House Introduced Bill 4588

HOUSE BILL No. 4588


     April 27, 1999, Introduced by Reps. Shulman, Kukuk, Tabor, Kuipers, Voorhees, Hart, Kowall, Raczkowski, Bisbee, Richner, LaSata and Gosselin and referred to the Committee on Family and Civil Law.


        A bill to amend 1964 PA 170, entitled

   "An act to make uniform the liability of municipal corporations,
   political subdivisions, and the state, its agencies and depart-
   ments, officers, employees, and volunteers thereof, and members
   of certain boards, councils, and task forces when engaged in the
   exercise or discharge of a governmental function, for injuries to
   property and persons; to define and limit this liability; to
   define and limit the liability of the state when engaged in a
   proprietary function; to authorize the purchase of liability
   insurance to protect against loss arising out of this liability;
   to provide for defending certain claims made against public offi-
   cers and paying damages sought or awarded against them; to pro-
   vide for the legal defense of public officers and employees; to
   provide for reimbursement of public officers and employees for
   certain legal expenses; and to repeal certain acts and parts of
   acts,"

   by amending sections 1, 7, and 13 (MCL 691.1401, 691.1407, and

   691.1413), sections 1 and 13 as amended by 1986 PA 175 and sec-

   tion 7 as amended by 1996 PA 143, and by adding section 7a.

               THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 1         Sec. 1.  As used in this act:




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 1         (A) "COMPUTER" MEANS A HIGH-SPEED DATA PROCESSING DEVICE

 2    THAT PERFORMS LOGICAL, ARITHMETIC, OR MEMORY FUNCTIONS BY THE

 3    MANIPULATIONS OF ELECTRONIC OR MAGNETIC IMPULSES AND INCLUDES ALL

 4    INPUT, OUTPUT, PROCESSING, STORAGE, OR COMMUNICATION FACILITIES

 5    THAT ARE CONNECTED OR RELATED TO THE DEVICE.

 6         (B) "COMPUTER DATE FAILURE" MEANS A MALFUNCTION, INCLUDING,

 7    BUT NOT LIMITED TO, THE MALFUNCTION OF AN ELECTRONIC OR MECHANI-

 8    CAL DEVICE OR THE INABILITY OF A COMPUTER, A COMPUTER NETWORK, A

 9    COMPUTER PROGRAM, COMPUTER SOFTWARE, AN EMBEDDED CHIP, OR A COM-

10    PUTER SYSTEM TO ACCURATELY STORE, PROCESS, RECEIVE, OR TRANSMIT

11    DATA, THAT IS CAUSED DIRECTLY OR INDIRECTLY BY THE FAILURE OF A

12    COMPUTER, A COMPUTER NETWORK, A COMPUTER PROGRAM, COMPUTER SOFT-

13    WARE, AN EMBEDDED CHIP, OR A COMPUTER SYSTEM TO ACCURATELY OR

14    PROPERLY RECOGNIZE, CALCULATE, DISPLAY, SORT, OR OTHERWISE PRO-

15    CESS DATES OR TIMES IN THE YEARS 1999 AND 2000 AND BEYOND.

16         (C) "COMPUTER NETWORK" MEANS AN INTERCONNECTION OF 2 OR MORE

17    COMPUTERS OR COMPUTER SYSTEMS BY SATELLITE, MICROWAVE, LINE,

18    CABLE, WIRING, OR OTHER COMMUNICATION MEDIUM WITH THE CAPABILITY

19    TO TRANSMIT INFORMATION AMONG THE COMPUTERS OR COMPUTER SYSTEMS.

20         (D) "COMPUTER PROGRAM" MEANS AN ORDERED SET OF DATA-CODED

21    INSTRUCTIONS OR STATEMENTS THAT WHEN EXECUTED BY A COMPUTER CAUSE

22    THE COMPUTER SYSTEM TO PROCESS DATA OR PERFORM SPECIFIC

23    FUNCTIONS.

24         (E) "COMPUTER SOFTWARE" MEANS A SET OF COMPUTER PROGRAMS,

25    PROCEDURES, AND ASSOCIATED DOCUMENTATION RELATED TO THE OPERATION

26    OF A COMPUTER, COMPUTER SYSTEM, OR COMPUTER NETWORK.





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 1         (F) "COMPUTER SYSTEM" MEANS A COMBINATION OF A COMPUTER OR A

 2    COMPUTER NETWORK WITH THE DOCUMENTATION, COMPUTER SOFTWARE, OR

 3    PHYSICAL FACILITIES SUPPORTING THE COMPUTER OR COMPUTER NETWORK.

 4         (G) "EMBEDDED CHIP" MEANS A SINGLE OR MULTIPLE MICROPROCES-

 5    SOR CHIP THAT OPERATES IN CONJUNCTION WITH SOFTWARE, INCLUDING

 6    SOFTWARE ON THE CHIP ITSELF, AND THAT IN SOME WAY CONTROLS A

 7    DEVICE OR EQUIPMENT, INCLUDING, BUT NOT LIMITED TO, A COMPUTER OR

 8    OTHER ELECTRONIC OR MECHANICAL DEVICE.

 9         (H)  (a)  "Municipal corporation" means  any  A city, vil-

10    lage, township, or charter township, or  any  A combination

11     thereof  OF THESE, when acting jointly.

12         (I)  (b)  "Political subdivision" means  any  A municipal

13    corporation, county, county road commission, township, charter

14    township, school district, community college district, port dis-

15    trict,  or  metropolitan district, OR transportation authority,

16    or  any  A combination  thereof,  OF THESE when acting jointly;

17     , and any  A district or authority authorized by law or formed

18    by 1 or more political subdivisions;  , and any  OR AN agency,

19    department, court, board, or council of a political subdivision.

20         (J)  (c)  "State" means the state of Michigan and its agen-

21    cies, departments, commissions, courts, boards, councils, AND

22    statutorily created task forces  ,  and  shall include  INCLUDES

23    every public university and college of the state  ,  whether

24    established as a constitutional corporation or otherwise.

25         (K)  (d)  "Governmental agency" means the state, A political

26     subdivisions, and  SUBDIVISION, OR A municipal  corporations 

27    CORPORATION.



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 1         (l)  (e)  "Highway" means  every  A public highway, road,

 2    and street  which  THAT is open for public travel and  shall

 3     include  INCLUDES bridges, sidewalks, crosswalks, and culverts on

 4     any  A highway.  The term highway does not include alleys,

 5    trees, and utility poles.

 6         (M)  (f)  "Governmental function" is an activity  which 

 7    THAT is expressly or impliedly mandated or authorized by consti-

 8    tution, statute, local charter or ordinance, or other law.

 9         (N)  (g)  "Volunteer" means an individual who is specifi-

10    cally designated as such and who is acting solely on behalf of a

11    governmental agency.

12         Sec. 7.  (1) Except as otherwise provided in this act,  all

13     governmental agencies shall be  A GOVERNMENTAL AGENCY IS immune

14    from tort liability  in all cases wherein  IF the  government 

15    GOVERNMENTAL agency is engaged in the exercise or discharge of a

16    governmental function.  Except as otherwise provided in this act,

17    this act  shall not be construed as modifying or restricting 

18    DOES NOT MODIFY OR RESTRICT the immunity of the state from tort

19    liability as it existed before July 1, 1965, which immunity is

20    affirmed.

21         (2) Except as otherwise provided in this section, and with-

22    out regard to the discretionary or ministerial nature of the con-

23    duct in question, each officer and employee of a governmental

24    agency, each volunteer acting on behalf of a governmental agency,

25    and each member of a board, council, commission, or statutorily

26    created task force of a governmental agency  shall be  IS immune

27    from tort liability for  injuries to persons or damages  AN



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 1    INJURY TO A PERSON OR DAMAGE to property caused by the officer,

 2    employee, or member while in the course of employment or service

 3    or CAUSED BY THE volunteer while acting on behalf of a governmen-

 4    tal agency if all of the following are met:

 5         (a) The officer, employee, member, or volunteer is acting or

 6    reasonably believes he or she is acting within the scope of his

 7    or her authority.

 8         (b) The governmental agency is engaged in the exercise or

 9    discharge of a governmental function.

10         (c) The officer's, employee's, member's, or volunteer's con-

11    duct does not amount to gross negligence that is the proximate

12    cause of the injury or damage.  As used in this subdivision,

13    "gross negligence" means conduct so reckless as to demonstrate a

14    substantial lack of concern for whether an injury results.

15         (3) Subsection (2)  shall  DOES not  be construed as

16     altering  ALTER the law of intentional torts as it existed before

17    July 7, 1986.

18         (4)  This  EXCEPT AS PROVIDED IN SECTION 7A, THIS act does

19    not grant immunity to a governmental agency with respect to the

20    ownership or operation of a hospital or county medical care

21    facility or to the agents or employees of such hospital or county

22    medical care facility.  As used in this subsection:

23         (a) "County medical care facility" means that term as

24    defined in section 20104 of the public health code,  Act No. 368

25     of the Public Acts of 1978, being section 333.20104 of the

26     Michigan Compiled Laws  1978 PA 368, MCL 333.20104.





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 1         (b) "Hospital" means a facility offering inpatient,

 2    overnight care, and services for observation, diagnosis, and

 3    active treatment of an individual with a medical, surgical,

 4    obstetric, chronic, or rehabilitative condition requiring the

 5    daily direction or supervision of a physician.  The term does not

 6    include a hospital owned or operated by the department of

 7     mental  COMMUNITY health or a hospital operated by the depart-

 8    ment of corrections.

 9         (5)  Judges, legislators  A JUDGE, A LEGISLATOR, and the

10    elective or highest appointive executive  officials  OFFICIAL of

11    all levels of government are immune from tort liability for inju-

12    ries to persons or damages to property  whenever they are  IF HE

13    OR SHE IS acting within the scope of  their  HIS OR HER judicial,

14    legislative, or executive authority.

15         (6) A guardian ad litem is immune from civil liability for

16     injuries to persons or damages  AN INJURY TO A PERSON OR DAMAGE

17    to property  whenever  IF he or she is acting within the scope of

18    his or her authority as guardian ad litem.  This subsection

19    applies to actions filed before, on, or after  the effective date

20     of the amendatory act that added this subsection  MAY 1, 1996.

21         SEC. 7A.  (1) EXCEPT AS PROVIDED IN SECTION 13 AND SUBSEC-

22    TION (3), A POLITICAL SUBDIVISION ENGAGED IN THE EXERCISE OR DIS-

23    CHARGE OF A GOVERNMENTAL FUNCTION IS IMMUNE FROM LIABILITY IN AN

24    ACTION TO RECOVER DAMAGES RESULTING DIRECTLY OR INDIRECTLY FROM A

25    COMPUTER DATE FAILURE, INCLUDING BUT NOT LIMITED TO AN ACTION

26    BASED ON AN ALLEGED FAILURE TO DETECT, DISCLOSE, PREVENT, REPORT





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 1    ON, OR REMEDIATE A COMPUTER DATE FAILURE OR AN ACTION BASED ON

 2    SECTION 2, 3, 5, 6, OR 7.

 3         (2) EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION, AND WITH-

 4    OUT REGARD TO THE DISCRETIONARY OR MINISTERIAL NATURE OF THE CON-

 5    DUCT IN QUESTION, EACH POLITICAL SUBDIVISION OFFICER AND EMPLOY-

 6    EE, EACH VOLUNTEER ACTING ON BEHALF OF A POLITICAL SUBDIVISION,

 7    AND EACH MEMBER OF A POLITICAL SUBDIVISION BOARD, COUNCIL, COM-

 8    MISSION, OR STATUTORILY CREATED TASK FORCE IS IMMUNE FROM LIABIL-

 9    ITY IN AN ACTION TO RECOVER DAMAGES RESULTING DIRECTLY OR INDI-

10    RECTLY FROM A COMPUTER DATE FAILURE, INCLUDING BUT NOT LIMITED TO

11    AN ACTION BASED ON AN ALLEGED FAILURE TO DETECT, DISCLOSE, PRE-

12    VENT, REPORT ON, OR REMEDIATE A COMPUTER DATE FAILURE OR AN

13    ACTION BASED ON SECTION 2, 3, 5, 6, OR 7 IF ALL OF THE FOLLOWING

14    ARE MET:

15         (A) THE INJURY OR DAMAGE IS CAUSED BY THE OFFICER, EMPLOYEE,

16    OR MEMBER WHILE IN THE COURSE OF EMPLOYMENT OR SERVICE OR BY THE

17    VOLUNTEER WHILE ACTING ON BEHALF OF THE POLITICAL SUBDIVISION.

18         (B) THE OFFICER, EMPLOYEE, MEMBER, OR VOLUNTEER IS ACTING OR

19    REASONABLY BELIEVES HE OR SHE IS ACTING WITHIN THE SCOPE OF HIS

20    OR HER AUTHORITY.

21         (C) THE POLITICAL SUBDIVISION IS ENGAGED IN THE EXERCISE OR

22    DISCHARGE OF A GOVERNMENTAL FUNCTION.

23         (D) THE OFFICER'S, EMPLOYEE'S, MEMBER'S, OR VOLUNTEER'S CON-

24    DUCT DOES NOT AMOUNT TO GROSS NEGLIGENCE THAT IS THE PROXIMATE

25    CAUSE OF THE INJURY OR DAMAGE.  AS USED IN THIS SUBDIVISION,

26    "GROSS NEGLIGENCE" MEANS CONDUCT SO RECKLESS AS TO DEMONSTRATE A





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 1    SUBSTANTIAL LACK OF CONCERN FOR WHETHER AN INJURY OR SUBSTANTIAL

 2    DAMAGE RESULTS.

 3         (3) A GOVERNMENTAL AGENCY IS IMMUNE FROM LIABILITY IN AN

 4    ACTION TO RECOVER DAMAGES WITH RESPECT TO PROVIDING MEDICAL CARE

 5    OR TREATMENT TO A PATIENT RESULTING DIRECTLY OR INDIRECTLY FROM A

 6    COMPUTER DATE FAILURE, INCLUDING BUT NOT LIMITED TO AN ACTION

 7    BASED ON AN ALLEGED FAILURE TO DETECT, DISCLOSE, PREVENT, REPORT

 8    ON, OR REMEDIATE A COMPUTER DATE FAILURE OR AN ACTION BASED ON

 9    ANOTHER SECTION OF THIS ACT.

10         (4) WITHOUT REGARD TO THE DISCRETIONARY OR MINISTERIAL

11    NATURE OF THE CONDUCT IN QUESTION, EACH GOVERNMENTAL AGENCY OFFI-

12    CER AND EMPLOYEE, EACH VOLUNTEER ACTING ON BEHALF OF A GOVERNMEN-

13    TAL AGENCY, AND EACH MEMBER OF A GOVERNMENTAL AGENCY BOARD, COUN-

14    CIL, COMMISSION, OR STATUTORILY CREATED TASK FORCE IS IMMUNE FROM

15    LIABILITY IN AN ACTION TO RECOVER DAMAGES WITH RESPECT TO PROVID-

16    ING MEDICAL CARE OR TREATMENT TO A PATIENT RESULTING DIRECTLY OR

17    INDIRECTLY FROM A COMPUTER DATE FAILURE, INCLUDING BUT NOT

18    LIMITED TO AN ACTION BASED ON AN ALLEGED FAILURE TO DETECT, DIS-

19    CLOSE, PREVENT, REPORT ON, OR REMEDIATE A COMPUTER DATE FAILURE

20    OR AN ACTION BASED ON A SECTION OF THIS ACT IF ALL OF THE FOLLOW-

21    ING ARE MET:

22         (A) THE INJURY OR DAMAGE IS CAUSED BY THE OFFICER, EMPLOYEE,

23    OR MEMBER WHILE IN THE COURSE OF EMPLOYMENT OR SERVICE OR BY THE

24    VOLUNTEER WHILE ACTING ON BEHALF OF THE GOVERNMENTAL AGENCY.

25         (B) THE OFFICER, EMPLOYEE, MEMBER, OR VOLUNTEER IS ACTING OR

26    REASONABLY BELIEVES HE OR SHE IS ACTING WITHIN THE SCOPE OF HIS

27    OR HER AUTHORITY.



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 1         (C) THE OFFICER'S, EMPLOYEE'S, MEMBER'S, OR VOLUNTEER'S

 2    CONDUCT DOES NOT AMOUNT TO GROSS NEGLIGENCE THAT IS THE PROXIMATE

 3    CAUSE OF THE INJURY OR DAMAGE.  AS USED IN THIS SUBDIVISION,

 4    "GROSS NEGLIGENCE" MEANS CONDUCT SO RECKLESS AS TO DEMONSTRATE A

 5    SUBSTANTIAL LACK OF CONCERN FOR WHETHER AN INJURY OR SUBSTANTIAL

 6    DAMAGE RESULTS.

 7         (5) THIS SECTION SHALL NOT BE CONSTRUED AS MODIFYING OR

 8    RESTRICTING THE IMMUNITY OF A GOVERNMENTAL AGENCY OTHERWISE PRO-

 9    VIDED IN THIS ACT.  THIS SECTION DOES NOT LIMIT EITHER OF THE

10    FOLLOWING:

11         (A) THE AUTHORITY OF A POLITICAL SUBDIVISION TO ENTER INTO

12    AN AGREEMENT THAT WAIVES OR LIMITS ITS IMMUNITY DESCRIBED IN SUB-

13    SECTION (1) AND THAT CONTAINS PROVISIONS THE POLITICAL SUBDIVI-

14    SION FINDS APPROPRIATE ON THE ISSUE OF ITS LIABILITY, DAMAGES, OR

15    BOTH FOR COMPUTER DATE FAILURE.

16         (B) THE AUTHORITY OF A GOVERNMENTAL AGENCY TO ENTER INTO AN

17    AGREEMENT THAT WAIVES OR LIMITS ITS IMMUNITY DESCRIBED IN SUBSEC-

18    TION (3) AND THAT CONTAINS PROVISIONS THE GOVERNMENTAL AGENCY

19    FINDS APPROPRIATE ON THE ISSUE OF ITS LIABILITY, DAMAGES, OR BOTH

20    FOR COMPUTER DATE FAILURE.

21         Sec. 13.  The  EXCEPT AS PROVIDED IN SECTION 7A WITH

22    RESPECT TO PROVIDING MEDICAL CARE OR TREATMENT TO A PATIENT, THE

23    immunity of the governmental agency  shall  DOES not apply to

24    actions to recover for bodily injury or property damage arising

25    out of the performance of a proprietary function as defined in

26    this section.  Proprietary function  shall mean any  MEANS AN

27    activity  which  THAT is conducted primarily for the purpose of



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 1    producing a pecuniary profit for the governmental agency,

 2    excluding, however,  any  AN activity normally supported by taxes

 3    or fees.  No  AN action shall NOT be brought against the govern-

 4    mental agency for injury or property damage arising out of the

 5    operation of proprietary function, except for injury or loss suf-

 6    fered on or after July 1, 1965.












































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