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Law and Order Code of the Fort McDowell Yavapai Community, Arizona

Adopted by Resolution No. 90-30, July 9, 1990 and subsequently amended. [Includes amendments dated 2000.]

CHAPTER 22 - GENERAL LAW OF TORTS AND TRIBAL TORTS CLAIMS ACT



[Historical Note: Chapter Twenty-two is derived from Ordinance No.98-28 Enacted 4/27/98]


Art. I. In General, §§ 22-1 - 22-99

Art. II. General Law of Torts, §§ 22-100 - 22-399

Art. III. Tribal Torts Claim Act, §§ 22-400 - 22-499

Art. IV. Reserved




ARTICLE I. IN GENERAL

Sec. 22-1. TITLE.

This Chapter shall be known and cited as the General Law of Torts and Tribal Torts Claims Act.


Sec. 22-2. EFFECTIVE DATE.


The effective date of this ordinance shall be 4-27-98. This Ordinance shall affect all lawsuits filed after the effective date. In addition, this Ordinance, except 22.5, 22.6 and 22.8, shall affect any lawsuits pending before the Tribal Court which have not proceeded to trial on or before the effective date of this ordinance.


Sec. 22-3. PURPOSE OF CHAPTER.


The Fort McDowell Yavapai Community hereby adopts rules of law applicable to tort claims against all persons and sets forth specific rules of law applicable to tort claims against the Fort McDowell Yavapai Community and Tribal Employees. This Chapter codifies existing Tribal law and custom as it applies to civil tort claims.


Sec. 22-4. DEFINITIONS.


As used in this Chapter, the following words and phrases shall have the meanings given to them in this section unless the context clearly indicates otherwise.
  1. Act means acts and omissions.

  2. Assumption of the Risk means knowingly accepting the risks and dangers associated with any act.

  3. Contributory Negligence means the negligence of a plaintiff which is a contributing cause which cooperates with the negligence of the defendant in causing the plaintiff's injury.

  4. Comparative Negligence means negligence is measured in terms of percentage, and any damages allowed shall be diminished in proportion to the amount of negligence attributable to the person for whose injury, damage or death recovery is sought.

  5. Contribution means a right that exists in favor of a tortfeasor against whom a judgment is rendered who has paid more than his pro rata share of the common liability from other tortfeasors whose negligence contributed to the injury, but his total recovery is limited to the amount paid by him in excess of his pro rata share.

  6. Defendant means the person against whom a claim is made in a lawsuit and includes counterdefendants and crossdefendants.

  7. Duty exists when a person is legally required to conduct himself in a particular manner at the risk that if he does not do so he may be liable to another to whom the duty is owed for injury suffered by such other person.

  8. Exemplar Damages means damages awarded to a plaintiff over and above what will barely compensate him for his property loss, where wrong done him was aggravated by circumstances of violence, oppression, malice, fraud, or wanton and wicked conduct on the part of defendant.

  9. Fault means the failure to fulfill a legal duty. It includes, but is not limited to, acts proximately causing or substantively contributing to injury or damages sustained by a person, and includes intentional acts, negligence in all of its degrees, comparative negligence, contributory negligence, assumption of risk, strict liability, breach of express or implied warranty of product, products liability, and misuse, modification or abuse of a product.

  10. Gross Negligence means conduct which involves negligence plus knowledge of facts which would lead a reasonable person to realize: (1) that the conduct creates an unreasonable risk of physical harm to another or to the actor, and (2) that such risk of physical harm is substantially greater than that which is necessary to make the actor's conduct negligent. Gross negligence of an actor requires a reckless disregard for the safety of the actor or others.

  11. Injury means the invasion of any legally protected interest of a person or a loss of any kind to a person. Injury includes death, personal injury or other injury to a person, damage to or loss of property or any other injury that a person may suffer that is actionable.

  12. Intentional Tort means torts where the actor desires to cause the consequences of his act, or where the actor knows or should know that the consequences are substantially certain to result from the act.

  13. Invitee means either a public invitee or a business visitor. A public invitee is a person who is invited to enter and remain on land as a member of the public for a purpose for which the land is held open to the public. A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.

  14. Joint Liability means liability that is owed to a third party by two or more other parties together. The joint obligator has the right to insist that the co-obligator(s) be joined as a co-defendant with him (i.e. that they be sued together).

  15. Joint and Several Liability means defendants who are responsible together and individually. Joint and Several liability allows the person who has been harmed to sue and recover from both wrongdoers or from either one of the wrongdoers. The plaintiff cannot receive double compensation.

  16. Licensee means a person who comes on to the premises for his own purposes but with the possessor's consent.

  17. Negligence means conduct which falls below the standard established bylaw or custom for the protection of others against unreasonable risk of injury or harm. The standard of conduct to which a person must conform to avoid being negligent is that of a reasonable person under similar circumstances. Negligence includes both acts and omissions.

  18. Negligence Per Se is an act or omission resulting in damage to another which is strictly declared and treated as negligence, because the act or omission is a violation of a particular statute or ordinance.

  19. Non-Member means a person who is not an enrolled member of the Fort McDowell Yavapai Indian Community.

  20. Occurrence means an event, including continuous or repeated exposure to conditions, which results in personal injury, bodily injury, wrongful death or property damage.

  21. Person means any individual, partnership, corporation, association, government or private organization of any kind other than the Fort McDowell Yavapai Indian Community.

  22. Plaintiff means a person who makes a claim against another in a lawsuit and includes counter-plaintiffs and cross-plaintiffs.

  23. Possessor of Land means a person who occupies land or who last occupied land with the intent to control it; or a person who is entitled to immediate occupation of the land, so long as no other person is occupying the land. A Possessor of Land includes, among other persons, renters, lessees, or squatters. Possessor of Land shall not include a Lessor or the Tribe as the Assignor of a land assignment to a tribal member. In the case of a land assignment, the tribal member assignee is considered the Possessor of Land, not the Tribe.

  24. Products Liability means the liability of a manufacturer, distributor or seller of a product for damages for bodily injury, death or property damage caused by or resulting from the manufacture, construction, design, formulation, installation, preparation, assembly, testing, packaging, labeling, sale, use or consumption of any product; the failure to warn or protect against a danger or hazard in the use or misuse of the product; or failure to provide proper instructions for the use or consumption of any product.

  25. Punitive Damages are damages in a tort action having the character of a punishment or a penalty; damages inflicting a punishment or penalty.

  26. Self-Insurance Program means that underlying layer of financial responsibility established by written form instead of insuring against such loss through insurance. In most cases, the party will self-insure up to a certain amount and then cover any loss in excess of the set amount with insurance. Any form of Self-Insurance program for the Tribe must be approved and adopted pursuant to an authorizing resolution of the Tribal Council.

  27. Several Liability means liability separate and distinct from the liability of another to the extent that an independent action may be brought without joinder of others.

  28. Strict Liability means liability without fault arising from an abnormally dangerous condition or activity, and also includes products liability.

  29. Torts includes, but is not limited to, intentional torts, negligent torts, and torts arising in strict liability.

  30. Trespasser means a person who enters or remains upon the land of another without permission or right to do so created by the possessor's consent or otherwise.

  31. Tribal Employee means a person who is an employee, officer, director, servant, or agent of the Tribe. Tribal Employee also includes elected and appointed officials of the Tribe, its boards or commissions, and Tribal volunteers.

  32. Trier of Fact means a judge in a jury waived trial or jury which, in either case, has the exclusive obligation to make findings of fact in contrast to rulings of law which must be made by the judge.

  33. Tortfeasor means a wrong-doer; one who commits or is guilty of a tort.

  34. "Fort McDowell Yavapai Indian Community" or "Tribe" means that federally recognized Indian Tribe organized pursuant to § 16 of the Indian Reorganization Act of 1934, (48 Stat. 984) 25 U.S.C. § 476 et seq. and includes the Tribe, its departments, its employees, servants, agents and attorneys, its enterprises, political subdivisions, departments and its funded programs unless such programs would be subject to the Federal Tort Claims Act.

Sec. 22-5. LIMITATION OF ACTIONS.


The limitations of Actions for torts shall be governed by Chapter 4, Article V of this Code.


Sec. 22-6. SERVICE OF SUMMONS.


Service of the summons and complaint shall be made pursuant to Chapter 5 of this Code.


Sec. 22-7. COSTS.

  1. In the discretion of the Court, costs may be awarded to the successful party in any tort action except as otherwise provided in this section.

  2. Costs may include the reasonable amounts of money actually expended or owed by a party including:

    1. Costs of filing and service of process.

    2. Costs of preserving testimony including depositions and video depositions.

    3. Actual reasonable costs of travel and lodging for necessary witnesses who
      actually appear and testify at trial.

    4. Expert witness fees.

    5. Reasonable attorney's fees.

    6. Any other actual costs reasonable and necessarily incurred by a party.

  3. Costs shall not include attorneys fees in any action where the prevailing party is a party to a contingency fee agreement.

  4. When exercising its discretion in awarding costs under this Section, the Court may consider any or all of the following when awarding costs to a successful party:

    1. The reasonableness and necessity of the cost.

    2. The relative abilities of the parties to pay costs.

    3. The relative merits of each party's position.

    4. The good faith or bad faith efforts of each party in pursuing the action, including the cooperation or non-cooperation of a party in the pre-litigation, discovery and trial phases of the action.

    5. Any other facts the court deems relevant in assessing costs.

  5. No person shall be jailed because he is unable to pay costs awarded against him.

  6. Unless allowed and recoverable under the tribe's Liability Insurance or Self-Insurance Plan, costs and attorney's fees shall not be awarded against the Tribe.

Sec. 22-8. SEVERABILITY.


In the event that any section of this Chapter shall be ruled by a court of competent jurisdiction to be invalid or unconstitutional, the remainder of this Chapter shall continue in full force and effect.

(Sec. 22-9 - 22-99. Reserved.)



ARTICLE II. GENERAL LAW OF TORTS

MISCELLANEOUS PROVISIONS

Sec. 22-100. NEGLIGENCE PER SE; VIOLATION OF ORDINANCE.

A person who violates any Tribal ordinance, regulation or other law governing the conduct of a person is negligent per se whether or not such person has actual knowledge of such Tribal ordinance or law. A person's ignorance of such Tribal ordinance or law shall not be a defense.


Sec. 22-101. NEGLIGENT ENTRUSTMENT OF A MOTOR VEHICLE OR OTHER PROPERTY.


A person who supplies directly or through a third person a motor vehicle or other property for the use of another whom the person knows or has reason to know would be likely, because of said person's youth, inexperience, incompetence, impairment, or otherwise, to use it in a manner involving unreasonable risk of physical harm to said person or others, is subject to liability for the injury or harm resulting.



COMPARATIVE NEGLIGENCE

Sec. 22-102. COMPARATIVE NEGLIGENCE.
  1. Contributory negligence shall not bar a recovery in any tort action by any person or his legal representative to recover damages for negligence resulting in injury or harm to a person or property, provided that the contributory negligence of said person is not more than fifty percent (50%) of the total fault. Any damages allowed shall be diminished in proportion to the amount of negligence attributed to the person recovering.

  2. Assumption of the risk shall not bar a recovery in any tort action by any person or his legal representative to recover damages for negligence resulting in injury or harm to a person or property, provided that the assumption of the risk of said person is not more than fifty percent (50%) of the total fault. Any damages allowed shall be diminished in proportion to the amount of negligence attributed to the person recovering.

  3. If a person's contributory negligence or assumption or risk is more than fifty percent (50%) of the total fault, then that person shall not recover.

  4. The court shall, and when requested by any party shall:

    1. If a jury trial:

      1. direct the jury to find separate special verdicts determining the total amount of damages and the percentage of fault attributable to each actor whether or not a party; and

      2. inform the jury of the consequences of its determination of the percentages of fault; and

      3. inform the jury that in the event that it finds that a plaintiffs contributory negligence or assumption of the risk is more than fifty percent (50%) of the total fault then that person shall not recover and its verdict must be for the defense.

    2. If a trial to the court without a jury: make special findings of fact,determining the total amount of damages and the percentages of fault attributable to each actor whether or not a party. In the event the court finds that a plaintiffs contributory negligence or assumption of the risk is more than fifty percent (50%) of the total fault then that person shall not recover and its finding must be for the defense.

Sec. 22-103. PRO RATA SHARES.


In determining the pro rata share of each party in the entire liability:
  1. Their relative degrees of fault shall be the basis for allocations.

  2. If equity requires, the collective liability of some as a group may constitute a single share.

Sec. 22-104. JOINT AND SEVERAL LIABILITY ABOLISHED; EXCEPTIONS; APPORTIONMENT OF DEGREES OF FAULT; DEFINITIONS.

  1. In any action for personal injury, property damage or wrongful death, the liability of each defendant for damages is several only and is not joint, except as provided in Section 22-104(D). This means that each defendant is liable only for the amount of damages allocated to that defendant in direct proportion to that defendant's percentage of fault. Separate judgment shall be entered in a judgment against the defendant for that amount. To determine the amount of damages to be entered against each defendant, the trier of fact shall multiply the total amount of damages recoverable by the plaintiff by the percentage of each defendant's fault, and that amount is the maximum recoverable against that defendant.

  2. In assessing percentages of fault, the trier of fact (Court or jury) shall consider the fault of all persons who contributed to the alleged injury, death or damage to property, regardless of whether the person was or could have been named as a party to the suit. Negligence or fault of a nonparty may be considered if the plaintiff entered into a settlement agreement with the nonparty or if the defending party gives notice before trial that a nonparty was wholly or partially at fault. Assessments of percentages of fault for nonparties shall be used only as a means for accurately determining the total fault. Assessment of fault against nonparties does not subject any nonparty to liability in this or any other action, and it may not be introduced as evidence of liability in any action against the nonparty.

  3. The relative degrees of fault of the claimant, and the relative degrees of fault of all defendants and nonparties, shall be determined and apportioned as a whole at one time by the trier of fact. If two or more claimants have independent claims, then a separate determination and apportionment of the relative degrees of fault of the respective parties, and any nonparties at fault, shall be made with respect to each of the independent claims.

  4. Joint and several liability only applies if more than one person was acting in concert or if a person was acting as an agent, employee, or servant of another.

Sec. 22-105. RIGHT OF CONTRIBUTION.

  1. A right of contribution shall only be available:

    1. Where more than one person was acting in concert; or

    2. Toxic waste tort cases.

  2. If two or more persons become jointly and severally liable in tort for the same injury to a person or property or for the same wrongful death, there is a right of contribution among them even though judgment has not been recovered against all or any of them.

  3. No tortfeasor shall be compelled to make contribution beyond his own pro rata share of the entire liability.

  4. There shall be no right of contribution against the Tribe or a Tribal Employee acting within the course and scope of his employment.

  5. There shall be no right of contribution in favor of any tortfeasor who the trier of fact finds was grossly negligent or who had intentionally, willfully or wantonly caused or contributed to the injury.

  6. A tortfeasor who enters into a settlement agreement with a claimant is not entitled to recover contribution from another tortfeasor whose liability for the injury is not extinguished by the settlement whether or not the amount paid in the settlement is in excess of what was his pro rata share or what is reasonable. Conversely, a tort feasor who fails to enter into a settlement with a claimant shall not be entitled to a credit for settlement sums paid or promised to a claimant by a settling tortfeasor whether or not the total amounts paid to the claimant in such circumstances exceeds the total verdict or what is reasonable.

  7. Nothing in this section shall be construed to impair any right of indemnity or subrogation under existing law. If one tortfeasor is entitled to indemnity from another, the right of the indemnity obligee is for indemnity and not contribution, and the indemnity obligor is not entitled to contribution from any obligee for any portion of his indemnity obligation.

  8. This section shall not create a right of contribution against any employer or other person who has paid or who is liable for workmen's compensation in connection with an injury or death, unless the employer or other person is subject to direct suit.

Sec. 22-106. CONTRIBUTION; ENFORCEMENT.

  1. Whether or not judgment has been entered in an action against two or more tortfeasors for the same injury or wrongful death, contribution may be enforced by separate action.

  2. If a judgment has been entered in an action against two or more tortfeasors for the same injury or wrongful death, contribution may be enforced in that action by judgment in favor of one defendant against other judgment defendants by motion on notice to all parties to the action.

  3. If there is a judgment for the injury or wrongful death against the tortfeasor seeking contribution, any separate action by him to enforce contribution must be commenced within six (6) months after the judgment has become final by lapse of time for appeal or after final appellate review.

  4. If there is judgment for the injury or wrongful death against the tortfeasor seeking contribution, the right of contribution is barred unless:

    1. The tortfeasor has paid the judgment and has commenced an action for contribution within six (6) months after payment, or

    2. The tortfeasor agreed while the action is pending against him to discharge the common liability (i.e. joint and several liability) and has within six (6) months after the agreement paid the liability and commenced an action for contribution.

  5. The recovery of a judgment for an injury or wrongful death against one tortfeasor does not of itself discharge the other tortfeasors from liability for the injury or wrongful death unless the judgment is satisfied. The satisfaction of the judgment does not impair a right of contribution.

  6. The judgment of the court in determining the liability of the several defendants to the claimant for an injury or wrongful death is binding as among the defendants in determining their right of contribution. If the claimant's case is tried, the trier of fact shall apportion and determine the respective degrees of fault of the defendants to the action.

Sec. 22-107. SETTLEMENT, RELEASE OR COVENANT NOT TO SUE.


If a settlement, release, or a covenant not to sue or not to enforce judgment is given in good faith to one of two or more persons liable in tort for the same injury or the same wrongful death all of the following apply:
  1. It does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms so provide; and

  2. It discharges the tortfeasors to whom it is given from all liability for contribution to any other tortfeasors; and

  3. A tortfeasor who fails to enter into a settlement with a claimant is not entitled to a credit for settlement sums paid or promised to a claimant by a settling tortfeasor.

Sec. 22-108. SCOPE OF CONTRIBUTION AND COMPARATIVE NEGLIGENCE.

  1. Among two or more persons strictly liable in tort, the relative degree of fault of each is the degree to which each contributed to the defect causing injury to the claimant.

  2. In the event that a claimant acts intentionally or is grossly negligent, that claimant shall be presumed to be one hundred percent (100%) at fault for the injury or harm and shall not recover, except as provided in Section 22-108 (C.).

  3. In the event that a claimant and one or more defendants acted intentionally or were grossly negligent, the relative degree of fault is the degree to which those persons who acted intentionally or were grossly negligent contributed to the injury or harm.
(Sec. 22-109 - 22-199. Reserved.)



PREMISES LIABILITY

Sec. 22-201. LIABILITY FOR CONDITION AND USE OF LAND.

The purpose of this section is to outline the duties owed by a possessor of land to trespassers, licensees and invitees. There shall be no other classification or subclassification of a person who enters or remains on land.


Sec. 22-202. DUTY TO TRESPASSERS.


A possessor of land shall not be liable to any trespasser for any injury or harm to that trespasser except where the possessor intentionally injures such trespasser.


Sec. 22-203. DUTY TO LICENSEE.

  1. A possessor of land is subject to liability to licensees for injury to harm caused to them by the possessor's failure to carry on his activities with reasonable care for their safety "if," but only if:

    1. The danger is not open and obvious, or

    2. The possessor should reasonably expect that the licensee will not discover or realize the danger, and the licensee does not know or have reason to know of the possessor's activities and of the risks involved.


  2. A possessor of land is subject to liability for injury or harm caused to a licensee by a condition on the land if, but only if:

    1. The provisions of Section 22.205 do not apply, and

    2. The possessor actually knows of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should reasonably expect that they will not discover or realize the danger, and

    3. The possessor fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition or of the risk involved, and

    4. The condition is not open or obvious and the licensee does not know orhave reason to know of the condition or the risk involved.

Sec. 22-204. DUTY TO INVITEES
.
  1. A possessor of land is subject to liability to his invitees for injury or harm caused to them by his failure to carry on his activities with reasonable care for their safety if, but only if:

    1. The danger is not open and obvious, or

    2. The possessor should reasonably expect that the invitee will not discover or realize the danger, and the invitee does not know or have reason to know of the possessor's activities and of the risks involved.

  2. A possessor of land is subject to liability for injury or harm caused to an invitee by a condition on the land if, but only if:

    1. The provisions of Section 22.205 do not apply, and

    2. The possessor fails to exercise reasonable care to protect invitees against the danger if, but only if: (a) he knows or by the exercise of reasonable care would discover the condition, and should reasonably realize that it involves an unreasonable risk of harm to invitees, and (b) the possessor should expect that invitees will not discover or realize the danger, or will fail to protect themselves against it. Where a warning would be insufficient to make the dangerous condition reasonably safe, the possessor must take further precautions.

  3. A possessor of land is not subject to liability for injury or harm to his invitees if the activities or the condition on the land is open and obvious.

Sec. 22-205. DUTY OF OWNER, LESSEE OR OCCUPANT OF PREMISES TO RECREATIONAL USERS; LIABILITY; DEFINITIONS.

  1. Not withstanding any other section of this Chapter, an owner, lessee or other occupant of premises does not:

    1. Owe any duty to a recreational user to keep the premises safe for such use.

    2. Extend any assurance to a recreational user through the act of givingpermission to enter the premises that the premises are safe for such entry or use.

    3. Incur liability for any injury to persons or property caused by any act of arecreational user.

  2. As used in this section:

    1. "Owner, Lessee or Other Occupant" includes the Tribe.

    2. "Premises" means water courses, lakes, rivers, agricultural, range, mining, forest land, natural land, and any other similar land which the Tribe or any other person makes available to recreational users, with or without a permit, along with any buildings or other structures on such lands.



ARTICLE III. TRIBAL TORTS CLAIM ACT

Sec. 22-401. AUTHORIZATION FOR SUIT.

The Tribe may be sued in the Fort McDowell Yavapai Community Tribal Court only when explicitly authorized by either (1) ordinance or resolution of the Tribal Council, or (2) applicable federal law. The Tribe hereby reaffirms its power of sovereign immunity. The Tribe, its political subdivisions, Boards, Officers and all of its employees acting within the scope of their employment, whether performing governmental or proprietary functions, shall be immune from liability for torts. The Tribe, only to the extent and in the manner provided in this Act, will not raise its governmental immunity against tort actions.


Sec. 22-402. LIMITATION ON THE TRIBE AND ITS INSURANCE CARRIERS RAISING THE DEFENSE OF SOVEREIGN IMMUNITY IN TRIBAL COURT.
  1. The Tribe and its insurance carriers will not raise the defense of sovereign immunity up to the amount that the Tribe is covered by contracts for insurance or up to amounts set by a Self Insurance Program approved by the Tribal Council. For this exception to sovereign immunity to apply, the action must be in the Fort McDowell Yavapai Community Court. This exception to Tribal Sovereign Immunity authorized by this section shall not apply in any other court other than the Fort McDowell Yavapai Community Court. The Tribe expressly reserves the right to raise the defense of Sovereign Immunity for claims 1) in excess of the amounts of Insurance or a Self Insurance Plan, 2) in all courts other than the Fort McDowell Yavapai Community Court and 3) for all claims not covered under the tribe's insurance or self insurance plan.

  2. Except for contracts of insurance issued to the Tribe, as the named insured, any exception to Tribal sovereign immunity and assumption of liability by the Tribe pursuant to this Ordinance does not apply in circumstances where such liability is assumed by any third party, including other governmental bodies or agencies, whether by indemnification agreement or otherwise.

  3. The liability assumed by the Tribe pursuant to this Ordinance shall not extend to any party as a third party beneficiary or otherwise, other than the party(ies) to whom such liability is expressly assumed, and then only to the extent expressly specified.

  4. This section 22-402 is not a waiver of sovereign immunity and does not conflict with Chapter 4, Article VI of this Code. This section merely states that the Tribe shall not raise the defense of sovereign immunity under certain limited circumstances.

Sec. 22-403. LIMITATIONS ON FORUM, DAMAGES AND CLAIMS FOR RELIEF.


The Tribe may be sued only in the Fort McDowell Yavapai Community Tribal Court and only with respect to claimed damages which are within the express coverage, and not excluded from coverage, by either commercial liability insurance contracts carried by the Tribe or an established Tribal self-insurance program, approved and adopted pursuant to the laws of the Tribe. All claims are further subject to the following provisions and limitations.
  1. No judgment, order or award pertaining to any permitted claim under this Chapter shall be for more than the lesser of:

    1. The sum of $250,000 for each individual claimant, but not exceeding the sum of $1,000,000 for each accident or occurrence, or $250,000 for wrongful death: or

    2. The limits of valid and collectable liability insurance policies carried by the Tribe covering such claim or occurrence including such deductible amounts to the extent appropriated by the Tribal Council, nor for more than the amount of coverage provided for each claim or occurrence under established claim reserves as appropriated by the Tribal Council or otherwise established pursuant to any self insured claims program of the Tribal Government, approved and adopted pursuant to the laws of the Tribe or the limitation stated in paragraph A of this section 22-403.

  2. Any such judgement, order or award may only be satisfied pursuant to the express provisions of the policy(ies) of liability insurance or established self-insurance program of the Tribe which is in effect at the time of the claim or occurrence. The Tribe expressly reserves the right to raise Sovereign Immunity for claims or judgments that cannot be satisfied by the Liability Insurance or the Self-Insurance program.

Sec. 22-404. TORT CLAIMS PROCEDURES; 180 DAY NOTICE REQUIREMENT.

  1. Any person who has a claim against the Tribe as authorized by this Chapter or otherwise shall file notice of such claim with the Tribal President and the Tribal Attorney within 80 days after the cause of action accrues. This notice requirement is jurisdictional and any claim which is not filed within 180 days after the cause of action accrued is barred and no action may be maintained thereon.

  2. Such notices shall state the name of each prospective plaintiff, the identity of each prospective defendant, the nature of all claims, a specific description of the claimed injury and the related money damages accruing from such injury, the relief which will be sought, and the correct name, address and telephone number of each prospective plaintiff's attorney or spokesman, if any.

  3. A notice of claim against the Tribe or a Tribal Employee filed pursuant to this Section is deemed denied, sixty (60) days after the filing of the notice unless the claimant is advised of the denial in writing before the expiration of the sixty (60) day period.

  4. No cause of action shall be accepted for filing against the Tribe or any Tribal Employee unless the plaintiff(s) has filed proof of compliance with this Section.

  5. Any person filing a Complaint against the Tribe or a Tribal Employee shall deliver a copy of the Summons and Complaint to the Tribal President and the Tribal Attorney in addition to any other named defendants served pursuant to applicable rules of the Fort McDowell Yavapai Community Rules of Civil Procedure.

  6. In action in which any claim is asserted against the Tribe or a Tribal Employee, upon written demand of the Tribal Attorney made at or before the time of answering, and sent to the opposing party and filed with the Court where the action is pending, the place of trial of any such action shall be changed to the Fort McDowell Yavapai Community Tribal Court.

  7. Not withstanding subsection A, a person under 18 years of age, or of unsound mind or a person who has been judged by a court to be an incompetent person shall file a claim within 270 days after the disability ceases.

Sec. 22-405. TRIBAL GOVERNMENT LIABILITY IN TRIBAL COURT.

  1. Absolute Immunity.

    The Tribe and its Tribal Employees shall not be liable for acts and omissions of its employees constituting:

    1. Policy decisions or the exercise of discretion vested in the Tribe or a Tribal Employee;

    2. Executive, judicial, legislative or administrative action or inaction including but not limited to:

      1. The adoption or failure to adopt a law or policy, or enforcement orthe failure to enforce a law;

      2. Refusal, termination or reduction of benefits under any Tribal assistance program if the Tribe or Tribal Employee is authorized to determine whether or not such benefits should be issued, denied, terminated or reduced;

      3. Discretionary determinations of whether to seek or provide the resources necessary to purchase equipment, to construct or maintain facilities, roads or the like, to hire personnel, or to provide governmental services or any kind;

      4. Plans or designs for construction, maintenance or improvements of Tribally, federally or state owned, controlled or maintained rights-of-way, easements, highways, roads, streets and bridges;

  2. Qualified Immunity.

    Unless a Tribal Employee acting within the scope of his employment intended to cause injury or was grossly negligent, there shall be no exception to the sovereign immunity of the Tribe or Tribal Employees and neither the Tribe nor a Tribal Employees shall be liable for damages alleged to have been caused by the Tribal Employee for actions or omissions normally protected by qualified or conditional immunity, including but not limited to the following events:

    1. Issuance, denial, suspension or revocation of, or the failure or refusal to issue, deny, suspend or revoke any permit, license, certificate, approval, order or similar authorization for which absolute immunity does not apply;

    2. Failure to make an arrest or failure to retain an arrested person in custody;

    3. Any escaping or escaped person or prisoner, a person resisting arrest, or injury by a prisoner to himself or herself, or to any other prisoner;

    4. Probation, parole, furlough or release from confinement of a prisoner or from the terms and conditions of his probation, parole, furlough or release from confinement, or from the revocation of his probation, parole, furlough or release from confinement for which absolute immunity does not apply;

    5. Failure to discover violations of any provisions of law requiring inspections of property;

    6. Failure to respond to a fire or to provide fire fighting services or protection;

    7. Failure to respond to medical emergencies or to provide emergency medical services;

    8. Injuries caused by a contractor's employee or a contractor of the Tribe acting within the scope of the contract. The Qualified immunity provided in this section shall not apply to the contractor or the contractor's employees.

      Nothing in this Section shall be interpreted to grant immunity to a Tribal Employee for individual liability for the full measure of recovery applicable to a person if it is established that the Tribal Employee's conduct was outside of his scope of authority or employment;

      Tribal volunteers acting within the course and scope of their authority or employment shall have the same degree of responsibility for their acts and enjoy the same immunities and defenses as Tribal Employees.

  3. Other Immunities

    The Tribe is not liable and there shall be no exception to the Sovereign Immunity of the Tribe or Tribal Employees for the following events:

    1. Under any theory of Products Liability;

    2. For an injury to the driver of a motor vehicle who is found to be driving while intoxicated or was driving recklessly;

    3. Any claim by a Tribal Employee covered by Worker's Compensation;

    4. Acts of Tribal Employees who a Court determines to be guilty of a criminal offense, unless the Tribe knew of the Tribal employees propensity for that action. This subsection does not apply to acts or omissions arising out of the operation or use of a motor vehicle;

    5. For vicarious liability for injuries or damages resulting from any act of a Tribal Employee unless the Tribal Employee is personally liable. Notwithstanding the foregoing, the Tribe shall not be vicariously liable for the acts of Tribal Employees who act without Tribal authorization or whose acts are otherwise outside or beyond the course and scope of the Tribal Employee's authority or employment;

  4. The Tribe specifically reserves, states and declares:

    1. In addition to the immunity and other defense provided by this Code, the Tribe shall be entitled to any defense which would be available to the Tribe if it was a private entity or to a Tribal member if he/she were a non-member,

    2. The enumeration of the above immunities shall not be construed to waive any other immunities, nor assume any liability except as explicitly provided in this Chapter. Sections 22.402, 22.404 and any other section in this Chapter that limits the tribe's right to raise Sovereign Immunity shall only apply in the Fort McDowell Yavapai Community Court and shall not be construed to limit the use tribe's Sovereign Immunity in any other Court(s).

Sec. 22-406. PUNITIVE AND EXEMPLARY DAMAGES; BAD FAITH DAMAGES.


Neither the Tribe, nor a Tribal Employee acting within the scope of his employment, shall be liable for punitive or exemplary damages, or for damages arising from the tort of bad faith.

(Sec. 22-407 - 22-499. Reserved.)








Ft. McDowell Mohave-Apache Indian Community
P.O. Box 17779 Fountain Hills, Arizona 85269-7779
Phone (602) 837-5121 Fax (602) 837-1630

Resolution No. Ft. McD 98-28


WHEREAS, the Tribal Council of the Fort McDowell Mohave-Apache Community desires to establish a General Law of Torts and Tribal Torts Claim Act for the Community; and

WHEREAS, the General Law of Torts will help set out the legal relationships, responsibilities and duties of persons on the reservation related to the field of tort law; and

WHEREAS,
the Tribal Torts Claim Act provides remedies for persons injured as a result of the tortious conduct of the Tribe while at the same time the Act protects the Tribe against lawsuits of unreasonable types and amounts; and

NOW, THEREFORE, BE IT RESOLVED that the Tribal Council hereby enacts the following General Law of Torts and Tribal Torts Claims Act Ordinance to be codified as Chapter 22, General Law of Torts and Tribal Torts Claims Act, of the Law and Order Code.

CERTIFICATION


Pursuant to the authority contained in Article IV, Sections 1(a) and (I) and Sections 2(d) and (h) of the Constitution and Bylaws of the Fort McDowell Mohave-Apache Indian Community, ratified by the Tribe on October 3, 1936, and approved by the Secretary of the Interior of November 24, 1936, the foregoing Resolution No. Ft.McD 98-28 was adopted on this 27th day of April 1998, at a Community Council Meeting held at the Fort McDowell Mohave Apache Indian Community, at which a quorum of 5 members were present and 0 were absent by a vote of 4 for and 0 opposed and 0 abstained.

Clinton M. Pattea
President

Rozel Duenas
Secretary
Tribal Council

Certified Copy:
Rozelda Duenas
Council Secretary
December 02, 1999

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