Opinion No. (1983) ( 1983 )

REQUESTED BY: Senator Rex Haberman Member of the Legislature State Capitol Building Lincoln, Nebraska 68509

Dear Senator Haberman:

You have inquired whether a bill containing the following language would relieve counties and municipalities of liability due to the negligent or intentional acts of their prisoners assigned to community service projects during their incarceration. `No prisoner who works on a community service related project shall be deemed an agent, employee, or servant of the city, county, or court having jurisdiction over the prisoner.' At the outset we must note that there are numerous potential theories of political subdivision liability which come to mind which would not be avoided by the language you propose, e.g., negligent supervision of prisoners, federal civil rights liability for acts of prisoners. There may well be other theories of potential liability which do not occur to us absent a specific set of facts and we do not presume to encompass them in this opinion.

It is our opinion, however, that the language you propose, if incorporated as a part of the Political Subdivisions Tort Claims Act, Neb.Rev.Stat. § 23-2401 et seq. (Reissue 1977), could protect political subdivisions from a portion of their potential liability under a correctional program such as you have described. We cannot, however, based on the information presently before us, give you a comprehensive assurance that political subdivision liability can be avoided by the enactment of the language you propose.

Very truly yours, PAUL L. DOUGLAS Attorney General J. Kirk Brown Assistant Attorney General