CHAPTER 124

FORMERLY

HOUSE BILL NO. 523

AS AMENDED BY HOUSE AMENDMENT NO. 1

AN ACT TO AMEND TITLE 10, CHAPTER 40 OF THE DELAWARE CODE BY ADDING NEW PROVISIONS TO THE TORT CLAIMS ACT REESTABLISHING THE PRINCIPLE OF SOVEREIGN IMMUNITY FOR COUNTIES AND MUNICIPALITIES THROUGHOUT THE STATE OF DELAWARE.

WHEREAS, the Courts of the State of Delaware have recently reversed precedent and have pronounced that the counties and certain municipalities of the State of Delaware no longer are protected by the Constitutional defense of sovereign immunity; and

WHEREAS, the provision of vital local governmental services is thereby placed in substantial jeopardy by the Courts' decisions; and

WHEREAS, the cost of insurance, when obtainable, has reached proportions unanticipated by local government as a result of the multiplicity of lawsuits filed against local governments in recent years.

NOW, THEREFORE:

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (Two-thirds of all members elected to each House thereof concurring therein):

Section 1. Amend Chapter 40, Title 10, Delaware Code, by denominating its current provisions, Sections 4001 through 4005, inclusive, as "Subchapter I., State Tort Claims".

Section 2. Amend Chapter 40, Title 10, Delaware Code, by adding thereto a new Subchapter II., entitled "County and Municipal Tort Claims", to read as follows:

"SUBCHAPTER II. COUNTY AND MUNICIPAL TORT CLAIMS §4010. Definitions

As used in this subchapter, unless the context otherwise indicates, the following words shall have the following meanings:

(a) 'Employee'. 'Employee' means a person acting on behalf of a governmental entity in any official capacity, whether temporarily or permanently, and whether with or without compensation from local, state or federal funds, including elected or appointed officials, volunteer firefighters, and rescue squad members where the rescue squad receives full or partial financial support from political subdivisions or from the State of Delaware, but the term 'employee' shall not mean a person or other legal entity aeting in the capacity of an independent contractor under contract to the governmental entity.

(b) 'Governmental Entity'. 'Governmental Entity' means any municipality, town, county, administrative entity or instrumentality created pursuant to Title 22, Chapter 8 or Title 9 of the Delaware Code, any municipality created by a special act of the Delaware General Assembly, any housing authority created pursuant to Title 31, Chapter 43 and any parking authority created pursuant to Title 22, Chapter 5 of the Delaware Code, and all registered volunteer fire companies and volunteer rescue squads.

54011. Immunity from Suit

(a) 'Immunity'. Except as otherwise expressly provided by statute, all governmental entities and their employees shall be immune from suit on any and all tort claims seeking recovery of damages. That a governmental entity has the power to sue or be sued, whether appearing in its charter or statutory enablement,

shall not create or be interpreted as a waiver of the immunity granted in this subchapter.

(b) 'Examples'. Notwithstanding 54012, of this Chapter, a governmental entity shall not be liable for any damage claim which results from:

(1) The undertaking or failure to undertake any legislative act, including but not limited to, the adoption or failure to adopt any statute, charter, ordinance, order, regulation, resolution or resolve.

(2) The undertaking or failure to undertake any judicial or quasi-judicial act, including but not limited to, granting, granting with conditions, refusal to grant or revocation of any license, permit, order or other administrative approval or denial.

(3) The performance of failure to exercise or perform a discretionary function or duty, whether or not the discretion be abused and whether or not the statute, charter, ordinance, order, resolution, regulation, or resolve under which the discretionary function or duty is performed is valid or invalid.

(4) The decision not to provide communications, heat, light, water, electricity or solid or liquid waste collection, disposal or treatment services.

(5) The discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalines, toxic chemicals, liquids or gases, waste material or other irritants, contaminants or pollutants into or upon land, the atmosphere or any water course or body of water, except as provided In 54012 (c) of this Chapter.

(6) Any defect, lack of repair or lack of sufficient railing in any highway, town way, sidewalk, parking area, causeway, bridge, airport runway or taxiway, including appurtenances necessary for the control of such ways including but not limited to street signs, traffic lights and controls, parking meters, and guardrails.

Paragraphs 1 through 6 of this subsection to which immunity applies, are cited as examples and shall not be interpreted to limit the general immunity provided by this section.

(c) 'Personal Liability and Immunity'. An employee may be personally liable for acts or omissions causing property damage, bodily Injury, or death in Instances in which his or her governmental entity is immune under this section, but only for those acts which were not within the scope of employment or which were performed with wanton negligence or willful and malicious intent.

§4012. Exceptions to Immunity

A governmental entity shall be exposed to liability for its negligent acts or omissions causing property damage, bodily injury or death In the following instances:

(a) In its ownership, maintenance of use of any motor vehicle, special mobile equipment, trailer, aircraft or other machinery or equipment, whether mobile or stationary.

(b) In the construction, operation, or maintenance of any public building or the appurtenances thereto, except as to historic sites or buildings, structures, facilities or equipment designed for use primarily by the public in connection with public outdoor recreation.

(c) In the sudden and accidental discharge, dispersal, release, or escape of smoke, vapors, soot, fumes, acids, alkalines, and toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon land, the atmosphere or any water course or body of water.

§4013. Limitation on Damages

(a) 'Limit Established'. In any action for damages permitted by this subchapter, the claim for and award of damages, including costs, against both a political subdivision and its employees shall not exceed $300,000 for any and all claims arising out of a single occurrence.

(a) 'Procedures'. Any governmental entity may settle claims filed against it pursuant to S4012, of this Chapter, in accordance with procedures duly promulgated by its governing body.

(a) 'Notice of Claim' Any political subdivision may enact a notice requirement by ordinance so long as said notice requirement does not bar suit if notice is given within one year of occurrence.

Approved July 5, 1979