Chapter 12 - Government Tort Liability
Chapter 12 - Government Tort Liability
As used in this chapter:
(1) “Computer-based system: includes any computer or other information technology system, and any electronic device that controls, operates, monitors, or assists in the operation or functioning of equipment, machinery, plant, or a device using an embedded or installed microprocessor or chip.
(2) “Employees of the government” includes officers and employees of any government agency, and persons acting in behalf of a government agency in an official capacity, temporarily, whether with or without compensation.
(3) “Government agency or America Samoa Government” includes without limitation the Legislative, Judicial and Executive branches, including their respective departments, offices, agencies, authorities, boards or commissions but do not include any contractor with the government.
(4) “Government computer system” means a computer-based system owned or operated by or on behalf of the American Samoa Government.
(5) “Y-2K compliant” means, that the system accurately processes date and time data, including but not limited to, calculating, comparing, projecting, and sequencing from, into, and between the twentieth and twenty-first centuries and the years 1999 and 2000 and beyond, and leap year calculations”.
(6) “Y-2K error” means the failure of a computer-based system to accurately store, display, transmit, receive, process, calculate, compare, or sequence date and time data from, into, or between the twentieth and twenty-first centuries, the years 1999 and 2000 and beyond, and leap year calculations.”
(a) The government is liable, except as otherwise provided in this chapter, in the same manner and to the same extent as a private individual under like circumstances, but is not liable for interest prior to judgment or for punitive damages, except that in a case wherein death is caused and the law of the place where the act or omission complained of occurred provides, or has been construed to provide, for damages only punitive in nature, the government is liable for actual or compensatory damages, measured by the pecuniary injuries resulting from such death to the persons respectively for whose benefit the action was brought.
(b) The provisions of this chapter do not apply to:
(1) any claim based upon act or omission of an employee of the government exercising due care in the execution of a statute or regulation, whether such statute or regulation is valid;
(2) any claim based upon the exercise or performance of, or the failure to exercise or perform, a discretionary function or duty on the part of an officer or employee, whether or not the discretion involved is abused;
(3) any claim regarding the assessment or collection of any tax or customs duty, or the detention of any goods or merchandise, by any law officer, customs or tax officer, or any other law enforcement officer;
(4) any claim for which a remedy is provided elsewhere in the laws of the government;
(5) any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit or interference with contract rights;
(6) any claim arising in a foreign country.
(c) Action under this section may not be instituted for any sum in excess of the amount of the claim presented to the Attorney General under 43.1205, except where the increased amount is based upon newly discovered evidence not reasonably discoverable at the time of presenting the claim to the Attorney General, or upon allegation and proof of intervening facts, relating to the amount of the claim.
A tort claim against the government shall be forever barred unless an action on it is begun within 2 years after the claim accrues.
(a) An action may not be instituted upon a claim against the government for money damages for damage to or loss of property, or personal injury or death, caused by the negligent or wrongful act or omission of any employee of the government while acting within the scope of his office or employment unless the claimant has first presented the claim to the Attorney General and his claim has been finally denied by the Attorney General in writing, notice of the denial sent to claimant by certified or registered mail. The failure of the Attorney General to make a final disposition of a claim within 3 months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for the purposes of this section.
(b) The Attorney General shall, in accordance with regulations prescribed by the Governor, consider and determine, compromise or settle any claim for money damages against the government for damage to or loss of property, or personal injury or death, caused by the negligent or wrongful act or omission of any employee of a government agency while acting within the scope of his office or employment, under circumstances where the government, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.
Subject to the provisions of this chapter relating to civil actions on tort claims against the government, any award, compromise, settlement or determination by the Attorney General shall be final and conclusive on all officers of the government, except when procured by means of fraud.
The judgment in an action, or the payment of a claim by the Attorney General, under this chapter shall constitute a complete bar to any action by the claimant, by reason of the same subject matter, against the employee of the government whose act or omission gave rise to the claim.
Disposition of any claim by the Attorney General is not competent evidence of liability or amount of damages.
(a) The Trial Division of the High Court shall have exclusive jurisdiction of civil actions on claims against the government accruing on or after the effective date of this chapter, for money damages, for damage to or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the government while acting within the scope of his office or employment, under circumstances where the government, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.
(b) The jurisdiction conferred by this section includes jurisdiction of any setoff, counterclaim or other claim or demand whatever on the part of the government against any plaintiff commencing an action under this section.
The Attorney General or his designee may arbitrate, compromise or settle any claim cognizable under this chapter, after the commencement of an action thereon.
(a) The remedy by suit against the government as provided by this chapter for damage to or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the government while acting within the scope of his office or employment, shall hereafter be exclusive of any other civil action or proceeding by reason of the same subject matter against the employee whose act or omission gave rise to the claim, or his estate.
(b) The Attorney General shall defend any civil action or proceeding brought in American Samoa against any employee of the government, or his estate, for any such damage or injury. The employee against whom such civil action or proceeding is brought shall deliver within such time after date of service or knowledge of service as determined by the Attorney General, all process served upon him or an attested true copy thereof to his immediate superior and that person shall promptly furnish copies of the pleadings and process therein to the Attorney General.
(c) The Attorney General may compromise or settle any claim asserted in such civil action or proceeding in the manner provided in 43.1210 and with the same effect.
(a) When the Attorney General has allowed or settled a claim against the government under the provisions of this chapter, the Treasurer shall pay any such claim or judgment which does not exceed the sum of $25,000 in connection with any claim or judgment for personal injury or death, or which does not exceed the sum of $5,000 in connection with any claim or judgment for damage to or loss of property. The Treasurer shall pay any judgment against the government immediately from the fund created herein. Payment shall be made from a fund which shall be appropriated by the Legislature each fiscal year in the amount of no less than $100,000 for the payment of awards, compromises, settlements or judgments under this chapter. The said amount shall be submitted for appropriations under the budget of the department of legal affairs.
(b) When the fund authorized in subsection (a) above is exhausted the attorney general shall forward legislation to the Legislature at its next regular or special session to appropriate funds for the payment of the settled claims or judgments in excess of the funds. The Treasurer is authorized to pay a claim or judgment up to such amount as may be appropriated therefor by the Legislature.
(c) If any claim is allowed, settlement made or judgment rendered in excess of the amount for which payment is authorized by subsection (a), the Governor shall forward legislation appropriating funds for the payment of such amount to the Legislature, at its next regular session, for action. The Treasurer is authorized to pay such amount as may be appropriated there-for by the Legislature.
No attorney may charge, demand, receive or collect for services rendered, fees in excess of 25 percent of any judgment rendered pursuant to this chapter, or in excess of 20 percent of any award, compromise, or settlement made by the Attorney General pursuant to this chapter.
(a) The liability provisions of this chapter shall not be applied to allow for any claim arising out of or based upon any failure of or error produced, calculated, or generated by a government computer system as a result of the system not being Y-2K compliant, regardless of the cause for the system not being Y-2K compliant.
(b) Nothing in this chapter shall be deemed to provide immunity or release from liability to any person who:
(1) Deliberately tampers with a government computer system for the purpose of preventing it from being Y-2K complaint; causing the system to produce, calculate, or generate a Y-2K error; provided, however, that the immunity or release from liability shall remain where the Y-2K error arises out of to a test performed to determine whether a government computer system will produce, calculate, or generate a Y-2K error; or
(2) receives and fails to immediately return a benefit which the person is not legally entitled to arising out of or based upon any failure of or error produced, calculated, or generated by a government computer system as a result of the system’s not being Y-2K complaint, which benefit was provided to the person as a result of a Y-2K error produced, calculated, or generated by a government computer system.
No action, including, without limitation, any action for declaratory or injunctive relief, may be brought against the American Samoa Government or a government employee, arising out of or based upon any failure of or error produced, calculated, or generated by a government computer system as a result of the system’s not being Y-2K compliant, regardless of the cause for the system’s not being Y-2K compliant.
Nothing in this chapter shall be deemed to prevent the American Samoa Government, an agency, a board, or a government employee, from taking steps to prevent or remedy any failure of or a Y-2K error produced, calculated, or generated by a government computer system as a result of the system’s not being Y-2K compliant, once the failure or error has been verified.
Nothing in this act is intended to affect the indemnity and defense coverage rights and obligations under any contract of insurance.
If any provision of this act, or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the act which can be given effect without the invalid provision or application, and to this end the provisions of this act are severable.
If any portion of this act is found to be preempted by federal law or regulation, the remainder shall remain in full force and effect to the fullest extent consistent with the preemption.