Citations Affected: IC 13-19-5-3; IC 34-6-2-38; IC 34-13-3-3.
Synopsis: Liability for inadequate drainage. Imposes liability on a
governmental entity or an employee of a governmental entity for a loss
that results from gross negligence, willful or wanton misconduct, or
intentional misconduct in failing to provide adequate drainage from
industrial or commercial sites.
Effective: July 1, 2009.
January 8, 2009, read first time and referred to Committee on Rules and Legislative
A BILL FOR AN ACT to amend the Indiana Code concerning civil
the financial ability of a political subdivision to:
(A) pay a loan or other financial assistance and other obligations evidencing loans or other financial assistance, if required to be paid; and
(B) otherwise comply with terms of the financial assistance agreement.
(8) Evaluate or cause to be evaluated the technical aspects of the political subdivision's:
(A) environmental assessment of potential brownfield properties;
(B) proposed remediation; and
(C) remediation activities conducted on brownfield properties.
(9) Inspect or cause to be inspected remediation activities conducted under this chapter.
(10) Act as a liaison to the United States Environmental Protection Agency regarding the program.
(11) Be a point of contact for political subdivisions concerning questions about the program.
(12) Enter into memoranda of understanding, as necessary, with the department and the budget agency concerning the administration and management of the fund and the program.
(b) The authority may do the following under this chapter:
(1) Undertake activities to make private environmental insurance products available to encourage and facilitate the cleanup and redevelopment of brownfield properties.
(2) Enter into agreements with political subdivisions to manage any of the following conducted on brownfield properties:
(A) Environmental assessment activities.
(B) Environmental remediation activities.
(c) The authority may:
(1) negotiate with;
(2) select; and
(3) contract with;
one (1) or more insurers to provide insurance products as described in subsection (b)(1).
(d) Notwithstanding IC 13-23, IC 13-24-1, and IC 13-25-4, the authority is not liable for any contamination addressed by the authority under an agreement under subsection (b)(2) unless existing contamination on the brownfield is exacerbated due to gross negligence or intentional misconduct by the authority.
(e) For purposes of subsection (d), reckless, willful, or wanton misconduct constitutes gross negligence.
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 or negligent inspection, of any property, other than the property of a governmental entity, to determine whether the property complied with or violates any law or contains a hazard to health or safety.
(13) Entry upon any property where the entry is expressly or impliedly authorized by law.
(14) Misrepresentation if unintentional.
(15) Theft by another person of money in the employee's official custody, unless the loss was sustained because of the employee's own negligent or wrongful act or omission.
(16) Injury to the property of a person under the jurisdiction and control of the department of correction if the person has not exhausted the administrative remedies and procedures provided by section 7 of this chapter.
(17) Injury to the person or property of a person under supervision of a governmental entity and who is:
(A) on probation; or
(B) assigned to an alcohol and drug services program under IC 12-23, a minimum security release program under IC 11-10-8, a pretrial conditional release program under IC 35-33-8, or a community corrections program under IC 11-12.
(18) Design of a highway (as defined in IC 9-13-2-73), toll road project (as defined in IC 8-15-2-4(4)), tollway (as defined in IC 8-15-3-7), or project (as defined in IC 8-15.7-2-14) if the claimed loss occurs at least twenty (20) years after the public highway, toll road project, tollway, or project was designed or substantially redesigned; except that this subdivision shall not be construed to relieve a responsible governmental entity from the continuing duty to provide and maintain public highways in a reasonably safe condition.
(19) Development, adoption, implementation, operation, maintenance, or use of an enhanced emergency communication system.
(20) Injury to a student or a student's property by an employee of a school corporation if the employee is acting reasonably under a discipline policy adopted under IC 20-33-8-7(b).
(21) An error resulting from or caused by a failure to recognize
the year 1999, 2000, or a subsequent year, including an incorrect
date or incorrect mechanical or electronic interpretation of a date,
that is produced, calculated, or generated by:
(A) a computer;
(B) an information system; or
(C) equipment using microchips;
that is owned or operated by a governmental entity. However, this subdivision does not apply to acts or omissions amounting to gross negligence, willful or wanton misconduct, or intentional misconduct. For purposes of this subdivision, evidence of gross negligence may be established by a party by showing failure of a governmental entity to undertake an effort to review, analyze, remediate, and test its electronic information systems or by showing failure of a governmental entity to abate, upon notice, an electronic information system error that caused damage or loss. However, this subdivision expires June 30, 2003.
(22) An act or omission performed in good faith under the apparent authority of a court order described in IC 35-46-1-15.1 that is invalid, including an arrest or imprisonment related to the enforcement of the court order, if the governmental entity or employee would not have been liable had the court order been valid.
(23) An act taken to investigate or remediate hazardous substances, petroleum, or other pollutants associated with a brownfield (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 initial placement of the hazardous substances, petroleum, or other pollutants on the brownfield.
(b) A governmental entity or an employee of a governmental entity acting within the scope of the employee's employment is liable for a loss resulting from the runoff or discharge of liquids:
(1) from real property that is:
(A) located within the boundaries of the governmental entity;
(B) owned by a person other than the person incurring the loss; and
(C) used for an industrial or a commercial purpose; and
(2) onto the surface of a road, a street, an alley, or another public way;
if the failure of the governmental entity or employee to provide adequate drainage for the liquids constitutes gross negligence,
willful or wanton misconduct, or intentional misconduct.