AAC
Entities that enjoy tort immunity under ACA 21-9-301
AG OPINION NO. 2020-016
Te 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 im- munity for acts of negligence committed in their official ca- pacities. Te AG responded “yes” to both questions. Te AG described, in determining whether FCRA receives immunity it must first be determined to constitute a “political subdivi- sion 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 immu- nity, the AG explained the term has been defined elsewhere in many ways, to include references to local units of govern- ment, sometimes including school districts or improvement districts, and public corporations in at least two instances. Te 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 pub- lic advantage, and not in the interest of particular individuals or classes; that their chief design is the exercise of governmen- tal 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 terri- tory for the peculiar benefit of the people there residing.” Te AG explained the factors that weigh in favor of the FCRA be- ing 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 em- ployees and agents would likewise be extended immunity.
AG OPINION NO. 2004-101 Te AG was asked to determine whether Enola-Mt. Ver-
non 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, “Te Water Authority Act,” due to the description changing to a “public body politic and governmental entity.” Te 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
COUNTY LINES, SPRING 2021
to water authorities such as Eno- la-Mt. Vernon Water Authority. Furthermore, the AG believes it is likely that officers and employ- ees of this water Authority would be granted qualified immunity against actions in federal court alleging violations of federal law.
Dorothy Spector AAC Law Clerk
AG OPINION NO. 2004-092 Te AG was asked to determine: “if a property owner has
suffered damage to their home due to the negligence of a mu- nicipal wastewater utility facility, does such facility possess im- munity 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. Te AG determined “yes,” unless the city carried liability insurance. Te 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. Te 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 Te 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? Te 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. Te AG describes coun- ties are authorized to “acquire, own, construct, reconstruct, extend, equip, improve, maintain, operate, sell, lease, con- tract 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). Te AG said that simply because Woodruff County Nursing Home is formed by county government and serving a public purpose
See “OPINIONS” on Page 21 >>> 13
AG OPINIONS
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