March 13, 2003
LIABILITY OF VOLUNTEERS
By: George Coppolo, Chief Attorney
You asked whether Connecticut law protects volunteers from liability. Our office is not authorized to give legal opinions and this report should not be considered one.
Connecticut law protects volunteers who are engaged in certain activities under certain circumstances. The protection applies to volunteers who (1) render emergency medical services; (2) assist civil preparedness forces; (3) act as unpaid members of boards and commissions; (4) act as directors, officers, or trustees of nonprofit tax-exempt organizations; (5) donate food; or (6) allow their property to be used for certain activities free of charge. Federal law also provides volunteers with protection for their activities under certain circumstances. It applies to those who volunteer for nonprofit organizations and governmental entities. Following is a summary of state and federal law.
The Good Samaritan Law (CGS § 52-557b) provides immunity from civil damages for acts of ordinary negligence in connection with the rendering of emergency medical service by specified individuals under certain circumstances. The immunity does not apply to gross, willful, or wanton negligence.
Under CGS § 52-557b(a), the following persons who provide free emergency medical assistance outside their normal employment or practice are immune from liability for ordinary negligence:
1. licensed physicians and dentists,
2. registered nurses and licensed practical nurses,
3. medical technicians,
4. persons operating cardiopulmonary resuscitators, and
5. persons trained in cardiopulmonary resuscitation (CPR) or in the use of an automatic external defibrillator in accordance with standards set forth by the American Red Cross of American Heart Association.
Under CGS § 52-557b(b), the following persons who render emergency first aid are also not liable for ordinary negligence if they have completed a course in first aid offered by the American Red Cross, the American Heart Association, the National Ski Patrol, the Department of Health and Addiction Services, or any director of health as certified by the agency or director of health offering the course:
1. paid or volunteer firefighters or police officers;
2. teachers or other school personnel on school grounds, in a school building, or at a school function;
3. members of a ski patrol;
5. conservation officers;
6. patrol officers or special police officers of the Department of Environmental Protection; and
7. emergency medical service personnel.
This law also exempts firefighters, police officers, or emergency medical service personnel who forcibly enter the residence of any person to render emergency first aid from liability for damages to property.
Under CGS § 52-557b(c), a railroad company employee who has completed a first aid course offered by the American Red Cross, who is trained in CPR in accordance with American Red Cross standards and who renders emergency first aid or CPR to a person in need of it, is not liable for ordinary negligence. Under CGS § 52-557b(d), a railroad company that provides emergency medical training or equipment to any employee granted immunity under CGS § 52-557b(c), is not liable for civil damages for any injury sustained resulting from the company's act or omission in providing the training or equipment or which results from the employee rendering first aid or CPR, which constitutes ordinary negligence.
Under CGS § 52-557b(e), a teacher or other school personnel, on school grounds or in the school building or at a school function, who has completed a first aid course offered by specified organizations and a course given by the school medical adviser is not liable to the assisted person for civil damages for any resulting injuries for ordinary negligence. This immunity also applies to a licensed physician who administers medication by injection.
Ordinary negligence is the failure to exercise such care as the great mass of mankind ordinarily exercises under the same or similar circumstances (Clemens v. State, 176 Wis. 289; 57 Am. Jur. 2d Negligence, § 98). Negligence is doing something that a prudent and reasonable person would not do, or not doing something that a reasonable person would do under the same circumstances. The standard is an objective one. It focuses on what a person of ordinary prudence in the exercise of due care would have seen, believed, and done under the circumstances (Dokus v. Palmer, 130 Conn. 247; Weimer v. Brock-Hall Dairy Company, 131 Conn. 361; Connecticut Law of Torts, § 30). Gross negligence, on the other hand, generally signifies more than ordinary inadvertence or inattention, but less than conscious indifference to consequences (Alspaugh v. Diggs 195 Va. 1, 77 S. E. 2d 362; Prosser on Torts, Gross Negligence).
The usual meaning assigned to willful and wanton negligence is that the actor has intentionally done an act of unreasonable character, in disregard of a risk known to him or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow (Second Restatement of Torts, § 500; Cope v. Davidson 30 Cal. 2d 193; Prosser on Torts—Degrees of Negligence). It is usually accompanied by a conscious indifference to the consequences amounting almost to a willingness that they shall follow. Willful or wanton negligence
is an action or omission, which amounts to an extreme departure from ordinary care, in a situation where a high degree of danger is apparent (Prosser on Torts, Degrees of Negligence). Such willful or wanton negligence must be more than mere thoughtlessness, inadvertence, or simple inattention.
CIVIL PREPAREDNESS LAW
Under CGS § 28-13, municipalities, state or municipal agents, and members of the civil preparedness forces who are complying with or attempting to comply with laws, orders, or other measures dealing with civil preparedness are immune from liability for death, injury, or property damages. The immunity established by this law does not apply to willful misconduct. (This civil preparedness law generally deals with natural disasters, emergencies, sabotage, or enemy attack).
The Connecticut courts have not construed the term “willful misconduct” with respect to § 28-13. In a different context, the Connecticut Supreme Court characterized willful misconduct as intentional misconduct (Menzie v. Kalmonowitz, 107 Conn. 197 (1928)). In distinguishing willful misconduct from negligence, the Connecticut Supreme Court has also noted that the difference between intentional misconduct and negligence is “one of kind, and not merely of degree,” that negligence does not have willfulness for its base, and that misconduct which is merely negligent is never willful (Bordonaro v. Senk, 109 Conn. 428, 432 (1929)).
As a general proposition the term “willful misconduct” imparts premeditation or knowledge and consciousness that injury is likely to result from the act done or from failure to act (Brown v. Illinois Terminal Co. 319 Ill. 326; Iaconio V. D'Angelo, 104 N. J. L. 506).
Reckless, willful, or wanton misconduct describes conduct that is more culpable than negligence. It involves intentionally doing an act of unreasonable character, in disregard of a risk the actor knows of or in a disregard of a risk so obvious that he should have been aware of it. The risk is so great that it is highly probable that harm will follow. It usually includes a conscious indifference to the consequences amounting almost to a willingness that they should occur. It is conduct that amounts to an extreme departure from ordinary care, in a situation where a high degree of danger is or should be apparent. It is more than mere thoughtlessness, inadvertence, or simple inattention (Connecticut Law of Torts, § 61; Prosser on Torts).
UNPAID MEMBERS OF BOARDS AND COMMITTEES
CGS § 52-557n, grants immunity for liability to unpaid members of municipal boards, commission, committees, or agencies when exercising their policy or decision-making responsibilities and while acting in good faith and in their official capacities. The immunity does not apply to violations of any government or professional code of ethics, the Freedom of Information law, or the laws banning the use of public funds to influence the vote on a referendum. And it does not apply to damage or injury caused by a member’s reckless, willful, or wanton misconduct.
IMMUNITY OF DIRECTORS, OFFICERS, AND TRUSTEES OF NONPROFIT TAX-EXEMPT ORGANIZATIONS
Any person serving without compensation as a director or officer of a nonprofit organization qualified as a tax-exempt organization under the federal Internal Revenue Code is immune from civil liability for damage or injury resulting from any act, error, or omission made in the exercise of the person’s policy or decision-making responsibilities, if he was acting in good faith and within the scope of his official functions and duties (CGS § 52-557m). Tax-exempt organizations can include clubs organized for pleasure, recreation, and other nonprofitable purposes. Substantially all of the activities must be for such purposes and no part of any net earnings can benefit any private shareholders. They can also include nonprofit corporations organized and operated exclusively for religious, literary, or educational purposes, or to foster amateur sports, or the prevention of cruelty to children or animals. They can also include fraternal beneficiary societies, orders, or associations.
The immunity does not apply if the damage or injury was caused by reckless, willful, or wanton misconduct (CGS § 52-557m). Thus the immunity is limited to acts of negligence.
CGS § 52-557m offers a broad protection from civil liability but it does not cover every nonprofit organization’s director or officer. For example, if a director or officer receives compensation in any amount for performing his duties, he is not protected by the law. Nor does the law provide total immunity even for those who are covered. For example, it does not cover such activities as routine, non decision-making functions or operating a motor vehicle while carrying out the organization’s duties.
IMMUNITY OF PERSONS WHO DONATE FOOD
CGS § 52-557l protects food donors from being sued by someone injured by the donated food or its packaging. It also protects the donor from criminal liability. The protection only extends to those donating food to nonprofit organizations. It does not protect those who either knew or had reasonable grounds to believe that the food was contaminated or was unfit for human consumption, nor does it protect the organization which accepted the food for redistribution or use.
OTHER IMMUNITY LAWS
Following is a listing of other laws that grant immunity to certain volunteers under certain circumstances:
1. CGS § 7-12 makes property owners who maintain open water holes, which have been approved for fire fighting immune from liability in connection with the water hole.
2. CGS §§ 52-557f-h grants immunity to landowners who let the public use their land without charge for recreational purposes. This immunity does not apply to the malicious or willful failure to guard or warn against a dangerous condition, use, or activity.
3. CGS § 52-557j confers immunity on landowners for injuries sustained by people using their land without charge while operating snowmobiles, all-terrain vehicles, motorcycles, minibikes, or minicycles. The immunity does not apply to willful or malicious conduct.
4. CGS § 52-557k grants immunity to landowners who allow the public to harvest firewood, unless the injury is caused by the owner's failure to warn of a dangerous, hidden hazard actually known to the owner.
FEDERAL IMMUNITY LAW
The Volunteer Protection Act of 1997 (P. L 105-19) became effective in September of 1997. In addition to establishing immunity for acts of negligence, it also establishes a clear and convincing standard of proof for punitive damages to be awarded against volunteers and makes them liable for noneconomic damages (pain and suffering) only to the degree their wrongdoing caused the harm.
The act preempts state laws to the extent they are inconsistent with it. It does not preempt state laws that provide additional protection from liability. But states can opt out of the law by passing an act explicitly doing so. Connecticut has not opted out. Thus, the law applies here.
Scope of Limitation on Liability
Under the act, no volunteer of a nonprofit organization or governmental entity can be liable for harm caused by his act or omission on its behalf if:
1. he was acting within the scope of his responsibilities at the time of the act or omission;
2. he was properly licensed, certified, or authorized by the appropriate authorities in the state where the harm occurred;
3. the harm was not caused by willful or criminal misconduct, gross negligence, reckless misconduct, or a conscious flagrant indifference to the rights or safety of the person harmed by the volunteer; and
4. the harm was not caused by the volunteer operating a motor vehicle, vessel, aircraft or other vehicle for which the state requires the operator or owner to possess a license or maintain insurance.
The act specifies that it does not affect (1) any civil action brought by the nonprofit organization or governmental entity against the volunteer; or (2) such organization’s or entity’s liability with respect to harm a volunteer causes.
The act also specifies that a state law is not inconsistent with the federal act because it:
1. requires the organization or entity to adhere to risk management procedures including mandatory training of volunteers;
2. makes the organization or entity liable for the volunteer’s acts or omissions to the same extent as an employer is liable for its employees’ acts or omissions;
3. subjects the volunteer to liability if the civil action was brought by a state or local government officer under state or local law; or
4. limits liability protection to cases where the organization or entity provides a financially secure source of recovery such as an insurance policy for those harmed by the volunteer.
Exemptions to Immunity
The act does not apply to any misconduct that:
1. constitutes a crime or act of international terrorism as defined by federal law for which the volunteer has been convicted;
2. constitutes a hate crime as defined by federal law;
3. involves a sexual offense as defined by state law for which the volunteer has been convicted;
4. involves misconduct for which the volunteer has been found to have violated a federal or state civil rights law; or
5. occurred when the volunteer was under the influence of intoxicating liquor or any drug.
Limitation on Punitive Damages
The act prohibits the award of punitive damages against a volunteer unless the person harmed establishes by clear and convincing evidence that the harm was proximately caused by the volunteer’s actions which constituted willful or criminal misconduct, or a conscious, flagrant indifference to the injured person’s rights or safety.
Liability for Noneconomic Loss
Under the act, a volunteer may be liable for noneconomic loss allocated to him in direct proportion to the percentage of his responsibility for the harm. The act requires the jury (or judge in a nonjury trial) to determine the volunteer’s percentage of responsibility for the harm