** PART II **
II. IMMUNITY CONFERRED BY 10 O.S. 1109(D) UPON AN AGENCY OPERATED AS A NON-PROFIT CORPORATION OR AS AN ENTITY OF COUNTY GOVERNMENT.
YOUR SECOND QUESTION ASKS WHETHER THE IMMUNITY CONFERRED UPON A CASA VOLUNTEER UNDER 10 O.S. 1109(D) EXTENDS TO AGENCIES OPERATED AS NON-PROFIT CORPORATIONS OR AS ENTITIES OF COUNTY GOVERNMENT. THE RESPONSE TO THIS QUESTION IS LIMITED TO THE FACTS AND CIRCUMSTANCES SET FORTH IN YOUR FIRST QUESTION. TITLE 10 O.S. 1109(D), AS IT RELATES TO THE IMMUNITY OF CASA ORGANIZATIONS, PROVIDES IN RELEVANT PART:
"ANY PERSON SERVING IN POSITIONS OF MANAGEMENT OF A CASA ORGANIZATION, INCLUDING MEMBER OF THE BOARD OF DIRECTOR ACTING IN GOOD FAITH, SHALL BE IMMUNE FROM ANY CIVIL LIABILITY OR ANY VICARIOUS LIABILITY FOR THE NEGLIGENCE OF ANY CASA ORGANIZATION ADVOCATES, MANAGER, OR DIRECTORS. (EMPHASIS ADDED)."
SECTION 1109(D) ONLY CONFERS IMMUNITY UPON A "PERSON" SERVING IN A POSITION OF MANAGEMENT OF A CASA ORGANIZATION, OR A "MEMBER" OF THE BOARD OF DIRECTORS OF A CASA ORGANIZATION. BECAUSE THIS PROVISION OPERATES TO CONFER IMMUNITY ONLY UPON INDIVIDUALS, AN AGENCY ITSELF OPERATED AS A NON-PROFIT CORPORATION WOULD NOT BE ENTITLED TO THE CIVIL IMMUNITY CONFERRED BY THE STATUTE. OBVIOUSLY, IF THE ENTITY IS NOT INCORPORATED PURSUANT TO THE LAWS OF THIS STATE, ITS MEMBERS AND DIRECTORS MAY BE EXPOSED TO LIABILITY FOR THE TORTIOUS CONDUCT OF THE VOLUNTEERS THEY DIRECT, WHICH MAY QUALIFY THOSE MEMBERS AND DIRECTORS FOR IMMUNITY UNDER THE STATUTE IN THE FIRST INSTANCE.
THE QUESTION REMAINS OF WHETHER THE IMMUNITY CONFERRED UPON A CASA VOLUNTEER WOULD EXTEND UNDER THE COMMON LAW TO THE ORGANIZATION THAT "EMPLOYS" OR OTHERWISE DIRECTS THE VOLUNTEER. IN THE CONTEXT OF AN AUTOMOBILE ACCIDENT, IF IT IS DETERMINED THAT NO IMMUNITY UNDER 1109(D) IS CONFERRED UPON THE VOLUNTEER, THERE WOULD BE NO IMMUNITY UNDER THAT SECTION TO EXTEND TO THE CASA ORGANIZATION. WHERE IMMUNITY MAY EXIST FOR THE CASA VOLUNTEER, MY INCLINATION IS THAT SUCH IMMUNITY IS PERSONAL TO THE VOLUNTEER. IT IS IMPORTANT TO KEEP IN MIND THAT WE ARE NOT TALKING ABOUT AN ABSENCE OF LIABILITY ON THE PART OF THE VOLUNTEER BY STATUTE OR THE COMMON LAW, BUT RATHER, ABOUT IMMUNITY FROM LIABILITY. WHILE AN INJURED PARTY MAY HAVE NO COGNIZABLE RIGHT TO SUE AND RECOVER FROM A VOLUNTEER IN DISTRICT COURT BECAUSE OF THE IMMUNITY PROVISION, THAT INJURED PARTY WOULD STILL HAVE THE RIGHT TO HOLD THE INCORPORATED CASA ORGANIZATION VICARIOUSLY LIABLE, BECAUSE THAT ENTITY WOULD HAVE NO INDEPENDENT IMMUNITY FROM VICARIOUS LIABILITY. FOLLOWING THE GENERAL RULES OF STATUTORY CONSTRUCTION, THERE APPEARS A LEGISLATIVE INTENT NOT TO IMMUNIZE THE ORGANIZATIONAL ENTITY ITSELF FOR VICARIOUS LIABILITY, SINCE THE OPPORTUNITY TO INCLUDE SUCH LANGUAGE EXISTED WHEN THE ABOVE-CITED PROVISION WAS DRAFTED, BUT WAS NOT INCLUDED. NEVERTHELESS, A COURT MAY ENTERTAIN A CONTRARY VIEW, SO MY ANALYSIS IS NOT DISPOSITIVE OF THE QUESTION.
PRESUMING THAT AN ENTITY OF COUNTY GOVERNMENT CAN QUALIFY AS A CASA ORGANIZATION, THE OKLAHOMA GOVERNMENTAL TORT CLAIMS ACT, 51 O.S. 151 ET SEQ., MAY NECESSARILY TAKE PRECEDENCE OVER ANY CONFLICTING