Volunteer Protection Act of 1997

Volunteer Protection Act of 1997
Henry Cohen
Legislative Attorney
American Law Division
Summary
The Volunteer Protection Act of 1997 (VPA), P.L. 105-19, became law on June 18,
1997, when the President signed S. 543, 105th Congress. As passed by the Senate, this
bill was identical to H.R. 911, 105th Congress, as reported by the House Committee on
the Judiciary on May 19, 1997 (H.Rept. 105-101). The VPA, whose effective date is
September 16, 1997, immunizes individuals who do volunteer work for nonprofit
organizations or governmental entities from liability for ordinary negligence in the
course of their volunteer work. It also limits punitive damages and noneconomic
damages against volunteers who are held liable. It does not affect the liability of
nonprofit organizations or governmental entities. The purpose of the VPA is to
encourage people to do volunteer work for such nonprofit organizations and
governmental entities. However, it allows states affirmatively to declare it inapplicable
to suits in their state in which all parties to the action are citizens of the state.
Background and Preemption
The common law (i.e., court-made law) of all 50 states allows individuals to bring
tort suits to recover monetary damages for personal injuries or property damage caused
by another person’s negligent or willful conduct. Almost all states, however, limit the
liability of volunteers to some extent. In order to encourage people to do volunteer work
who are presently deterred from doing so for fear of liability, the VPA preempts state tort
law to limit their liability. It does not limit the liability of nonprofit organizations and
governmental entities for the negligence of their volunteers. (Unless a state provides
“charitable immunity,” then, under the common law doctrine of respondeat superior, such
organizations and entities, like all employers, are generally vicariously liable for the
negligence of their employees and volunteers.)
Section 3 of the VPA provides that it preempts inconsistent state laws except to the
extent that such laws provide additional protection from liability to volunteers, nonprofit
organizations, or governmental entities. This means that state laws that impose caps on
noneconomic and punitive damages, or other tort reforms that benefit defendants,
continue to apply in suits resulting from a volunteer’s negligence. In addition, the VPA



allows states to enact statutes “declaring the election of such State that this Act shall not
apply to such civil action in the State.” If they do so, then the VPA would not apply in
any action if all parties to the action are citizens of the state.
Section 4(d) of the VPA provides that it does not preempt five specific types of state
law:
(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. . . .
Definition of “Volunteer” and “Nonprofit Organization”
Section 6 of the VPA defines “volunteer” to include a person who performs services
for a nonprofit organization or governmental entity and who receives no more than $500
per year plus expenses actually incurred. It defines “nonprofit organization” as a
§ 501(c)(3) organization or a “not-for-profit organization organized and conducted for
public benefit and operated primarily for charitable, civic, educational, religious, welfare,
or health purposes.” The VPA provides that an organization shall not be deemed a
nonprofit organization for purposes of the VPA if it “practice[s] any action that
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).”
Liability Limitations
Section 4(a) of the VPA provides immunity to volunteers for nonprofit organizations
or governmental entities acting within the scope of their responsibilities, provided that,
“if appropriate or required, the volunteer was properly licensed, certified, or authorized
by the appropriate authorities. . . .” The immunity is for ordinary negligence, not for
“willful or criminal conduct, gross negligence, reckless misconduct, or a conscious,
flagrant indifference to the rights or safety of the individual harmed by the volunteer.”
This liability limitation does not apply to nonprofit organizations or governmental
entities; they may continue to be held vicariously liable for the ordinary negligence of
their volunteers, even if volunteers are immune. Nonprofit organizations and
governmental entities, however, continue to benefit from any liability limitations provided
by state law.
Section 4(f) of the VPA provides that the above limitations on volunteers’ liability
shall not apply to misconduct that constitutes (1) a crime of violence or act of



international terrorism for which a defendant has been convicted, (2) a hate crime, (3) a
sexual offense for which the defendant has been convicted, (4) a violation of a federal or
state civil rights law, or (5) an act committed while under the influence of alcohol or any
drug.
Joint and Several Liability.
Section 5 of the VPA eliminates joint and several liability for noneconomic damages
with respect to volunteers’ work for nonprofit organizations and governmental entities.
We will explain these terms. Section 6 of the VPA contains a lengthy definition of
“noneconomic losses,” but the term refers primarily to pain and suffering and similar
damages that are not pecuniary losses, such as medical expenses and lost wages.
“Joint and several liability” is the common law rule (modified by some states) that,
if more than one defendant is found liable for an injury, each defendant may be required
to pay 100% of the damages, rather than to pay only an amount proportionate to its share
of responsibility for the injury. The plaintiff may choose which defendant to seek
damages from (although the plaintiff may not recover more than 100% of his damages),
and a defendant who pays more than its proportionate share may seek contribution from
other defendants. The purpose of joint and several liability is to make it more likely that
the plaintiff will recover his full damages even if one or more defendants is insolvent.
Supporters of joint and several liability argue that, if it comes to a choice between an
innocent plaintiff recovering less than his full damages or a negligent defendant having
to pay more than its share, the latter is the lesser evil. Opponents of joint and several
liability argue that the rule causes plaintiffs, in the hope of obtaining full recovery, to sue
“deep pocket” defendants that sometimes are at most slightly responsible for the
plaintiffs’ injuries.
To eliminate joint and several liability only for noneconomic damages, as the VPA
does, represents a compromise between these two positions. Plaintiffs may collect their
total economic damages from any responsible defendant, but may collect from each
defendant only the latter’s proportionate share of noneconomic damages. Economic
damages presumably are more important in most cases, but noneconomic damages may
be more significant for some plaintiffs; one reason that President Clinton gave for vetoing
the products liability bill in 1996 was that eliminating joint and several liability for
noneconomic damages in products liability cases “unfairly discriminates against the most
vulnerable members of our society — the elderly, the poor, children, and nonworking
women — whose injuries often involve mostly noneconomic losses.” House Document
No. 104-207, 104th Cong., 2d Sess. 2 (1996) (Veto of H.R. 956).
Punitive Damages.
Section 4(e) of the VPA limits awards of punitive damages against volunteers in
connection with their work for nonprofit organizations and governmental entities.
Punitive damages are intended to punish and deter egregious conduct, and are not, like
economic and noneconomic damages, intended to compensate the plaintiff. Under § 4(e),
to recover punitive damages, the plaintiff must establish “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.” Comparing this with § 4(a) reveals that,



although the VPA permits a volunteer to be held liable for compensatory (economic and
noneconomic) damages for gross negligence or reckless misconduct, he or she may not
be held liable for punitive damages on the basis of such conduct unless such conduct also
constituted something worse, namely “willful or criminal misconduct, or a conscious,
flagrant indifference to the rights or safety of the individual harmed.”
Note also that § 4(e) makes the burden of proof that the plaintiff must meet to
recover punitive damages “clear and convincing evidence.” The usual burden of proof
in civil cases is the easier-to-meet “preponderance of the evidence” standard, which
means essentially that it is more likely than not that the defendant engaged in the conduct
with which it is charged. Many states, however, have already raised the standard for
recovering punitive damages (in all cases, not only against volunteers) to “clear and
convincing evidence.”
Pro and Con
Section 2 of the VPA sets forth seven findings in support of the VPA. Their essence
is that the threat of liability deters people from volunteering and requires nonprofit
organizations and governmental entities to spend money for liability costs and litigation.
As a result, nonprofit organizations and governmental entities are unable to provide the
level of services that would be desirable.
An argument against the VPA is that limiting liability denies injured people recovery
to which they would otherwise be entitled under state law; in particular, the savings that
the VPA would confer on defendants will come at the expense of the often-poor people
they serve, who can least afford to pay for their injuries. An injured person might also
question the equity of being able to recover from a paid employee who caused his injury,
but not from a volunteer who did so, even where every other circumstance concerning an
accident was identical. As noted, though, even when, under the VPA, a volunteer is
immune from liability, the nonprofit organization or governmental entity for which he
volunteered may continue to be held vicariously liable for the volunteer’s ordinary
negligence (as well as for conduct for which the volunteer could be held liable).
An alternative approach, which would limit the liability of nonprofit organizations
and governmental entities but still permit accident victims to recover, would be for the
federal government to pick up the tab. There is precedent for this in the National Swine
Flu Immunization Act of 1976 (Public Law 94-380), which made the United States liable
in place of swine flu vaccine manufacturers for injures caused by the vaccine. There is
also precedent in the federal statutes that deem volunteers with particular federal
programs, such as VISTA and the Peace Corps, to be federal employees for liability
purposes. As federal employees, they become immune from state tort liability and the
United States becomes liable under the Federal Tort Claims Act, 28 U.S.C. § 2679. (For
additional information on these statutes, see CRS Report 97-579).
As for the VPA’s punitive damages standard, the requirement that, to be liable for
punitive damages, a defendant have engaged in “willful or criminal misconduct, or a
conscious, flagrant indifference to the rights or safety of the individual harmed,” raises
the question whether unconscious flagrant indifference to safety is less objectionable than
conscious, flagrant indifference. This “conscious, flagrant indifference” standard,
however, was used in the vetoed products liability bill, and the Senate report that



accompanied that bill said that the “conscious, flagrant indifference . . . standard is fair
and is similar to the standards of many states.” S.Rept. 104-69, 104th Congress, 1st
Session 37 (1995).
Another issue that the VPA raises is federalism; i.e., whether it is desirable for
Congress to regulate an area it traditionally has left to the states. The argument for
preemption would be the desirability of national uniformity as to volunteer liability. The
argument against it is that it would be desirable to allow the states to continue to
experiment with different options. In fact, though, the VPA allows the states, by enacting
new laws, to elect to apply their own laws to cases in which all parties are citizens of the
state.
Effective Date; Non-retroactivity
Section 7 of the VPA provides that the VPA takes effect 90 days after enactment
(which is September 16, 1997) and applies to any claim filed “on or after” that date but
only if the accident occurred after (not “on or after”) that date. Thus, if this provision is
read literally, there is an inconsistency as to application of the bill to accidents that occur
on the bill’s effective date.