Volunteer Protection Bills Offer "Carrot and Stick" to States to Enact Federal "Feel Good" Tort Reform

Article excerpt

As characerized by the Bill, "the willingness of volunteers to offer their services is deterred by potential personal liability ... "

On March 4, H.IL 911 was introduced in the House of Representatives: "To encourage the States to enact legislation to grant immunity from personal civil liability, under certain circumstances, to volunteers working on behalf of nonprofit organizations and governmental entities." As characterized by the Bill, "the willingness of volunteers to offer their services is deterred by potential personal liability for simple mistakes made in the course of volunteer service." Further, H.R 911 provides the following rationalization proposing federal legislation in an area of the law traditionally governed by state law (i.e., personal injury liability for negligence): [B]ecause Federal funds are expended on useful and cost-effective social service programs which depend heavily on volunteer participation, protection of volunteerism through clarification and limitation of the personal liability risks assumed by the volunteer in connection with such participation is an appropriate subject for Federal encouragement of State reform.

Federal "encouragement" in the bill takes the form of a one percent increase in the fiscal year allotment for a state's Social Services Block Grant under Title XX (20) of the Social Security Act. To obtain such increased federal funding, States would have to certify to the Secretary of Health and Human Services that state tort reform legislation has been enacted which meets the requirements of H.R 911 to limit the liability of volunteers. Specifically, under Section 4 of the Bill, States must provide the following "Limitation on Liability for Volunteers":

[Al ny volunteer of a nonprofit organization or governmental entity shall incur no personal financial liability for any tort claim alleging damage or injury from any act or omission of the volunteer on behalf of the organization or entity if-(1) such volunteer was acting in good faith and within the scope of such volunteer's of ficial functions and duties with the organization or entity; and (2) such damage or injury was not caused by willful and wanton misconduct by such volunteer.

The Bill defines "volunteer" as "an individual performing services for a nonprofit organization or a governmental entity who does not receive-(A) compensation (including reimbursement or allowance for expenses), or (B) any other thing of value in lieu of compensation, in excess of $300, and such term includes a volunteer serving as a director, officer, trustee, or direct service volunteer."

Under H.R 911, a "nonprofit organization" is defined as "any organization described in section 501 (C) of the Internal Revenue Code of 1986 and exempt from tax under section 501 (a) of such Code." Accordingly, the Bill would not apply to volunteers of unincorporated, non-profit associations providing their services through informal community service organizations and local sports associations.

The House Bill further provides that a State may "impose one or more of the following conditions on and exceptions to the granting of liability protection to any volunteer of an organization or entity" and still meet the certification requirements of H.R 911:

(1) The organization or entity must adhere to risk management procedures, including mandatory training of volunteers, as defined by the Secretary of Health and Human Services by regulation.

(2) The organization or entity shall be liable for the acts or omissions of its volunteers to the same extent as an employer is liable, under the laws of that State, for the acts or omissions of its employees.

(3) The protection from liability does not apply- (A) if the volunteer was operating a motor vehicle, vessel, aircraft, or other vehicle for which the State involved requires the operator or vehicle owner to maintain insurance; (B) in the case of a suit brought by an appropriate officer of a State or local government to enforce a Federal, State, or local law; and (C) to the extent the claim would be covered under any insurance policy. …