June 2, 1998 98-R-0749
FROM: George Coppolo, Chief Attorney
RE: Federal Volunteer Immunity Act of 1997--Summary and Copy
You asked for a summary and copy of a recently enacted federal volunteer immunity act.
On June 18, 1997 Congress enacted the Volunteer Protection Act of 1997. It became effective in September of 1997. The act grants those who perform volunteer work for nonprofit organizations or a governmental entity immunity from civil liability for injuries they cause by their acts of negligence while volunteering. It also establishes a clear and convincing standard of proof for punitive damages to be awarded against such volunteers and makes them liable for noneconomic damages (pain and suffering) only to the degree their wrongdoing caused the harm.
The act preempts contrary state law but states can opt out of the law by passing an act explicitly doing so.
We have enclosed (1) a copy of the act; (2) the House Judiciary Committee Report, which includes a detailed section-by-section summary; (3) a dissenting report filed by opponents of the bill on the House Judiciary Committee; and (4) a statement by President Clinton as to why he signed the legislation.
Following is a brief summary of the federal act. Please let us know if you need additional information.
PREEMPTION AND OPTING OUT
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.
The act allows a state to opt out of the act's coverage if it enacts a statute that cites the federal act, declares that the state elects not to have the federal act apply, and contains no other provisions. If a state opts out of the federal act, it will not apply to any civil action in a state court against a volunteer in which all parties are citizens of that state.
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 bill 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. makes a limitation of liability inapplicable if the civil action was brought by a state or local government officer pursuant to state or local law; or
4. makes a liability limitation apply only if 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 trier of fact (jury or judge in a nonjury trial) to determine the volunteer's percentage of responsibility for the harm.