Volunteer Protection Act
Encyclopedia
The federal Volunteer Protection Act of 1997 (the VPA or the Act) aims to promote volunteerism by limiting, and in many cases completely eliminating, a volunteer's risk of tort
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...

 liability
Legal liability
Legal liability is the legal bound obligation to pay debts.* In law a person is said to be legally liable when they are financially and legally responsible for something. Legal liability concerns both civil law and criminal law. See Strict liability. Under English law, with the passing of the Theft...

 when acting for nonprofit organizations or government entities.

Introduction

People who volunteer to assist nonprofit organizations or government agencies or programs run the risk that their actions, while well-intentioned, may cause harm to another. If those actions are deemed negligent, the volunteer may face civil liability for damages caused by the negligent conduct.

For instance, suppose a volunteer—Vicki Volunteer, let us say—loves dogs and works for free in her local animal shelter, a community nonprofit organization. Unfortunately, Vicki unintentionally but negligently fails to properly secure a dog cage, resulting in the escape of a dangerous stray dog which then bites and seriously injures a child. A lawsuit is filed against both the shelter (which has only a small amount of insurance and no real assets) and Vicki (who is rich and has plenty of free time to volunteer).

Potential damages arising from such an incident can obviously be large, and the risks of such liabilities may inhibit volunteerism. The VPA was motivated by such concerns.

General

The Act generally eliminates the liability of an individual volunteer for damage caused by his or her simple or ordinary negligence, so long as the individual was acting within the scope of his or her responsibility to the eligible organization and was not grossly negligent or intentionally trying to cause harm. The Act provides protection to the individual volunteer only; it does not immunize or otherwise limit or affect the liability of the nonprofit organization or government entity itself.

However, as explained below in more detail, the Act's protection for volunteers does not extend to damage caused by acts involving motor vehicles, crimes of violence, hate crimes, sexual offenses, violations of Civil Rights, or misconduct involving intoxication or drugs.

The volunteer's protection under the VPA is not an absolute immunity
Absolute immunity
Absolute immunity is a form of legal immunity in contrast to qualified immunity. While qualified immunity, by its very nature, carries with it a set of conditions that must be fulfilled in order for the immunity to attach, an absolute immunity is unconditional....

, but rather a qualified immunity
Qualified immunity
Qualified immunity is a doctrine in U.S. federal law that arises in cases brought against state officials under 42 U.S.C Section 1983 and against federal officials under Bivens v. Six Unknown Named Agents, 403 U.S. 388 . Qualified immunity shields government officials from liability for the...

 against liability for certain tort claims. In particular, the Act only provides immunity against claims that the volunteer caused harm by his or her "simple" or "ordinary" negligence. Claims that the injury was caused by gross negligence, or by willful or criminal misconduct, or by a conscious and flagrant indifference to the victim's rights or safety, are not within the scope of the protection afforded to volunteers by the Act.

In some interesting provisions that evoke cooperative federalism
Cooperative Federalism
Cooperative federalism is a concept of federalism in which national, state, and local governments interact cooperatively and collectively to solve common problems, rather than making policies separately but more or less equally or clashing over a policy in a system dominated by the national...

, the Act allows a state to impose conditions upon a volunteer's immunity under the Act. Specifically, a state might by legislation require that, as a condition of a volunteer's immunity under the Act, the nonprofit must provide a "financially secure source of recovery" for potential victims who are harmed by the nonprofit's volunteers. In such a state, only an adequately insured nonprofit would be able to offer the Act's immunities to its volunteers.

The VPA's exclusions of liability should be distinguished from the doctrine
of charitable immunity
Charitable immunity
Charitable immunity is a legal doctrine which holds that a charitable organization is not liable under tort law. It originated in 19th century Britain....

, which provides an exclusion in some circumstances to charitable organizations, rather than specifically to the individual actors.

The Act's exclusions are related to, but still different from, the limitations provided under Good Samaritan laws, which are often available to individuals acting in medical emergencies and acting on their own rather than on behalf of any organization.

Detailed analysis of the Act

The Act contains five sections, numbered as 14501 through 14505. The first section (14501) defines the nature and purpose of the Act, and then the remaining four sections set out the legal parameters which define the scope and effect of the Act. A section by section review follows.

Section 14501

The Congress makes its findings in subsection (a) of section 14501, basically determining that the Act is needed to promote volunteerism and that "liability reform" under the VPA is an appropriate exercise of its powers under both Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...

's Commerce Clause
Commerce Clause
The Commerce Clause is an enumerated power listed in the United States Constitution . The clause states that the United States Congress shall have power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Courts and commentators have tended to...

 and the Fourteenth Amendment
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...

.

In subsection (b) the Congress stated its purpose was to promote and sustain social service programs, and the associated nonprofit organizations and governmental entities that depend on volunteers, by reforming the tort laws to prevent liability abuses against such volunteers.

Subsection (a): federal preemption

This subsection expressly preempts and nullifies any state tort laws, "to the extent that such laws are inconsistent with [the VPA]."

To illustrate, under the general tort law of a state, a person who negligently
Negligence
Negligence is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances. The area of tort law known as negligence involves harm caused by carelessness, not intentional harm.According to Jay M...

 and proximately
Proximate cause
In the law, a proximate cause is an event sufficiently related to a legally recognizable injury to be held the cause of that injury. There are two types of causation in the law, cause-in-fact and proximate cause. Cause-in-fact is determined by the "but-for" test: but for the action, the result...

 causes harm to another is liable in damages for the amount of the damage caused. However, under the Act, this state law is completely displaced or preempted by the federal VPA immunities, and the volunteer avoids legal liability if he or she fits within the scope of the Act's protections.

However, if a state law provides additional protection to volunteers, then the state law continues to operate and is not preempted. In short, the federal VPA protections for volunteers can be expanded, but not contracted, by the state law.

Subsection (b): state opt-out

The Act is in many ways an exercise in cooperative federalism
Cooperative Federalism
Cooperative federalism is a concept of federalism in which national, state, and local governments interact cooperatively and collectively to solve common problems, rather than making policies separately but more or less equally or clashing over a policy in a system dominated by the national...

. It establishes, on the one hand, a national rule with preemptive force, and on the other hand allows the states to override the national rule by express legislative decision. This state-federal cooperation is evident in subsection (b), which allows a state to opt-out—entirely and without reservation, and without any necessity of passing its own state volunteer act—from the VPA. All the state legislature must do is to enact a special law stating, in effect, that "we opt out of the VPA."

New Hampshire
New Hampshire
New Hampshire is a state in the New England region of the northeastern United States of America. The state was named after the southern English county of Hampshire. It is bordered by Massachusetts to the south, Vermont to the west, Maine and the Atlantic Ocean to the east, and the Canadian...

 has in fact so opted out of the VPA, and the federal VPA has no effect in New Hampshire so long as the associated lawsuit is conducted "in a State court against a volunteer [and] all parties [to the lawsuit] are citizens of the State," section 14502(b) of the Act.

Section 14503

This Section's six subsections form the complex heart of the statute. They generally define the immunities and exclusions from liability that a volunteer enjoys under the Act, and then define the limits on, and exceptions to, these immunities and exclusions.

Subsection (a)

This subsection is the heart of the Act and defines the basic liability protection for a volunteer. It excludes liability for harm caused by a volunteer, based on any of the volunteer's acts or omissions on behalf of an eligible organization, so long as:
1 - the volunteer was (at the time of the error or omission) acting within the scope of his or her responsibilities in the organization;
2 - the volunteer was properly licensed, certified or authorized by the appropriate authorities, if required or appropriate;
3 - the harm was caused by simple or ordinary negligence rather than by gross negligence (or worse); and
4 - the harm did not result from the volunteer's operating a vehicle, vessel or aircraft for which either an operator’s license or insurance is required under state law.

Subsection (b)

The protection provided under subsection (a), however, does not extend to any legal actions taken by the volunteer's organization itself against the volunteer. These are unaffected by the Act.

Subsection (c)

As previously mentioned, the Act only provides an immunity to the volunteer, not to the organization for which the work is done. Subsection (c) says exactly this.

Subsection (d)

Under the cooperative federalism approach mentioned above, a state is entitled, under the terms of the VPA, to set conditions on the volunteer's obtaining the liability protections of the Act. By such an action, the state can limit the operation of the VPA, and provide (for instance) that it will be in effect to protect volunteers, but only if the supervising organization has a certain level of liability insurance.

A state may make the VPA liability protections subject to any one (or more) of the following rules:
1- the organization must implement risk management procedures, including volunteer training, and if it fails to do so, the protection does not apply;
2 - the nonprofit is liable for the errors and omissions of its volunteers to the same extent as a private employer is liable for those of its employees;
3 - the protection does not apply to civil actions brought by the state itself;
4 - the protection only applies if the organization provides a "financially secure source of recovery" for individuals who are harmed by volunteers.

Subsection (e)

The preceding rules of section 14503 (subsections (a) through (d)) apply to any type of damages that an injured party may seek against a volunteer, whether those are denominated as compensatory damages, punitive damages
Punitive damages
Punitive damages or exemplary damages are damages intended to reform or deter the defendant and others from engaging in conduct similar to that which formed the basis of the lawsuit...

 or by some other label. Subsection (e), by contrast, establishes an additional barrier for an injured party trying to win punitive damages
Punitive damages
Punitive damages or exemplary damages are damages intended to reform or deter the defendant and others from engaging in conduct similar to that which formed the basis of the lawsuit...

 against a volunteer.

On top of those other exclusions and conditions specified in the preceding subsections, punitive damages may not be awarded unless the claimant shows, by clear and convincing evidence, that the harm resulted from the volunteer's willful or criminal misconduct, or from a conscious and flagrant indifference to the rights of the injured party.

Subsection (f)

Congress decided that some volunteer actions should never enjoy any immunity or protection under the Act. Accordingly, it established the following categories of conduct which are always unaffected by any privileges that might otherwise be enjoyed by volunteers under the VPA:

Crimes of Violence.

Acts of international terrorism.

Hate Crimes.

Sexual Offenses.

Civil Rights
Civil rights
Civil and political rights are a class of rights that protect individuals' freedom from unwarranted infringement by governments and private organizations, and ensure one's ability to participate in the civil and political life of the state without discrimination or repression.Civil rights include...

 Violations.


Claims Involving Use of Alcohol or Drugs.

Section 14504

If, despite the protections of the VPA, a volunteer is nevertheless held liable for harm caused by his or her actions in furtherance of responsibilities to the eligible entity, this section provides some protections to the extent the damages recovered by the injured party are for a "noneconomic" loss.

This section overrides any applicable state rule of joint and several liability
Joint and several liability
Where two or more persons are liable in respect of the same liability, in most common law legal systems they may either be:* jointly liable, or* severally liable, or* jointly and severally liable.-Joint liability:...

 and establishes instead a federal rule of proportionate liability: a volunteer is in any event only liable for damage to the extent of his or her proportionate responsibility or fault.

Section 14505

The final section of the VPA sets out important definitions. The most critical definitions are described below.

Who is a "volunteer"?

A volunteer (subsection 6 of 14505) is an individual who provides services to the eligible organization and whose "compensation" is at most $500.00 per year. A volunteer's title or office does not matter in determining status: he or she may be an officer or director or trustee of the organization, or may just be a regular "direct service volunteer."

The definition raises the further question of what constitutes "compensation" or things received "in lieu of compensation." For instance, suppose the nonprofit animal shelter provides lunch (average value of $4.00) to all its volunteers, and Vicki Volunteer performs services (and thus receives the lunch) fifteen days every month (for a total of 180 lunches per year with a "value" of $720.00). Is this value of $720.00 then "compensation" to Vicki? If so, then she is no longer a statutory "volunteer" and will not have the protections of the Act.

What is a "nonprofit"?

A nonprofit organization (under subsection 4) is an organization which is either:
1 - qualified under Section 501(c)(3) of the Internal Revenue Code
Internal Revenue Code
The Internal Revenue Code is the domestic portion of Federal statutory tax law in the United States, published in various volumes of the United States Statutes at Large, and separately as Title 26 of the United States Code...

, or
2 - a not-for-profit organization which is (a) organized and conducted for public benefit and (b) operated primarily for charitable, civic, educational, religious, welfare, or health purposes,

and, in either case, which does not practice any action which constitutes a hate crime.

What is a "governmental entity"?

There is no definition of this parallel term, however, under the IRS definition of non-liability within its scope of the VITA/TCE program, it is the same as that defined as an organization eligible for deductible contributions defined in IRS Pub 17 Chap 24, p. 158 Sect 5 Part 24 Contributions to wit: Organizations that qualify to receive deductible contributions: Types of Qualified Organizations: Government Entities: The United States or any State, the District of Columbia, a U.S. possession (including Puerto Rico), a political subdivision of a state or U.S. possession, or an Indian tribal government or any of its subdivisions that perform substantial government functions.

What is "harm" under the Act?

Harm (defined in subsection 2) may be either physical or nonphysical, and it may entail either an economic or a noneconomic loss. Also, Willful or criminal misconduct, gross negligence, reckless misconduct, conscious, or flagrant indifference to the rights or safety of the individual the volunteer harms. Wanton/willful/careless/reckless disregard for the safety and security of others in the form of assault, battery, criminal property damage, criminal injury. Harassment, discrimination, or any form of physical or non-physical abuse.
Economic loss

An “economic loss” (defined in subsection 1) is any pecuniary loss resulting from harm, to the extent recovery for such loss is allowed under applicable State law. Such losses include, but are not necessarily limited to, loss of earnings, medical expenses, replacement services loss, loss due to death (including funeral costs) and loss of business opportunity. [From SCORE Counselors To America's Small Businesses information library]
Noneconomic loss

Conversely, a “noneconomic loss” (as defined in subsection 3) is any nonpecuniary loss of any kind or nature, including, but not necessarily limited to, loss "for physical and emotional pain, suffering, inconvenience, physical impairment, mental anguish, disfigurement, loss of enjoyment of life, loss of society and companionship, loss of consortium (other than loss of domestic service), hedonic damages and injury to reputation....".

State Laws

State law may dramatically limit the effect of the Act.

In 1990, as a further experiment in cooperative federalism, President Bush released a Model State Volunteer Act and called for state-by-state adoption. In response to these forces, state legislatures began taking action. Every state now has a law addressing the legal liability of volunteers.

However, the state statutes lack uniformity and consistency. State legislatures were forced to confront numerous political pressures and lobbies, and to balance volunteer liability protection against victim compensation.

Only about half the states protect any volunteers other than directors and officers of the nonprofit organization. Moreover, every state volunteer protection statute has exceptions, as does the VPA itself; and the exceptions are not necessarily uniform. The most common exceptions to volunteer immunity are for certain types of "bad" volunteer conduct, the use by volunteers of motor vehicles, and federal actions.

Most state laws do not immunize volunteers against claims based on a volunteer's willful or wanton misconduct. And many states also exclude claims of harm based on gross negligence from the scope of the volunteer immunity.

A few state laws appear to permit lawsuits against a volunteer based on the volunteer's simple negligence, with the apparent result of nullifying any real protection under the VPA; these laws are very questionable in the face of VPA, which sets out a uniform federal rule.

Roundabout liability for volunteers

The Act seems to allow for an anomalous kind of "roundabout" litigation, whereby it takes away with the left hand what it has tried to give with the right hand.

To illustrate this rather interesting legal conundrum, suppose that Vicki Volunteer, as before, has rather unfortunately allowed a dangerous dog to escape the custody of the animal shelter. Vicki was negligent but not grossly so in her mistake.

Vance Victim is bitten and he sues both Vicki and the shelter based on Vicki's ordinary negligence causing him physical harm.

In her defense, Vicki pleads the Act and thereby avoids any liability to Vance.

The shelter, however, through the legal doctrine of respondeat superior
Respondeat superior
Respondeat superior is a legal doctrine which states that, in many circumstances, an employer is responsible for the actions of employees performed within the course of their employment...

 is found to be vicariously liable to Vance, based on Vicki's negligence, and is subjected to a judgment for $100,000, which is paid by the shelter's insurance company.

Under ordinary legal principles of subrogation
Subrogation
Subrogation in its most common usage refers to circumstances in which an insurance company tries to recoup expenses for a claim it paid out when another party should have been responsible for paying at least a portion of that claim....

, the insurance company "inherits" all the ordinary rights that the shelter had against Vicki for indemnification; and the insurance company therefore sues Vicki for ordinary indemnification and wins a judgment for $100,000.

If Vicki is indeed held liable to indemnify the insurer (or, indeed, to indemnify the shelter itself in a simpler case where there is no insurance), then the policies of the Act will be thwarted; but the Act by its express terms appears to allow for precisely such an outcome. If the "roundabout" claim is indeed permitted, then the Act's protections will be largely an illusion.

Litigation

In Armendarez v. Glendale Youth Center, Inc., 256 F.Supp. 2d 1136 (D.C. AZ 2003), the former CEO of a nonprofit sued both the nonprofit corporation and its individual—and volunteer—Board of Directors members for unpaid wages under the Fair Labor Standards Act
Fair Labor Standards Act
The Fair Labor Standards Act of 1938 is a federal statute of the United States. The FLSA established a national minimum wage, guaranteed 'time-and-a-half' for overtime in certain jobs, and prohibited most employment of minors in "oppressive child labor," a term that is defined in the statute...

(FLSA).

The Court was thus confronted with multiple puzzles:
  • Did the former CEO's claim against the Board members sound in contract or in tort (or in both)? Were contract claims also immunized under the VPA?
  • If the CEO's claim was a tort claim arising under the FLSA --a federal law-- then what was the effect of the preemption provision of the Act which only expressly preempts state law claims? Did this therefore leave the federal claim under FLSA viable?


The Court noted that the FLSA was not noted as an exception to the immunities granted in the VPA, and consequently held that the VPA immunized the individual board members from liability. This was true, whether or not the nonprofit itself could actually pay any judgment in the former CEO's favor, whether or not the CEO's claim was in contract or tort, and whether or not the claim arose under federal or state law.

Nunez v. Duncan, 2004 U.S. Dist. LEXIS 11037 (D.Or. 2004). The volunteer President of a nonprofit is entitled to VPA immunity. A cite to Armendarez was sufficient for this Court to rule in favor of the volunteer.

Galindo v. Board of Directors of Latin American Civic Assoc., 2006 Cal. App. Unpub. LEXIS 378, 11 (Cal. App. 2006) (unpublished), same result.

In Mormons et al. v. St. John’s Northwestern Military Academy, Inc., 2000 U.S. Dist. LEXIS 5129 (E.D. Ill. 2000), parents sued a nonprofit school and its volunteer trustees for fraud under state law, claiming they were fraudulently persuaded by the trustees to enroll their children in the school. The Court considered the trustees' defense that they were protected
from liability by the VPA and noted that the Act protects volunteers, including directors, who perform services for a nonprofit and receive compensation of no more than $500 per year.

The Court observed that the parents were claiming that the trustees made representations they knew were false, and that the trustees acted with the intent to induce the parents' reliance. Such allegations of willful tort, the Court noted, would exclude the immunity defenses under the VPA, and the parents should therefore have an opportunity to try to prove their allegations in court. The trustees' attempts to avoid liability at an early pleading stage were therefore thwarted.

External links

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