# Opinion No. > Arkansas Attorney General Reports · January 19, 2001 URL: https://www.frixlaw.com/law-library/cases/3262957 ## Case - **Full name:** Shane Broadway - **Court:** Arkansas Attorney General Reports - **Decided:** January 19, 2001 - **Precedential status:** Published - **Opinion:** Opinion of the court - **Judges:** MARK PRYOR, Attorney General - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3262957 ## Opinion text The Honorable Shane Broadway Speaker of the House of Representatives 83 rd General Assembly 201 S.E. Second Street Bryant, AR 72022-4025 Dear Mr. Speaker: I am writing in response to your request for my opinion on the following question: If a city employee resigns a position with a city because the employee checked positive in a drug test and the same employee resigns as a volunteer fireman, should this employee be placed back as a volunteer fireman and this volunteer responds to a fire call using a private vehicle and the volunteer fireman is involved in a traffic accident and is tested for drugs and/or alcohol, what liability does the city assume by placing the fireman back on the fire department knowing that the fireman had already checked positive at a previous time? RESPONSE Under state law, municipalities are immune from tort liability except to the extent of their insurance coverage. I lack information sufficient to determine either the extent, if any, of the city's liability coverage on the volunteer's private vehicle or whether the city faces any exposure as a self-insurer under these circumstances. The city might further face liability under federal law, 42 U.S.C. § 1983 , for the violation of a clearly established statutory or constitutional right. The determination of whether any such violation occurred is a question of fact that I cannot address. DISCUSSION Section 21-9-301 of the Arkansas Code provides that municipalities shall be immune from liability and from suit except to the extent that they are covered by liability insurance. Section 21-9-303 (a) of the Code dictates that municipalities either self-insure or carry liability insurance on their vehicles in the minimum amounts prescribed in the Motor Vehicle Safety Responsibility Act, § 27-19-101 et seq. I have found no authority that indicates whether a volunteer fireman's personal vehicle will be considered a municipal vehicle when used to transport the fireman to or from a fire. 1 If so, the city's exposure will be as outlined in the preceding paragraph. The individual firefighter, of course, has a responsibility to maintain the required minimum liability insurance on his personal vehicle. A.C.A. § 27-22-104 . The "combined maximum liability of local government employees, volunteers, and the local government employer in any action involving the use of a motor vehicle within the scope of their employment shall be the minimum amounts prescribed in the Motor Vehicle Responsibility Act . . . unless the political subdivision" carries insurance or self-insures in a higher amount. A.C.A. § 21-9-303 (b). Finally, even assuming state statutory immunity applies, the city still faces potential liability under 42 U.S.C. § 1983 , which provides redress for any deprivation of a federal statutory or constitutional right under color of law. As stated in Rainey v. Hartness, 339 Ark. 293 , 299 , 5 S.W.3d 410 (1999): Generally, government officials performing discretionary functions are granted a qualified immunity from suit under section 1983 and are "shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Wilson v. Layne, No. 98-83, 526 U.S. ___ , ___, slip op. at 4-5 (May 24, 1999) (quoting Harlow v. Fitzgerald, 457 U.S. 800 , 818 (1982)). However, this qualified immunity applies only to individuals, not municipalities. Mosier v. Robinson, 722 F.Supp. 1245 (E.D. Ark. 1989) (county not immune from § 1983 civil rights actions); see generally, Anderson v. Creighton, 483 U.S. 635 (1987). Although the facts of this particular situation may not support any cause of action based upon 42 U.S.C. § 1983 , you should be aware that the city is not immune from any such action. Assistant Attorney General Jack Druff prepared the foregoing opinion, which I hereby approve. Sincerely, MARK PRYOR Attorney General MP/JHD:cyh 1 A trier of fact may be less concerned about who owns a vehicle involved in an accident than whether an agent of the municipality proximately caused injury using a vehicle. See, e.g., City of Caddo Valley v. George, ___ Ark. ___, ___ S.W.3d ___ (99-182, January 27, 2000) (city and police officers held liable to amount of insurance when pursuit caused accident between two other vehicles). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3262957. Public record. Not legal advice.