TRIBAL
TORT ORDINANCE
Ordinance No. 2000-002
WHEREAS,
the Susanville Indian Rancheria Gaming Enterprise, d.b.a. Susanville Casino
is a Gaming Operation within the meaning of the tribal-state compact executed
between the Tribe and the State of California; and
WHEREAS,
as a condition of the tribal-state compact, the Susanville Indian Rancheria
has been required by the State to adopt a tort liability ordinance to
resolve patron claims for money damages resulting from intentional or
negligent injuries to persons or property at the Gaming Facility or
in connection with the Tribe's Gaming Operation; and
WHEREAS,
the Susanville Indian Rancheria Tribe [hereinafter the Tribe] is immune
from suit except to the extent that immunity has been explicitly waived
by this Ordinance, federal, or tribal law; and
WHEREAS,
the Tribal Business Council also recognizes that the Tribe relies upon
the Gaming Facility to provide funding to support essential Tribal services
and functions and that unlimited liability could disrupt the provision
of such essential services and functions; and
WHEREAS,
the Tribal Business Council in order to provide an equitable policy,
hereby adopts a Tribal Tort Ordinance which states the expressly limited
circumstances under which a person may file a claim against the Gaming
Operation for injuries; and
WHEREAS,
this Ordinance does not constitute a general waiver of the Tribes' sovereign
immunity. This Ordinance applies only to those activities undertaken
by the Tribe or its employees and that occur at the Gaming Facility
or by the Tribe's Gaming Operation. This Ordinance is intended to permit
only those claims, which are considered actions, which are covered by
the liability insurance of the Tribe. This Ordinance is to be strictly
construed.
NOW,
THEREFORE, BE IT RESOLVED THAT, the following is enacted as the
Susanville Indian Rancheria Tribal Tort Ordinance.
Section 1. Title
This Ordinance
shall be known as the Susanville Indian Rancheria Tribal Tort Ordinance.
Section 2. Definitions
Unless
otherwise required by the context, the following words and phrases shall
be defined as follows:
a. "Gaming
Facility" means the building in which the Tribe's Class III gaming
activities or gaming operations occur, or in which the business records,
receipts, or other funds of the gaming operation are maintained (excluding
offsite facilities primarily dedicated to storage of those records,
and financial institutions), and all rooms, building, and areas, including
parking lots and walkways, a principal purpose of which is to serve
the activities of the Class III provisions of the Tribe's Gaming Operation.
b. "Gaming
Operation" means the Susanville Indian Rancheria Gaming Enterprise,
d.b.a. Susanville Casino, which is the business enterprise that offers
and operates Class III Gaming Activities.
c. "Susanville
Indian Rancheria" means the federally recognized Indian Tribe
of that name.
d. "Susanville
Indian Rancheria Tribal Business Council" means the governing
body of the Susanville Indian Rancheria.
e. "Tribal
Agency" includes the Tribal Business Council, Tribal Development
Committee, and corporations primarily acting as instrumentalities
or agencies of the Susanville Indian Rancheria, but does not include
any contractor with the Susanville Indian Rancheria.
f. "Tort
Claims Board" means the official committee comprised of at least
one tribal member and two managerial employees to be determined by
the Tribal Business Council to specifically oversee the initial stages
of the tort claims process.
g. "Claim"
means a petition for an award under this Ordinance. A claim may be
filed with respect to any injury as defined in this ordinance and
that is expressly covered by the Class III liability insurance of
the Tribe and only to the extent covered by the Class III Gaming insurance
policy.
h. "Person"
means any individual, firm, partnership, corporation, or association.
i. "Dangerous
Condition" means a physical aspect of a facility or the use
thereof that constitutes an unreasonable risk to human health or safety,
that is known to exist or that in the exercise of reasonable care
should have been known to exist and that condition is proximately
caused by the negligent acts or omissions of the Tribe in constructing
or maintaining such facility. For the purposes of this subsection,
a dangerous condition should have been known to exist if it is established
that the condition had existed for such a period of time and was of
such a nature that, in the exercise of reasonable care, such condition
and its dangerous character should have been discovered. A dangerous
condition shall not exist solely because the design of any facility
is inadequate nor due to the mere existence of wind, water, ice or
temperature by itself, or by the mere existence of a natural physical
condition. Nothing in the Section shall preclude an accumulation of
water, snow, or ice from being found to constitute a dangerous condition
when the Tribe fails to use existing means available to it for the
removal of such accumulation and when the Tribe had notice of such
accumulation and reasonable time to act.
j. "Employee"
means a part or full time employee or an agent of the Tribe's Gaming
Operation, when acting during the course and within the scope of their
employment whether with or without compensation. This term includes
officers and directors of the Gaming Facility when they are acting
to fulfill their duties to the Tribe's Gaming Facility. This does
not include agents or representatives of the United States or of the
State of California or any of their political subdivisions or any
official of the Susanville Indian Rancheria Tribe acting in any capacity
other than fulfilling their duties to the Gaming Facility.
k. "Injury"
means death, harm to a person, or damage to or loss of property which,
if inflicted by a person under California State Law or Tribal Law,
would constitute a tort and which is expressly covered by the Class
III Gaming liability insurance of the Tribe without regard to any
deductible amount contained in the Class III Gaming insurance policy.
1. "Award"
means money damages that are payable to compensate for any injury
recognized under this Ordinance.
m. "Actual
Damages" means the ascertainable loss of money or property sustained
as a result of an injury, provided that the Class III Gaming liability
insurance of the Gaming Enterprise without regard to any deductible
amount contained in the Class III insurance policy covers such injury.
Section 3. Effective Date of Ordinance
This Ordinance
shall become effective immediately upon approval by the Tribal Business
Council.
Section 4. Limited Waiver of Sovereign Immunity
a. The
sovereign immunity of the Tribe shall continue except to the extent
that it is expressly waived by this Ordinance. Members of the Tribal
Business Council remain immune from suit for actions taken during
the course and within the scope of their duties as members of the
Tribal Business Council.
b. The
sovereign immunity of the Tribe is waived to the extent of the monetary
policy limits of the Tribe's Class III Gaming liability insurance,
and only in the following instances:
1)
When the injuries alleged are proven to have been proximately caused
by the wrongful or negligent acts of the Tribe or employees of the
Tribe arising out of the performance of their duties during the
course and within the scope of their employment at the tribal Gaming
Facility or the Gaming Operation that are covered within the Tribe's
Class III Gaming insurance policy;
2)
When the injuries alleged are proven to have been proximately caused
by the dangerous condition of any property of the Tribe's Class
III Gaming Facility that are covered within the Tribe's Class III
Gaming insurance policy provided the claimant establishes that the
property was in a dangerous condition and defined by this Ordinance;
Section 5. Limitation on Awards
a. No
rule of law imposing absolute or strict liability shall be applied
in any claim for injuries under this Ordinance.
b. No
award or other judgment imposing punitive, exemplary damages, or attorney's
fees shall be applied in any claim for injuries under this Ordinance.
c. No
award for loss of consortium shall be applied in any claim for injuries
under this Ordinance.
d. No
award for pain and suffering or mental anguish shall be applied except
where such award does not exceed fifty percent of the actual damages
sustained and provided that any such award is expressly covered by
the Class III Gaming liability insurance of the Tribe without regard
to any deductible amount contained in the Class III Gaming insurance
policy.
Section 6. Extent of Liability
In any
claim, the maximum amount of any award under this Ordinance, including
damages, court costs, interest, and any other costs shall be as provided
for by the terms of the Tribe's Class III Gaming insurance policy.
With respect
to claims in excess of the Class III Gaming liability insurance policy
of the Tribe, the Tribe shall be entitled to assert any defense based
upon sovereign immunity which otherwise would have been available to
the Tribe or the employee of the Tribe whose act or omission gave rise
to the claim, as well as any other defenses to which the Tribe is entitled.
Section 7. Notice Requirement
a. A
written notice filed with the Tort Claims Board by the claimant or
the claimant's representative within 180 days after the claim accrues
must precede claims brought under this Ordinance. Claims brought under
this Ordinance shall be deemed to accrue on the date when the injury
is sustained.
b. The
notice shall contain the following:
1)
The name and address of the claimant and the name and address of
the claimant's attorney, if any;
2) A concise
statement of the factual basis of the claim, including the date, time,
place, and circumstances of the act, omission, or condition complained
of;
3)
The name of any employee involved, if known;
4)
A concise statement of the nature and the extent of the injury claimed
to have been suffered;
5)
A statement of the amount of monetary damages that is being requested;
c. When
the claim is one for death by the negligent act or omission, the personal
representative, surviving spouse, or next of kin of the deceased may
present the notice.
Section 8. Disposition by Tort Claims Board Tribal Business Council
as Prerequisite: Evidence
a. Upon
a claimant filing notice with the Tort Claims Board, the Board shall
provide the Tribal Business Council, the tribal attorney, as well
as the Tribe's Class III Gaming insurance carrier a copy of the claim.
The Torts Claim Board shall make an investigation into the alleged
charges. Should a member of the Board have a relationship with the
claimant that is or could be viewed as a conflict of interest, that
Board member shall recuse themself from participating in the investigation.
Upon completion of the investigation, the Board shall file a written
report to the Tribal Business Council with their assessment of the
validity of the claim as well as a recommendation to the Tribal Business
Council as to disposition of the claim. Nothing herein shall preclude
the Tribal Business Council from intervening in this process and having
the matter taken up directly by the Tribal Business Council.
b. Upon
a claimant filing notice with the Tort Claims Board and the Board's
submission of its investigative report to the Tribal Business Council,
the Tribal Business Council may consider, ascertain, adjust, determine,
compromise, and settle any claim for money damages against the Susanville
Indian Rancheria. The Tribe may use arbitration, or other alternate
means of dispute resolution to settle any tort claim against the Tribe.
c. In
the event that the Tribal Business Council has given approval of a
claim, and chooses to have the claim paid by the insurance carrier,
such approval of the claim shall not be final unless and until the
Tribe's Class III insurance carrier approves payment of the award.
The Tribe's Class III insurance carrier decision to decline the payment
of the award shall be deemed to be the final decision of the Tribal
Business Council.
d. Subject
to the provisions of this title relating to civil actions on tort
claims against the Susanville Indian Rancheria, any such award, compromise,
settlement, or determination shall be final and conclusive on all
officers of the Government, except when procured by means of fraud.
e. The
acceptance by the claimant of any such award, compromise, or settlement
shall be final and conclusive on the claimant, and shall constitute
a complete release of any claim against the Susanville Indian Rancheria
and against any employees of the Tribe whose acts or omission gave
rise to the claim, by reason of the same subject matter. Such a release
shall be obtained from the claimant prior to the payment of the claim.
f. An
action shall not be instituted upon a claim against the Susanville
Indian Rancheria for money damages for injury or loss of property
or personal injury or death caused by a dangerous condition on the
Gaming Facility, or by the negligent or wrongful act of any employee
of the Tribe's Gaming Operation while acting within the scope of his
office or employment, unless the claimant shall have first presented
the claim to the Tort Claims Board and his claim shall have been finally
denied by the Tribal Business Council, in writing, and sent by certified
or registered mail to the claimant. The failure of the Tribal Business
Council to make final disposition of a claim within 180 days after
it is filed with the Tort Claims Board shall, at the option of the
claimant any time thereafter, be deemed a final denial of the claim
for purposes of this section. The provisions of this subsection shall
not apply to such claims as may be asserted under the Federal Rules
of Civil Procedure by third party complaint, cross-claim or counterclaim.
g. Action
under this section shall not be instituted for any sum in excess of
the amount of the claim presented to the Tort Claims Board and Tribal
Business Council, except where the increased amount is based upon
newly discovered evidence not reasonably ascertainable at the time
of presenting the claim to the Board or Tribal Business Council, or
upon allegation and proof of intervening facts, relating to the amount
of the claim.
h. Disposition
of any claim by the Tribal Business Council shall not be competent
evidence of liability or amount of damages.
Section 9. Exclusiveness of Remedy, Judgment as Bar
a. The
remedy against the Tribe provided for in this title for injury or
loss of property, or personal injury or death arising or resulting
from the negligent or wrongful act or omission of any employee of
the Tribe while acting within the scope of his office or employment
is exclusive of any other civil action or proceeding for money damages
by reason of the same subject matter against the employee whose act
or omission gave rise to the claim or against the estate of such employee.
Any other civil action or proceeding for money damages arising out
of or relating to the same subject matter against the employee or
the employee's estate is precluded without regard to when the act
or omission occurred.
This
section does not extend or apply to a civil action against an employee
of the Tribe
i.which
is brought for a violation of the Constitution of the United States,
or
ii.
which is brought for a violation of a statute of the United States
under which such action against an individual is otherwise authorized.
Section 10. Exceptions
The provisions
of this Ordinance shall not apply to:
(a) Any
claim based upon an act or omission of an employee of the Tribe, exercising
due care, in the execution of a tribal, federal, or state statute
or regulation, whether or not such statute or regulation be valid,
or based upon the exercise or performance or the failure to exercise
or perform a discretionary function or duty on the part of a tribal
agency or an employee of the Tribe, whether or not the discretion
involved be abused.
(b) Any
claim arising in respect of the assessment or collection of any tax,
or the detention of any goods or merchandise by any tribal, federal,
or state official.
(c) Any
claim arising outside of the Tribe's Gaming Facility or Gaming Operation.
Section 13. Miscellaneous [No sections 11-12 in
original document]
a. In
constituting this Ordinance, the present tense includes the past and
future tenses, and the future tense includes the present tense.
b. When
reference is made to any portion of this Ordinance, the reference
shall apply to amendments made hereafter.
c. All
Tribal Ordinances or other laws inconsistent with this Ordinance are
hereby repealed only to the extent that they are inconsistent with
this Ordinance. To the extent this Ordinance provides other than any
other tribal law governing tort claims against the Gaming Facility
or Gaming Operation, this Ordinance shall govern.
d. Section
headings shall be used only for reference to format and not in construing
this Ordinance.
e. The
Tribe shall make this Tort Claims Ordinance available for review upon
request to patrons of the Gaming Facility.
CERTIFICATION
We, hereby
certify that the Susanville Indian Rancheria Tribal Tort Ordinance was
adopted by the Susanville Indian Rancheria Tribal Business Council at
a duly called meeting held November 27, 2000 with a vote of 7 for, 0
against, 0 abstain.
ATTEST;
/s/
/s/
Doyle Lowry Ike
Lowry
Secretary/Treasurer
Tribal Chairman
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