2014 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)
(2)
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) 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. The
(3)
(4)
(5)
immunity provided by this subsection shall not apply to the extent that the
state, a political subdivision of the state, or a person or organization maintains
liability insurance or self-insurance for an act or omission covered by this
subsection. To the extent that the state, a political subdivision of the state, or a
person or an organization maintains liability insurance or self-insurance,
sovereign immunity shall not be claimed with regard to an act or omission
covered by this subsection. This 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 willful misconduct, gross
negligence, or bad faith, 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 order or administrative regulation
promulgated pursuant to the provisions of this chapter, or other precautionary
measures enacted by any city of the state, shall be liable for the death of or
injury to persons, or for damage to property, as a result of that activity. The
immunity provided by this subsection shall not apply to the extent that the
state, a political subdivision of the state, or a person or organization maintains
liability insurance or self-insurance for an act or omission covered by this
subsection. To the extent that the state, a political subdivision of the state, or a
person or an organization maintains liability insurance or self-insurance,
sovereign immunity shall not be claimed with regard to an act or omission
covered by this subsection.
Decisions of the director, his 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 malice or bad faith, 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 voluntarily
and without compensation 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. The immunity provided by this subsection shall not
apply to the extent that the state, a political subdivision of the state, or a person
(6)
(7)
(8)
or organization maintains liability insurance or self-insurance for an act or
omission covered by this subsection. To the extent that the state, a political
subdivision of the state, or a person or organization maintains liability
insurance or self-insurance, sovereign immunity shall not be claimed with
regard to an act or omission covered by this subsection.
Subsection (3) of this section shall apply to a volunteer or auxiliary disaster and
emergency response worker only if the volunteer or worker is enrolled or
registered with a local disaster and emergency services organization or with
the division in accordance with the division's administrative regulations.
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
volunteer enrolled or registered with a local disaster or emergency service
organization or with the division due to an act or omission made in the scope
and course of a disaster and emergency response activity.
(a) Notwithstanding subsections (3) and (6) of this section, a licensed
professional engineer as defined in KRS 322.010 or an architect licensed
under KRS Chapter 323, who voluntarily and without compensation
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, unless extended by
the Governor under KRS 39A.100; 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 wanton, willful, or
intentional misconduct.
Effective:July 15, 2014
History: 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.
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