COUNTIES ‑- LIABILITY ‑- INJURED PRISONERS ‑- INSURANCE

COUNTIES ‑- LIABILITY ‑- INJURED PRISONERS ‑- INSURANCE.

(1) A county may be liable (a) for the cost of hospitalization and care of an injured county jail prisoner depending upon the prisoner's financial status; (b) for damages sustained by a county jail prisoner injured through negligent conduct attributable to the county.

(2) Where there is a possible county liability, insurance may be purchased for the county by the board of county commissioners.

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                                                                    April 5, 1962

Honorable John Panesko
Prosecuting Attorney
Lewis County
Chehalis, Washington

                                                                                                              Cite as:  AGO 61-62 No. 110

Dear Sir:

            By letter previously acknowledged, you have requested an opinion of this office on questions which we paraphrase as follows:

            (1) May a county be liable for injuries received by county jail prisoners?

            (2) In the event of possible county liability, are the county commissioners authorized to carry special liability insurance?

            We answer both of your questions in the affirmative as qualified in the analysis.

                                                                     ANALYSIS

            Question (1):

            In order to completely answer your first question, it is necessary to consider (1) whether a county may be liable for the cost of hospitalization and care in regard toany injury received by a prisoner; and (2) whether a county may be subject to a tort claim by a prisoner for an injury received through negligent conduct attributable to the county?

            In the case ofany injury to a county prisoner, without regard to whether the injury is caused by tortious conduct attributable to the  [[Orig. Op. Page 2]] county, the county may be liable for the cost of the immediate care and hospitalization of the injured prisoner.  In AGO 53-55 No. 99 to Honorable Hugh H. Evans, Prosecuting Attorney, Spokane County, July 24, 1953, this office said:

            "Accordingly, it is our conclusion that the general considerations of public welfare require a civil confining authority to have available medical care of the standards of availability and professional quality generally existing in the particular community, for its prisoners, and if the particular prisoner is not financially able to pay for the services and is not a recipient of public assistance, that such services should be paid for by the confining authority."  (A copy of this opinion is enclosed for your convenience.)

            Thus, the county may or may not be liable for the expense of hospitalization and care of an injured prisoner depending upon the prisoner's financial status.  We must point out, however, that this in no way affects the duty that the county may have to obtain medical care for a prisoner.  See AGO 53-55 No. 99,supra.

            In the case of a prisoner injured through negligence attributable to the county, we assume your question simply to be whether the county, as an arm of the state, is immune from a tort claim for the resulting injuries.  (In other words, we assume a situation wherein all other questions of law involving defenses to liability, have been resolved in the prisoner's favor.)

            Generally, counties are not liable for injuries received by prisoners for the reason that the county is usually said to be discharging a governmental rather than a proprietary function, 41 Am.Jur., Prisons and Prisoners, § 17, p. 896.  However, in Washington it is not necessary to determine whether the function is governmental or proprietary, because as far as the counties are concerned they are liable in either case upon a proper statement of facts.  Whiteside v. Benton County, 114 Wash. 463, 195 Pac. 519 (1921).

            This result stems from RCW 4.08.120, which reads:

            "An action may be maintained against a county or other of the public corporations mentioned or described in RCW 4.08.110, either upon a contract made by such county, or other public corporation in its corporate character and within the scope of its authority,or for an  [[Orig. Op. Page 3]]injury to the rights of the plaintiff arising from some act or omission of such county or other public corporation."  (Emphasis supplied.)

            InKilbourn v. Seattle, 43 Wn. (2d) 373, 261 P. (2d) 407 (1953), our court conducted an exhaustive review of the subject and of the cases construing the statute.  Its conclusion was that, right or wrong, the statute has been construed as abrogating the common-law rule of immunity from liability for injuries occurring through negligent performance or omission to perform governmental duties, at least with regard to counties though possibly not with regard to cities.  See,Macy v. Town of Chelan,     Wash. Dec.     , filed March 15, 1962 [] 59 Wn. 2d 610]].

            This means the county must respond to a tort claim for damages resulting from "an injury to the right of" the prisoner "arising from some act or omission of such county" (unless otherwise provided by law).  This would include damages for personal injuries.  Berglund v. Spokane County, 4 Wn. (2d) 309, 103 P. (2d) 355 (1940).  Consequently we conclude that the county is subject to a possible tort liability for an injury resulting from negligence attributable to the county.

            Question (2):

            In answer to your second question regarding insurance, we assume that you mean insurance to protect the county from liability, and not simply insurance for the prisoners themselves by which any injury may be covered without regard to fault.

            This office has previously concluded that where there is a possiblecounty liability, insurance can be purchased for the county.  See, AGO 57-58 No. 18, to the Honorable R. A. Hensel, Prosecuting Attorney, Douglas County, February 19, 1957, which is enclosed for your convenience.

            The question of whether or not this need be a special insurance policy is a matter which the county commissioners must decide.  They may find they already have a liability policy which can cover this or may be extended to cover it, or they may find an entirely new policy is needed.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

BRUCE W. COHOE
Assistant Attorney General