KRS § 39A.280 — KY Code / Title V / Chapter 39A / Section 39A.280
39A.280 Nature of disaster and emergency response functions provided by state or local management agency, licensed professional engineer, or licensed architect -- Immunity, exceptions
Status: in_force

39A.280 Nature of disaster and emergency response functions provided by

state or local management agency, licensed professional engineer, or

licensed architect -- Immunity, exceptions.

(1) Disaster and emergency response functions provided by a state or local

emergency management agency, or any emergency management

agency-supervised operating units or personnel officially affiliated with a local

disaster and emergency services organization pursuant to KRS 39B.070, shall

not, in itself, be deemed to be the making of a promise, or the undertaking of a

special duty, towards any person for the services, or any particular level of, or

manner of providing, the services; nor shall the provision of or failure to provide

these services be deemed to create a special relationship or duty towards any

person upon which an action in negligence or other tort might be founded.

Specifically:

(a) The failure to respond to a disaster or other emergency, or to undertake

particular inspections or types of inspections, or to maintain any particular

level of personnel, equipment, or facilities, shall not be a breach of any

duty to persons affected by any disaster or other emergency.

(b) When a state or local emergency management agency, or local

emergency management agency-supervised operating unit officially

affiliated with a local disaster and emergency services organization, does

undertake to respond to a disaster or other emergency, the failure to

provide the same level or manner of service, or equivalent availability or

allocation of resources as may or could be provided, shall not be a breach

of any duty to persons affected by that disaster or other emergency.

(c) A state or local emergency management agency, or local emergency

management agency-supervised operating unit officially affiliated with a

local disaster and emergency services organization shall not have or

assume any duty towards any person to adopt, use, or avoid any

particular strategy or tactic in responding to a disaster or other

emergency.

(d) A state or local emergency management agency, or local emergency

management agency-supervised operating unit officially affiliated with a

local disaster and emergency services organization, in undertaking

disaster and emergency preparedness or prevention activities including

inspections, or in undertaking to respond to a disaster or other

emergency, shall not have voluntarily assumed any special duty with

respect to any risks which were not created or caused by it, nor with

respect to any risks which might have existed even in the absence of that

activity or response, nor shall any person have a right to rely on such an

assumption of duty.

(2) Neither the state nor any political subdivision of the state, nor the agents or

representatives of the state or any of its political subdivisions, shall be liable for

personal injury or property damage sustained by any person appointed or

acting as a volunteer emergency management agency member, or disaster

and emergency services member, or disaster and emergency response worker,

or member of any agency engaged in any emergency management or disaster

and emergency services or disaster and emergency response activity. This

immunity shall not affect the right of any person to receive benefits or

compensation to which the person might otherwise be entitled under the

Workers' Compensation Law, or this chapter, or any pension law, or any Act of

Congress.

(3) Subject to subsection (6) of this section, neither the state nor any political

subdivision of the state nor, except in cases of gross negligence or wanton,

willful, malicious, or intentional misconduct, the employees, agents, or

representatives of the state or any of its political divisions, nor any volunteer or

auxiliary emergency management agency or disaster and emergency services

organization member or disaster and emergency response worker or member

of any agency engaged in any emergency management or disaster and

emergency services or disaster and emergency response activity, complying

with or reasonably attempting to comply with this chapter or any executive

action or administrative regulation promulgated pursuant to the provisions of

this chapter, or other measures enacted by any city or the state, shall be liable

for the death of or injury to persons, or for damage to property, as a result of

that activity.

(4) Decisions of the director, his or her subordinates or employees, a local

emergency management director, or the local director's subordinates or

employees, a rescue chief or the chief's subordinates, concerning the

allocation and assignment of personnel and equipment, and the strategies and

tactics used, shall be the exercise of a discretionary, policy function for which

neither the officer nor the state, county, urban-county, charter county, or city, or

local emergency management agency-supervised operating unit formally

affiliated with a local disaster and emergency services organization, shall be

held liable in the absence of gross negligence or wanton, willful, malicious, or

intentional misconduct, even when those decisions are made rapidly in

response to the exigencies of an emergency.

(5) Any person owning or controlling real estate or other premises who grants a

license or privilege, or otherwise permits the designation or use of the whole or

any part of the real estate or premises for the purpose of sheltering persons

during an actual, impending, mock, or practice disaster or emergency, together

with his or her successors in interest, shall not be civilly liable for negligently

causing the death of, or injury to, any person on or about the real estate or

premises for loss of, or damage to, the property of that person.

(6) Subsection (3) of this section shall apply to a volunteer or auxiliary disaster and

emergency response worker if the worker is enrolled or registered under KRS

39A.356, or with the political subdivision in accordance with the political

subdivision's administrative regulations and as provided in KRS 39F.020.

(7) While engaged in disaster and emergency response activity, volunteers and

auxiliary disaster and emergency response workers enrolled or registered with

a local disaster and emergency service organization or with the division in

accordance with subsection (6) of this section shall have the same degree of

responsibility for their actions and enjoy the same immunities as officers and

employees of the state and its political subdivisions performing similar work,

including the provisions of KRS 12.211, 12.212, and 12.215, allowing the

Attorney General to provide defense of any civil action brought against a

volunteer enrolled or registered due to an act or omission made in the scope

and course of a disaster and emergency response activity.

(8) (a) A licensed professional engineer as defined in KRS 322.010 or an

architect licensed under KRS Chapter 323, who provides architectural,

structural, electrical, mechanical, or other professional services at the

scene of a declared emergency, disaster, or catastrophe, shall not be

liable for any personal injury, wrongful death, property damage, or other

loss of any nature related to the licensed professional engineer's or

licensed architect's acts, errors, or omissions in the performance of the

services carried out:

1. At the request of or with the approval of a federal, state, or local:

a. Emergency management agency official with executive

responsibility in the jurisdiction to coordinate disaster and

emergency response activity;

b. Fire chief or his or her designee; or

c. Building inspection official;

whom the licensed professional engineer or licensed architect

believes to be acting in an official capacity;

2. Within ninety (90) days following the end of the period for the

declared emergency, disaster, or catastrophe. If the emergency is

extended under KRS 39A.090, the ninety (90) days shall run from

the end date of the last extension; and

3. If the professional services arose out of the declared emergency,

disaster, or catastrophe and if the licensed professional engineer or

licensed architect acted as an ordinary reasonably prudent member

of the profession would have acted under the same or similar

circumstances.

(b) Nothing in this subsection shall provide immunity for gross negligence or

wanton, willful, or intentional misconduct.