Information Maintained by the Office of Code Revision Indiana Legislative Services Agency
 12/05/2008 05:21:31 AM EST
IC 34-13-3
     Chapter 3. Tort Claims Against Governmental Entities and Public Employees

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 any of the following:
        (1) A member of the bureau of motor vehicles commission established under IC 9-15-1-1.
        (2) An employee of the bureau of motor vehicles commission who is employed at a license branch under IC 9-16, except for an employee employed at a license branch operated under a contract 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 the scope of the employee's employment is not liable if a loss results from the following:
        (1) The natural condition of unimproved property.
        (2) The condition of a reservoir, dam, canal, conduit, drain, or similar structure when used by a person for a purpose that is not foreseeable.
        (3) The temporary condition of a public thoroughfare or extreme sport area that results from weather.
        (4) The condition of an unpaved road, trail, or footpath, the purpose of which is to provide access to a recreation or scenic area.
        (5) The design, construction, control, operation, or normal condition of an extreme sport area, if all entrances to the extreme sport area are marked with:
            (A) a set of rules governing the use of the extreme sport area;
            (B) a warning concerning the hazards and dangers associated with the use of the extreme sport area; and
            (C) a statement that the extreme sport area may be used only by persons operating extreme sport equipment.
        This subdivision shall not be construed to relieve a governmental entity from liability for the continuing duty to maintain 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 34-6-2-38 shall be considered as a ministerial act.
        (8) The adoption and enforcement of or failure to adopt or enforce a law (including rules and regulations), unless the act of enforcement constitutes false arrest or false imprisonment.
        (9) An act or omission performed in good faith and without malice under the apparent authority of a statute which is invalid if the employee would not have been liable had the statute been valid.
        (10) The act or omission of anyone other than the governmental entity or the governmental entity's employee.
        (11) 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 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.
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.

IC 34-13-3-4
Limitation on aggregate liability; punitive damages prohibited
     Sec. 4. (a) The combined aggregate liability of all governmental entities and of all public employees, acting within the scope of their employment and not excluded from liability under section 3 of this chapter, 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 of action that accrues before January 1, 2006;

            (B) five hundred thousand dollars ($500,000) for a cause of action that accrues on or after January 1, 2006, and before January 1, 2008; or
            (C) seven hundred thousand dollars ($700,000) for a cause of action that accrues on or after January 1, 2008; and
        (2) for injury to or death of all persons in that occurrence, five million dollars ($5,000,000).
    (b) A governmental entity or an employee of a governmental entity acting within the scope of employment is not liable for punitive 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; judgment against or settlement by governmental entity
     Sec. 5. (a) Civil actions relating to acts taken by a board, a committee, a commission, an authority, or another instrumentality of a governmental entity may be brought only against the board, the committee, the commission, the authority, or the other instrumentality of a governmental entity. A member of a board, a committee, a commission, an authority, or another instrumentality of a governmental entity may not be named as a party in a civil suit that concerns the acts taken by a board, a committee, a commission, an authority, or another instrumentality of a governmental entity where the member was acting within the scope of the member's employment. For the purposes of this subsection, a member of a board, a committee, a commission, an authority, or another instrumentality of a governmental entity is acting within the scope of the member's employment when the member acts as a member of the board, committee, commission, authority, or other instrumentality.
    (b) A judgment rendered with respect to or a settlement made by a governmental entity bars an action by the claimant against an employee, including a member of a board, a committee, a commission, an authority, or another instrumentality of a governmental entity, whose conduct gave rise to the claim resulting in that judgment or settlement. A lawsuit alleging that an employee acted within the scope of the employee's employment bars an action by the claimant against the employee personally. However, if the governmental entity answers that the employee acted outside the scope of the employee's employment, the plaintiff may amend the complaint and sue the employee personally. An amendment to the complaint by the plaintiff under this subsection must be filed not later than one hundred eighty (180) days from the date the answer was filed and may be filed notwithstanding the fact that the statute of limitations has run.
    (c) A lawsuit filed against an employee personally must allege that 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 the allegations.
    (d) This subsection applies when the governmental entity defends or has received proper legal notice and has the opportunity to defend an employee for losses resulting from the employee's acts or omissions. Subject to the provisions of sections 4, 14, 15, and 16 of this chapter, the governmental entity shall pay any judgment of a claim or suit against an employee when the act or omission causing the loss is within the scope of the employee's employment, regardless of whether the employee can or cannot be held personally liable for the loss.
    (e) The governmental entity shall provide counsel for and pay all costs and fees incurred by or on behalf of an employee in defense of a claim or suit for a loss occurring because of acts or omissions within the scope of the employee's employment, regardless of whether the employee can or cannot be held personally liable for the loss.
    (f) This chapter shall not be construed as:
        (1) a waiver of the eleventh amendment to the Constitution of the United States;
        (2) consent by the state of Indiana or its employees to be sued in any federal court; or
        (3) consent to be sued in any state court beyond the boundaries of 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 the attorney general or the state agency involved within two hundred seventy (270) days after the loss occurs. However, if notice to the state agency involved is filed with the wrong state agency, that error does not bar a claim if the claimant reasonably attempts to determine and serve notice on the right state agency.
    (b) The attorney general, by rule adopted under IC 4-22-2, shall prescribe 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 a claim.
    (c) Copies of the claim form prescribed under subsection (b) shall be 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 the department of correction to recover compensation for the loss of the offender's personal property alleged to have occurred during the offender's confinement as a result of an act or omission of the department or any of its agents, former officers, employees, or contractors. 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 filed under subsection (a) and determine the amount due, if any. If the amount due is not more than five thousand dollars ($5,000), the department shall approve the claim for payment and recommend to the office of the attorney general payment under subsection (c). The department shall submit all claims in which the amount due exceeds five thousand dollars ($5,000), with any recommendation the department considers appropriate, to the office of the attorney general. The attorney general, in acting upon the claim, shall consider recommendations of the department to determine whether to deny the claim or recommend the claim to the governor for approval of payment.
    (c) Payment of claims under this section shall be made in the same manner as payment of claims under IC 34-4-16.5-22.
    (d) The department of correction shall adopt rules under IC 4-22-2 necessary 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 claim against 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 management commission 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 failure to file notice with the Indiana political subdivision risk management commission created under IC 27-1-29-5 if the political subdivision was not a member of the political subdivision risk management fund established under IC 27-1-29-10 at the time the act or omission took place.
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 as required in section 6 or 8 of this chapter, the person's claim is barred unless notice is filed within one hundred eighty (180) days after the incapacity 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 the claim is based. The statement must include the circumstances which brought about the loss, the extent of the loss, the time and place the loss occurred, the names of all persons involved if known, the amount of the damages sought, and the residence of the person making the claim at the time of the loss and at the time of filing the notice.
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, the governmental entity shall notify the claimant in writing of its approval or denial of the claim. A claim is denied if the governmental entity fails to approve the claim in its entirety within ninety (90) days, unless the parties have reached a settlement before the 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 this chapter must be in writing and must be delivered in person or by registered 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 governmental entity 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, the governor may compromise or settle a claim or suit brought against the 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, the attorney general:
        (1) shall advise the governor concerning the desirability of compromising or settling a claim or suit brought against the state or its employees;
        (2) shall perfect a compromise or settlement which is made by

the governor;
        (3) shall submit to the governor on or before January 31 of each year 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 employees as required under IC 4-6-2. However, the attorney general may employ other counsel to aid in defending or settling those claims 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, the governing body of a political subdivision may compromise, settle, or defend against a claim or suit brought against the political subdivision 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 a governmental entity may order that governmental entity to:
        (1) appropriate funds for the payment of the judgment if funds are available for that purpose; or
        (2) levy and collect a tax to pay the judgment if there are insufficient 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 rendered against, a governmental entity shall be paid by the governmental entity not later than one hundred eighty (180) days after the date of settlement or judgment, unless there is an appeal, in which case not later than one hundred eighty (180) days after a final decision is rendered.
    (b) If payment is not made within one hundred eighty (180) days after the date of settlement or judgment, the governmental entity is liable for interest from the date of settlement or judgment at an annual rate of six percent (6%). The governmental entity is liable for interest 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 a structured 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 of a board, a committee, a commission, an authority, or another instrumentality of a governmental entity. Any liability insurance so purchased shall be purchased by invitation to and negotiation with providers of insurance and may be purchased with other types of insurance. If such a policy is purchased, the terms of the policy govern the rights and obligations of the political subdivision and the insurer with respect to the investigation, settlement, and defense of claims or suits brought against the political subdivision or its employees covered by the policy. However, the insurer may not enter into a settlement for an amount that exceeds the insurance coverage without the approval of the mayor, if the claim or suit is against a city, or the governing body of any other political subdivision, if the claim or suit is against such political subdivision.
    (b) The state may not purchase insurance to cover the liability of the state or its employees. This subsection does not prohibit any of the following:
        (1) The requiring of contractors to carry insurance.
        (2) The purchase of insurance to cover losses occurring on real property owned by the public employees' retirement fund or the Indiana state teachers' retirement fund.
        (3) The purchase of insurance by a separate body corporate and politic to cover the liability of itself or its employees.
        (4) The purchase of casualty and liability insurance for foster parents (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 abuse of process
     Sec. 21. In any action brought against a governmental entity in tort, the court may allow attorney's fees as part of the costs to the governmental entity prevailing as defendant, if the court finds that plaintiff:
        (1) brought the action on a claim that is frivolous, unreasonable, or groundless;
        (2) continued to litigate the action after plaintiff's claim clearly became frivolous, unreasonable, or groundless; or
        (3) litigated its action in bad faith.
This award of fees does not prevent a governmental entity from bringing an action against the plaintiff for abuse of process arising in whole or in part on the same facts, but the defendant may not recover 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 be treated as political subdivisions:
        (1) A community action agency (as defined in IC 12-14-23-2).
        (2) An individual or corporation rendering public transportation services under a contract with a commuter transportation district created under IC 8-5-15.
        (3) A volunteer fire department (as defined in IC 36-8-12-2) that is 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 be accorded only in relation to a loss that occurs in the course of rendering public transportation services under contract with a commuter 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 political subdivision may compromise or settle a claim or suit by means of a structured settlement under this section.
    (b) A political subdivision may discharge settlement of a claim or suit brought under this chapter by:
        (1) an agreement requiring periodic payments by the political subdivision over a specified number of years;
        (2) the purchase of an annuity;
        (3) by making a "qualified assignment" of the liability of the political 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 exceed the statutory limits set forth in section 4 of this chapter; however, the periodic or annuity payments may exceed these statutory limits. The present value of any periodic payments may be determined by discounting the periodic payments by the same percentage as that found in Moody's Corporate Bond Yield Average Monthly Average Corporates, 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 fund sufficient funds to:
        (1) settle claims and satisfy tort judgments obtained against the state; 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 employing

other counsel to aid in defending or settling claims or civil actions against the state.
As added by P.L.1-1998, SEC.8.

IC 34-13-3-25
Presentation of vouchers and issuance of warrants for appropriations
     Sec. 25. The attorney general shall present vouchers for the items or expenses described in section 24 of this chapter to the auditor of state. The auditor shall issue warrants on the treasury for the amounts presented.
As added by P.L.1-1998, SEC.8.

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