Opinion No. ( 1992 )

The Honorable John H. Dawson State Representative P.O. Box 336 Camden, AR 71701

Dear Representative Dawson:

This is in response to your request for an opinion on the following:

Frenchport Water Association located in Ouachita County, a non-profit corporation, is planning on an extension to the system. The planned extension will furnish water to an area comprised of many low income people. The project will be done by volunteer labor, that is, by the people being served.

QUESTION: What exposure to liability will the association incur for accidents that could occur during the construction by the volunteers?

I assume that the water association to which you refer is a private nonprofit corporation formed under the provisions of A.C.A. § 4-28-101—410, and I interpret your question as inquiring as to what possible immunity from suit such a nonprofit corporation would have in the situation described above. It is my opinion that the nonprofit corporation itself, i.e., the corporate entity, does not enjoy any immunity from liability under Arkansas law, and thus, depending upon the facts of a particular incident, would have "exposure" to liability.

Although there are Arkansas laws which immunize directors of nonprofit corporations from liability for actions of other board members and employees of the nonprofit corporation (see A.C.A. §16-20-102 (Cum. Supp. 1991)), and laws which immunize qualified "volunteers" against liability for the actions of others and themselves under certain conditions (see A.C.A. § 16-6-101—105), each of these statutory subchapters expressly states that the nonprofit entity itself is not immune from liability. A.C.A. §16-20-103(c) and A.C.A. § 16-6-104 (c).

Of course, whether the association is ultimately liable for a particular accident or injury will depend upon all of the facts surrounding a particular incident. In my opinion, however, the nonprofit corporation itself enjoys no immunity from suit under Arkansas law.

The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Elana L. Cunningham.

Sincerely,

WINSTON BRYANT Attorney General

WB:cyh