In September 1997, a new federal statute entitled the Volunteer Protection Act of 1997(fn1) ("the Act") took effect. This new statute provides immunity from personal liability to volunteers working for non-profit and charitable organizations. It governs all claims based on incidents that took place after that date. This article is intended to provide a basic summary of the provisions of the Act.
The Scope of the Act
For the purposes of the Act, a "non-profit organization" is any organization allowed tax-exempt status as a non-profit.(fn2) Organizations such as the Boy Scouts of America, churches, synagogues, civic charities or educational organizations would be included in this definition. In short, any organization entitled to non-profit status under the Tax Code is probably well within the scope of the Act.
The other important definition is that of a "volunteer" for the purposes of the Act. A "volunteer" is defined as a person who provides services to a non-profit organization but does not receive compensation or anything of value in excess of $500.00 per year for his or her services.(fn3) A person may receive reimbursement of his or her expenses and still be protected as a volunteer by the Act.(fn4) For organizations that reimburse officers or volunteers for their expenses based on the submission of receipts or invoices, there should be no problem showing that these people are "volunteers" under the Act.
Immunity from Personal Liability
The Act states that a volunteer for a non-profit or charitable organization may not be held personally liable for harm caused in the course of his or her work for the organization if certain criteria are met. If all of these criteria are not present, then the volunteer could be held personally liable.(fn5)
First, the volunteer must have been acting within the scope of his or her responsibilities for the organization at the time the harm took place.(fn6) In other words, a person must be doing something that he or she is supposed to do or required to do in order to further the activities of the organization. Exactly what activities fall within the scope of a volunteer’s responsibilities for the organization will depend on the volunteer’s position and the nature of the organization.
Second, the volunteer must be properly licensed, authorized or certified to do the thing that he or she was doing at the time the harm took place.(fn7) This criterion applies only if a license, authorization or certification is required in order to undertake the activity. For example, professionals such as doctors, nurses, lawyers, et cetera., providing their services to an organization as professionals, should be properly licensed and in good standing in their respective professions. Whether or not a license or certification is required for a particular activity will depend on the nature of the activity and the applicable state or local laws.
Third, the volunteer must show that the harm in question was not caused by his or her willful or criminal misconduct, gross negligence, reckless misconduct or a conscious, flagrant indifference to the rights or safety of others.(fn8) These terms are all legal terms with specific meanings that can vary slightly from state to state. But, in general, merely being careless or inattentive is not willful, gross or reckless – to rise to a level of reckless or gross misconduct, the volunteer usually must know that the thing he or she is doing is wrong or against the rules, and do it anyway. Again, the kind of conduct that is considered reckless, grossly negligent or willful misconduct will depend greatly on the specific circumstances.
The final requirement is that the harm in question not have been caused by the volunteer’s operation of a motor vehicle or other vessel for which an operating license is required.(fn9)
There are a number of exceptions to the general immunity afforded by the Act.(fn10) A volunteer may still be held personally liable for harm he or she causes in the following situations:
(1) If he or she commits a crime of violence or an act of international terrorism
(2) If he or she commits a hate crime
(3) If he or she commits and is convicted for a sexual offense
(4) If he or she violates a federal or state civil rights law
(5) If he or she was under the influence of alcohol or an intoxicating drug at the time he or she committed the acts complained of
Each of these exceptions is defined by reference either to the applicable state criminal laws or to specific federal laws.
Limitations on Damages
In addition to dealing with issues of liability, the Act also limits the kinds and amounts of damages that can be awarded against a volunteer who is being sued for activities on behalf of a non-profit or charitable organization. The first limitation on damages relates to punitive damages.
Punitive damages are damages that are not related to the actual losses, injuries or harm suffered by a person. They are generally assessed based on how bad the defendant’s conduct was. Punitive damages are intended to punish a wrongdoer for exceptionally bad conduct, not to compensate anyone for losses. The Act states that punitive damages may not be awarded against a volunteer who has been acting within the scope of his or her duties unless certain criteria are proven at trial by clear and convincing evidence.(fn11) Specifically, in order to obtain punitive damages, the plaintiff must prove that the volunteer’s actions rose to a level of willful or criminal misconduct, or exhibited a conscious, flagrant indifference to the rights or safety of others. Based on this standard, merely being careless would not result in an award of punitive damages, even if the volunteer was somehow held personally liable for his or her carelessness.
Another section of the Act limits a volunteer’s liability for damages for non-economic losses. Non-economic losses include claims for pain and suffering, emotional distress and other non-tangible losses.(fn12) A volunteer may be held personally liable for such losses only to the extent that he or she is responsible for the overall harm alleged.(fn13)
This limitation makes the most sense when expressed in an example. Imagine a scenario in which a plaintiff claims he was injured while hiking with the Boy Scouts. The plaintiff sues the troop leader individually, as well as the Boy Scouts of America organization and the owner of the property on which the group was hiking. In most states, the judge or jury in such a case will apportion liability among multiple defendants according to their individual actions or omissions. Under the provisions of the Act, the troop leader, if he were found liable at all, could be compelled only to pay non-economic damages proportional to his actual personal liability. He would not be responsible for paying non-economic damages that were found to have been caused by the actions or omissions of the organization or the property owner.
What the Act Does Not Cover
The Act does not cover several important things. Most importantly, the Act does not prevent individuals acting as volunteers from being sued or being named in a lawsuit. Instead, the Act provides an affirmative defense to liability, which the lawyers for the volunteer would raise in the course of the case. While a volunteer might be named as a defendant in the initial stages of a case, it is very likely that the claims against the volunteer would be dismissed fairly early in the process.
In addition, the Act does not protect the organization itself from liability for harms suffered in the course of its activities.(fn14) The organization remains responsible for the acts or omissions or the persons working for it, even if the persons cannot be held liable individually. Returning to the previous example, a person injured while hiking with the Boy Scouts could still sue the Boy Scouts of America organization even though he cannot hold the troop leader personally responsible.
The Act does not prevent non-profit organizations from suing their volunteers for misconduct.(fn15) If an officer or volunteer harms the organization in some way, the organization can still bring suit against him or her without invoking the protection provided by the Act.
The Act also does not eliminate all the laws of the individual States relating to the liability of volunteers. Instead, the Act sets a floor for the protection that is to be afforded volunteers. States may create additional protections, but may not mandate less protection or pass other inconsistent laws.(fn16) State laws that are considered consistent with the Act will remain in force.(fn17)
In addition, individual states are expressly permitted to pass legislation stating that the Act does not apply in that state.(fn18) Such legislation would apply only if all of the parties in a lawsuit were citizens of the same state. Whether individual states will take advantage of the leeway provided by this portion of the Act remains to be seen.
Finally, one important thing to keep in mind when reading the Act is that Congress left several areas unclear. These areas will have to be fleshed out, either by the individual States or by cases interpreting the Act. At this point, there are not yet any reported cases interpreting the Act. Until some of these ambiguities are resolved, it is impossible to predict with certainty how the Act would be applied in any given situation.
Conclusion
The Act is not a perfect or a comprehensive statute. However, it is an important step in standardizing the protection afforded to volunteers throughout the country. It should provide some measure of comfort to those who volunteer their services to non-profit organizations. In addition, reducing the possibility of personal liability for volunteers should make people more willing to contribute their time and energy, and re-direct existing resources to more productive efforts than worrying about potential lawsuits. All in all, the Act is a positive step both for volunteers and for the non-profit organizations that rely on volunteers.
(fn1) 42 U.S.C. § 14501 et seq. (fn2) 42 U.S.C. § 14505(4). (fn3) 42 U.S.C. § 14505(6). (fn4) 42 U.S.C. § 14505(6)(A). (fn5) The volunteer may have other defense to liability apart from those provided by the Act. These defenses will vary based on the applicable law and the particular situation. (fn6) 42 U.S.C. § 14503(a)(1). (fn7) 42 U.S.C. § 14503(a)(2). (fn8) 42 U.S.C. § 14503(a)(3). (fn9) 42 U.S.C. § 14502(a)(4). (fn10) 42 U.S.C. § 14503(f). (fn11) 42 U.S.C. § 14503(e). (fn12) 42 U.S.C. § 14505(3). (fn13) 42 U.S.C. § 14504(b). (fn14) 42 U.S.C. § 14503(c). (fn15) 42 U.S.C. § 14503(b).
(fn16) 42 U.S.C. § 14502(a).
(fn17) Congress specifically defined certain kinds of statutes that it considers to be consistent with the provisions and purposes of the Act. These kinds of statutes include State laws requiring non-profit organizations to adhere to risk management procedures, State laws requiring training of volunteers, and State laws making organizations liable for the actions of their legal representatives. 42 U.S.C. § 14503(d). (fn18) 42 U.S.C. § 14502(b).