STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
June 14, 1968
Gordon A. Diedtrich, Superintendent
Department of Public Instruction
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 67-68 pg. 492
Department of Public Instruction. Liability for injury of state hospital inmates selected for vocational rehabilitation.
You have requested an opinion on the following factual situation:
"The State Department of Public Instruction, through its Vocational Rehabilitation Division provides funds for and offers courses of instruction of a vocational nature for clients of Vocational Rehabilitation who are selected inmates of the State Hospital at Yankton, South Dakota. Some of these courses of instruction involve the use of equipment which when carelessly
used can result in bodily injury. Such enrollees of the State Hospital takes these courses on a voluntary basis. In each case, all medical information is reviewed by the Vocational Rehabilitation counselor and a consulting physician and on the basis of the 
interpretations given by the medical consultant, the Vocational Rehabilitation counselor then determines the applicant's eligibility for the services provided in the various training programs." You have asked the following specific questions:
"1. Could the State of South Dakota be held liable for injury under such circumstances?
"2. Could the State Department of Public Instruction be held liable?
"3. Could an individual employed in the State Department of Public Instruction be held liable for authorizing the course to be offered and allocating funds for the expense of such course?
"4. Could the teacher employed to teach such course be held liable for negligence?"
It is an accepted principle of law that a state is not liable for the negligence of its officers, agents or employees, unless it has voluntarily assumed such liability. See 1929-30 AGR 123 citing Riddock v. State (Wash.) 123 Pac. 450, Medical College of Georgia v. Rushing, 57 S. E. 1083. Robinson v. Washtenaw Circuit Judge (Mich.) 199 N. W. 618.
The same rule is applicable to school districts although members of a school board are liable for their own participation in a wrongful act or they may be held personally liable by negligence in the performance of duties imposed by law. 1929-30 AGR 131.
Our South Dakota Constitution, Article VIII, recognizes "education" as a subject of governmental concern and activity. Paragraph I of said Article VIII provides:
"The stability of a republican form of government depending on the morality and intelligence of the people, it shall be the duty 
of the legislature to establish and maintain a general and uniform system of public schools wherein tuition shall be without charge, and equality open to all; and to adopt all suitable means to secure to the people the advantages and opportunities of education."
With such provisions in our Constitution, it is clear that the general supervision, direction and control of the program of Vocational Rehabilitation, carried on by the State Department of Public Instruction through its Vocational Rehabilitation Division at our State Hospital at Yankton, South Dakota, is a governmental activity. 
"State institutions as agencies of the state are exempt from liability for torts of officers, agents or servants of such institutions." 25 R. C. L. Section 42, page 407. See also 59 CJS 340 196, and 1929-30 AGR 123, supra. Numerous opinions of my predecessors issued since that time all adhere to this principle of law of governmental immunity.
Your questions 1, 2 and 3 will therefore have to be answered in the NEGATIVE.
Question No. 4 requires an affirmative answer and the teacher involved would not have the benefit of governmental immunity should it be found that he or she were negligent in the performance of his or her duties or participated in a wrongful act causing injury to others.
