Judges: STEVE CLARK, Attorney General
Filed Date: 3/25/1987
Status: Precedential
Modified Date: 7/5/2016
Honorable Mike Kinard State Senator P. O. Box 727 Magnolia, Arkansas 71753
Dear Senator Kinard:
This letter is in response to your March 16, 1987, opinion request wherein you posed the following question:
May the General Assembly, by statute, offer immunity from suit for tort to members of boards of not-for-profit corporations organized for welfare or charitable purposes without violating the Constitution of the State of Arkansas?
For purposes of this opinion it is presumed the tort immunity proposed is limited to protecting individual members of such boards for their acts or omissions committed within the scope of their official duties. This opinion will address the two most likely constitutional challenges to such a statute. It would not violate either of these constitutional provisions as follows:
ARTICLE
V SECTION32 OF THE CONSTITUTION OF THE STATE OF ARKANSAS.
Article
Since a legislative grant of immunity does not limit "the amount to be recovered" but rather abolishes a cause of action, it is not violative of Article V Section 32.
ARTICLE
Article
"every person is entitled to a certain remedy in the loss for all injuries or wrongs he may receive in his person, property or character; . . .".
This section of the Constitution does not bar legislative grants of immunity where, as here, it constitutes a reasonable exercise of the police power and is in the interest of the general welfare. Emberson v. Buffington,
Secondly, you inquired whether such a statute would be unconstitutional if it only provided immunity for vicarious liability. Since such a statute granting immunity from liability for all torts appears constitutional, a grant of immunity limited to vicarious liability would likewise be constitutional.
The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General David S. Mitchell.