As Introduced

128th General Assembly Regular Session 2009-2010

H. B. No. 121

Representative Evans 

Cosponsors: Representatives Huffman, Mecklenborg, Amstutz, Hagan, Grossman, Harris, Hackett, Stebelton, Brown, Okey, Balderson, Williams, B., Ujvagi, Domenick 

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A BILL

To amend sections 2743.02 and 2744.01 and to enact

1

section 4510.121 of the Revised Code to permit a

2

person who is issued a ticket for operating a

3

motor vehicle other than a commercial motor

4

vehicle with an expired driver's or commercial

5

driver's license to be issued a seven-day field

6

driving permit.

7

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

Section 1. That sections 2743.02 and 2744.01 be amended and	8
section 4510.121 of the Revised Code be enacted to read as	9
follows:	10

Sec. 2743.02.  (A)(1) The state hereby waives its immunity	11
from liability, except as provided for the office of the state	12
fire marshal in division (G)(1) of section 9.60 and division (B)	13
of section 3737.221 of the Revised Code and except as provided in	14
division (I) of this section and subject to division (H) of this	15
section, and consents to be sued, and have its liability	16
determined, in the court of claims created in this chapter in	17
accordance with the same rules of law applicable to suits between	18
private parties, except that the determination of liability is	19
subject to the limitations set forth in this chapter and, in the	20
case of state universities or colleges, in section 3345.40 of the	21
Revised Code, and except as provided in division (A)(2) or (3) of	22
this section. To the extent that the state has previously	23
consented to be sued, this chapter has no applicability.	24

Except in the case of a civil action filed by the state,	25
filing a civil action in the court of claims results in a complete	26
waiver of any cause of action, based on the same act or omission,	27
which the filing party has against any officer or employee, as	28
defined in section 109.36 of the Revised Code. The waiver shall be	29
void if the court determines that the act or omission was	30
manifestly outside the scope of the officer's or employee's office	31
or employment or that the officer or employee acted with malicious	32
purpose, in bad faith, or in a wanton or reckless manner.	33

(2) If a claimant proves in the court of claims that an	34
officer or employee, as defined in section 109.36 of the Revised	35
Code, would have personal liability for the officer's or	36
employee's acts or omissions but for the fact that the officer or	37
employee has personal immunity under section 9.86 of the Revised	38
Code, the state shall be held liable in the court of claims in any	39
action that is timely filed pursuant to section 2743.16 of the	40
Revised Code and that is based upon the acts or omissions.	41

(3)(a) Except as provided in division (A)(3)(b) of this	42
section, the state is immune from liability in any civil action or	43
proceeding involving the performance or nonperformance of a public	44
duty, including the performance or nonperformance of a public duty	45
that is owed by the state in relation to any action of an	46
individual who is committed to the custody of the state.	47

(b) The state immunity provided in division (A)(3)(a) of this	48
section does not apply to any action of the state under	49
circumstances in which a special relationship can be established	50
between the state and an injured party. A special relationship	51
under this division is demonstrated if all of the following	52
elements exist:	53

(i) An assumption by the state, by means of promises or	54
actions, of an affirmative duty to act on behalf of the party who	55
was allegedly injured;	56

(ii) Knowledge on the part of the state's agents that	57
inaction of the state could lead to harm;	58

(iii) Some form of direct contact between the state's agents	59
and the injured party;	60

(iv) The injured party's justifiable reliance on the state's	61
affirmative undertaking.	62

(B) The state hereby waives the immunity from liability of	63
all hospitals owned or operated by one or more political	64
subdivisions and consents for them to be sued, and to have their	65
liability determined, in the court of common pleas, in accordance	66
with the same rules of law applicable to suits between private	67
parties, subject to the limitations set forth in this chapter.	68
This division is also applicable to hospitals owned or operated by	69
political subdivisions which have been determined by the supreme	70
court to be subject to suit prior to July 28, 1975.	71

(C) Any hospital, as defined in section 2305.113 of the	72
Revised Code, may purchase liability insurance covering its	73
operations and activities and its agents, employees, nurses,	74
interns, residents, staff, and members of the governing board and	75
committees, and, whether or not such insurance is purchased, may,	76
to such extent as its governing board considers appropriate,	77
indemnify or agree to indemnify and hold harmless any such person	78
against expense, including attorney's fees, damage, loss, or other	79
liability arising out of, or claimed to have arisen out of, the	80
death, disease, or injury of any person as a result of the	81
negligence, malpractice, or other action or inaction of the	82
indemnified person while acting within the scope of the	83
indemnified person's duties or engaged in activities at the	84
request or direction, or for the benefit, of the hospital. Any	85
hospital electing to indemnify such persons, or to agree to so	86
indemnify, shall reserve such funds as are necessary, in the	87
exercise of sound and prudent actuarial judgment, to cover the	88
potential expense, fees, damage, loss, or other liability. The	89
superintendent of insurance may recommend, or, if such hospital	90
requests the superintendent to do so, the superintendent shall	91
recommend, a specific amount for any period that, in the	92
superintendent's opinion, represents such a judgment. This	93
authority is in addition to any authorization otherwise provided	94
or permitted by law.	95

(D) Recoveries against the state shall be reduced by the	96
aggregate of insurance proceeds, disability award, or other	97
collateral recovery received by the claimant. This division does	98
not apply to civil actions in the court of claims against a state	99
university or college under the circumstances described in section	100
3345.40 of the Revised Code. The collateral benefits provisions of	101
division (B)(2) of that section apply under those circumstances.	102

(E) The only defendant in original actions in the court of	103
claims is the state. The state may file a third-party complaint or	104
counterclaim in any civil action, except a civil action for two	105
thousand five hundred dollars or less, that is filed in the court	106
of claims.	107

(F) A civil action against an officer or employee, as defined	108
in section 109.36 of the Revised Code, that alleges that the	109
officer's or employee's conduct was manifestly outside the scope	110
of the officer's or employee's employment or official	111
responsibilities, or that the officer or employee acted with	112
malicious purpose, in bad faith, or in a wanton or reckless manner	113
shall first be filed against the state in the court of claims,	114
which has exclusive, original jurisdiction to determine,	115
initially, whether the officer or employee is entitled to personal	116
immunity under section 9.86 of the Revised Code and whether the	117
courts of common pleas have jurisdiction over the civil action.	118
The officer or employee may participate in the immunity	119
determination proceeding before the court of claims to determine	120
whether the officer or employee is entitled to personal immunity	121
under section 9.86 of the Revised Code.	122

The filing of a claim against an officer or employee under	123
this division tolls the running of the applicable statute of	124
limitations until the court of claims determines whether the	125
officer or employee is entitled to personal immunity under section	126
9.86 of the Revised Code.	127

(G) Whenever a claim lies against an officer or employee who	128
is a member of the Ohio national guard, and the officer or	129
employee was, at the time of the act or omission complained of,	130
subject to the "Federal Tort Claims Act," 60 Stat. 842 (1946), 28	131
U.S.C. 2671, et seq., then the Federal Tort Claims Act is the	132
exclusive remedy of the claimant and the state has no liability	133
under this section.	134

(H) If an inmate of a state correctional institution has a	135
claim against the state for the loss of or damage to property and	136
the amount claimed does not exceed three hundred dollars, before	137
commencing an action against the state in the court of claims, the	138
inmate shall file a claim for the loss or damage under the rules	139
adopted by the director of rehabilitation and correction pursuant	140
to this division. The inmate shall file the claim within the time	141
allowed for commencement of a civil action under section 2743.16	142
of the Revised Code. If the state admits or compromises the claim,	143
the director shall make payment from a fund designated by the	144
director for that purpose. If the state denies the claim or does	145
not compromise the claim at least sixty days prior to expiration	146
of the time allowed for commencement of a civil action based upon	147
the loss or damage under section 2743.16 of the Revised Code, the	148
inmate may commence an action in the court of claims under this	149
chapter to recover damages for the loss or damage.	150

The director of rehabilitation and correction shall adopt	151
rules pursuant to Chapter 119. of the Revised Code to implement	152
this division.	153

(I) The state is immune from liability in any civil action or	154
proceeding arising from any incident or set of facts or	155
circumstances that involve a person to whom a state highway patrol	156
trooper has issued a seven-day field driving permit under section	157
4510.121 of the Revised Code and that occurs subsequent to such	158
issuance.	159

Sec. 2744.01.  As used in this chapter:

160

(A) "Emergency call" means a call to duty, including, but not	161
limited to, communications from citizens, police dispatches, and	162
personal observations by peace officers of inherently dangerous	163
situations that demand an immediate response on the part of a	164
peace officer.	165

(B) "Employee" means an officer, agent, employee, or servant,	166
whether or not compensated or full-time or part-time, who is	167
authorized to act and is acting within the scope of the officer's,	168
agent's, employee's, or servant's employment for a political	169
subdivision. "Employee" does not include an independent contractor	170
and does not include any individual engaged by a school district	171
pursuant to section 3319.301 of the Revised Code. "Employee"	172
includes any elected or appointed official of a political	173
subdivision. "Employee" also includes a person who has been	174
convicted of or pleaded guilty to a criminal offense and who has	175
been sentenced to perform community service work in a political	176
subdivision whether pursuant to section 2951.02 of the Revised	177
Code or otherwise, and a child who is found to be a delinquent	178
child and who is ordered by a juvenile court pursuant to section	179
2152.19 or 2152.20 of the Revised Code to perform community	180
service or community work in a political subdivision.	181

(C)(1) "Governmental function" means a function of a	182
political subdivision that is specified in division (C)(2) of this	183
section or that satisfies any of the following:	184

(a) A function that is imposed upon the state as an	185
obligation of sovereignty and that is performed by a political	186
subdivision voluntarily or pursuant to legislative requirement;	187

(b) A function that is for the common good of all citizens of	188
the state;	189

(c) A function that promotes or preserves the public peace,	190
health, safety, or welfare; that involves activities that are not	191
engaged in or not customarily engaged in by nongovernmental	192
persons; and that is not specified in division (G)(2) of this	193
section as a proprietary function.	194

(2) A "governmental function" includes, but is not limited	195
to, the following:	196

(a) The provision or nonprovision of police, fire, emergency	197
medical, ambulance, and rescue services or protection;	198

(b) The power to preserve the peace; to prevent and suppress	199
riots, disturbances, and disorderly assemblages; to prevent,	200
mitigate, and clean up releases of oil and hazardous and extremely	201
hazardous substances as defined in section 3750.01 of the Revised	202
Code; and to protect persons and property;	203

(c) The provision of a system of public education;

204

(d) The provision of a free public library system;

205

(e) The regulation of the use of, and the maintenance and	206
repair of, roads, highways, streets, avenues, alleys, sidewalks,	207
bridges, aqueducts, viaducts, and public grounds;	208

(f) Judicial, quasi-judicial, prosecutorial, legislative, and	209
quasi-legislative functions;	210

(g) The construction, reconstruction, repair, renovation,	211
maintenance, and operation of buildings that are used in	212
connection with the performance of a governmental function,	213
including, but not limited to, office buildings and courthouses;	214

(h) The design, construction, reconstruction, renovation,	215
repair, maintenance, and operation of jails, places of juvenile	216
detention, workhouses, or any other detention facility, as defined	217
in section 2921.01 of the Revised Code;	218

(i) The enforcement or nonperformance of any law;

219

(j) The regulation of traffic, and the erection or	220
nonerection of traffic signs, signals, or control devices;	221

(k) The collection and disposal of solid wastes, as defined	222
in section 3734.01 of the Revised Code, including, but not limited	223
to, the operation of solid waste disposal facilities, as	224
"facilities" is defined in that section, and the collection and	225
management of hazardous waste generated by households. As used in	226
division (C)(2)(k) of this section, "hazardous waste generated by	227
households" means solid waste originally generated by individual	228
households that is listed specifically as hazardous waste in or	229
exhibits one or more characteristics of hazardous waste as defined	230
by rules adopted under section 3734.12 of the Revised Code, but	231
that is excluded from regulation as a hazardous waste by those	232
rules.	233

(l) The provision or nonprovision, planning or design,	234
construction, or reconstruction of a public improvement,	235
including, but not limited to, a sewer system;	236

(m) The operation of a job and family services department or	237
agency, including, but not limited to, the provision of assistance	238
to aged and infirm persons and to persons who are indigent;	239

(n) The operation of a health board, department, or agency,	240
including, but not limited to, any statutorily required or	241
permissive program for the provision of immunizations or other	242
inoculations to all or some members of the public, provided that a	243
"governmental function" does not include the supply, manufacture,	244
distribution, or development of any drug or vaccine employed in	245
any such immunization or inoculation program by any supplier,	246
manufacturer, distributor, or developer of the drug or vaccine;	247

(o) The operation of mental health facilities, mental	248
retardation or developmental disabilities facilities, alcohol	249
treatment and control centers, and children's homes or agencies;	250

(p) The provision or nonprovision of inspection services of	251
all types, including, but not limited to, inspections in	252
connection with building, zoning, sanitation, fire, plumbing, and	253
electrical codes, and the taking of actions in connection with	254
those types of codes, including, but not limited to, the approval	255
of plans for the construction of buildings or structures and the	256
issuance or revocation of building permits or stop work orders in	257
connection with buildings or structures;	258

(q) Urban renewal projects and the elimination of slum	259
conditions;	260

(r) Flood control measures;

261

(s) The design, construction, reconstruction, renovation,	262
operation, care, repair, and maintenance of a township cemetery;	263

(t) The issuance of revenue obligations under section 140.06	264
of the Revised Code;	265

(u) The design, construction, reconstruction, renovation,	266
repair, maintenance, and operation of any school athletic	267
facility, school auditorium, or gymnasium or any recreational area	268
or facility, including, but not limited to, any of the following:	269

(i) A park, playground, or playfield;

270

(ii) An indoor recreational facility;

271

(iii) A zoo or zoological park;

272

(iv) A bath, swimming pool, pond, water park, wading pool,	273
wave pool, water slide, or other type of aquatic facility;	274

(v) A golf course;

275

(vi) A bicycle motocross facility or other type of	276
recreational area or facility in which bicycling, skating, skate	277
boarding, or scooter riding is engaged;	278

(vii) A rope course or climbing walls;

279

(viii) An all-purpose vehicle facility in which all-purpose	280
vehicles, as defined in section 4519.01 of the Revised Code, are	281
contained, maintained, or operated for recreational activities.	282

(v) The provision of public defender services by a county or	283
joint county public defender's office pursuant to Chapter 120. of	284
the Revised Code;	285

(w)(i) At any time before regulations prescribed pursuant to	286
49 U.S.C.A 20153 become effective, the designation, establishment,	287
design, construction, implementation, operation, repair, or	288
maintenance of a public road rail crossing in a zone within a	289
municipal corporation in which, by ordinance, the legislative	290
authority of the municipal corporation regulates the sounding of	291
locomotive horns, whistles, or bells;	292

(ii) On and after the effective date of regulations	293
prescribed pursuant to 49 U.S.C.A. 20153, the designation,	294
establishment, design, construction, implementation, operation,	295
repair, or maintenance of a public road rail crossing in such a	296
zone or of a supplementary safety measure, as defined in 49	297
U.S.C.A 20153, at or for a public road rail crossing, if and to	298
the extent that the public road rail crossing is excepted,	299
pursuant to subsection (c) of that section, from the requirement	300
of the regulations prescribed under subsection (b) of that	301
section.	302

(x) Issuance of a seven-day field driving permit under	303
section 4510.121 of the Revised Code by a law enforcement officer	304
employed by a law enforcement agency of a political subdivision;	305

(y) A function that the general assembly mandates a political	306
subdivision to perform.	307

(D) "Law" means any provision of the constitution, statutes,	308
or rules of the United States or of this state; provisions of	309
charters, ordinances, resolutions, and rules of political	310
subdivisions; and written policies adopted by boards of education.	311
When used in connection with the "common law," this definition	312
does not apply.	313

(E) "Motor vehicle" has the same meaning as in section	314
4511.01 of the Revised Code.	315

(F) "Political subdivision" or "subdivision" means a	316
municipal corporation, township, county, school district, or other	317
body corporate and politic responsible for governmental activities	318
in a geographic area smaller than that of the state. "Political	319
subdivision" includes, but is not limited to, a county hospital	320
commission appointed under section 339.14 of the Revised Code,	321
board of hospital commissioners appointed for a municipal hospital	322
under section 749.04 of the Revised Code, board of hospital	323
trustees appointed for a municipal hospital under section 749.22	324
of the Revised Code, regional planning commission created pursuant	325
to section 713.21 of the Revised Code, county planning commission	326
created pursuant to section 713.22 of the Revised Code, joint	327
planning council created pursuant to section 713.231 of the	328
Revised Code, interstate regional planning commission created	329
pursuant to section 713.30 of the Revised Code, port authority	330
created pursuant to section 4582.02 or 4582.26 of the Revised Code	331
or in existence on December 16, 1964, regional council established	332
by political subdivisions pursuant to Chapter 167. of the Revised	333
Code, emergency planning district and joint emergency planning	334
district designated under section 3750.03 of the Revised Code,	335
joint emergency medical services district created pursuant to	336
section 307.052 of the Revised Code, fire and ambulance district	337
created pursuant to section 505.375 of the Revised Code, joint	338
interstate emergency planning district established by an agreement	339
entered into under that section, county solid waste management	340
district and joint solid waste management district established	341
under section 343.01 or 343.012 of the Revised Code, community	342
school established under Chapter 3314. of the Revised Code, the	343
county or counties served by a community-based correctional	344
facility and program or district community-based correctional	345
facility and program established and operated under sections	346
2301.51 to 2301.58 of the Revised Code, a community-based	347
correctional facility and program or district community-based	348
correctional facility and program that is so established and	349
operated, and the facility governing board of a community-based	350
correctional facility and program or district community-based	351
correctional facility and program that is so established and	352
operated.	353

(G)(1) "Proprietary function" means a function of a political	354
subdivision that is specified in division (G)(2) of this section	355
or that satisfies both of the following:	356

(a) The function is not one described in division (C)(1)(a)	357
or (b) of this section and is not one specified in division (C)(2)	358
of this section;	359

(b) The function is one that promotes or preserves the public	360
peace, health, safety, or welfare and that involves activities	361
that are customarily engaged in by nongovernmental persons.	362

(2) A "proprietary function" includes, but is not limited to,	363
the following:	364

(a) The operation of a hospital by one or more political	365
subdivisions;	366

(b) The design, construction, reconstruction, renovation,	367
repair, maintenance, and operation of a public cemetery other than	368
a township cemetery;	369

(c) The establishment, maintenance, and operation of a	370
utility, including, but not limited to, a light, gas, power, or	371
heat plant, a railroad, a busline or other transit company, an	372
airport, and a municipal corporation water supply system;	373

(d) The maintenance, destruction, operation, and upkeep of a	374
sewer system;	375

(e) The operation and control of a public stadium,	376
auditorium, civic or social center, exhibition hall, arts and	377
crafts center, band or orchestra, or off-street parking facility.	378

(H) "Public roads" means public roads, highways, streets,	379
avenues, alleys, and bridges within a political subdivision.	380
"Public roads" does not include berms, shoulders, rights-of-way,	381
or traffic control devices unless the traffic control devices are	382
mandated by the Ohio manual of uniform traffic control devices.	383

(I) "State" means the state of Ohio, including, but not	384
limited to, the general assembly, the supreme court, the offices	385
of all elected state officers, and all departments, boards,	386
offices, commissions, agencies, colleges and universities,	387
institutions, and other instrumentalities of the state of Ohio.	388
"State" does not include political subdivisions.	389

Sec. 4510.121. (A) If a law enforcement officer issues a	390
person a ticket, citation, or summons for a violation of section	391
4510.12 of the Revised Code because the offender was operating a	392
motor vehicle other than a commercial motor vehicle with a	393
driver's or commercial driver's license issued by this state that	394
was expired and the person's driver's or commercial driver's	395
license otherwise has not been suspended or canceled and therefore	396
but for the fact that the person's driver's or commercial driver's	397
license had expired the person's operation of the motor vehicle	398
would not have been in violation of section 4510.12 of the Revised	399
Code, the law enforcement officer shall issue to the person a	400
seven-day field driving permit. The ticket, citation, or summons	401
that the officer issues to the person shall serve as the person's	402
seven-day field driving permit. The law enforcement officer shall	403
make the necessary markings and notations on the ticket, citation,	404
or summons in order to indicate that it is to serve as a seven-day	405
field driving permit for the person listed on the ticket,	406
citation, or summons. The law enforcement officer shall issue the	407
combination ticket, citation, or summons and seven-day field	408
driving permit to the person if the person has not been arrested,	409
the motor vehicle the person was operating at the time of the	410
violation of section 4510.12 of the Revised Code can be lawfully	411
operated on the public roads and is not a commercial motor	412
vehicle, and the person presents to the law enforcement officer	413
valid proof of financial responsibility in a form described in	414
division (G) of section 4509.101 of the Revised Code. The ticket,	415
citation, or summons shall include all language and spaces	416
necessary in order for it to serve as the person's seven-day	417
field driving permit, including spaces in which the law	418
enforcement officer shall enter the date and time of issuance of	419
the permit and the date and time that the permit expires.	420

(B) A person who is issued a seven-day field driving permit	421
under this section may operate a motor vehicle as follows if the	422
person has the permit in the person's possession:	423

(1) During the three hours immediately following the time of	424
issuance of the permit to enable the person to travel directly to	425
the person's residence;	426

(2) During the seven-day period commencing from the time and	427
date of issuance of the permit and prior to issuance by the	428
registrar or a deputy registrar of a driver's or commercial	429
driver's license to the person, the person may travel directly to	430
and from the person's residence and the person's place of	431
employment, but the person shall not operate a motor vehicle in	432
the course of the person's employment;	433

(3) During the seven-day period commencing from the time and	434
date of issuance of the permit, the person may travel to an office	435
of the registrar or a deputy registrar to obtain a driver's or	436
commercial driver's license.	437

(C) Issuance of a seven-day field driving permit to a person	438
does not invalidate, supersede, or otherwise affect in any manner	439
or to any degree any suspension or cancellation of the person's	440
driver's or commercial driver's license that is in effect at the	441
time of issuance of the permit. A person who is issued a seven-day	442
field driving permit under this section shall be deemed to	443
possess a valid driver's license issued by this state only if the	444
person operates a motor vehicle as specified in division (B) of	445
this section and only if the person's driver's or commercial	446
driver's license otherwise has not been suspended or canceled.	447

(D) No state highway patrol trooper or other law enforcement	448
officer shall be personally liable or subject to any suit,	449
judgment, or claim or damages arising from any incident or set of	450
facts or circumstances that involve a person to whom the trooper	451
or officer issued a seven-day field driving permit under section	452
4510.121 of the Revised Code and that occurs subsequent to such	453
issuance.	454

(E) No person shall be issued more than one seven-day field	455
driving permit in any sixty-month period, commencing on the date	456
such a permit is issued.	457

(F) No person who is issued a seven-day field driving permit	458
shall operate a motor vehicle other than as specified in division	459
(B) of this section.	460

(G) If a person who has been issued a seven-day field driving	461
permit under this section submits an application to the registrar	462
or a deputy registrar for a driver's license or commercial	463
driver's license and, on the date of such application, the	464
person's previous driver's or commercial driver's license expired	465
more than forty-eight months prior to the date of the application,	466
the person shall not be issued a driver's or commercial driver's	467
license unless the person pays not only all the applicable fees	468
associated with the issuance of a driver's or commercial driver's	469
license on that date but also all the fees the person would have	470
paid to the registrar or deputy registrar had the person applied	471
for renewal of the person's previous driver's or commercial	472
driver's license on the expiration date of that previous license.	473

(H) Whoever violates division (F) of this section is guilty	474
of a misdemeanor of the first degree.	475

Section 2. That existing sections 2743.02 and 2744.01 of the	476
Revised Code are hereby repealed.	477