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Volunteer Protection Act of 1997 [DOCID: f:publ19.105] [[Page 217]]

VOLUNTEER PROTECTION ACT OF 1997 [[Page 111 STAT. 218]]

Public Law 105-19 105th Congress An Act To provide certain protections to volunteers,<

nonprofit organizations, and governmental entities in lawsuits based on the activities of

volunteers. <> Be it enacted by the Senate and House of Representatives of the

United States of America in Congress <> assembled, SECTION 1. <>

SHORT TITLE. This Act may be cited as the ``Volunteer Protection

Act of 1997''. SEC. 2. <> FINDINGS AND PURPOSE. (a) Findings.--The Congress finds

and declares that-- (1) the willingness of volunteers to offer their services is deterred by the

potential for liability actions against them; (2) as a result, many nonprofit public and private

organizations and governmental entities, including voluntary associations, social service

agencies, educational institutions, and other civic programs, have been adversely affected

by the withdrawal of volunteers from boards of directors and service in other

capacities; (3) the contribution of these programs to their communities is thereby diminished,

resulting in fewer and higher cost programs than would be obtainable if volunteers were

participating; (4) because Federal funds are expended on useful and cost- effective

social service programs, many of which are national in scope, depend heavily on

volunteer participation, and represent some of the most successful

public-private partnerships, 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 legislation; (5) services and goods provided by volunteers

and nonprofit organizations would often otherwise be provided by private entities that

operate in interstate commerce; (6) due to high liability costs and unwarranted litigation costs,

volunteers and nonprofit organizations face higher costs in purchasing

insurance, through interstate insurance markets, to cover their activities; and

(7) clarifying and limiting the liability risk assumed by volunteers is an appropriate subject

for Federal legislation because-- (A) of the national scope of the problems created

by the legitimate fears of volunteers about frivolous, arbitrary,

or capricious lawsuits; [[Page 111 STAT. 219]] (B) the citizens of the United States

depend on, and the Federal Government expends funds on, and provides tax exemptions

and other consideration to, numerous social programs that depend on the services of

volunteers; (C) it is in the interest of the Federal Government to encourage the continued

operation of volunteer service organizations and

contributions of volunteers because the Federal Government lacks the capacity to carry

out all of the services provided by such organizations and volunteers; and

(D)(i) liability reform for volunteers, will promote the free flow of goods and services,

lessen burdens on interstate commerce and uphold

constitutionally protected due process rights; and (ii) therefore, liability reform is

an appropriate use of the powers contained in article 1, section 8, clause 3 of the

United States Constitution, and the fourteenth amendment to the United States Constitution.

(b) Purpose.--The purpose of this Act is to promote the interests of social service

program beneficiaries and taxpayers and to sustain the

availability of programs, nonprofit organizations, and governmental entities that depend

on volunteer contributions by reforming the laws to provide certain protections from

liability abuses related to volunteers serving nonprofit organizations and governmental entities.

SEC. 3. <> PREEMPTION AND ELECTION OF STATE NONAPPLICABILITY.

(a) Preemption.--This Act preempts the laws of any State to the extent that such laws

are inconsistent with this Act, except that this Act shall not preempt any State law that

provides additional protection from liability relating to volunteers or to any category of

volunteers in the performance of services for a nonprofit organization or governmental entity.

(b) Election of State Regarding Nonapplicability.--This Act shall

not apply to any civil action in a State court against a volunteer in which all parties are citizens

of theState if such State enacts a statute in accordance with State requirements for

enacting legislation-- (1) citing the authority of this subsection; (2) declaring the

election of such State that this Act shall not apply, as of a date certain, to such civil

action in the State; and (3) containing no other provisions. SEC. 4. <>

LIMITATION ON LIABILITY FOR VOLUNTEERS. (a) Liability Protection for

Volunteers.--Except as provided in subsections (b) and (d), no volunteer of a nonprofit

organization or governmental entity shall be liable for harm caused by an act or omission

of the volunteer on behalf of the organization or entity if-- (1) the volunteer was acting

within the scope of the volunteer's responsibilities in the nonprofit organization or

governmental entity at the time of the act or omission;

(2) if appropriate or required, the volunteer was properly licensed, certified, or authorized

by the appropriate authorities for the activities or practice in the State in which the harm

occurred, where the activities were or practice was undertaken [[Page 111 STAT. 220]]

within the scope of the volunteer's responsibilities in the nonprofit organization or

governmental entity; (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 individual 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 the owner of the vehicle, craft, or vessel to--

(A) possess an operator's license; or (B) maintain insurance. (b) Concerning Responsibility

of Volunteers to Organizations and Entities.--Nothing in this section shall be construed to

affect any civil action brought by any nonprofit organization or any governmental entity

against any volunteer of such organization or entity.

construed to affect the liability of any nonprofit organization or governmental entity

with respect to harm caused to any person. (d) Exceptions to Volunteer Liability Protection.--

If the laws of a State limit volunteer liability subject to one or more of the following

conditions, such conditions shall not be construed as inconsistent with this

section: (1) A State law that requires a nonprofit organization or governmental entity

to adhere to risk management procedures, including mandatory training of volunteers.

(2) A State law that makes the organization or entity liable for the acts or omissions

of its volunteers to the same extent as an employer is liable for the acts or omissions

of its employees. (3) A State law that makes a limitation of liability inapplicable if the

civil action was brought by an officer of a State or local government pursuant to State

or local law. (4) A State law that makes a limitation of liability applicable only if the

nonprofit organization or governmental entity provides a financially secure source

of recovery for individuals who suffer harm as a result of actions taken by a volunteer

on behalf of the organization or entity.

A financially secure source of recovery may be an insurance policy within specified

limits, comparable coverage from a risk pooling mechanism, equivalent assets, or

alternative arrangements that satisfy the State that the organization or entity will be

able to pay for losses up to a specified amount. Separate standards for different

types of liability exposure may be specified. (e) Limitation on Punitive Damages

Based on the Actions of Volunteers.-- (1) General rule.--Punitive damages may not

be awarded against a volunteer in an action brought for harm based on the action

of a volunteer acting within the scope of the volunteer's responsibilities to a nonprofit

organization or governmental entity unless the claimant establishes

by clear and convincing evidence that the harm was proximately caused by an

action of such volunteer which constitutes willful or criminal misconduct, or a

conscious, flagrant indifference to the rights or safety of the individual harmed.

[[Page 111 STAT. 221]] (2) Construction.--Paragraph (1) does not create a

cause of action for punitive damages and does not preempt or supersede any

Federal or State law to the extent that such law would further limit the award of

punitive damages. (f) Exceptions to Limitations on Liability.-- (1) In general.--

The limitations on the liability of a volunteer under this Act shall not apply to

any misconduct that-- (A) constitutes a crime of violence (as that term is

defined in section 16 of title 18, United States Code) or act of international

terrorism (as that term is defined in section 2331 of title 18) for which the

defendant has been convicted in any court; (B) constitutes a hate crime

(as that term is used in the Hate Crime Statistics Act (28 U.S.C. 534 note));

defendant has been convicted in any court; (D) involves misconduct for which the

defendant has been found to have violated a Federal or State civil rights law; or

(E) where the defendant was under the influence (as determined pursuant to

applicable State law) of intoxicating alcohol or any drug at the time of the misconduct.

(2) Rule of construction.--Nothing in this subsection shall be construed to effect

subsection (a)(3) or (e). SEC. 5. <> LIABILITY FOR NONECONOMIC LOSS.

(a) General Rule.--In any civil action against a volunteer, based on an action of a

volunteer acting within the scope of the volunteer's responsibilities to a nonprofit

organization or governmental entity, the liability of the volunteer for noneconomic

loss shall be determined in accordance with subsection (b). (b) Amount of Liability.--

(1) In general.--Each defendant who is a volunteer, shall be liable only for the amount

of noneconomic loss allocated to that defendant in direct proportion

to the percentage of responsibility of that defendant (determined in accordance

with paragraph

(2)) for the harm to the claimant with respect to which that defendant is liable. The

court shall render a separate judgment against each defendant in an amount

determined pursuant to the preceding sentence. (2) Percentage of responsibility.--

For purposes of determining the amount of noneconomic loss

allocated to a defendant who is a volunteer under this section, the trier of fact shall

determine the percentage of responsibility of that defendant for the claimant's harm.

SEC. 6. <> DEFINITIONS.

For purposes of this Act: (1) Economic loss.--The term ``economic loss'' means

any pecuniary loss resulting from harm (including the loss of earnings or other

benefits related to employment, medical expense loss, replacement services loss,

loss due to death, burial costs, and loss of business or

employment opportunities) to the extent recovery for such loss is allowed

under applicable State law.

(2) Harm.--The term ``harm'' includes physical, nonphysical, economic, and

noneconomic losses. [[Page 111 STAT. 222]] (3) Noneconomic losses.--

The term ``noneconomic losses'' means losses 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,

injury to reputation and all other nonpecuniary losses of any kind or nature.

(4) Nonprofit organization.--The term ``nonprofit organization'' means--

(A) any organization which is described in section 501(c)(3) of the Internal

Revenue Code of 1986 and exempt from tax under section 501(a) of such

Code and which does not practice any action which constitutes a hate crime

referred to in subsection (b)(1) of the first section of the Hate Crime

Statistics Act (28 U.S.C. 534 note); or (B) any not-for-profit organization which

is organized and conducted for public benefit and operated primarily for charitable,

civic, educational, religious, welfare, or health purposes and which does not

practice any action which constitutes a hate crime referred to in subsection

(b)(1) of the first section of the Hate Crime Statistics Act

(28 U.S.C. 534 note). (5) State.--The term ``State'' means each of the several

States,the District of Columbia, the Commonwealth of Puerto Rico, the

Virgin Islands, Guam, American Samoa, the Northern Mariana Islands,

any other territory or possession of the United States, or any political subdivision

of any such State, territory, or possession.

(6) Volunteer.--The term ``volunteer'' means an individual performing services for

a nonprofit organization or a governmental entity who does not receive--

(A) compensation (other than reasonable reimbursement or allowance for expenses

actually incurred); or

(B) any other thing of value in lieu of compensation, in excess of $500 per year, and

such term includes a volunteer serving as a director, officer, trustee, or direct service

volunteer.[[Page 111 STAT. 223]] SEC. 7. EFFECTIVE DATE. (a) In General.--

This Act shall take effect 90 days after the date of enactment of this Act. (b) Application.--

This Act applies to any claim for harm caused by an act or omission of a volunteer where

that claim is filed on or after the effective date of this Act but only if the harm that is the

subject of the claim or the conduct that caused such harm occurred after such effective

date. Approved June 18, 1997. LEGISLATIVE HISTORY--S. 543 (H.R. 911): ------

------------------ HOUSE REPORTS: No. 105-101,

Pt. 1 (Comm. on the Judiciary) accompanying H.R. 911. CONGRESSIONAL RECORD,

Vol. 143 (1997): May 1, considered and passed Senate. May 21, considered and passed

House, amended, in lieu of H.R. 911. Senate concurred in House amendment.