H. B. 2356
(By Delegates Blair and J. Miller)
[Introduced January 13, 2010; referred to the
Committee on Political Subdivisions then the Judiciary.]
A BILL to amend and reenact §29-12A-5 of the Code of West Virginia,
1931, as amended, relating to exempting acts resulting in the
taking or damaging of private property for public use from
immunity with regard to political subdivisions.
Be it enacted by the Legislature of West Virginia:
That §29-12A-5 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 12A. GOVERNMENTAL TORT CLAIMS AND INSURANCE REFORM ACT.
§29-12A-5. Immunities from liability.
(a) A political subdivision is immune from liability if a loss
or claim results from:
(1) Legislative or quasi-legislative functions;
(2) Judicial, quasi-judicial or prosecutorial functions;
(3) Execution or enforcement of the lawful orders of any
court;
(4) Adoption or failure to adopt a law, including, but not
limited to, any statute, charter provision, ordinance, resolution,
rule, regulation or written policy;
(5) Civil disobedience, riot, insurrection or rebellion or the
failure to provide, or the method of providing, police, law
enforcement or fire protection;
(6) Snow or ice conditions or temporary or natural conditions
on any public way or other public place due to weather conditions,
unless the condition is affirmatively caused by the negligent act
of a political subdivision;
(7) Natural conditions of unimproved property of the political
subdivision;
(8) Assessment or collection of taxes lawfully imposed or
special assessments, license or registration fees or other fees or
charges imposed by law;
(9) Licensing powers or functions including, but not limited
to, 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 authority,
except that
when these acts result in the taking or damaging of private
property for public use, a political subdivision is not immune from
liability for a loss or claim resulting from those acts;
(10) Inspection powers or functions, including failure to make an
inspection, or making an inadequate inspection, of any property, real or personal, to determine whether the property complies with or
violates any law or contains a hazard to health or safety;
(11) Any claim covered by any workers' compensation law or any
employer's liability law;
(12) Misrepresentation, if unintentional;
(13) Any court-ordered or administratively approved work release
or treatment or rehabilitation program;
(14) Provision, equipping, lawful operation or maintenance of any
prison, jail or correctional facility, or injuries resulting from the
parole or escape of a prisoner;
(15) Any claim or action based on the theory of manufacturer's
products liability or breach of warranty or merchantability or fitness
for a specific purpose, either expressed or implied;
(16) The operation of dumps, sanitary landfills, and facilities
where conducted directly by a political subdivision; or
(17) The issuance of revenue bonds or the refusal to issue
revenue bonds.
(b) An employee of a political subdivision is immune from
liability unless one of the following applies:
(1) His or her acts or omissions were manifestly outside the
scope of employment or official responsibilities;
(2) His or her acts or omissions were with malicious purpose, in
bad faith, or in a wanton or reckless manner; or
(3) Liability is expressly imposed upon the employee by a provision of this code.
(c) The immunity conferred upon an employee by subsection (b) of
this section does not affect or limit any liability of a political
subdivision for an act or omission of the employee.
NOTE: The purpose of this bill is to exempt takings, including
regulatory takings, from the immunity granted to a political
subdivision.
Strike-throughs indicate language that would be stricken from the
present law, and underscoring indicates new language that would be
added.