Ark. Code Ann. § 19-10-305 (2026)

Research References

U. Ark. Little Rock L.J.

Survey—Torts, 11 U. Ark. Little Rock L.J. 261.

Case Notes

Constitutionality.

Application of the 1993 amendment would not constitute an unconstitutional retroactive application to any suit pending at time of amendment's effective date as the amendment simply added the clause “except to the extent that they be covered by liability insurance” to qualify an employee's immunity. National Bank of Commerce v. Quirk, 323 Ark. 769, 918 S.W.2d 138 (1996), overruled in part, Ark. Dep't of Health & Human Servs. v. Ahlborn, 547 U.S. 268, 126 S. Ct. 1752, 164 L. Ed. 2d 459 (2006).

In General.

If officers and employees of the State of Arkansas act without malice and within the scope of their employment, they are immune from an award of damages in litigation. Smith v. Denton, 320 Ark. 253, 895 S.W.2d 550 (1995).

The concept of sovereign immunity is well grounded in Arkansas law. Milligan v. Burrow, 52 Ark. App. 20, 914 S.W.2d 763 (1996).

By enacting subsection (a) of this section, the General Assembly did not intend to repeal § 19-10-305(a); repeal by implication is not favored and the sections can be read in harmony. Robinson v. Langdon, 333 Ark. 662, 970 S.W.2d 292 (1998).

Applicability.

Circuit court properly concluded that the supervisor was not entitled to statutory immunity on the employee's federal civil rights claims as immunity under state law was not dispositive, and the supervisor had not made a cogent legal argument or cited relevant authority. Ark. State Med. Bd. v. Byers, 2017 Ark. 213, 521 S.W.3d 459 (2017).

Consent of State.

Where a suit is brought against an officer or agency with relation to some matter in which defendant represents the state in action and liability, and the state, while not a party to the record, is the real party against which relief is sought so that a judgment for plaintiff, although nominally against the named defendant as an individual or entity distinct from the state, will operate to control the action of the state or subject it to liability, the suit is in effect one against the state and cannot be maintained without its consent. Assaad-Faltas v. University of Ark. for Medical Sciences, 708 F. Supp. 1026 (E.D. Ark. 1989), aff'd without op., 902 F.2d 1572 (8th Cir.), cert. denied, 498 U.S. 905, 111 S. Ct. 271, 112 L. Ed. 2d 227 (1990).

Employees Held Immune.

Where an action was filed against employees of the state, those employees were immune from civil liability for nonmalicious acts occurring within the course of their employment under this section. Beaulieu v. Gray, 288 Ark. 395, 705 S.W.2d 880 (1986).

Where plaintiffs sued three state employees for acts performed in their official capacities, the action was tantamount to an action against the State of Arkansas; sovereign immunity, therefore, applied and protected not only the State but its employees as well. Milligan v. Burrow, 52 Ark. App. 20, 914 S.W.2d 763 (1996).

A wildlife officer acting within the scope of his employment was immune from liability for his entry onto the defendant's property and damages caused thereby. Rainey v. Hartness, 339 Ark. 293, 5 S.W.3d 410 (1999).

Employees of the Department of Community Punishment were entitled to immunity with regard to the termination of employment of parole officer, without regard to whether they acted maliciously or outside the scope of their employment, since the parole officer was an at-will employee and could be terminated for any reason or no reason at all. Ball v. State Dep't of Community Punishment, 340 Ark. 424, 10 S.W.3d 873 (2000).

In an inmate's civil rights suit involving a prison grooming policy, the prison officials were personally immune from suit because they did not, in enacting and enforcing the grooming policy, violate clearly established principles of law of which a reasonable person would have knowledge. Fegans v. Norris, 351 Ark. 200, 89 S.W.3d 919 (2002).

State trooper was immune in his individual capacity under subsection (a) of this section due to the non-malicious nature of the actions involved; the trooper contended that he was merely conducting a pat-down on a passenger in a car after the driver was arrested for an outstanding warrant. The complaint contained mere allegations of maliciousness and sexual intent. Simons v. Marshall, 369 Ark. 447, 255 S.W.3d 838 (2007).

Appellees' allegations were conclusory and did not support each cause of action appellees pled against each individually named Arkansas Department of Environmental Quality employee; even with regard to certain emails, appellees' pleadings amounted to bare conclusions of malice. Ark. Dep't of Envtl. Quality v. Al-Madhoun, 374 Ark. 28, 285 S.W.3d 654 (2008).

Because plaintiff inmates made no allegations of willful, wanton, or otherwise malicious conduct on the part of defendant prison officials, much less sufficient factual support to stave off summary judgment, the officials were entitled to summary judgment on the inmate's state law claims due to statutory immunity under subsection (a) of this section. Langford v. Norris, 614 F.3d 445 (8th Cir. 2010).

In an action by a county resident against officials of the Arkansas Game and Fish Commission, alleging that the Commission unconstitutionally entered into gas leases with private companies, the officials were entitled to immunity under subsection (a) of this section because the resident failed to plead that the officials' acts were covered by liability insurance or that those acts were committed maliciously, or that the officials acted outside the scope of their employment in leasing the Commission's land or in utilizing the revenue from those leases. Further, the amended complaint did not seek any relief from the officials in their individual capacities. Dockery v. Morgan, 2011 Ark. 94, 380 S.W.3d 377 (2011).

Inmate's individual-capacities negligence claim against prison officials arising from another inmate's assault failed because (1) the inmate did not allege the assault was more than a surprise, and, (2) if the officials ignored prison policies and inadequately protected the inmate, the inmate did not allege the officials acted with malice or an intent to harm the inmate, so the officials were immune under this section. Early v. Crockett, 2014 Ark. 278, 436 S.W.3d 141 (2014).

To the extent school districts made any claims against the director of the Arkansas Department of Human Services individually, they were barred by subsection (a) of this section because the districts did not allege any malicious acts or omissions by the director nor did they allege that he acted outside the scope of his employment. Ark. Dep't of Human Servs. v. Fort Smith Sch. Dist., 2015 Ark. 81, 455 S.W.3d 294 (2015).

Excessive Force.

In an excessive-force case, the trial court erred in denying summary judgment with respect to the son's tort claims against the police chief, as the son did not specifically allege facts supporting the claims as to the police chief, but there was no error in the trial court's denial of summary judgment regarding the son's claims against the officer, as well as the father's claims against the officer and the police chief, because material issues of fact existed regarding the reasonableness of their conduct and therefore they were not entitled to summary judgment on the basis of qualified immunity. Faughn v. Kennedy, 2019 Ark. App. 570, 590 S.W.3d 188 (2019).

Jurisdiction.

Where the complaint alleged that defendant intentionally deprived plaintiff of employment without just cause and for personal motives, the trial court had jurisdiction to hear the claim against defendant in both his individual and official capacities. Cross v. Ark. Livestock & Poultry Comm'n, 328 Ark. 255, 943 S.W.2d 230 (1997).

Liability Insurance of Employee.

Employee of the state may be held liable for an act done in the performance of his duties as a state employee to the extent the employee carries liability insurance. Bly v. Young, 293 Ark. 36, 732 S.W.2d 157 (1987).

Physician who worked part-time for the Arkansas Department of Health could be held liable for damages resulting from the improper insertion of an intrauterine device to the extent that he carried liability insurance. Bly v. Young, 293 Ark. 36, 732 S.W.2d 157 (1987).

Malicious Conduct.

This section, conferring immunity to officers and employees does not protect them if they act maliciously; however, a bare allegation of willful and wanton conduct will not suffice to allege facts sufficient to support the claim of malicious conduct. Beaulieu v. Gray, 288 Ark. 395, 705 S.W.2d 880 (1986).

This section does not protect state employees if they act maliciously, and under Arkansas law, statements made with actual malice include not only those made with spite, hatred, or vindictiveness, but also those made with such reckless disregard of the rights of another as to constitute the equivalent of ill will. Bland v. Verser, 299 Ark. 490, 774 S.W.2d 124 (1989).

The defendant government officials were not immune from suit under the doctrine of sovereign immunity since sufficient allegations of malicious conduct were alleged in the complaint where the plaintiff alleged that the defendants conspired to have him arrested for the malicious purpose of embarrassing him and damaging his professional reputation and with knowledge that no probable cause existed; that the allegations in the arrest warrant were false, and that no prosecution would ensue. Heigle v. Miller, 332 Ark. 315, 965 S.W.2d 116 (1998).

The exception for malicious conduct did not apply to an action arising from a motor vehicle accident which occurred because of the absence of a stop sign at an intersection, notwithstanding that the absence of the sign had been reported to the appropriate state agency two days earlier and the contention that the defendant state employees knew, or should have known, that the failure to replace the stop sign could naturally and foreseeably result in death or serious bodily injury through automobile accidents. Fuqua v. Flowers, 341 Ark. 901, 20 S.W.3d 388 (2000).

The exception for malicious conduct did not apply to an action arising from a motor vehicle accident which occurred because of the absence of a stop sign at an intersection, notwithstanding that the absence of the sign had been reported to the appropriate state agency two days earlier and the contention that the defendant state employees knew, or should have known, that the failure to replace the stop sign could naturally and foreseeably result in death or serious bodily injury through automobile accidents. Fuqua v. Flowers, 341 Ark. 901, 20 S.W.3d 388 (2000).

Appellees were entitled to statutory immunity as it was obvious that plaintiff, who alleged that his civil rights were violated while appellees subjected him to the practical skills part of the Arkansas Emergency Medical Technician Practical Examination, failed to allege liability coverage or show that appellees committed any malicious act or omission in the course of their employment. Hanks v. Sneed, 366 Ark. 371, 235 S.W.3d 883 (2006), overruled in part, Hardin v. Bishop, 2013 Ark. 395, 430 S.W.3d 49 (2013).

Trial court erred by denying the motion for summary judgment of the Administrator of the Arkansas State Hospital and its employee based on qualified/statutory immunity grounds under this section because, as to the nurse's Arkansas Civil Rights Act claims against the employee in her individual capacity, nowhere in the complaint or materials were there specific factual allegations that asserted that the employee personally acted with malice. Smith v. Daniel, 2014 Ark. 519, 452 S.W.3d 575 (2014).

Where a detainee was involved in a single-vehicle accident, failed a breath test, was arrested, fell to the ground and was not responsive, was transported to a detention center, and died in a holding room, a trooper was not entitled to statutory immunity under the Arkansas Civil Rights Act of 1993, § 16-123-101 et seq., because the complaint alleged facts sufficient to create an inference of malice. Barton v. Taber, 820 F.3d 958 (8th Cir. 2016).

Statutory immunity under this section barred the employee's claims under the Arkansas Civil Rights Act of 1993, § 16-123-101 et seq., against the supervisor in her individual capacity where the employee's bare allegation of willful and wanton conduct was not enough to demonstrate malice. Ark. State Med. Bd. v. Byers, 2017 Ark. 213, 521 S.W.3d 459 (2017).

Former employee's individual capacity claims against a warden of a state correctional facility alleging she had been discharged due to gender and racial discrimination should have been dismissed where the complaint offered the bare assertion that she performed her job satisfactorily without factual support, failed to allege the circumstances leading up to her termination or how she was “similarly situated” to the white male employees, and failed to show that the warden was the decisionmaker for the whites and males she pointed to. In the context of statutory immunity, the employee failed to allege that the warden acted maliciously. Banks v. Jones, 2019 Ark. 204, 575 S.W.3d 111 (2019).

Cited: Carter v. Bush, 296 Ark. 261, 753 S.W.2d 534 (1988); Cousins v. Dennis, 298 Ark. 310, 767 S.W.2d 296 (1989); City of Little Rock v. Weber, 298 Ark. 382, 767 S.W.2d 529 (1989); Fireman's Ins. Co. v. Ark. State Claims Comm'n, 301 Ark. 451, 784 S.W.2d 771; Cundiff v. Crider, 303 Ark. 120, 792 S.W.2d 604 (1990); Burk v. Beene, 948 F.2d 489 (8th Cir. 1991); Qualls v. Ferritor, 329 Ark. 235, 947 S.W.2d 10 (1997); Grine v. Board of Trustees, 338 Ark. 791, 2 S.W.3d 54 (1999); Okruhlik v. Univ. of Ark., 255 F.3d 615 (8th Cir. 2001); Smith v. Brt, 363 Ark. 126, 211 S.W.3d 485 (2005); Martin v. Hallum, 2010 Ark. App. 193, 374 S.W.3d 152 (2010); Doe v. Nat'l Healthcare of Newport, Inc., 2016 Ark. App. 493 (2016).