To repeal sections 537.600 and 537.610, RSMo 1994, relating to civil liability, and to enact in lieu thereof four new sections relating to the same subject.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF MISSOURI, AS FOLLOWS:

     Section A. Sections 537.600 and 537.610, RSMo 1994, are repealed and four new sections enacted in lieu thereof, to be known as sections 537.600, 537.605, 537.610 and 537.615, to read as follows:

     537.600. 1. Such sovereign or governmental tort immunity as existed at common law in this state prior to September 12, 1977, except to the extent waived, abrogated or modified by statutes in effect prior to that date, shall remain in full force and effect[; except that, the immunity of the public entity from liability and suit for compensatory damages for negligent acts or omissions is hereby expressly waived in the following instances:].

     2. Pursuant to the prerogative of the general assembly to declare the public policy of this state in matters concerning liability in tort of this state, the general assembly declares that prior to September 12, 1977, there was no governmental or sovereign immunity for, and no limitation on causes of action arising out of, proprietary functions of municipalities or municipal corporations, and that policy is hereby reaffirmed and declared to remain in full force and effect. Such was the original legislative intent of subsection 1 of this section and any decision subsequent to August 13, 1978, holding to the contrary, erroneously interprets the law and public policy of this state.

     3. Nothing in this act shall be construed to create sovereign immunity on behalf of any public entity nor impose any limitations on recovery or liability of any public entity where such immunity or limitation did not exist at common law prior to September 12, 1977. This act shall be construed so as to effectuate the legislative intent of creating additional waivers of sovereign immunity in addition to liability provided by the common law and other applicable statutes in order to compensate each individual for damages or injuries which the acts or omissions of a public entity, or its employees, cause or contribute to cause.

     4. In addition to any liability imposed by the common law, and in addition to any waiver, abrogation, or modification of sovereign immunity provided by other statutes, all of which shall remain in full force and effect, the immunity of a public entity from liability and suit for compensatory damages for negligent acts or omissions is hereby expressly waived in the following instances:

     (1) Injuries [directly resulting from] caused by the negligent acts or omissions by public employees arising out of the operation of motor vehicles or motorized vehicles within the course of their employment;

     (2) Injuries caused by the condition of a public entity's property if the plaintiff establishes that:

     (a) The property was in dangerous condition at the time of the injury[,];

     (b) That the injury [directly resulted from] was caused by the dangerous condition[,];

     (c) That the dangerous condition created a reasonably foreseeable risk of harm of the kind of injury which was incurred[,]; and

     (d) That either a negligent or wrongful act or omission of an employee of the public entity within the course of his employment created the dangerous condition or a public entity had actual or constructive notice of the dangerous condition in sufficient time prior to the injury to have taken measures to protect against the dangerous condition.

In any action under this subdivision wherein a plaintiff alleges that he was damaged by the negligent, defective or dangerous design of a highway or road, which was designed and constructed prior to September 12, 1977, the public entity shall be entitled to a defense which shall be a complete bar to recovery whenever the public entity can prove by a preponderance of the evidence that the alleged negligent, defective, or dangerous design reasonably complied with highway and road design standards generally accepted at the time the road or highway was designed and constructed.

     [2.] 5. The express waiver of sovereign immunity in the instances specified in subdivisions (1) and (2) of subsection [1] 4 of this section are absolute waivers of sovereign immunity in all cases within such situations whether or not the public entity was functioning in a governmental or proprietary capacity and whether or not the public entity is covered by [a] liability insurance for tort.

     [3.] 6. The term "public entity" as used in this section shall include any multi-state compact agency created by a compact formed between this state and any other state which has been approved by the Congress of the United States. Sovereign immunity, if any, is waived for the proprietary functions of such multi-state compact agencies as of the date that the Congress of the United States approved any such multi-state compact.

     [4.] 7. Pursuant to the prerogative of the general assembly to declare the public policy of the state in matters concerning liability in tort for public entities, the general assembly declares that prior to September 12, 1977, there was no sovereign or governmental immunity for the proprietary functions of multi-state compact agencies operating pursuant to the provisions of sections 70.370 to 70.440, RSMo, and 238.030 to 238.110, RSMo, including functions such as the operation of motor vehicles and the maintenance of property, involved in the operation of a public transit or public transportation system, and that policy is hereby reaffirmed and declared to remain in effect.

     [5.] 8. Any court decision dated subsequent to August 13, 1978, holding to the contrary of subsection [4] 7 of this section erroneously interprets the law and the public policy of this state, and any claimant alleging tort liability under such circumstances for an occurrence within five years prior to February 17, 1988, shall in addition to the time allowed by the applicable statutes of limitation or limitation of appeal, have up to one year after July 14, 1989, to file or refile an action against such public entity and may recover damages imposed by the common law of this state as for any other person alleged to have caused similar damages under similar circumstances.

     537.605. 1. Pursuant to the prerogative of the general assembly to declare the public policy of this state in matters concerning liability in tort for public entities, the general assembly hereby declares that nothing in this act indicates any intent of the legislature to create sovereign immunity where it never had existed historically. The general assembly declares that it is and has been the law of this state throughout its history that a municipality, municipal corporation, or other public entity which engages in a proprietary function is not entitled to sovereign immunity. The general assembly hereby declares that there is no valid reason to permit a municipality, municipal corporation, or other public entity engaged in an activity in furtherance of a proprietary function to escape liability for damages caused to another because of negligence notwithstanding the improvidently decided case of Wollard v. City of Kansas City. Municipalities, municipal corporations, and other public entities shall be liable for damages caused by the negligent or wrongful act or omission of any employees while engaged within the scope of their employment under circumstances where the municipality, municipal corporation or other public entity is engaged in an activity in furtherance of a proprietary function, if a private person would be liable under the laws of this state.

     2. For purposes of this section, and for purposes of guidance of the appellate courts of this state, subject to further refinement and explication by the appellate courts under particular circumstances, a "governmental" function is a function performed for the common good of all under the police power of this state in the interest of public health, safety, and welfare.

     3. For purposes of this section, and for purposes of guidance of the appellate courts of this state, subject to further refinement and explication by the appellate courts under particular circumstances, a "proprietary" function is a function performed by a municipality, a municipal corporation, or other public entity for the private emolument or convenience of such a public entity or for those citizens it serves, or an activity performed for the special benefit or profit for the public entity as a corporate entity or for the citizens it serves, or an activity in competition with private enterprise.

     4. The general assembly of this state recognizes that a municipality, a municipal corporation, or other public entity may perform both proprietary functions and governmental functions. The question of whether a municipality, municipal corporation, or other public entity performed a governmental function or proprietary function in a given case shall be determined in accordance with the principles set forth in subsections 2 and 3 of this section.

     5. The general assembly hereby recognizes the following activities of a municipality, a municipal corporation, or other public entity as governmental functions for which there is waiver of sovereign immunity of that public entity only to the extent provided in subsection 4 of section 537.600 or as otherwise provided in this act, or as otherwise provided by other statutory waivers, modifications, or abrogations:

     (1) Police protection;

     (2) Fire protection;

     (3) Location and placement of traffic control devices and street lights;

     (4) Provision of health care;

     (5) Operation of a dam or reservoir;

     (6) Provision of public education.

     6. The general assembly recognizes the following activities of a municipality, a municipal corporation, or other public entity as proprietary functions for which there is not, and never has been, sovereign immunity:

     (1) Construction, repair and maintenance of buildings and other structures;

     (2) Construction and operation of a water system;

     (3) Operation of a daycare center;

     (4) Operation of a utility;

     (5) Repair and maintenance of traffic control devices and street lights;

     (6) Maintenance and repair of streets and sidewalks;

     (7) Operation of a radio station.

     537.610. 1. The commissioner of administration, through the purchasing division, and the governing body of each political subdivision of this state, notwithstanding any other provision of law, may purchase liability insurance for any tort claims[,] made against the state or the political subdivision, but, in tort claims for which sovereign immunity is waived under subsection 4 of section 537.600, the maximum amount of such coverage shall not exceed [one] two million dollars for all claims arising out of a single occurrence and shall not exceed [one] five hundred thousand dollars for any one person in a single accident or occurrence, except for those claims governed by the provisions of the Missouri workers' compensation law, chapter 287, RSMo, and no amount in excess of the above limits shall be awarded or settled upon. [Sovereign immunity for the state of Missouri and its political subdivisions is waived only to the maximum amount of and only for the purposes covered by such policy of insurance purchased pursuant to the provisions of this section and in such amount and for such purposes provided in any self-insurance plan duly adopted by the governing body of any political subdivision of the state.]

     2. The liability of the state and its public entities on claims [within the scope of sections 537.600 to 537.650,] for which sovereign immunity is waived under subsection 4 of section 537.600, shall not exceed [one] two million dollars for all claims arising out of a single accident or occurrence and shall not exceed [one] five hundred thousand dollars for any one person in a single accident or occurrence, except for those claims governed by the provisions of the Missouri workers' compensation law, chapter 287, RSMo.

     3. No award for damages on any claim against a public entity within the scope of sections 537.600 to 537.650, shall include punitive or exemplary damages.

     4. On claims for which sovereign immunity is waived under subsection 4 of section 537.600, if the amount awarded to or settled upon multiple claimants exceeds [one] two million dollars, any party may apply to any circuit court to apportion to each claimant his proper share of the total amount limited by subsection 1 of this section. The share apportioned each claimant shall be in the proportion that the ratio of the award or settlement made to him bears to the aggregate awards and settlements for all claims arising out of the accident or occurrence, but the share shall not exceed [one] five hundred thousand dollars.

     5. In any action involving a public entity to which the limitations on the amount of liability under this act apply, such limitations shall not affect pleading, voir dire, evidence, argument, the determination of damages by a jury, or the assessments of relative percentages of fault, if applicable. After determination of damages by the jury in such an action and any assessment of percentages of relative fault, the court shall enter judgment based on the jury findings subject to the limitations of liability under this act applicable to such public entity. In addition, the court may award court costs and prejudgment interest if appropriate as otherwise provided by law.

     537.615. 1. It is hereby declared to be the public policy of this state that, where a public entity has obtained liability insurance or otherwise required any person or entity to obtain liability insurance covering any tortious conduct of such public entity or any of its employees, full protection under such policy shall be afforded and available to such public entity, its employees, and any victim of such tortious conduct. It is further declared to be contrary to the public policy of this state for any public entity or insurer on its behalf, or on behalf of any of its employees, to interpose a defense of sovereign immunity, official immunity, or the public duty doctrine, in whole or in part, under circumstances which would effectively nullify all or any portion of the coverage under such policy of insurance for which a premium has been paid.

     2. Without limiting any other waiver of sovereign immunity provided in this act, and without limiting the liability of any public entity as otherwise provided at common law or under any other statutes, any immunity of this state and any other public entity is waived for any other tortious conduct of any such entity or its employees for those purposes covered and to the amount of coverage under any policy of liability insurance or any self-insurance plan duly adopted by the governing body of any such public entity, despite the fact that the tortious conduct may have occurred during the performance of a governmental function, official act or public duty. In any such case, the insurer shall be substituted as a party defendant in place of any such public entity or its employees, shall stand in place thereof, and judgment shall be rendered accordingly.