Session of 2000
HOUSE BILL No. 2738
By Committee on Governmental Organization and
Elections
1-27
9 AN ACT
concerning municipalities; relating to the powers and duties of
10 the governing bodies
thereof; amending K.S.A. 1999 Supp. 75-6104
11 and repealing the
existing section.
12
13 Be it enacted by the Legislature of the
State of Kansas:
14 New Section
1. (a) As used in this section:
15
(1) "Municipality" means any county.
16 (2) "Computer
software" means and includes any program or routine,
17 or any set of one or more programs or
routines, which are used or in-
18 tended for use to cause one or more
computers or pieces of computer
19 related peripheral equipment, or any
combination thereof, to perform a
20 task or set of tasks. "Computer software"
also includes operating and
21 application programs and all related
documentation.
22 (b) Any
municipality which develops or owns software may:
23 (1) Sell, lease,
license, market, or otherwise distribute such computer
24 software for commercial or noncommercial
use to any other public or
25 private entity or individual;
26 (2) obtain and
hold copyrights or trademarks for such computer soft-
27 ware and may enforce its rights pertaining
to such copyrights and trade-
28 marks; and
29 (3) adopt a
licensing fee, royalty, or price structure for computer soft-
30 ware based on any factors the municipality
considers relevant, including
31 but not limited to:
32 (A) The costs of
creating, developing, reproducing, and delivering the
33 computer software;
34 (B) the costs of
obtaining and holding a copyright or trademark for
35 such computer software;
36 (C) the costs of
overhead and labor; and
37 (D) the fair
market value of the computer software.
38 (c) Nothing in
this section shall be construed as limiting the duty of
39 the municipality to comply with the
requirements of the Kansas open
40 records act.
41 (d) Nothing in
this section shall be construed to create an implied
42 warranty against errors, omissions or other
defects in any computer soft-
43 ware developed by a municipality.
2
1 Sec.
2. K.S.A. 1999 Supp. 75-6104 is hereby amended to read as
2 follows: 75-6104. A governmental
entity or an employee acting within the
3 scope of the employee's employment
shall not be liable for damages re-
4 sulting from:
5
(a) Legislative functions, including, but not limited to, the
adoption
6 or failure to adopt any statute,
regulation, ordinance or resolution;
7
(b) judicial function;
8
(c) enforcement of or failure to enforce a law, whether valid
or in-
9 valid, including, but not limited to,
any statute, rule and regulation, or-
10 dinance or resolution;
11 (d) adoption or
enforcement of, or failure to adopt or enforce, any
12 written personnel policy which protects
persons' health or safety unless
13 a duty of care, independent of such policy,
is owed to the specific indi-
14 vidual injured, except that the finder of
fact may consider the failure to
15 comply with any written personnel policy in
determining the question of
16 negligence;
17 (e) any claim
based upon the exercise or performance or the failure
18 to exercise or perform a discretionary
function or duty on the part of a
19 governmental entity or employee, whether or
not the discretion is abused
20 and regardless of the level of discretion
involved;
21 (f) the
assessment or collection of taxes or special assessments;
22 (g) any claim by
an employee of a governmental entity arising from
23 the tortious conduct of another employee of
the same governmental en-
24 tity, if such claim is (1) compensable
pursuant to the Kansas workers
25 compensation act or (2) not compensable
pursuant to the Kansas workers
26 compensation act because the injured
employee was a firemen's relief
27 association member who was exempt from such
act pursuant to K.S.A.
28 44-505d, and amendments thereto, at the
time the claim arose;
29 (h) the
malfunction, destruction or unauthorized removal of any traf-
30 fic or road sign, signal or warning device
unless it is not corrected by the
31 governmental entity responsible within a
reasonable time after actual or
32 constructive notice of such malfunction,
destruction or removal. Nothing
33 herein shall give rise to liability arising
from the act or omission of any
34 governmental entity in placing or removing
any of the above signs, signals
35 or warning devices when such placement or
removal is the result of a
36 discretionary act of the governmental
entity;
37 (i) any claim
which is limited or barred by any other law or which is
38 for injuries or property damage against an
officer, employee or agent
39 where the individual is immune from suit or
damages;
40 (j) any claim
based upon emergency management activities, except
41 that governmental entities shall be liable
for claims to the extent provided
42 in article 9 of chapter 48 of the Kansas
Statutes Annotated;
43 (k) the failure
to make an inspection, or making an inadequate or
3
1 negligent inspection, of any property
other than the property of the gov-
2 ernmental entity, to determine
whether the property complies with or
3 violates any law or rule and
regulation or contains a hazard to public
4 health or safety;
5 (l) snow or
ice conditions or other temporary or natural conditions
6 on any public way or other public
place due to weather conditions, unless
7 the condition is affirmatively caused
by the negligent act of the govern-
8 mental entity;
9 (m) the
plan or design for the construction of or an improvement to
10 public property, either in its original
construction or any improvement
11 thereto, if the plan or design is approved
in advance of the construction
12 or improvement by the governing body of the
governmental entity or
13 some other body or employee exercising
discretionary authority to give
14 such approval and if the plan or design was
prepared in conformity with
15 the generally recognized and prevailing
standards in existence at the time
16 such plan or design was prepared;
17 (n) failure to
provide, or the method of providing, police or fire
18 protection;
19 (o) any claim for
injuries resulting from the use of any public property
20 intended or permitted to be used as a park,
playground or open area for
21 recreational purposes, unless the
governmental entity or an employee
22 thereof is guilty of gross and wanton
negligence proximately causing such
23 injury;
24 (p) the natural
condition of any unimproved public property of the
25 governmental entity;
26 (q) any claim for
injuries resulting from the use or maintenance of a
27 public cemetery owned and operated by a
municipality or an abandoned
28 cemetery, title to which has vested in a
governmental entity pursuant to
29 K.S.A. 17-1366 through 17-1368, and
amendments thereto, unless the
30 governmental entity or an employee thereof
is guilty of gross and wanton
31 negligence proximately causing the
injury;
32 (r) the
existence, in any condition, of a minimum maintenance road,
33 after being properly so declared and signed
as provided in K.S.A. 68-
34 5,102, and amendments thereto;
35 (s) any claim for
damages arising from the performance of community
36 service work other than damages arising
from the operation of a motor
37 vehicle as defined by K.S.A. 40-3103, and
amendments thereto;
38 (t) any claim for
damages arising from the operation of vending ma-
39 chines authorized pursuant to K.S.A. 68-432
or K.S.A. 75-3343a, and
40 amendments thereto;
41 (u) providing,
distributing or selling information from geographic in-
42 formation systems which includes an entire
formula, pattern, compilation,
43 program, device, method, technique,
process, digital database or system
4
1 which electronically records, stores,
reproduces and manipulates by com-
2 puter geographic and factual
information which has been developed in-
3 ternally or provided from other
sources and compiled for use by a public
4 agency, either alone or in
cooperation with other public or private entities;
5 or
6 (v) any
claim arising from providing a juvenile justice program to
7 juvenile offenders, if such juvenile
justice program has contracted with
8 the commissioner of juvenile justice
or with another nonprofit program
9 that has contracted with the
commissioner of juvenile justice.; or
10 (w) any claim
arising from the developing, owning, copyrighting,
11 trademarking, selling, leasing,
licensing, marketing or otherwise distrib-
12 uting of computer software for
commercial or noncommercial use to any
13 other public or private entity or
individual pursuant to section 1, and
14 amendments thereto.
15 The enumeration of
exceptions to liability in this section shall not be
16 construed to be exclusive nor as
legislative intent to waive immunity from
17 liability in the performance or failure to
perform any other act or function
18 of a discretionary nature.
19 Sec. 3. K.S.A. 1999 Supp.
75-6104 is hereby repealed.
20 Sec. 4. This act shall
take effect and be in force from and after its
21 publication in the statute book.