H. B. 3218
(By Delegates Amores, Craig, Armstead, Caputo, DeLong, Ellem,
Mahan, Schadler, Stemple and R. Thompson)
[Introduced March 24, 2005 ; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §15-5-11 and §15-5-12 of the code of
West Virginia, 1931, as amended, all relating to immunities
and limitations extended in association with the provision of
emergency services; limitations on liability arising out of
free or volunteer services in the planning and response to a
declared state of emergency or national disaster in
conjunction with an emergency preparedness plan.
Be it enacted by the Legislature of West Virginia:
That §15-5-11 and §15-5-12 of the code of West Virginia, 1931,
be amended and reenacted, all to read as follows:
ARTICLE 5. EMERGENCY SERVICES.
§15-5-11. Immunity and exemption;"duly qualified emergency service
worker" defined.
(a) All functions hereunder and all other activities relating
to emergency services are hereby declared to be governmental
functions. As such, the provision of emergency services,
including the advice and assistance provided by hospitals,
corporations, physicians and other persons to the state or its
political subdivisions in the formulation and execution of a local or state emergency plan pursuant to the provisions of this article
are governmental functions which are entitled to the immunities
and liability limitations which are extended to the state and its
political subdivisions, as long as such emergency response and
planning activities are being performed for and at the request,
direction and supervision of the state or its political
subdivisions. Neither the state nor any political subdivision nor
any agency of the state or political subdivision nor, except in
cases of willful misconduct, any hospital, corporation, physician
or other person performing emergency services under contract with
or subject to the order or control or pursuant to the request of
the state or any of its political subdivisions, including any duly
qualified emergency service worker complying with or reasonably
attempting to comply with this article or any order, rule,
regulation or ordinance promulgated pursuant to this article,
shall be liable for the death of or injury to any person or for
damage to any property as a result of such activity. This section
shall not affect the right of any person to receive benefits or
compensation to which he would otherwise be entitled under this
article, chapter twenty-three of this code, any act of Congress or
any other law.
(b) Any requirement for a license to practice any
professional, mechanical or other skill shall not apply to an
authorized emergency service worker who shall, in the course of
performing his duties, practice such skill during an emergency.
(c) As used in this section, "duly qualified emergency
service worker" means:
(1) Any duly qualified full or part-time paid, volunteer or auxiliary employee of this state, or any other state, territory,
possession or the District of Columbia, of the federal government,
of any neighboring country or political subdivision thereof or of
any agency or organization performing emergency services in this
state subject to the order or control of or pursuant to the
request of the state or any political subdivision thereof.
(2) Duly qualified instructors and properly supervised
students in recognized educational programs where emergency
services are taught. A recognized educational program shall
include any program in an educational institution existing under
the laws of this state and such other educational programs as
shall be established by the office of emergency services or
otherwise under this article.
(d) A duly qualified emergency service worker performing his
duty in this state pursuant to any lawful agreement, compact or
arrangement for mutual aid and assistance to which the state or a
political subdivision is a party shall possess the same powers,
duties, immunities and privileges he would possess if performing
the same duties in his own state, province or political
subdivision thereof.
§15-5-12. Liability to with respect to premises or real estate
used for shelter, treatment or other emergency
services purposes.
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 such real estate or premises for the purpose
of sheltering or treating persons during an actual, impending, mock or practice emergency or for the purpose of managing
equipment, supplies or other resources shall, together with his
successors in interest, if any, not be civilly liable for
negligently causing the death of or injury to any sheltered or
treated person on or about such real estate or premises or for
loss of or damage to the property of any such sheltered or treated
person.
NOTE: The purpose of this bill is to make it clear that any
hospital, corporation, physician or other person performing
emergency services under contract with or subject to the order or
control of the state or any of its political subdivisions, at the
request of the state or any of its political subdivisions, is
entitled to the existing limitations on liability that is extended
to such emergency services activities, in accordance with the
provisions of Code §§15-5-11 and 15-5-12.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that
would be added.