(a) Except as set forth in subsection (k) hereof, nothing contained herein shall be deemed to modify the existing liability of the City of Chardon under R.C. § 2744.02, if any, and R.C. § 723.01.
(b) This section shall have uniform application to all persons injured within the City of Chardon by Chardon's actions or by those of its agents or employees, be the injured party a resident or nonresident, domiciliary or nondomiciliary, all in accordance with Article II, Section 26 of the Ohio Constitution.
(c) Nothing contained herein shall be deemed to constitute limitation upon a claim for wrongful death under Article I, Section 19(a) of the Ohio Constitution.
(d) Nothing contained herein shall be deemed to supersede, or continue in full force and effect beyond the effective date of, any legislation passed by the legislature of the State of Ohio and signed into law by the governor regarding the general subject of limitations upon municipal liability, limitations of damages, and/or reinstatement, in whole or in part, of sovereign immunity.
(e) For any and all legislative actions, policies, or omissions of the Council of the City of Chardon, or administrative actions, policies or omissions of its boards and/or commissions, as well as the actions of any employee or agent of the City of Chardon in implementing such actions or policies, the City of Chardon, its Council members, board or commission members, employees, and agents implementing the same, shall be absolutely immune from suit and liability in tort, whether such acts or omissions be intentional or negligent, if they are done in the performance or nonperformance of the City's municipal powers, duties or responsibilities.
(f) The City of Chardon, its agents or employees are absolutely immune from liability if the agent employee is engaged in the performance of a judicial, quasi-judicial, prosecutorial or quasi- legislative function.
(g) The City of Chardon, its agents or employees are immune from liability if the conduct of the employee which gave rise to the claim of liability was required or authorized by law, or if the employee in good faith reasonably believed the conduct to be required or authorized by law.
(h) The City of Chardon and the employee shall be immune from liability if the action or failure to act by an employee which gave rise to a claim of liability is within the employee’s discretion with respect to policy-making, planning, or enforcement powers by virtue of the duties and responsibilities of the employee’s office or position. The City of Chardon and its employees are immune from liability for any injury to a person, damage to property, or other damages resulting from the exercise of judgment or discretion, including, but not limited to:
(1) The exercise of discretion in determining whether to seek or whether to provide the resources necessary for the purchase of equipment, materials or facilities, the construction of permanent improvements, the hiring or lawful reduction in the force of personnel, and, in general, the provision of adequate services.
(2) The exercise of discretion whether or how to utilize or apply existing resources, including but not limited to those resources allocated or allocable to equipment, materials, facilities, permanent improvements or personnel.
(i) The City of Chardon and the employee are entitled to any other defense available at common law or established by the Ohio Revised Code.
(j) In addition to the immunity provided in subsections (e) through (i) hereof, in the performance of its governmental functions, which shall mean those activities and functions of the City of Chardon declared by its Council to be "governmental", except as otherwise provided by the statutes of the State of Ohio, the City, its employees and agents shall be absolutely immune from suit and liability. "Governmental functions" as defined by this Council, shall include the provision or nonprovision of all police and fire services; the issuance, approval or rejection of all licenses and permits; the design, construction or reconstruction of any and all public improvements; the provision or nonprovision of inspection services of any and all kinds, including the approval of plans for the construction of buildings and structures and the inspection thereof; the construction, reconstruction, repair, renovation, maintenance and operation of buildings used by the City of Chardon in performing government functions; the design, construction, reconstruction, renovation, repair, and maintenance and operation of all publicly held property, including but not limited to public parks and cemeteries; the erection or nonerection of any and all traffic signs and/or traffic control devices; the design, construction, reconstruction, renovation, repair, maintenance and operation of any and all Municipal streets, water, sanitary sewers and other public utilities; and the enforcement or nonenforcement of any and all laws, ordinances or resolutions, administrative rules, or other written policies, customs or practices of the City.
(k) The City of Chardon shall be liable to respond in damages to the extent not heretofore excluded and exempted, if so found by a Court of competent jurisdiction, upon trial thereof, or by way of a legislatively authorized and approved settlement, on account of injury to a person or persons or damage to property, only as provided, and to the extent provided, in this section:
(1) The City, its agents or employees, shall be liable to respond to damages, to the extent set forth in subsection (k)(3) hereof, for personal injury to persons or damage to property, caused by the negligent operation of any motor vehicle by its employees upon the public roads, highways or streets of the City, or elsewhere, when the employees are engaged within the scope of their employment and authority, except where such injuries are otherwise exempted from liability under R.C. § 701.02.
(2) The City, its agents or employees shall be liable to respond in damages, to the extent set forth in subsection (k)(3) hereof, for all other claims or demands for injury to persons or property not otherwise exempted in subsections (e) through (i).
(3) The maximum liability of the Municipality shall, for all causes to which the City is liable to respond, be limited to the sum of two hundred fifty thousand dollars ($250,000) per injured party, for all injuries and damages; provided, however, that should the City have liability insurance in effect in a larger amount, as may legislatively be determined by Council of the City of Chardon to be available within the existing budgetary resources of the City, taking into account all other known and reasonably anticipated fiscal needs for the provision of governmental services, including but not limited to basic services for police, fire and public safety for the general health, welfare and convenience of its citizens, then the City shall be liable to respond to the full extent of its coverage to any such injured party or parties. In no event shall the responsibility of the City, its agents or employees to respond in damages exceed its then existent insurance coverage, or the sum of two hundred fifty thousand dollars ($250,000) per injured party, whichever is greater.
(l) No action for damages shall be brought against the City of Chardon or its employees unless the claim upon which it is based has been presented as provided herein:
(1) A written claim with respect to an injury to person or damage to property shall be presented to the City of Chardon within 180 days after the personal injury, property damage or death giving rise to the alleged cause of action occurred, by filing the claim with the Clerk of Council. The claim shall contain all of the following:
A. The name and address of the claimant;
B. The address to which the person representing the claim desires notices to be sent;
C. The date, place and other circumstances of the occurrence which gave rise to the claim asserted;
D. A general description of the injury, damage or loss incurred so far as it may be known at the time of presentation of the claim; and
E. The name of the political subdivision, and the name or names, if known, of its employees or other persons, causing or contributing to the injury or loss.
(2) If the written claim required by this section is not filed within the time provided by this section, the City of Chardon, in an action filed against it may interpose a plea that the claim has not been filed or has not been timely filed, and the failure to file the claim within the time provided by this section is a bar to the action.
(m) Except as may otherwise be statutorily established, an action against the City of Chardon or any employee of the City of Chardon arising out of an injury to person or damage to property, or any cause of action arising from such personal injury or property damage, or any other civil action for money, damages, whether brought as an original action, a cross-claim, a counter-claim, a third-party claim, or as a claim for subrogation, shall be brought within two years after the cause of action for the personal injury or property damage, or other damages arose, or within any applicable shorter period for bringing the action provided by the Ohio Revised Code.
(n) Except as otherwise expressly mandated by the Ohio Revised Code, in an action against the City of Chardon or its employees based on liability under these provisions:
(1) No interest shall accrue prior to the entry of judgment;
(2) No punitive or exemplary damages shall be awarded; and
(3) No damages shall be awarded for pain and suffering resulting from any injury.
(4) If an injured party receives or is entitled to receive benefits for the injuries allegedly incurred from a policy or policies of insurance or any other source other than a joint tort feasor, such benefits shall be disclosed to the court and the amount thereof which duplicates any benefit contained in the award shall be deducted from any award against the City of Chardon, its agents, or its employees recovered by such an injured party. Nothing in this subsection shall be construed to limit the rights of a beneficiary under a life insurance policy. No insurer or other person is entitled to bring an action under a subrogation provision in an insurance or other contract against the City of Chardon with respect to such benefits.
(o) No property, whether real or personal, or moneys, accounts, deposits, or investments of the City of Chardon are subject to a levy of execution or judicial sale or attachment to satisfy a judgment for damages rendered against the City of Chardon regardless of whether liability is based on these provisions, other provisions of the Ohio Revised Code, or the common law. Uninsured judgments shall be paid from funds appropriated for that purpose, and if sufficient funds are not currently appropriated for the payment of judgments, the Finance Director shall certify the amount of any unpaid judgments to the Taxing Authority for inclusion in the next succeeding budget and annual appropriation measure and payment in the next succeeding fiscal year as provided by R.C. § 5705.08, unless any such unpaid judgment is to be paid from the proceeds of bonds issued pursuant to the Ohio Revised Code or pursuant to annual installments authorized by the Ohio Revised Code.
(p) At the option of the City of Chardon, uninsured judgments for liability based on these provisions may be paid in equal annual installments over a period not to exceed seven years, subject to the payment of interest at the legal rate.
(q) The City of Chardon may defend and may indemnify, in whole or in part, its Council members, board or commission members, agents or employees for the costs of suit and judgments rendered, whether or not the action is brought under these provisions. Amount expended in the defense of or to indemnify its Council members, board of commission members, agents or employees shall be from funds appropriated for this purpose. The defense or indemnity allowed herein is discretionary and no action or appeal of any kind shall be brought by any person, including the employee or a taxpayer, with respect to the City of Chardon's decision whether to indemnify, or with respect to the amount and circumstances of the indemnification.
(r) The provisions of this section shall operate independently and the partial invalidity of any section or part thereof, as declared by a court of competent jurisdiction, shall not affect the remaining portions hereof which shall continue in full force and effect.
(Ord. 1020. Passed 11-7-85.)