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Volunteer Protection Act of 1997 (Enrolled Bill)
S.543
One
Hundred Fifth Congress
of
the
United
States of America
AT
THE FIRST SESSION
Begun
and held at the City of Washington on Tuesday,
the
seventh day of January, one thousand nine hundred and ninety-seven
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;
(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 the State 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 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.
(c)
NO EFFECT ON LIABILITY OF ORGANIZATION OR ENTITY- Nothing in this section
shall be 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.
(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));
(C) involves a sexual offense, as defined by applicable State law, for
which the 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.
(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.
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.
Speaker
of the House of Representatives.
Vice
President of the United States and
President
of the Senate.
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