dissenting.
I respectfully dissent from the majority reversing and, in fact, rendering a verdict in favor of the defendants in this case. I would reverse and remand for a new trial.
I have no quarrel with the majority’s view of the law that covers this case. I think the majority’s view of the law after the case of Town of Newton v. Rumery, 480 U.S. 386, 107 S.Ct. 1187, 94 L.Ed.2d 405 (1987), is correct.
The covenant not to sue in this case, which was part in writing and part in oral promises on the part of the defendants, and which the jury found existed, can be upheld as the majority declares, if the parties en*642tered into it voluntarily, there was no pros-ecutorial overreaching, and in conformity with the public interest.
The problem I have is that the majority has taken a seat inside the jury box and has replaced the jurors in this case in deciding mainly the issue of voluntariness of the Berry’s signing that part of the covenant not to sue in which the defendants agreed to pay the hospital bills of Jack Berry, which they would probably have had to pay regardless of whether there was a suit or not.
Voluntariness to me necessarily includes an understanding of what the agreement is about by the parties that enter into it. All of the Berrys, the father, the mother and the son, who is the plaintiff in the present case, testified that they did not understand that the paper they were signing would not give them a right to sue under § 1988 or under state law on negligence of the sheriff. The jury that heard the testimony in this case and saw the witnesses that testified could well have decided that the covenant not to sue was not entered into voluntarily since there was not a meeting of the minds on the effect of the covenant they were signing.
Like the majority, I agree that whether to uphold such a covenant not to sue under § 1983, or for negligence under state law, the question of voluntariness is a question of fact. That the question of prosecutorial overreaching is mainly a question of law, as is the question of whether it is good or not for the public interest. As stated by the majority in their footnote, two (2), there may be subsidiary fact issues raised which are pertinent to the determination of prose-cutorial overreaching or public interest and the court might send such issues to the jury, but that it retains responsibility on the ultimate criteria.
The court below asked the jury whether the covenant not to sue between the Berry family and Hancock County “should be enforced”. The lower court instructed the jury by this interrogatory to determine each of the Rumery criteria for enforceability — voluntariness, prosecutorial overreaching, and whether public policy favored the agreement. I also agree with the majority that this was error.
Unlike the majority, I do not agree that the jury should have passed only on the question of voluntariness.
The issue of prosecutorial overreaching was still present after young Berry was severely burned. The county charged him with arson in setting the fire which injured him. Even at the time of the trial in this cause, the county was still insisting that he was guilty of arson and the first question that was asked by the court below was whether or not Jack Berry had set the fire, and the jury answered, “No.” The court could very well have believed that, by that finding, the jury meant to tell the county that they had overreached their prosecuto-rial conduct by the filing of the charge of arson against Jack Berry. I cannot say for sure that the only issue in this case was voluntariness, but neither can the majority.
The jury in this case found that the defendants had been negligent under the law in not providing this young plaintiff with a safe place while incarcerated. Not only did the jury find for the plaintiff in his charge that his constitutional rights had been violated, but also found negligence under state law.
Because of the erroneous interrogatory above stated, I would remand the case for a new trial so that the court below can submit to the jury a question on voluntariness, a question on whether or not the filing of the arson charge was to encourage the signing of the covenant not to sue, and any other issues that the court could or should have submitted in this case. The court below should also make those findings which he alone can make on the three prongs of Rumery, supra.