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Entities that enjoy tort immunity under ACA 21-9-301

By Dorothy Spector, AAC Law Clerk

AG OPINION NO. 2020-016

The AG was requested to determine 1) whether the Fort Chaffee Redevelopment Authority (FCRA) Public Trust is immune from tort liability under Ark Code §21-9-301; and 2) whether the FCRA’s employees and agents are granted immunity for acts of negligence committed in their official capacities. The AG responded “yes” to both questions. The AG described, in determining whether FCRA receives immunity it must first be determined to constitute a “political subdivision of the state” or an extension of a political subdivision, as provided by the statute. While “political subdivision” has not been defined by the legislature in the context of tort immunity, the AG explained the term has been defined elsewhere in many ways, to include references to local units of government, sometimes including school districts or improvement districts, and public corporations in at least two instances. The Arkansas Supreme Court also offered a definition of “political subdivision” in the context of ACA 21-9-301 to be: “Political subdivisions have been defined as that they embrace a certain territory and its inhabitants, organized for the public advantage, and not in the interest of particular individuals or classes; that their chief design is the exercise of governmental functions; and that to the electors residing within each is, to some extent, committed the power of local government, to be wielded either mediately or immediately within their territory for the peculiar benefit of the people there residing.” The AG explained the factors that weigh in favor of the FCRA being considered a political subdivision are that it encompasses specific territory, it exercises governmental functions, it was created in the public interest and to serve a public purpose, and the state of Arkansas has statutorily endorsed the FCRA. If such immunity is found for the FCRA the AG said the employees and agents would likewise be extended immunity.

AG OPINION NO. 2004-101

The AG was asked to determine whether Enola-Mt. Vernon Water Authority qualifies for tort immunity as provided in ACA 21-9-301 for “all other political subdivisions of the state” and whether this is affected by the passage of Act 1330 of 2003, “The Water Authority Act,” due to the description changing to a “public body politic and governmental entity.” The AG answered, the Enola-Mt. Vernon Water Authority likely benefits from limited immunity under ACA 21-9-301. Furthermore, the AG explained Act 1330 only standardized the language describing references to water authorities, which the AG believes was not intended to deny the limited liability to water authorities such as Enola-Mt. Vernon Water Authority. Furthermore, the AG believes it is likely that officers and employees of this water Authority would be granted qualified immunity against actions in federal court alleging violations of federal law.

AG OPINION NO. 2004-092

The AG was asked to determine: “if a property owner has suffered damage to their home due to the negligence of a municipal wastewater utility facility, does such facility possess immunity from a civil action instituted by the property owner in a state or federal court?” If so, is there another forum that has the authority to hear such an action. The AG determined “yes,” unless the city carried liability insurance. The AG explained the statute applies in situations involving negligence claims and has an express exception to tort immunity when a claim is covered by liability insurance. The AG also determined, the answer to the second part of the question is “no,” there is not another forum that has the authority to hear such an action, as the State Claims Commission is authorized to hear only claims against the state and its agencies.

AG OPINION NO. 2002-193

The AG was asked to determine whether Woodruff County Nursing Home, a tax exempt, 132-bed skilled nursing facility owned by the county and managed by a board of directors appointed by the county judge and approved by the quorum court, qualifies for sovereign immunity? The AG determined no, given that “sovereign immunity” applies only to the state and not to its political subdivisions and agents. Yet, the nursing home may qualify for statutory immunity granted to counties under ACA 21-9-301 or under the common-law protection of charitable immunity. The AG describes counties are authorized to “acquire, own, construct, reconstruct, extend, equip, improve, maintain, operate, sell, lease, contract concerning, or otherwise deal in or dispose of any land, building, improvements, or facilities of any and every nature whatever that can be used for hospitals, nursing homes, rest homes, or related facilities…” (ACA 14-265-103). The AG said that simply because Woodruff County Nursing Home is formed by county government and serving a public purpose does not signify it qualifies for sovereign immunity. This is because sovereign immunity only applies to state government and not local government. The AG cites Parish v. Pitts, 244 Ark. 1239, 1250-51, 429 S.W.2d 45 (1968).

AG OPINION NO. 2006-160

The AG was asked to answer whether the Faulkner County Public Facilities Board enjoys “sovereign immunity from law suits that cities of the second class and county governments have?” The AG responded by correcting “sovereign immunity” to statutory immunity as referred to in ACA 21-9-301, and by answering “yes” to the question.

AG OPINION NO. 2003-266

The AG was asked to answer whether the Carroll and Madison Library System Administrative office enjoys tort immunity as the regional headquarters for six libraries. The AG explains it is his understanding this library system was created by an Interlocal Cooperation Agreement between Carroll County and Madison County. If so, the AG believes the board and its officers and employees are likely entitled to immunity under ACA 21-9-301. However, the AG notes this is only for situations of tort liability and that in cases of federal law and federal causes of action it will be a different “qualified” immunity that will apply.

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