Opinion No. 1988-109

Patrick Ellis

Attorney General of Arkansas — Opinion
July 25, 1988

STEVE CLARK, Attorney General

The Honorable Patrick Ellis State Representative 402 Poplar Street Clinton, AR 72031

Dear Representative Ellis:

This is in response to your request for an opinion concerning the liability incurred by the White River Area Agency on Aging in providing use of its vans and mini-buses to counties in its area. You have asked the following specific question in this regard:

What is the status of liability for the White River Area Agency on Aging if: (1) They transfer title to the county; or (2) If they retain title?

It must be initially noted that the question of liability will be resolved in each instance based upon the particular facts and circumstances. Mere transfer or retention of title to the vehicles will not necessarily be dispositive. For instance, such a transfer may or may not affect any contractual liability of the Agency, depending upon the particular contract or agreement upon which liability is premised. A transfer of title may, however, result in the avoidance of tort liability if the Agency transfers all power and responsibility to the county with respect to operation of the vehicles and maintains no control or duties in this regard. However, this will again involve a fact question which can only be resolved on a case by case basis.

Finally, it may reasonably be concluded that transfer of title to the county will not affect the potential tort liability of the Area Agency on Aging, a private non-profit corporation, in the event the Agency continues to control and operate the vehicles.

The following opinion, which I hereby approve, was prepared by Assistant Attorney General Elisabeth A. Walker.

Sincerely,

Steve Clark Attorney General