CHAPTER 3. TORT CLAIMS AGAINST GOVERNMENTAL ENTITIES AND PUBLIC EMPLOYEES
IC 34-13-3
Chapter 3. Tort Claims Against Governmental Entities and PublicEmployees
IC 34-13-3-1
Applicability of chapter
Sec. 1. (a) This chapter applies only to a claim or suit in tort.
(b) The provisions of this chapter also apply to IC 34-30-14.
As added by P.L.1-1998, SEC.8.
IC 34-13-3-2
Applicability of chapter to bureau of motor vehicles
Sec. 2. This chapter applies to a claim or suit in tort against anyof the following:
(1) A member of the bureau of motor vehicles commissionestablished under IC 9-15-1-1.
(2) An employee of the bureau of motor vehicles commissionwho is employed at a license branch under IC 9-16, except foran employee employed at a license branch operated under acontract with the commission under IC 9-16.
As added by P.L.1-1998, SEC.8.
IC 34-13-3-3
Immunity of governmental entity or employee
Sec. 3. A governmental entity or an employee acting within thescope of the employee's employment is not liable if a loss resultsfrom the following:
(1) The natural condition of unimproved property.
(2) The condition of a reservoir, dam, canal, conduit, drain, orsimilar structure when used by a person for a purpose that is notforeseeable.
(3) The temporary condition of a public thoroughfare orextreme sport area that results from weather.
(4) The condition of an unpaved road, trail, or footpath, thepurpose of which is to provide access to a recreation or scenicarea.
(5) The design, construction, control, operation, or normalcondition of an extreme sport area, if all entrances to theextreme sport area are marked with:
(A) a set of rules governing the use of the extreme sportarea;
(B) a warning concerning the hazards and dangers associatedwith the use of the extreme sport area; and
(C) a statement that the extreme sport area may be used onlyby persons operating extreme sport equipment.
This subdivision shall not be construed to relieve agovernmental entity from liability for the continuing duty tomaintain extreme sports areas in a reasonably safe condition.
(6) The initiation of a judicial or an administrative proceeding.
(7) The performance of a discretionary function; however, the
provision of medical or optical care as provided in IC 34-6-2-38shall be considered as a ministerial act.
(8) The adoption and enforcement of or failure to adopt orenforce a law (including rules and regulations), unless the actof enforcement constitutes false arrest or false imprisonment.
(9) An act or omission performed in good faith and withoutmalice under the apparent authority of a statute which is invalidif the employee would not have been liable had the statute beenvalid.
(10) The act or omission of anyone other than the governmentalentity or the governmental entity's employee.
(11) The issuance, denial, suspension, or revocation of, orfailure 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.
(12) Failure to make an inspection, or making an inadequate ornegligent inspection, of any property, other than the property ofa governmental entity, to determine whether the propertycomplied with or violates any law or contains a hazard to healthor safety.
(13) Entry upon any property where the entry is expressly orimpliedly authorized by law.
(14) Misrepresentation if unintentional.
(15) Theft by another person of money in the employee'sofficial custody, unless the loss was sustained because of theemployee's own negligent or wrongful act or omission.
(16) Injury to the property of a person under the jurisdiction andcontrol of the department of correction if the person has notexhausted the administrative remedies and procedures providedby section 7 of this chapter.
(17) Injury to the person or property of a person undersupervision of a governmental entity and who is:
(A) on probation; or
(B) assigned to an alcohol and drug services program underIC 12-23, a minimum security release program underIC 11-10-8, a pretrial conditional release program underIC 35-33-8, or a community corrections program underIC 11-12.
(18) Design of a highway (as defined in IC 9-13-2-73), toll roadproject (as defined in IC 8-15-2-4(4)), tollway (as defined inIC 8-15-3-7), or project (as defined in IC 8-15.7-2-14) if theclaimed loss occurs at least twenty (20) years after the publichighway, toll road project, tollway, or project was designed orsubstantially redesigned; except that this subdivision shall notbe construed to relieve a responsible governmental entity fromthe continuing duty to provide and maintain public highways ina reasonably safe condition.
(19) Development, adoption, implementation, operation,maintenance, or use of an enhanced emergency communicationsystem. (20) Injury to a student or a student's property by an employeeof a school corporation if the employee is acting reasonablyunder a discipline policy adopted under IC 20-33-8-12.
(21) An act or omission performed in good faith under theapparent authority of a court order described in IC 35-46-1-15.1that is invalid, including an arrest or imprisonment related to theenforcement of the court order, if the governmental entity oremployee would not have been liable had the court order beenvalid.
(22) An act taken to investigate or remediate hazardoussubstances, petroleum, or other pollutants associated with abrownfield (as defined in IC 13-11-2-19.3) unless:
(A) the loss is a result of reckless conduct; or
(B) the governmental entity was responsible for the initialplacement of the hazardous substances, petroleum, or otherpollutants on the brownfield.
(23) The operation of an off-road vehicle (as defined inIC 14-8-2-185) by a nongovernmental employee, or by agovernmental employee not acting within the scope of theemployment of the employee, on a public highway in a countyroad system outside the corporate limits of a city or town,unless the loss is the result of an act or omission amounting to:
(A) gross negligence;
(B) willful or wanton misconduct; or
(C) intentional misconduct.
This subdivision shall not be construed to relieve agovernmental entity from liability for the continuing duty tomaintain highways in a reasonably safe condition for theoperation of motor vehicles licensed by the bureau of motorvehicles for operation on public highways.
As added by P.L.1-1998, SEC.8. Amended by P.L.142-1999, SEC.2;P.L.250-2001, SEC.6; P.L.280-2001, SEC.42; P.L.1-2002, SEC.144;P.L.161-2003, SEC.5; P.L.1-2005, SEC.218; P.L.208-2005, SEC.14;P.L.47-2006, SEC.48; P.L.121-2009, SEC.15; P.L.86-2010, SEC.10.
IC 34-13-3-4
Limitation on aggregate liability; punitive damages prohibited
Sec. 4. (a) The combined aggregate liability of all governmentalentities and of all public employees, acting within the scope of theiremployment and not excluded from liability under section 3 of thischapter, does not exceed:
(1) for injury to or death of one (1) person in any one (1)occurrence:
(A) three hundred thousand dollars ($300,000) for a cause ofaction that accrues before January 1, 2006;
(B) five hundred thousand dollars ($500,000) for a cause ofaction that accrues on or after January 1, 2006, and beforeJanuary 1, 2008; or
(C) seven hundred thousand dollars ($700,000) for a causeof action that accrues on or after January 1, 2008; and (2) for injury to or death of all persons in that occurrence, fivemillion dollars ($5,000,000).
(b) A governmental entity or an employee of a governmentalentity acting within the scope of employment is not liable forpunitive damages.
As added by P.L.1-1998, SEC.8. Amended by P.L.108-2003, SEC.2;P.L.161-2003, SEC.6; P.L.97-2004, SEC.114.
IC 34-13-3-5
Actions against individual members not authorized; judgmentagainst or settlement by governmental entity
Sec. 5. (a) Civil actions relating to acts taken by a board, acommittee, a commission, an authority, or another instrumentality ofa governmental entity may be brought only against the board, thecommittee, the commission, the authority, or the otherinstrumentality of a governmental entity. A member of a board, acommittee, a commission, an authority, or another instrumentality ofa governmental entity may not be named as a party in a civil suit thatconcerns the acts taken by a board, a committee, a commission, anauthority, or another instrumentality of a governmental entity wherethe member was acting within the scope of the member'semployment. For the purposes of this subsection, a member of aboard, a committee, a commission, an authority, or anotherinstrumentality of a governmental entity is acting within the scope ofthe member's employment when the member acts as a member of theboard, committee, commission, authority, or other instrumentality.
(b) A judgment rendered with respect to or a settlement made bya governmental entity bars an action by the claimant against anemployee, including a member of a board, a committee, acommission, an authority, or another instrumentality of agovernmental entity, whose conduct gave rise to the claim resultingin that judgment or settlement. A lawsuit alleging that an employeeacted within the scope of the employee's employment bars an actionby the claimant against the employee personally. However, if thegovernmental entity answers that the employee acted outside thescope of the employee's employment, the plaintiff may amend thecomplaint and sue the employee personally. An amendment to thecomplaint by the plaintiff under this subsection must be filed notlater than one hundred eighty (180) days from the date the answerwas filed and may be filed notwithstanding the fact that the statuteof limitations has run.
(c) A lawsuit filed against an employee personally must allegethat an act or omission of the employee that causes a loss is:
(1) criminal;
(2) clearly outside the scope of the employee's employment;
(3) malicious;
(4) willful and wanton; or
(5) calculated to benefit the employee personally.
The complaint must contain a reasonable factual basis supporting theallegations. (d) This subsection applies when the governmental entity defendsor has received proper legal notice and has the opportunity to defendan employee for losses resulting from the employee's acts oromissions. Subject to the provisions of sections 4, 14, 15, and 16 ofthis chapter, the governmental entity shall pay any judgment of aclaim or suit against an employee when the act or omission causingthe loss is within the scope of the employee's employment, regardlessof whether the employee can or cannot be held personally liable forthe loss.
(e) The governmental entity shall provide counsel for and pay allcosts and fees incurred by or on behalf of an employee in defense ofa claim or suit for a loss occurring because of acts or omissionswithin the scope of the employee's employment, regardless ofwhether the employee can or cannot be held personally liable for theloss.
(f) This chapter shall not be construed as:
(1) a waiver of the eleventh amendment to the Constitution ofthe United States;
(2) consent by the state of Indiana or its employees to be suedin any federal court; or
(3) consent to be sued in any state court beyond the boundariesof Indiana.
As added by P.L.1-1998, SEC.8. Amended by P.L.192-2001, SEC.2;P.L.161-2003, SEC.7.
IC 34-13-3-6
Notice to attorney general and state agency involved
Sec. 6. (a) Except as provided in sections 7 and 9 of this chapter,a claim against the state is barred unless notice is filed with theattorney general or the state agency involved within two hundredseventy (270) days after the loss occurs. However, if notice to thestate agency involved is filed with the wrong state agency, that errordoes not bar a claim if the claimant reasonably attempts to determineand serve notice on the right state agency.
(b) The attorney general, by rule adopted under IC 4-22-2, shallprescribe a claim form to be used to file a notice under this section.The claim form must specify:
(1) the information required; and
(2) the period of time that a potential claimant has to file aclaim.
(c) Copies of the claim form prescribed under subsection (b) shallbe available from each:
(1) state agency; and
(2) operator of a state vehicle.
As added by P.L.1-1998, SEC.8.
IC 34-13-3-7
Administrative claim for inmate's recovery of property
Sec. 7. (a) An offender must file an administrative claim with thedepartment of correction to recover compensation for the loss of the
offender's personal property alleged to have occurred during theoffender's confinement as a result of an act or omission of thedepartment or any of its agents, former officers, employees, orcontractors. A claim must be filed within one hundred eighty (180)days after the date of the alleged loss.
(b) The department of correction shall evaluate each claim filedunder subsection (a) and determine the amount due, if any. If theamount due is not more than five thousand dollars ($5,000), thedepartment shall approve the claim for payment and recommend tothe office of the attorney general payment under subsection (c). Thedepartment shall submit all claims in which the amount due exceedsfive thousand dollars ($5,000), with any recommendation thedepartment considers appropriate, to the office of the attorneygeneral. The attorney general, in acting upon the claim, shallconsider recommendations of the department to determine whetherto deny the claim or recommend the claim to the governor forapproval of payment.
(c) Payment of claims under this section shall be made in the samemanner as payment of claims under IC 34-4-16.5-22.
(d) The department of correction shall adopt rules under IC 4-22-2necessary to carry out this section.
As added by P.L.1-1998, SEC.8.
IC 34-13-3-8
Claims against political subdivisions; notice requirement
Sec. 8. (a) Except as provided in section 9 of this chapter, a claimagainst a political subdivision is barred unless notice is filed with:
(1) the governing body of that political subdivision; and
(2) the Indiana political subdivision risk managementcommission created under IC 27-1-29;
within one hundred eighty (180) days after the loss occurs.
(b) A claim against a political subdivision is not barred for failureto file notice with the Indiana political subdivision risk managementcommission created under IC 27-1-29-5 if the political subdivisionwas not a member of the political subdivision risk management fundestablished under IC 27-1-29-10 at the time the act or omission tookplace.
As added by P.L.1-1998, SEC.8.
IC 34-13-3-9
Incapacitated plaintiffs; notice requirement
Sec. 9. If a person is incapacitated and cannot give notice asrequired in section 6 or 8 of this chapter, the person's claim is barredunless notice is filed within one hundred eighty (180) days after theincapacity is removed.
As added by P.L.1-1998, SEC.8.
IC 34-13-3-10
Notice requirement; form of statement
Sec. 10. The notice required by sections 6, 8, and 9 of this chapter
must describe in a short and plain statement the facts on which theclaim is based. The statement must include the circumstances whichbrought about the loss, the extent of the loss, the time and place theloss occurred, the names of all persons involved if known, theamount of the damages sought, and the residence of the personmaking the claim at the time of the loss and at the time of filing thenotice.
As added by P.L.1-1998, SEC.8.
IC 34-13-3-11
Approval or denial of claim by government entity
Sec. 11. Within ninety (90) days of the filing of a claim, thegovernmental entity shall notify the claimant in writing of itsapproval or denial of the claim. A claim is denied if thegovernmental entity fails to approve the claim in its entirety withinninety (90) days, unless the parties have reached a settlement beforethe expiration of that period.
As added by P.L.1-1998, SEC.8.
IC 34-13-3-12
Notice requirements; service
Sec. 12. The notices required by sections 6, 8, 9, and 11 of thischapter must be in writing and must be delivered in person or byregistered or certified mail.
As added by P.L.1-1998, SEC.8.
IC 34-13-3-13
Denial of claim as prerequisite to suit
Sec. 13. A person may not initiate a suit against a governmentalentity unless the person's claim has been denied in whole or in part.
As added by P.L.1-1998, SEC.8.
IC 34-13-3-14
Compromise or settlement of claim by governor
Sec. 14. Except as provided in section 20 of this chapter, thegovernor may compromise or settle a claim or suit brought againstthe state or its employees.
As added by P.L.1-1998, SEC.8.
IC 34-13-3-15
Attorney general; powers and duties
Sec. 15. Except as provided in section 20 of this chapter, theattorney general:
(1) shall advise the governor concerning the desirability ofcompromising or settling a claim or suit brought against thestate or its employees;
(2) shall perfect a compromise or settlement which is made bythe governor;
(3) shall submit to the governor on or before January 31 of eachyear a report concerning the status of each claim or suit pending
against the state as of January 1 of that year; and
(4) shall defend, as chief counsel, the state and state employeesas required under IC 4-6-2. However, the attorney general mayemploy other counsel to aid in defending or settling thoseclaims or suits.
As added by P.L.1-1998, SEC.8.
IC 34-13-3-16
Compromise or settlement of claim by political subdivision
Sec. 16. Except as provided in section 20 of this chapter, thegoverning body of a political subdivision may compromise, settle, ordefend against a claim or suit brought against the politicalsubdivision or its employees.
As added by P.L.1-1998, SEC.8.
IC 34-13-3-17
Enforcement of judgments against governmental entities
Sec. 17. A court that has rendered a judgment against agovernmental entity may order that governmental entity to:
(1) appropriate funds for the payment of the judgment if fundsare available for that purpose; or
(2) levy and collect a tax to pay the judgment if there areinsufficient funds available for that purpose.
As added by P.L.1-1998, SEC.8.
IC 34-13-3-18
Time for payment of claim or judgment; interest rate
Sec. 18. (a) A claim or suit settled by, or a judgment renderedagainst, a governmental entity shall be paid by the governmentalentity not later than one hundred eighty (180) days after the date ofsettlement or judgment, unless there is an appeal, in which case notlater than one hundred eighty (180) days after a final decision isrendered.
(b) If payment is not made within one hundred eighty (180) daysafter the date of settlement or judgment, the governmental entity isliable for interest from the date of settlement or judgment at anannual rate of six percent (6%). The governmental entity is liable forinterest at that rate and from that date even if the case is appealed,provided the original judgment is upheld.
As added by P.L.1-1998, SEC.8.
IC 34-13-3-19
Applicability of IC 34-13-3-18; settlement
Sec. 19. Section 18 of this chapter does not apply if there is astructured settlement under section 23 of this chapter.
As added by P.L.1-1998, SEC.8.
IC 34-13-3-20
Liability insurance; prohibitions
Sec. 20. (a) A political subdivision may purchase insurance to
cover the liability of itself or its employees, including a member ofa board, a committee, a commission, an authority, or anotherinstrumentality of a governmental entity. Any liability insurance sopurchased shall be purchased by invitation to and negotiation withproviders of insurance and may be purchased with other types ofinsurance. If such a policy is purchased, the terms of the policygovern the rights and obligations of the political subdivision and theinsurer with respect to the investigation, settlement, and defense ofclaims or suits brought against the political subdivision or itsemployees covered by the policy. However, the insurer may not enterinto a settlement for an amount that exceeds the insurance coveragewithout the approval of the mayor, if the claim or suit is against acity, or the governing body of any other political subdivision, if theclaim or suit is against such political subdivision.
(b) The state may not purchase insurance to cover the liability ofthe state or its employees. This subsection does not prohibit any ofthe following:
(1) The requiring of contractors to carry insurance.
(2) The purchase of insurance to cover losses occurring on realproperty owned by the public employees' retirement fund or theIndiana state teachers' retirement fund.
(3) The purchase of insurance by a separate body corporate andpolitic to cover the liability of itself or its employees.
(4) The purchase of casualty and liability insurance for fosterparents (as defined in IC 27-1-30-4) on a group basis.
As added by P.L.1-1998, SEC.8. Amended by P.L.192-2001, SEC.3.
IC 34-13-3-21
Attorney's fees; allowance to governmental entity; action for abuseof process
Sec. 21. In any action brought against a governmental entity intort, the court may allow attorney's fees as part of the costs to thegovernmental entity prevailing as defendant, if the court finds thatplaintiff:
(1) brought the action on a claim that is frivolous, unreasonable,or groundless;
(2) continued to litigate the action after plaintiff's claim clearlybecame frivolous, unreasonable, or groundless; or
(3) litigated its action in bad faith.
This award of fees does not prevent a governmental entity frombringing an action against the plaintiff for abuse of process arisingin whole or in part on the same facts, but the defendant may notrecover such attorney's fees twice.
As added by P.L.1-1998, SEC.8.
IC 34-13-3-22
Persons or entities considered political subdivisions
Sec. 22. (a) For purposes of this chapter, the following shall betreated as political subdivisions:
(1) A community action agency (as defined in IC 12-14-23-2). (2) An individual or corporation rendering public transportationservices under a contract with a commuter transportationdistrict created under IC 8-5-15.
(3) A volunteer fire department (as defined in IC 36-8-12-2) thatis acting under:
(A) a contract with a unit or a fire protection district; or
(B) IC 36-8-17.
(b) The treatment provided for under subsection (a)(2) shall beaccorded only in relation to a loss that occurs in the course ofrendering public transportation services under contract with acommuter transportation district.
As added by P.L.1-1998, SEC.8. Amended by P.L.1-1999, SEC.68.
IC 34-13-3-23
Structured settlement; discharge; limits
Sec. 23. (a) With the consent of the claimant, a politicalsubdivision may compromise or settle a claim or suit by means of astructured settlement under this section.
(b) A political subdivision may discharge settlement of a claim orsuit brought under this chapter by:
(1) an agreement requiring periodic payments by the politicalsubdivision over a specified number of years;
(2) the purchase of an annuity;
(3) by making a "qualified assignment" of the liability of thepolitical subdivision as defined by the provisions of 26 U.S.C.130(c);
(4) payment in a lump sum; or
(5) any combination of subdivisions (1) through (4).
(c) The present value of a structured settlement shall not exceedthe statutory limits set forth in section 4 of this chapter; however, theperiodic or annuity payments may exceed these statutory limits. Thepresent value of any periodic payments may be determined bydiscounting the periodic payments by the same percentage as thatfound in Moody's Corporate Bond Yield Average Monthly AverageCorporates, as published by Moody's Investors Service, Incorporated.
As added by P.L.1-1998, SEC.8.
IC 34-13-3-24
Appropriations for payment of claims and expenses
Sec. 24. There is appropriated from the state general fundsufficient funds to:
(1) settle claims and satisfy tort judgments obtained against thestate; and
(2) pay expenses authorized by this chapter, including:
(A) liability insurance premiums;
(B) interest on claims and judgments; and
(C) expenses incurred by the attorney general in employingother counsel to aid in defending or settling claims or civilactions against the state.
As added by P.L.1-1998, SEC.8.
IC 34-13-3-25
Presentation of vouchers and issuance of warrants forappropriations
Sec. 25. The attorney general shall present vouchers for the itemsor expenses described in section 24 of this chapter to the auditor ofstate. The auditor shall issue warrants on the treasury for the amountspresented.
As added by P.L.1-1998, SEC.8.