Request By:
Mr. Harold Rosen
Director
Pro-Power
Urban County Government Center
810 Barrett Avenue
Louisville, Kentucky 40204
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Robert V. Bullock, Assistant Attorney General
This is in response to your request for an opinion concerning KRS 411.200 as it relates to the civil liability for acts committed by volunteers with your organization. After citing a portion of the statute, you state that "it is our opinion that this bill protects our volunteers. "
KRS 411.200 1 states in part:
Any person who serves as a director, officer, volunteer or trustee of a nonprofit organization . . ., and who is not compensated for such services on a salary or prorated equivalent basis, shall be immune from civil liability for any act or omission resulting in damage or injury occurring on or after July 15, 1988, if such person was acting in good faith and within the scope of his official functions and duties, unless such damage or injury was caused by the willful or wanton misconduct of such person.
In interpreting statutes of the Commonwealth, the courts are required to indulge in every presumption and inference which will sustain the constitutional validity of a statute. However, when a statute is expressly or by necessary implication in violation of the purposes and intentions of the Constitution of Kentucky, the statute is void. Ludwig v. Johnson, 243 Ky. 534, 49 S.W.2d 347 (1932).
In order to respond to your inquiry, it is therefore necessary to measure the statute in question against the applicable sections of our Kentucky Constitution.
Section 14 of the Kentucky Constitution provides:
All courts shall be open, and every person for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.
Section 54 provides:
The General Assembly shall have no power to limit the amount to be recovered for injuries resulting in death, or for injuries to person or property.
Finally, Section 241 of the Kentucky Constitution provides in part:
Whenever the death of a person shall result from an injury inflicted by negligence or wrongful act, then, in every such case, damages may be recovered for such death, from the corporations and persons so causing the same.
In Happy v. Erwin, Ky., 330 S.W.2d 412 (1959), the court considered the constitutionality of a statute which attempted to protect officers and employees of cities from personal liability in the use of fire apparatus. 2 The court held that the statute clearly violated Sections 14 and 54 of the Constitution and would violate Section 241 if death were involved. In holding the act unconstitutional the court pointed out that the objective of Section 14 was to preserve those jural rights which had become well established prior to the adoption of the Constitution. Quoting from Ludwig v. Johnson , supra , at 351, the court said:
'It was the manifest purpose of the framers of that instrument (the Constitution) to preserve and perpetuate the common-law right of a citizen injured by the negligent act of another to sue to recover damages for his injury.'
Happy, supra, at 414. The fire apparatus statute is substantially similar to the volunteer statute involved in the question you present.
What has been generally known as the "good samaritan act" is likewise substantially similar to the statute being considered. KRS 411.148 provides that a physician or nurse or person certified as an emergency medical technician shall not be liable in civil damages for administering emergency care or treatment at the scene of an emergency unless such acts constitute willful or wanton misconduct. In OAG 79-535 this Office opined that the good samaritan statute is unconstitutional in violation of Sections 14, 54, and 241 of the Kentucky Constitution since that statute attempted to eliminate or modify damages that might be recovered for negligent acts.
A careful analysis of the "volunteer" statute evidences no real substantive difference between it and the fire apparatus statute and the good samaritan statute. In each instance, the General Assembly has attempted to eliminate or limit recovery of individuals for the negligent acts of other individuals. Even though the statute in question may serve a worthwhile purpose, it cannot withstand constitutional muster and is in violation of Sections 14, 54, and 241 of the Kentucky Constitution.
Accordingly, it is the opinion of this Office that KRS 411.200 is unconstitutional and in violation of Sections 14, 54, and 241 of the Kentucky Constitution to the extent that it attempts to immunize from civil liability any act or omission resulting in damage or injury caused by a person who serves as a director, officer, volunteer or a trustee of a nonprofit organization.
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