AGO Opinion 83075

April 12, 1983
Injury to Probationer or Work Release Inmate for Government Agency.

Mr. Randy L. Nielsen
Kimball County Attorney

Paul L. Douglas, Attorney General;
Mel Kammerlohr, Assistant Attorney General.


What agency is liable for injuries occurring to a person performing work ordered by a court as part of probation or a sentence of confinement?


The agency for whom the person is working at time of injury, as explained.

This is in regard to your question as to the liability for injuries occurring to a person performing work ordered by the court as a part of a sentence or probation. Neb. Rev. Stat. 548-i15(I) (f) (Supp. 1982) specifically makes probationers, working for a governmental body as a condition of probation, employees of such body for the purposes of the workmen's compensation law. Under this section it would appear to be the agency for whom the person was working at the time of injury which would be responsible.

Since there is no mention in this statute as to persons sentenced to confinement, under the doctrine of statutory construction of express mention-implied exclusion, we do not think an employee/employer relationship would exist under this section, as to work release. There could, of course, be some liability f<~r negligence in the premises or the equipment being furnished ,:~nd the agency liable would undoubtedly be the one upon which the negligence fell.

Previous distinctions concerning governmental functions have been abolished and claims may now be made under the political subdivision Tort Claims Act. For specific questions we would refer you generally to Neb. Rev. Stat. §§23-2401, et seq. (Reissue 1977), which contain the exclusive remedy for tort claims against a political subdivision in Nebraska.

We are referring your second question to another assistant who handles these matters and you should be receiving an answer shortly.

Very truly yours,

Attorney General

Mel Kammerlohr
Assistant Attorney General