Opinion
October 21, 1999
61 — LAWS — General 107A — SPECIAL DISTRICTS LSA-R.S. 29:735 LSA-R.S. 29:723 (3) LSA-R.S. 9:2792.4 LSA-R.S. 9:2793.1 LSA-R.S. 40:1235 (A)(2)
Members of 911 Communication Districts are immune from liability as individuals or for actions taken as a member of the group while engaged in any emergency preparedness activity or while exercising judgment in the formation and implementation of policy while acting as a member of the board, commission or authority of the political subdivision, provided they act in good faith and within the scope of official functions and duties.
Colonel Mike Brown LA Office of Emergency Preparedness P.O. Box 44127 Baton Rouge, LA 70804-4217
Dear Col. Brown:
This responds to your request for an opinion of this office regarding the liability of E-911 District members for their individual or group actions while serving as members of a District.
As you have pointed out, La. R.S. 29:735 provides for immunity for the state and its political subdivisions and other agencies, as well as the agents' employees and representatives while engaged in any emergency preparedness activities, except in the case of wilful misconduct, using the following language:
§ 735. Immunity of Personnel
A. Neither the state nor any political subdivision thereof, nor other agencies, nor, except in case of willful misconduct, the agents' employees, or representatives of any of them, engaged in any emergency preparedness activities, while complying with or attempting to comply with this Chapter or any rule or regulation promulgated pursuant to the provisions of this Chapter shall be liable for the death of or any injury to persons, or damage to property, as a result of such activity.
Therefore, there is immunity from liability for death, injury to persons or damage to property while such agencies and the agents' employees and representatives are engaged in "any emergency preparedness activities".
The question asked, however, is of broader scope since it pertains not only to "emergency preparedness activities" but to all individual or group actions while an individual serves as a member of a 911 district.
We have found additional statutes which pertain to members of 911 agencies while acting in the course of their duties and while not engaged in an emergency preparedness activity, which is defined by La. R.S. 29:723(3) as "the mitigation of, preparation for, response to, and the recovery from emergencies or disasters."
La. R.S. 9:2792.4 provides for limitation of liability of members of boards, commissions, or authorities of political subdivisions, as follows:
La. R.S. 9:2792.4 LIMITATIONS OF LIABILITY OF MEMBERS OF BOARDS, COMMISSION, OR AUTHORITIES OF POLITICAL SUBDIVISIONS.
A. As used in this Section, a "member of a board, commission or authority of a political subdivision" means a person serving as an elected or appointed director, trustee, or member of a board, commission, or authority of a municipality, ward, parish, or special district, board or commission of the state, including without limitation, a levee district, school board, parish law enforcement district, downtown development district, tourist commission, port commission, publicly owned railroad board or commission, or any other local board, commission, or authority.
B. A person who serves as a member of a board, commission, or authority of a political subdivision as defined in Subsection A, shall not be individually liable for any act or omission resulting in damage, or injury, arising out of the exercise of his judgment in the formation and implementation of policy while acting as a member of a board, commission or authority of that political subdivision, provided he was acting in good faith and within the scope of his official functions and duties, unless the damage or injury was caused by his willful or wanton misconduct.
We note that the request made to your office from the Ascension Parish Communications District (E-9-1-1) was for the specific purpose of determining whether members of the district are liable for their individual or group actions while serving as members of the district.
We believe that such a district is a "board, commission, or authority of a * * * parish, or special district, board or commission of the state, * * *" and, therefore, a person who serves as member of such a political subdivision "shall not be individually liable" while serving as a member of the board "for any act or omission resulting in damage, or injury, arising out of the exercise of his judgment in the formation and implementation of policy while acting as a member of a board, commission or authority of that political subdivision, provided he was acting in good faith and within the scope of his official functions and duties, unless the damage or injury was caused by his willful are wanton misconduct". La. R.S. 9:2792.4 (B).
Additionally, insofar as a cause of action might be asserted against a 911 communications District, its officers or employees, other statutes may apply, depending on the particular circumstances.
La. R.S. 9:2793.1 states, in pertinent part as follows:
A. No person shall have a cause of action against a public entity or the officers and employees thereof for damage to property at the site of a crime, accident, or fire, including without limitation the destruction or deterioration of property, caused while the officer or employee was acting within the course and scope of his office or employment and while taking reasonable remedial action which is necessary to abate a public emergency, unless such damage was caused by willful or wanton misconduct or gross negligence.
LSA-R.S. 40:1235 (A) (2) provides, in pertinent part that:
(2) The immunity granted herein to basic, intermediate, and paramedic emergency medical technicians by the provisions of this Part shall extend to parish governing authorities, police departments, or other public agencies engaged in rendering emergency medical services and its insurers with respect to such emergency medical services unless the emergency medical technician employed by said agencies would be personally liable under the provisions of Paragraph (1).
Based upon a review of the foregoing statutes, the State and its political subdivisions and other agencies, as well as members of boards, commissions or authorities of a political subdivision, such as 911 communication districts, are immune from liability for the death of or injury to persons, or damage to property, as a result of such activities, while engaging either in emergency preparedness activities or exercising judgment in the formation and implementation of policy while acting as a member of such boards. The only exception to the statutory immunities provided relate to damage or injury caused by willful or wanton misconduct or gross negligence in the exercise of duties.
This conclusion is consistent with prior opinions of this office, including Opinion Nos. 92-250, 93-231 and 96-447.
We hope that this information is of assistance and if we may be of further help, please call upon us.
Very truly yours,
RICHARD P. IEYOUB ATTORNEY GENERAL
BY: GARY L. KEYSER Assistant Attorney General
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OPINION NUMBER 92-250
RELEASED JUNE 23 1992
94-A — POLITICAL SUBDIVISIONS — Officers, Agents, Employees
Individual commissioners have no personal liability to any third party for damages occasioned by acts or omissions which fall within the scope of the powers and duties conferred upon them as commissioners, unless said damages were caused by willful or wanton misconduct.
A person who serves as a member of a board, commission, or authority of a political subdivision as defined in Subsection A, shall not be individually liable for any act or omission resulting in damage or injury, arising out of the exercise of his judgment in the formation and implementation of policy while acting as a member of a board, commission, or authority of that Honorable Harold L. Taylor political subdivision, provided he Mayor, Village of Palmetto was acting in good faith and within P.O. Box 97 the scope of his official functions Palmetto, Louisiana 71358 and duties, unless the damage or injury was caused by his willful or wanton misconduct R.S. 9:2792.4(B).
Dear Mayor Taylor:
You requested an opinion on behalf of the village of Palmetto regarding the District Five Road Commission of St. Landry Parish, which was established by LSA-R.S. 48:600.1. In your letter you asked whether the members of the Road Commission have individual or personal liability exposure for acts or omissions which cause damage resulting from decisions made in the line of duty while serving on the commission.
The commission is considered a political subdivision of the state of Louisiana. See LSA-R.S. 48:600.1(D)(1). The limitations of liability of members of boards, commissions, or authorities of political subdivisions are found in Title 9 of the Revised Statutes. Section 2792.4(A) thereof defines members of a board, commission or authority of a political subdivision and Section 2792.4(B) provides as follows:
A person who serves as a member of a board, commission, or authority of a political subdivision as defined in Subsection A, shall not be individually liable for any act or omission resulting in damage or injury, arising out of the exercise of his judgment in the formation and implementation of policy while acting as a member of a board, commission, or authority of that political subdivision, provided he was acting in good faith and within the scope of his official functions and duties, unless the damage or injury was caused by his willful or wanton misconduct.
A review of this statute with respect to limitations of liability of members of commissions indicates that the members of the Road Commission would not be subject to personal or individual liability for acts of negligence regarding decisions made in the line of duty while, serving on the commission. However, an Attorney General's Opinion rendered in 1977 said the following:
There is no general immunity per se from either civil or criminal liability to a public official, including such a board or commission member. . . . (See opinion no. 77-887).
If by chance a member of such a board or commission has a ministerial duty to perform and his or her failure to perform that duty causes loss or damages to a third person, he or she may be held liable to that third person for such loss or damages, as of course so could the political subdivision itself. Fisher v. Levy, 180 La. 195, 156 So. 220, (1934); Chester Hoover Construction Co., et al v Thornburg, 311 So.2d 542, 545 (1975). An example of a "ministerial duty" is the duty of a clerk of court to record a mortgage. With a board or commission such a ministerial duty would, for example, be the duty of the secretary to keep minutes, the duty of a president or other particular officer to execute sales or leases lawfully authorized and directed by this Board. (Id.)
The 1977 opinion indicates that a member of a state board or commission may be held liable for acting in his official capacity as a member of said board or commission. However, this opinion was rendered prior to the enactment of LSA-R.S. 9:2792.4. Therefore, it is the opinion of this office that because the commission is a political subdivision of the state of Louisiana, individual commissioners have no personal liability to any third party for damages occasioned by acts or omissions which fall within the scope of the powers and duties conferred upon them as commissioners of the District Five Road Commission of St. Landry Parish, unless said damages were caused by willful or wanton misconduct.
It is hoped that this opinion is of some assistance to you. If we may be of any further assistance, please feel free to contact us.
Sincerely,
Richard P. Ieyoub Attorney General
BY: M. Joy Clemons Deputy Director Litigation Division
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OPINION NUMBER 93-231
November 09, 1993
90-A POLITICAL SUBDIVISIONS 8-A-4 CLAIMS AGAINST THE STATE — Liability LSA-R.S. 9:2792.4(A); 9:2792.4(B); 42:1441; 38:2551, et seq.
Individual commissioners have no personal liability to any third party for damages occasioned by acts or omissions which fall within the scope of the powers and duties conferred upon them as commissioners or members of the D'Arbonne Lake Watershed Commission, unless said damages were caused by willful or wanton misconduct.
There is no language in the statutes to indicate that actions of the commission are acts of the State of Louisiana.
LSA-R.S. 42:1441 provides that the State of Louisiana shall not be liable for any damages caused by a public officer of a political Mr. William T. Lowe, President subdivision within the course and Bayou D'Arbonne Lake Watershed scope of his official duties or District Commission damage caused by an employee of a P.O. Box 1613 public officer of a political Ruston, Louisiana 71273-1613 subdivision.
Dear Mr. Lowe:
You requested an opinion as a member of the Bayou D'Arbonne Lake Watershed District Commission, which was created and established by LSA-R.S. 38:2551. In your letter you asked the following:
(A) If a judgment is rendered in a case where a plaintiff alleges negligence by a lake commission, can the members be held liable for satisfying the judgment?
(B) Are all actions taken by a lake commission considered to be an act of the State of Louisiana, based upon the fact that the commission is established by an act of the legislature?
In response to your first question, the Bayou D'Arbonne Lake Watershed District Commission is a political subdivision of the State of Louisiana. See LSA-R.S. 38:2552. The limitations of liability of members of boards, commissions, or authorities of political subdivisions are found in Title 9 of the Revised Statutes. Section 2792.4(A) thereof defines a member of a board, commission or authority of a political subdivision and section 2792.4(B) provides as follows:
A person who serves as a member of a board, commission, or authority of a political subdivision as defined in Subsection A, shall not be individually liable for any act or omission resulting in damage or injury, arising out of the exercise of his judgment in the formation and implementation of policy while acting as a member of a board, commission, or authority of that political subdivision, provided he was acting in good faith and within the scope of his official functions and duties, unless the damage or injury was caused by his willful or wanton misconduct.
A review of this statute with respect to limitations of liability of members of commissions indicates that the members of the Bayou D'Arbonne Lake Watershed Commission would not be subject to personal or individual liability for acts of negligence regarding decisions made in the line of duty while serving on the commission.
Therefore, it is the opinion of this office that inasmuch as the commission is a political subdivision of the State of Louisiana, individual commissioners have no personal liability to any third party for damages occasioned by acts or omissions which fall within the scope of the powers and duties conferred upon them as commissioners or members of the D'Arbonne Lake Watershed Commission, unless said damages were caused by willful or wanton misconduct.
In response to your second question, the purpose, powers and rights of the D'Arbonne Lake Watershed District Commission are set forth in LSA-R.S. 38:2551 through 38:2572. LSA-R.S. 38:2553 provides in pertinent part:
The Bayou Lake Watershed District shall constitute a body corporate in law, with all the powers and rights of a political subdivision of the state as provided by the laws of the state relating to the incurring of debt and the issuing of bonds thereof. . . .
This district, through its board of commissioners, may do and perform any and all acts in its corporate capacity and in its corporate name which are necessary and proper for carrying out the purposes and object for which it is created. . . .
Although the commission was created and established by the legislature, there is no language in the statutes to indicate that actions of the commission are acts of the State of Louisiana. Additionally, LSA-R.S. 42:1441 provides that the State of Louisiana shall not be liable for any damage caused by a public officer of a political subdivision within the course and scope of his official duties or damage caused by an employee of a public officer of a political subdivision. Considering the above, it is the opinion of this office that actions by the D'Arbonne Lake Watershed District Commission are not acts of the State of Louisiana, but are actions of a political subdivision of the State having the power to sue and be sued.
It is hoped that this opinion is of some assistance to you. If we may be of any further assistance, please feel free to contact us.
Sincerely,
Richard P. Ieyoub Attorney General
By: Houston Penn Section Chief General Liability
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OPINION NUMBER 96-447
January 07, 1997
90-A Political Subdivisions — Officers, Agents Employees 57-A Juveniles LSA-R.S. 9:2792.4 LSA-R.S. 13:5101 5102
The Renaissance Home for Youth is not considered a "political Mr. Ralph W. Kennedy subdivision" and thus does not have 1215 Texas Avenue immunity from liability as do other Alexandria, Louisiana 71301 "political subdivisions".
Dear Mr. Kennedy:
This office is in receipt of your opinion request where you ask us to consider whether the Renaissance Home For Youth may incur legal liability in certain situations. The specific situations you are concerned with are:
(1) Liability for accepting clients when the center is already at its licensed capacity.
(2) Liability for accepting juveniles who are pregnant or who are heavily medicated, when the medical staff off the center is comprised of only one nurse and two of campus doctors.
(3) Liability for juveniles who are runaways from the Home's non-secured programs.
(4) Liability for clients placed on home detention which is outside the agency policy.
In your request you mention that you have reviewed LSA-R.S. 9:2792.4 and LSA-R.S. 13:5101 to determine what relief they may provide in your current situation. In reviewing these same statutes, this office is of the opinion that LSA-R.S. 9:2792.4 does not provide the Renaissance Home with immunity. LSA-R.S. 9:2792.4 provides:
A. As used in this Section, a "member of a board, commission or authority of a political subdivision" means a person serving as an elected or appointed director, trustee, or member of a board, commission, or authority of a municipality, ward, parish, or special district, board, or commission of the state, including without limitation, a levee district, school board, parish law enforcement district, downtown development district, tourist commission, port commission, publicly owned railroad board or commission, or any other local board, commission, or authority.
The section then goes on to provide for the immunity of the board members. In application of this provision to the current situation, it is our opinion that the Renaissance Home does not fall within the definition of a "political subdivision." In Opinion Number 93-311, this office opined that a juvenile detention center does not fall within the term "governing authority". And, while "political subdivision" is potentially broader than "governing authority", we find no provision which allows your youth center to fall within such definition.
You advise us that the Renaissance Home operates under a contract with the Police Jury and is supported by a tax levied on the citizens of Rapides parish. While this information shows the connection the Renaissance Home has with the local government, it still is insufficient to qualify' it as a "political subdivision." This is evident by the illustrative list contained in the statute. What is envisioned by the legislature to be a "political subdivision" under this part is a local board or commission, not a center such as Renaissance Home.
A similar analysis is applied in addressing the application of newly revised LSA-R.S. 13:5101 to the current situation. The section provides:
B. This Part applies to any suit in contract or for injury to person or property against the state, a state agency, an officer or employee of the state or a state agency arising out of the discharge of his official duties or within the course and scope of his employment, or a political subdivision of the state, as defined herein, or against an officer or employee of a political subdivision arising out of the discharge of his official duties or within the course and scope of his employment.
This section provides a much broader definition of "political subdivision" than that contained in Title 9. LSA-R.S. 13:1502, defines a "political subdivision" as meaning:
any parish, municipality, special district, school board, sheriff, public board, institution, department, commission, district, corporation, agency, authority, or any agency or subdivision of any of these, and other public or governmental body of any kind which is not a state agency.
As you had mentioned in one of the attachments to your opinion request, a potential of this section on liability, if the home were to be determined as a political subdivision, is to place a cap on recoverable damages. This statute does not grant the Renaissance Home immunity from the claims you ask us to address. If a claim is brought concerning any of the activities listed in the beginning of this opinion, be advised that the judge involved would be immune from any of the claims, and the Renaissance Home would be the likely target of the litigation. In Doe v. Foti, 93-1337 (La.App. 4 Cir. 3/15/94), 634 So.2d 58, a judicial administrator had a juvenile inadvertently transferred to a juvenile facility. The court stated, "Even if Mrs. Jordan (or her assistant) had erroneously ordered the plaintiffs' son to be housed . . . the decision concerning where to house a juvenile offender pending further judicial proceeding is a judicial function entitled to judicial immunity." Id at 60. A court would likely follow a similar analysis in a situation where a juvenile was sent to your facility when it is over capacity, or likewise when a judge sends a juvenile who you do not have the resources to correctly treat.
It is therefore the opinion of this office that the Renaissance Home For Youth and its directors and employees do not enjoy the protection of tort immunity. Thus, in each of the four situations presented, the Renaissance Home For Youth is not sheltered from liability based on a status as a "political subdivision". This opinion does not address private insurance coverage or other such protections of the Home or its employees.
We hope this sufficiently answers your inquiry. Should you have any further questions, please do not hesitate to contact this office.
Very truly yours:
RICHARD P. IEYOUB ATTORNEY GENERAL
By: J. RICHARD WILLIAMS Assistant Attorney General