Definition of Government Employee for Tort Liability Purposes
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Any person who is not an elected or appointed official or a member of a board, agency or commission shall not be considered an employee of a governmental entity for purposes of this chapter unless the court specifically finds that all of the following elements exist:
The governmental entity itself selected and engaged the person in question to perform services;
The governmental entity itself is liable for the payment of compensation for the performance of such services and the person receives all of such person's compensation directly from the payroll department of the governmental entity in question;
The person receives the same benefits as all other employees of the governmental entity in question including retirement benefits and the eligibility to participate in insurance programs;
The person acts under the control and direction of the governmental entity not only as to the result to be accomplished but as to the means and details by which the result is accomplished; and
The person is entitled to the same job protection system and rules, such as civil service or grievance procedures, as are other persons employed by the governmental entity in question.
A governmental entity's reservation of the right to approve employment or terminate employment by any contract, agreement or other means or such entity's ability to control or direct a person not otherwise in the regular employ of such entity shall not operate to make a person an employee of such entity for the purpose of the immunity granted by this chapter unless such person otherwise qualifies as an employee according to this section.
No governmental entity may extend the immunity granted by this chapter to independent contractors or other persons or entities by contract, agreement or other means, nor shall the doctrine of borrowed servants operate to make any person a governmental entity employee for the purpose of immunity who does not otherwise meet all of the elements set out in this section.
A regular member of a voluntary or auxiliary firefighting, police or emergency assistance organization of a governmental entity shall be considered to be an employee of that governmental entity for purposes of this chapter without regard to the elements set forth in subsection (a).
Persons who are employed in part-time, seasonal, or probationary positions by a governmental entity shall not be disqualified by subdivision (a)(3) or (a)(5) from the immunity granted by this chapter if they receive the same benefits or are subject to the same job protection system and rules as other persons employed by that government in comparable part-time, seasonal, or probationary positions.
Agreements between governmental entities entered into pursuant to the Interlocal Cooperation Act, title 12, chapter 9, or as otherwise duly authorized by law, may confer or determine the status of an employee for purposes of this chapter on persons without regard to the elements set forth in subsection (a). Such agreements may provide, but are not, limited to, agreements that an employee of a governmental entity, including, but not limited to, police officers shall be assigned to another governmental entity to serve a particular purpose. The agreement may provide which of the governmental entities shall be liable for the acts of such person who shall continue to be considered as an employee for purposes of this chapter.
Notwithstanding any provision of this chapter to the contrary, non-governmental independent contractors or other persons or entities that contract with or enter into any agreements with the regional transportation authority, as defined and created in title 64, chapter 8, for the provision of commuter rail transit services, facilities, or functions upon a rail line or rail line right-of-way owned and maintained by a governmental entity shall be granted limited tort exposure under this chapter. This grant of limited tort exposure shall be provided only when the non-governmental independent contractors or other persons or entities are providing by contract or agreement the rail transit services, facilities, or functions that title 64, chapter 8 authorizes the regional transportation authority to perform.
In performing or providing such rail transit services, facilities, or functions, the non-governmental independent contractors or other persons or entities are deemed to be the functional equivalent of the regional transportation authority. They are performing or providing these rail transit services, facilities, or functions in the stead of the regional transportation authority and by such are fulfilling a public purpose that is authorized to be performed by the regional transportation authority. The regional transportation authority shall enter into such contracts or agreements because it has been determined by the board of the regional transportation authority to be more cost effective to contract or enter into an agreement for the rail transit services, facilities, or functions. When the regional transportation authority's independent contractor or other person or entity that provides these rail transit services, facilities, or functions is deemed to be the functional equivalent of the regional transportation authority as provided for in this subsection (g), then the regional transportation authority's contracting party or party to the agreement shall have limited tort exposure as long as the regional transportation authority's contracting party or party to the agreement was performing rail transit services, facilities or functions within the scope of work and during the normal course of work of the contract or agreement when the accident occurred. The regional transportation authority's contracting party or party to the agreement will not be afforded any limits to its tort exposure for gross negligence in the performance of the contract or agreement.
For any rail transit accident, occurrence, or act, the limits of tort exposure for the regional transportation authority's contracting party or party to the agreement shall be two million dollars ($2,000,000) for bodily injury or death of any one (1) person in any one (1) accident, occurrence or act, and thirty million dollars ($30,000,000) for bodily injury or death of all persons in any one (1) accident, occurrence, or act arising or that occurred during that time frame. No tort liability limits shall be granted to the non-governmental contractor or other persons or entities that contract with or enter into any agreement with the regional transportation authority for injury to or destruction of property in any accident, occurrence, or act. The regional transportation authority shall maintain, or cause to be maintained, a self insurance retention fund in a minimum amount of one million dollars ($1,000,000) up to an amount not to exceed two million dollars ($2,000,000), which shall be utilized as a first fund source for any payment of a tort claim arising from any rail transit accident, occurrence or act that results in bodily injury or death to one (1) or more persons.
The limits of liability prescribed under subdivision (g)(1) shall not apply to any for-profit owners of rail lines or rail line rights-of-way. As a matter of public policy, the general assembly declares and deems the operation of the regional transportation authority's commuter rail train to be a public purpose, a public and governmental function and a matter of public necessity.