Nuisance Modifications

7
63G-7-301
78B-6-1102.1
5
Nuisance Modifications
2026 GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Tyler Clancy
Senate Sponsor: Brady Brammer
LONG TITLE
General Description:
This bill addresse
s
the private right of action for a nuisance claim against a governmental
entity.
Highlighted Provisions:
This bill:
defines terms;
provides an exception to governmental immunity;
allows a private individual to bring a public or private nuisance claim against a
governmental entity under certain circumstances; and
provides that governmental immunity is not a defense to a public or private nuisance
claim in certain circumstances.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
63G-7-301
, as last amended by Laws of Utah 2025, First Special Session, Chapter 9
ENACTS:
78B-6-1102.1
, Utah Code Annotated 1953
Be it enacted by the Legislature of the state of Utah:
Section 1. Section
63G-7-301
is amended to read:
63G-7-301
. Waivers of immunity.
(1)
(a)
Immunity from suit of each governmental entity is waived as to any contractual
obligation.
(b)
Actions arising out of contractual rights or obligations are not subject to the
requirements of Section
63G-7-401
,
63G-7-402
,
63G-7-403
, or
63G-7-601
.
(c)
The Division of Water Resources is not liable for failure to deliver water from a
reservoir or associated facility authorized by Title
73, Chapter 26
, Bear River
Development Act, if the failure to deliver the contractual amount of water is due to
drought, other natural condition, or safety condition that causes a deficiency in the
amount of available water.
(2)
Immunity from suit of each governmental entity is waived:
(a)
as to any action brought to recover, obtain possession of, or quiet title to real or
personal property;
(b)
as to any action brought to foreclose mortgages or other liens on real or personal
property, to determine any adverse claim on real or personal property, or to obtain an
adjudication about any mortgage or other lien that the governmental entity may have
or claim on real or personal property;
(c)
as to any action based on the negligent destruction, damage, or loss of goods,
merchandise, or other property while it is in the possession of any governmental
entity or employee, if the property was seized for the purpose of forfeiture under any
provision of state law;
(d)
subject to Section
63G-7-302
, as to any action brought under the authority of Utah
Constitution, Article I, Section 22, for the recovery of compensation from the
governmental entity when the governmental entity has taken or damaged private
property for public uses without just compensation;
(e)
as to any claim for attorney fees or costs under Section
63G-2-209
,
63G-2-405
, or
63G-2-802
;
(f)
for actual damages under Title
67, Chapter 21
, Utah Protection of Public Employees
Act;
(g)
as to any action brought to obtain relief from a land use regulation that imposes a
substantial burden on the free exercise of religion under Title
63L, Chapter 5
, Utah
Religious Land Use Act;
(h)
except as provided in Subsection
63G-7-201(3)
, as to any injury caused by:
(i)
a defective, unsafe, or dangerous condition of any highway, road, street, alley,
crosswalk, sidewalk, culvert, tunnel, bridge, viaduct, or other structure located on
them; or
(ii)
any defective or dangerous condition of a public building, structure, dam,
reservoir, or other public improvement;
(i)
subject to Subsections
63G-7-101(4)
and
63G-7-201(4)
, as to any injury proximately
caused by a negligent act or omission of an employee committed within the scope of
employment;
(j)
notwithstanding Subsection
63G-7-101(4)
, as to a claim for an injury resulting from a
sexual battery, as provided in Section
76-5-418
, committed:
(i)
against a student of a public elementary or secondary school, including a charter
school; and
(ii)
by an employee of a public elementary or secondary school or charter school who:
(A)
at the time of the sexual battery, held a position of special trust, as defined in
Section
76-5-404.1
, with respect to the student;
(B)
is criminally charged in connection with the sexual battery; and
(C)
the public elementary or secondary school or charter school knew or in the
exercise of reasonable care should have known, at the time of the employee's
hiring, to be a sex offender, a kidnap offender, or a child abuse offender as
described in Section
53-29-202
, required to register under Title 53, Chapter 29,
Sex, Kidnap, and Child Abuse Offender Registry, whose status as a sex
offender, kidnap offender, or child abuse offender would have been revealed in
a background check under Section
53G-11-402
;
(k)
as to any action brought under Section
78B-6-2303
;
(l)
as to any action brought to obtain relief under Title
53H, Chapter 7, Part 7
, Student
Legal Representation;
(m)
as to any action brought under Section
53-30-301
;
and
(n)
as to any action or suit brought under Section
20A-19-301
and as to any
compensation or expenses awarded under Subsection
20A-19-301(5)
.
; and
(o)
as to any action brought under Section
78B-6-1102.1
.
(3)
(a)
As used in this Subsection
(3)
:
(i)
"Code of conduct" means a code of conduct that:
(A)
is not less stringent than a model code of conduct, created by the State Board
of Education, establishing a professional standard of care for preventing the
conduct described in Subsection
(3)(a)(i)(D)
;
(B)
is adopted by the applicable local education governing body;
(C)
regulates behavior of a school employee toward a student; and
(D)
includes a prohibition against any sexual conduct between an employee and a
student and against the employee and student sharing any sexually explicit or
lewd communication, image, or photograph.
(ii)
"Local education agency" means:
(A)
a school district;
(B)
a charter school; or
(C)
the Utah Schools for the Deaf and the Blind.
(iii)
"Local education governing board" means:
(A)
for a school district, the local school board;
(B)
for a charter school, the charter school governing board; or
(C)
for the Utah Schools for the Deaf and the Blind, the state board.
(iv)
"Public school" means a public elementary or secondary school.
(v)
"Sexual abuse" means the offense described in Subsection
76-5-404.1(2)
.
(vi)
"Sexual battery" means the offense described in Section
76-5-418
, considering
the term "child" in that section to include an individual under 18 years old.
(b)
Notwithstanding Subsection
63G-7-101(4)
, immunity from suit is waived as to a
claim against a local education agency for an injury resulting from a sexual battery or
sexual abuse committed against a student of a public school by a paid employee of
the public school who is criminally charged in connection with the sexual battery or
sexual abuse, unless:
(i)
at the time of the sexual battery or sexual abuse, the public school was subject to a
code of conduct; and
(ii)
before the sexual battery or sexual abuse occurred, the public school had:
(A)
provided training on the code of conduct to the employee; and
(B)
required the employee to sign a statement acknowledging that the employee
has read and understands the code of conduct.
(4)
(a)
As used in this Subsection
(4)
:
(i)
"Institution of higher education" means the same as that term is defined in Section
53H-1-101
.
(ii)
"Policy governing behavior" means a policy adopted by a higher education
institution or the Utah Board of Higher Education that:
(A)
establishes a professional standard of care for preventing the conduct
described in Subsections
(4)(a)(ii)(C)
and
(D)
;
(B)
regulates behavior of a special trust employee toward a subordinate student;
(C)
includes a prohibition against any sexual conduct between a special trust
employee and a subordinate student; and
(D)
includes a prohibition against a special trust employee and subordinate student
sharing any sexually explicit or lewd communication, image, or photograph.
(iii)
"Sexual battery" means the offense described in Section
76-5-418
.
(iv)
"Special trust employee" means an employee of an institution of higher education
who is in a position of special trust, as defined in Section
76-5-404.1
, with a
higher education student.
(v)
"Subordinate student" means a student:
(A)
of an institution of higher education; and
(B)
whose educational opportunities could be adversely impacted by a special
trust employee.
(b)
Notwithstanding Subsection
63G-7-101(4)
, immunity from suit is waived as to a
claim for an injury resulting from a sexual battery committed against a subordinate
student by a special trust employee, unless:
(i)
the institution of higher education proves that the special trust employee's
behavior that otherwise would constitute a sexual battery was:
(A)
with a subordinate student who was at least 18 years old at the time of the
behavior; and
(B)
with the student's consent; or
(ii)
(A)
at the time of the sexual battery, the institution of higher education was
subject to a policy governing behavior; and
(B)
before the sexual battery occurred, the higher education institution had taken
steps to implement and enforce the policy governing behavior.
Section 2. Section
78B-6-1102.1
is enacted to read:
78B-6-1102.1
. Nuisance -- Private right of action -- Governmental immunity not
a defense.
(1)
As used in this section:
(a)
"Private individual" means an individual who is a landowner or tenant whose
property or business is adjacent to property owned or controlled by a governmental
entity.
(b)
"Private nuisance" means a third party's unauthorized use of property owned or
controlled by a governmental entity, as that term is defined in Section
63G-7-102
,
upon whose continuing course of conduct, action, or series of actions constitutes:
(i)
a substantial and unreasonable interference with the private individual's use and
comfortable enjoyment of the private individual's life or property; or
(ii)
a material interference and obstruction of the lawful operation and use of the
private individual's place of business.
(c)
"Public nuisance" means the same as the term is defined in Section
76-9-1301
.
(2)
A private individual may bring a civil action under this section against a governmental
entity that, either through action or inaction, permits a third party to create, contribute to,
or maintain a public or private nuisance on property owned or controlled by the
governmental entity.
(3)
A private right of action brought under this section:
(a)
is authorized in accordance with Subsection
78B-3-101.3(5)
;
(b)
shall be brought in accordance with Section
78B-6-1102
; and
(c)
shall be commenced within the time limits applicable to injury or property as
provided by law.
(4)
(a)
A governmental entity may not assert the defense of governmental immunity
under Title 63G, Chapter 7, Governmental Immunity Act of Utah, in an action
brought under this section.
(b)
A governmental entity is liable under this section to the same extent that a private
individual is liable for a public or private nuisance claim against another private
individual, whether the nuisance is caused by the actions of a third party.
Section 3.
Effective Date.
This bill takes effect on
May 6, 2026
.
1-23-26 10:32 AM