ATTORNEY GENERAL LOVING HAS ASKED ME TO RESPOND TO YOUR LETTER OF DECEMBER 4, 1992, ASKING, IN EFFECT:
WHAT LIABILITY, IF ANY, WOULD A CITY OF THIS STATE INCUR IF AN INDIVIDUAL VOLUNTEERS TO WORK FOR THE CITY IN AN EFFORT TO PAY OFF A FINE, AND THAT PERSON SUSTAINS AN INJURY DURING THE COURSE OF SUCH WORK?
BECAUSE YOUR REQUEST INVOLVES QUESTIONS OF FACT, THIS OFFICE HAS DETERMINED YOUR REQUEST SHOULD BE ANSWERED THROUGH THIS INFORMAL LETTER. THE DISCUSSION WHICH FOLLOWS IS NOT AN OFFICIAL OPINION OF THE ATTORNEY GENERAL. RATHER, THE FOLLOWING ANALYSIS AND CONCLUSIONS ARE SOLELY THOSE OF THE UNDERSIGNED ATTORNEY, AND THEY HAVE BEEN REACHED AFTER CAREFUL RESEARCH OF THE QUESTIONS YOU HAVE RAISED.
TO ANSWER YOUR QUESTION, IT IS NECESSARY TO EXAMINE THE GOVERNMENTAL TORT CLAIMS ACT (THE "ACT"), 51 O.S. 151 ET SEQ. . (AS AMENDED BY 51 O.S. 151 (1992) ET SEQ.). THE ACT SETS FORTH THE SCOPE OF GOVERNMENTAL LIABILITY AS WELL AS ANY APPLICABLE EXEMPTIONS OR IMMUNITIES FROM LIABILITY. 51 O.S. 153(A) OF THE ACT PROVIDES, IN PERTINENT PART, AS FOLLOWS:
"THE STATE OR A POLITICAL SUBDIVISION SHALL BE LIABLE FOR LOSS RESULTING FROM ITS TORTS OR THE TORTS OF ITS EMPLOYEES ACTING WITHIN THE SCOPE OF THEIR EMPLOYMENT SUBJECT TO THE LIMITATIONS AND EXCEPTIONS SPECIFIED IN THIS ACT AND ONLY WHERE THE STATE OR POLITICAL SUBDIVISION, IF A PRIVATE PERSON OR ENTITY, WOULD BE LIABLE FOR MONEY DAMAGES UNDER THE LAWS OF THIS STATE.
THE LIABILITY OF THE STATE OR POLITICAL SUBDIVISIONS UNDER THIS ACT SHALL BE EXCLUSIVE AND IN PLACE OF ALL OTHER LIABILITY OF THE STATE, A POLITICAL SUBDIVISION OR EMPLOYEE AT COMMON LAW OR OTHERWISE. (EMPHASIS ADDED.)"
THE ACT DEFINES A "POLITICAL SUBDIVISION" TO INCLUDE, AMONG OTHER THINGS, A MUNICIPALITY, A COUNTY OR A SCHOOL DISTRICT. 51 O.S. 152(8) (1991). A " MUNICIPALITY " IS DEFINED IN 51 O.S. 152(7) OF THE ACT TO INCLUDE ANY INCORPORATED CITY OR TOWN, AND ALL INSTITUTIONS, AGENCIES OR INSTRUMENTALITIES OF A MUNICIPALITY.
TO DETERMINE WHETHER A MUNICIPALITY CAN BE HELD LIABLE FOR A VOLUNTEER'S INJURIES, TWO QUESTIONS MUST BE ANSWERED: 1) WHETHER THE INJURIES ARE THE RESULT OF THE MUNICIPALITY'S TORTS OR THE TORTS OF MUNICIPALITY EMPLOYEES WHILE ACTING WITHIN THE SCOPE OF THEIR EMPLOYMENT, AND 2) WHETHER THE ACT PROVIDES ANY LIMITATIONS OR EXCEPTIONS TO LIABILITY. THE FACT THAT THE INDIVIDUAL INJURED WAS VOLUNTARILY WORKING FOR A MUNICIPALITY DOES NOT, IN ITSELF, PROVIDE THE MUNICIPALITY ANY IMMUNITY FROM LIABILITY FOR ITS TORTS.
THE FIRST QUESTION, WHETHER THE PERSON'S INJURIES ARE THE RESULT OF THE MUNICIPALITY'S TORTS OR THE TORTS OF MUNICIPALITY EMPLOYEES ACTING WITHIN THE SCOPE OF THEIR EMPLOYMENT, IS A QUESTION OF FACT WHICH MUST BE DETERMINED ON A CASE-BY-CASE BASIS.
TO ANSWER THE SECOND QUESTION, THE NUMEROUS EXEMPTIONS FROM LIABILITY WHICH ARE LISTED IN 51 O.S. 155 THE ACT MUST BE CONSIDERED. WHETHER A PARTICULAR EXEMPTION APPLIES IS A QUESTION OF FACT WHICH DEPENDS UPON THE FACTS AND CIRCUMSTANCES OF EACH CASE. FOR EXAMPLE, THE MUNICIPALITY IN