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AGO 1957 No. 93 - July 09, 1957
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John J. O'Connell | 1957-1968 | Attorney General of Washington


PAROLE AND PROBATION OFFICERS ‑- TORT LIABILITY

(1) An officer or employee of the state would be liable for the consequences of his own wrongful or negligent acts in the operation of a state‑owned car.

(2) A state parole or probation officer has the duty safely to transport a parolee or probationer in a state owned car, and would be liable for injuries due to his actionable negligence.

                                                                    - - - - - - - - - - - - -

                                                                     July 9, 1957

Honorable James D. Skaggs
Chairman
Board of Prison Terms and Paroles
201 Institutions Building
Olympia, Washington                                                                                                                Cite as:  AGO 57-58 No. 93

Dear Sir:

            We acknowledge receipt of your request for an opinion on the following questions:

            (1) Is a parole and probation officer personally liable for any damages brought about by an accident while operating a state vehicle?

            (2) Could a probationer or parolee sue a parole and probation officer personally if injured while being carried in a state car?

            On the assumption that the officer's negligence was the proximate cause of the damages, we answer both questions in the affirmative.

             [[Orig. Op. Page 2]]

                                                                     ANALYSIS

            (1) The state is not liable for damages resulting from the negligent operation of its vehicles by one of its officers, agents or servants, unless it has voluntarily assumed such liability.  Riddoch v. State, 68 Wash. 329.

            Since the state has not assumed liability for the negligence of its district parole and probation officers employed by the state board of prison terms and paroles, your question resolves itself into whether the state's immunity extends to them.  This question has been resolved by at least two opinions of this office (1931 OAG 139 [[to H. C. Johnson, Department of Efficiency on June 12, 1931]], and 1948 OAG 83c [[to General E. M. Llewellyn, Adjutant General on February 3, 1948]], in the first of which we said:  139, and 1948 OAG 83c), in the first of which we said:

            "This immunity does not, however, extend to the individual officer or employee, who can be held responsible for the consequences of his own violation of the law or the infringement of the rights of others.  (Citing cases.)

            "There can be no question, under the rule just stated, that an officer or employee would be liable for the consequences of his own wrongful or negligent acts in the operation of a state‑owned car. . . ."

            Also, cf. 3 C.J.S., Agency, § 220, and Restatement of the Law of Torts, §§ 343, 347.

            A concise statement of the principles involved and the reasons for the foregoing rules are found inHopkins v. Clemson Agricultural College, 221 U.S. 636, 55 L.Ed. 890, 31 S.Ct. 654.  That case involved the liability of the college for damaging adjacent lands by diverting the flow of water thereon by the construction of dikes.  In its opinion the court said:

            "With the exception named in the Constitution, every state has absolute immunity from suit.  Without its consent it cannot be sued in any court, by any person, for any cause of action whatever . . . .

            "But immunity from suit is a high attribute of sovereignty,‑-a prerogative of the state itself, ‑-which cannot be availed of by public agents when sued for their own torts.  The 11th Amendment was not intended to afford them freedom from liability in any case where, under  [[Orig. Op. Page 3]] color of their office, they have injured one of the state's citizens.  To grant them such immunity would be to create a privileged class, free from liability for wrongs inflicted or injuries threatened.  Public agents must be liable to the law, unless they are to be put above the law.  '. . . The whole frame and scheme of the political institutions of this country, state and Federal protest' against extending to any agent the sovereign's exemption from legal process . . ."

            (2) Having concluded that the immunity of the state does not extend to the district parole or probation officer, we turn now to the specific problem of whether he can be liable for injuries incurred by a probationer while being carried by the officer in a state car.

            We assume that the probationer or parolee is not a guest or licensee, and therefore not within the purview of our guest statute (RCW 46.08.080, as amended by chapter 132, Laws of 1957).  We further assume that the parolee is riding with the officer by reasons not of his own choosing, e.g. rearrest for violation of parole or probation; and that the parole officer is acting pursuant to power conferred upon him by statute (cf. RCW 9.95.220).

            The mere fact that a person has been arrested, or is in custody, does not ipso facto deprive him of all his rights as a citizen.  As a matter of fact, he retains all his rights except those taken from him by law by reason of punishment for the crime for which he was arrested.  The rule is stated inCoffin v. Reichard, 143 F. (2d) 443, 155 A.L.R. 143, in these words:

            "A prisoner retains all the rights of an ordinary citizen except those expressly, or by necessary implication, taken from him by law.  While the law does take his liberty and imposes a duty of servitude and observance of discipline for his regulation and that of other prisoners, it does not deny his right to personal security against unlawful invasion."

            Although we have found no cases on the specific duty owed by parole officers to parolees in their custody, we believe  [[Orig. Op. Page 4]] the expressions of our court on the duty owed by a sheriff to a prisoner in the case of Kusah v. McCorkle, 100 Wash. 318, are applicable.  In the opinion at page 323 it states that:

            ". . . the sheriff's duty in regard to prisoners or others in his lawful custody is twofold; one to the state to keep and produce the prisoner when required, and the other to the prisoner to keep him in health and safety . . ."

            And, at page 325:

            ". . . for any breach of such duty resulting in injury he is liable to the prisoner or, if he be dead, to those entitled to recover for his wrongful death . . ."

            "The basis of liability for injuries to the person or property of another is negligence . . ."  Miller v. Edwards, 25 Wn. (2d) 635, 643.  "One is negligent if he unintentionally breaches a legal duty which he owes to another . . . The duty which one person owes to another depends in part on the relationship existing between them . . ."  Squires v. McLaughlin, 44 Wn. (2d) 43, 48.  ". . . The essential elements of actionable negligence are (1) the existence of a duty, (2) a breach thereof, and (3) a resulting injury . . ."  McCoy v. Courtney, 25 Wn. (2d) 956, 963.

            From the foregoing, we conclude that it is the duty of a parole or probation officer, who has a parolee or probationer in his custody, to keep the prisoner in safety, and the officer is liable for injuries due to his actionable negligence while transporting the prisoner in a vehicle owned by the State of Washington.

            We trust that this information will be helpful to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

MITCHELL DOUMIT
Assistant Attorney General

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