local disaster and emergency services organization shall not have or
assume any duty towards any person to adopt, use, or avoid any
particular strategy or tactic in responding to a disaster or other
emergency.
(d) A state or local emergency management agency, or local emergency
management agency-supervised operating unit officially affiliated with a
local disaster and emergency services organization, in undertaking
disaster and emergency preparedness or prevention activities including
inspections, or in undertaking to respond to a disaster or other
emergency, shall not have voluntarily assumed any special duty with
respect to any risks which were not created or caused by it, nor with
respect to any risks which might have existed even in the absence of that
activity or response, nor shall any person have a right to rely on such an
assumption of duty.
Neither the state nor any political subdivision of the state, nor the agents or
representatives of the state or any of its political subdivisions, shall be liable for
personal injury or property damage sustained by any person appointed or
acting as a volunteer emergency management agency member, or disaster
and emergency services member, or disaster and emergency response worker,
or member of any agency engaged in any emergency management or disaster
and emergency services or disaster and emergency response activity. This
(3)
(4)
(5)
(6)
(7)
immunity shall not affect the right of any person to receive benefits or
compensation to which the person might otherwise be entitled under the
Workers' Compensation Law, or this chapter, or any pension law, or any Act of
Congress.
Subject to subsection (6) of this section, neither the state nor any political
subdivision of the state nor, except in cases of gross negligence or wanton,
willful, malicious, or intentional misconduct, the employees, agents, or
representatives of the state or any of its political divisions, nor any volunteer or
auxiliary emergency management agency or disaster and emergency services
organization member or disaster and emergency response worker or member
of any agency engaged in any emergency management or disaster and
emergency services or disaster and emergency response activity, complying
with or reasonably attempting to comply with this chapter or any executive
action or administrative regulation promulgated pursuant to the provisions of
this chapter, or other measures enacted by any city or the state, shall be liable
for the death of or injury to persons, or for damage to property, as a result of
that activity.
Decisions of the director, his or her subordinates or employees, a local
emergency management director, or the local director's subordinates or
employees, a rescue chief or the chief's subordinates, concerning the
allocation and assignment of personnel and equipment, and the strategies and
tactics used, shall be the exercise of a discretionary, policy function for which
neither the officer nor the state, county, urban-county, charter county, or city, or
local emergency management agency-supervised operating unit formally
affiliated with a local disaster and emergency services organization, shall be
held liable in the absence of gross negligence or wanton, willful, malicious, or
intentional misconduct, even when those decisions are made rapidly in
response to the exigencies of an emergency.
Any person owning or controlling real estate or other premises who grants a
license or privilege, or otherwise permits the designation or use of the whole or
any part of the real estate or premises for the purpose of sheltering persons
during an actual, impending, mock, or practice disaster or emergency, together
with his or her successors in interest, shall not be civilly liable for negligently
causing the death of, or injury to, any person on or about the real estate or
premises for loss of, or damage to, the property of that person.
Subsection (3) of this section shall apply to a volunteer or auxiliary disaster and
emergency response worker if the worker is enrolled or registered under KRS
39A.356, or with the political subdivision in accordance with the political
subdivision's administrative regulations and as provided in KRS 39F.020.
While engaged in disaster and emergency response activity, volunteers and
auxiliary disaster and emergency response workers enrolled or registered with
a local disaster and emergency service organization or with the division in
accordance with subsection (6) of this section shall have the same degree of
responsibility for their actions and enjoy the same immunities as officers and
employees of the state and its political subdivisions performing similar work,
including the provisions of KRS 12.211, 12.212, and 12.215, allowing the
Attorney General to provide defense of any civil action brought against a
(8)
volunteer enrolled or registered due to an act or omission made in the scope
and course of a disaster and emergency response activity.
(a) A licensed professional engineer as defined in KRS 322.010 or an
architect licensed under KRS Chapter 323, who provides architectural,
structural, electrical, mechanical, or other professional services at the
scene of a declared emergency, disaster, or catastrophe, shall not be
liable for any personal injury, wrongful death, property damage, or other
loss of any nature related to the licensed professional engineer's or
licensed architect's acts, errors, or omissions in the performance of the
services carried out:
1.
At the request of or with the approval of a federal, state, or local:
a.
Emergency management agency official with executive
responsibility in the jurisdiction to coordinate disaster and
emergency response activity;
b.
Fire chief or his or her designee; or
c.
Building inspection official;
whom the licensed professional engineer or licensed architect
believes to be acting in an official capacity;
2.
Within ninety (90) days following the end of the period for the
declared emergency, disaster, or catastrophe. If the emergency is
extended under KRS 39A.090, the ninety (90) days shall run from
the end date of the last extension; and
3.
If the professional services arose out of the declared emergency,
disaster, or catastrophe and if the licensed professional engineer or
licensed architect acted as an ordinary reasonably prudent member
of the profession would have acted under the same or similar
circumstances.
(b) Nothing in this subsection shall provide immunity for gross negligence or
wanton, willful, or intentional misconduct.
Effective:April 11, 2021
History: Amended 2021 Ky. Acts ch. 6, sec. 5, effective February 2, 2021; and ch.
205, sec. 6, effective April 11, 2021. -- Amended 2014 Ky. Acts ch. 129, sec. 1,
effective July 15, 2014. -- Created 1998 Ky. Acts ch. 488, sec. 2, effective July
15, 1998, superseding 1998 Ky. Acts ch. 226, sec. 24, effective July 15, 1998.
Legislative Research Commission Note (4/11/2021). This statute was amended
by 2021 Ky. Acts. chs. 6 and 205, which do not appear to be in conflict and have
been codified together.
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