Volunteer Protection Act

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The federal Volunteer Protection Act of 1997 (the VPA or the Act)[1] aims to promote volunteerism by limiting, and in many cases completely eliminating, a volunteer's risk of tort liability when acting for nonprofit organizations or government entities.

Introduction[edit]

People who volunteer to assist nonprofit organizations or government agencies or programs[2] 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.[3]

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[4] (which has only a small amount of insurance[5] 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.[6] The VPA was motivated by such concerns.

General[edit]

The Act generally eliminates[7] 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[8] and was not grossly negligent or intentionally trying to cause harm.[9] 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.[10]

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, but rather a qualified immunity 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, 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.[11]

The VPA's exclusions of liability should be distinguished from the doctrine of charitable immunity, which provides an exclusion in some circumstances to charitable organizations, rather than specifically to the individual actors.[12]

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[13] rather than on behalf of any organization.

Detailed analysis of the Act[edit]

The Act[14] 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[edit]

The Congress makes its findings in subsection (a) of section 14501, basically determining that the Act is needed to promote volunteerism[15] and that "liability reform" under the VPA is an appropriate exercise of its powers under both Constitution's Commerce Clause[16] and the Fourteenth Amendment.[17]

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.

Section 14502[edit]

Subsection (a): federal preemption[edit]

This subsection expressly preempts and nullifies any state[18] 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 and proximately causes harm to another[19] is liable in damages for the amount of the damage caused.[20] 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.[21]

However, if a state law provides additional protection to volunteers,[22] 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.[23]

Subsection (b): state opt-out[edit]

The Act is in many ways an exercise in cooperative federalism. 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."[24]

New Hampshire 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.[25]

Section 14503[edit]

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)[edit]

This subsection is the heart of the Act and defines the basic liability protection for a volunteer. It excludes[26] 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;[27]
3 - the harm was caused by simple or ordinary negligence rather than by gross negligence (or worse);[28] 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.[29]

Subsection (b)[edit]

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.[30]

Subsection (c)[edit]

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.[31]

Subsection (d)[edit]

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;[32]
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;[33]
4 - the protection only applies if the organization provides a "financially secure source of recovery" for individuals who are harmed by volunteers.[34]

Subsection (e)[edit]

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 or by some other label. Subsection (e), by contrast, establishes an additional barrier for an injured party trying to win punitive damages 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,[35] 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.[36]

Subsection (f)[edit]

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.[37]
Acts of international terrorism.[38]
Hate Crimes.[39]
Sexual Offenses.[40]
Civil Rights Violations.[41]
Claims Involving Use of Alcohol or Drugs.[42]

Section 14504[edit]

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.[43]

This section overrides any applicable state rule of joint and several 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.[44]

Section 14505[edit]

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

Who is a "volunteer"?[edit]

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.[45][46] 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.[47]

What is a "nonprofit"?[edit]

A nonprofit organization (under subsection 4) is an organization which is either:

1 - qualified under Section 501(c)(3) of the Internal Revenue Code,[48] 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.[49]

What is a "governmental entity"?[edit]

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?[edit]

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[edit]

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[edit]

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....".[50]

State Laws[edit]

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[51] 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.[52]

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.[53]

Roundabout liability for volunteers[edit]

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 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, the insurance company[54] "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.[55]

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[56]), then the policies of the Act will be thwarted; but the Act by its express terms[57] 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.[58]

Litigation[edit]

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 (FLSA).[59]

The Court was thus confronted with multiple puzzles:

  • Did the former CEO's claim against the Board members[60] 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.[61]

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.

Footnotes[edit]

  1. ^ The Act (S.543) was signed by President Clinton on 18 June 1997 and became effective ninety days thereafter. It was Pub. L. 105-19, 111 Stat. 221, and is codified at 42 U.S.C. 14501-05.
  2. ^ The statutory term is a "government entity," but this term is not defined in the Act.
  3. ^ See generally Prosser and Keeton on Torts, 5th Edition (West Group 1984) ISBN 0-314-09256-0 (Prosser & Keeton); Prosser, Wade, and Schwartz's Torts: Cases and Materials, 10th Edition (Foundation Press 2000) ISBN 1-56662-955-1 (Prosser & Wade); Restatement of the Law, Second, Torts 2d, Revised Edition (American Law Institute 1965)(Restatement); Harper, James and Gray on Torts, Third Edition (Aspen Publishers 1995)(Harper & James); Exploring Tort Law, M. Stuart Madden (Cambridge University Press, 2005) ISBN 052185136.
  4. ^ Under the principle of respondeat superior, an employer is generally responsible for torts committed by its employee if the employee is acting within the scope of his or her employment. The same rule of vicarious liability generally applies to volunteers. See generally Prosser & Keeton, Prosser & Wade, Harper & James, op. cit.
  5. ^ A general liability insurance policy would provide protection to the shelter against both property damage claims and personal injury claims. However, not all such policies extend to liability created vicariously by the acts of volunteers, although a rider can usually be purchased to cover such volunteer acts. Furthermore, it is not unusual for small nonprofits to be uninsured, i.e. they lack liability coverage all together. See Commercial General Liability Insurance, Heather A. Sanderson et al. (Butterworths 2000) ISBN 0-433-40991-6.
  6. ^ See Senator Coverdell's Statement introducing VPA into Senate, as well as Section 14501 of the Act (reciting background).
  7. ^ The VPA, a complicated statute, (a) eliminates all types of damages in some circumstances; (b) limits or excludes some types of damages in other circumstances, while permitting other types of damages to be imposed in those circumstances; and (c) permits the ordinary assessment of damages, according to the normal legal regime, in still other circumstances. This tripartite division is explained in the remainder of the Article.
  8. ^ This organization must generally be a qualified nonprofit organization or a government entity; the exact parameters for an eligible entity are discussed below.
  9. ^ The precise conditions for the immunity are defined in this Article; this section simply provides a general overview.
  10. ^ This feature allows for the possibility of the "roundabout" conundrum, discussed below.
  11. ^ An even more interesting provision allows a state, by specific and targeted legislation which expressly identifies the federal Act, to opt-out entirely of the VPA, so that the Act has no effect on any state court litigation where all parties reside within the State.
  12. ^ Charitable immunity, once widespread, has been considerably contracted by state legislation in the U.S. which removes the immunity. See discussion of Charitable immunity laws
  13. ^ Such as a physician in the audience who acts to assist a person suffering a heart attack at the theater.
  14. ^ The Act is a part of Title 42 of the U.S. Code; its text can be found here.
  15. ^ Congress finding, among other things, that the "willingness of volunteers to offer their services is deterred by the potential for liability actions against them...".
  16. ^ The Congress found that services provided by volunteers would otherwise have been provided by businesses operating in interstate commerce, see Wickard v. Filburn, and that liability reform would "promote the free flow of goods and services and lessen burdens on interstate commerce...."; but see United States v. Lopez for limits on Congressional power under the Commerce Clause.
  17. ^ Section 5 of the Amendment expressly gives the Congress the right to legislate in order to implement the Amendment: "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."
  18. ^ An interesting, and often overlooked, facet of this preemption subsection is that the VPA's "preemption" here is expressly limited to state (and not federal) tort laws (explicitly preempted by the subsection are "the laws of any State"); this creates an interesting question with regard to tort claims that might arise against a volunteer under federal law. Since those federally-based claims are expressly excluded from the scope of immunity protection under section 14502(a), did Congress intend to leave those federal-law tort claims unhampered by the VPA, so that there is never an immunity against them under the Act? Or does subsection 14502(a) simply not address federal tort law at all (i.e. the failure to include "federal" along with "state" in the subsection's preemption language should simply be disregarded in determining the interaction between two federal laws, i.e. the VPA and a tort claim arising under federal law)? The latter interpretation seems more consistent with the purposes of the Act, and a blanket exemption for any federal-law torts seems peculiar in light of the express identification of numerous federal statutes in the VPA, for which VPA protection is abrogated.
  19. ^ The damage may be to that other person's property (property damage) or to his or her person (personal injury, including wrongful death).
  20. ^ See generally Prosser and Keeton, op. cit.
  21. ^ Of course, the state may have itself enacted its own Volunteer Act, which would effectively foreclose federal preemption, simply because the state law itself had already created its own state law immunity and thereby nullified the associated tort liability, consequently leaving the federal Act with nothing to preempt.
  22. ^ A state law might, for instance, provide protection in an area in which the federal VPA does not affect liability, e.g. liability created by a volunteer's operation of a motor vehicle.
  23. ^ Although, as will be seen below, the state can condition these protections, or even nullify the VPA in its entirety, by legislation.
  24. ^ Under the subsection, the state law must simply (1) cite subsection 14502(b) expressly; (2) declare that the Act shall not apply, as of a date certain, to civil actions in the state; and (3) contain no other provisions. This state legislation eradicates the VPA in that state for state lawsuits in which only state citizens are parties.
  25. ^ See Article by Paul Sanderson, Attorney for New Hampshire Local Government Council, found at New Hampshire Opt-out of VPA & Roundabout liability possibility
  26. ^ This exclusion is, however, subject to the exceptions that are provided below in subsections (b) and (d) of this Section 14503.
  27. ^ The licensing, certification or authorization must be by the authorities of the state in which the harm occurred. The notion of "appropriate" licensing which is not "required" is not explained or defined in the text of the Act.
  28. ^ In particular, the statute specifies if the harm was caused by willful or criminal misconduct, or by gross negligence, or by reckless misconduct, or by a conscious and flagrant indifference to the rights or safety of the victim, then the immunity is not available.
  29. ^ This last condition has been the subject of efforts by volunteer pilots to pass the "Volunteer Pilot Organization Protection Act," which has been introduced multiple times into Congress. See, e.g., VPOPA legislative history and VPOPA reintroduced into 105th Congress after failure of HR 1084 (2004). The intent of that bill, which has never enjoyed too much success in the legislative process, was to remove the restrictions so that volunteer pilots might enjoy the immunities.
  30. ^ As an illustration, an allegation is raised that a volunteer Board of Directors member of a nonprofit negligently failed to review information that was available before a Board meeting and, as a result, made a bad decision in the meeting that severely injured the organization. The organization then sues the volunteer director for violation of his or her duties to the nonprofit. The Act does not exculpate or otherwise provide any exclusion of liability to the Board member (although he or she may, of course, escape liability under other legal principles). This provision also bears on the "Roundabout" problem discussed below, as it appears to allow an organization which pays out a tort claim to seek indemnification from the volunteer, who is immune from the claim brought by the injured third party.
  31. ^ The intent of the Act was, in part, that injured persons would seek redress against the organization for tort damage, and not against the volunteer. However, as we will see below, the combination of subsections (b) and (c) lead to a conundrum that we will call the "Roundabout Problem," whereby the Act potentially resurrects the very problem that it sought to solve.
  32. ^ The VPA itself does not define either "risk management procedures" or "volunteer training."
  33. ^ Specifically, the VPA allows the immunity to be lifted if the state law permits "the civil action [to be] brought by an officer of a State or local government pursuant to State or local law."
  34. ^ Such a source might be insurance or "alternative arrangements that satisfy the State that the organization or entity will be able to pay for losses up to a specified amount." The VPA's intent is to give the state considerable flexibility in defining the "financially secure source of recovery" and in setting such items such as the limits of insurance coverage.
  35. ^ The usual standard of proof in a civil case is a mere "preponderance of the evidence;" if it seems more likely that Smith is right than Jones, then Smith should win. The "clear and convincing" standard sets a considerably higher evidence standard for the injured party to meet, one which moves closer to the reasonable doubt standard of the criminal law. See generally Clear and Convincing Evidence Article and Wisconsin Regulations
  36. ^ The Act is careful to state that it neither creates any substantive legal right to punitive damages nor limits the effect of any law that would otherwise curtail a right to punitive damages. Subsection (e)(2).
  37. ^ The definition of this phrase appears in the federal criminal code at 18 U.S.C. 16. It is (a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. This exception probably only operates to remove the immunity if a criminal conviction for the "crime of violence" has resulted, but infelicitous drafting has left some doubt here; it is arguable that the "prior conviction" requirement adheres only to the "international terrorism" exception and not to the "crime of violence" exception.
  38. ^ These are defined at 18 U.S.C. 2331. This exception only operates to remove the immunity if a criminal conviction for the "international terrorism" has resulted.
  39. ^ These "hate crimes" are identified in the Hate Crime Statistics Act (28 U.S.C. 534 n1) as crimes that manifest evidence of prejudice based on race, religion, disability, sexual orientation, or ethnicity, including where appropriate the crimes of murder, non-negligent manslaughter; forcible rape; aggravated assault, simple assault, intimidation; arson; and destruction, damage or vandalism of property. This exception to VPA immunity does not, in the Act's text, require a criminal conviction for the associated hate crime (compare to the exceptions for acts of international terrorism and for acts constituting sexual offenses), and therefore it seems likely that such a "hate crime" conviction is not required for the abrogation of the VPA immunity here.
  40. ^ These crimes are those defined as "sexual offenses" by state rather than federal law. As with the "international terrorism" exception, this exception only operates to remove the VPA immunity if a criminal conviction for the sexual offense has resulted.
  41. ^ The volunteer has no immunity under the VPA for actions that constitute "misconduct for which the defendant has been found to have violated a Federal or State civil rights law." Federal civil rights violations are very broad (see e.g. 42 U.S.C. 1983), and there is no requirement for a prior criminal conviction in order to abrogate the VPA immunity, but only a "finding" (which could occur within the tort litigation itself). The VPA does not define the term "civil rights," which allows ample room for litigation as to what constitutes such a violation, for VPA purposes, under either state or federal civil rights laws.
  42. ^ If the volunteer was under the influence of alcohol or drugs at the time of the misconduct, the VPA immunity is excluded. This exception is similar to that for a "hate crime" in that no conviction of a criminal offense is required as a predicate, and a simple "finding" of unlawful drug or alcohol use (as defined under state law) should suffice for the immunity abrogation.
  43. ^ The most common example of such noneconomic loss is probably damages awarded for "pain and suffering" in a personal injury lawsuit. This situation could arise, for instance, if the volunteer injured someone while driving, since damages flowing from automobile usage are not affected by the VPA. Other examples involving noneconomic harm would be harm resulting from a crime of violence, or a sexual offense, or a civil rights violation (see section 14503's total exclusions from immunity) that was committed by a volunteer, where the injured person claimed emotional damage and mental stress and suffering. Since section 14504 only addresses noneconomic loss, and any lawsuit will entail both economic and noneconomic loss, it will involve intricate accounting to perform the allocations; only the noneconomic portion of the total loss is subjected to the proportionality rule of this section.
  44. ^ See, e.g., 15 U.S.C. 6605 for example of federal law invoking proportionate rather than joint and several liability.
  45. ^ If the organization reasonably reimburses the volunteer for expenses actually incurred, these reimbursements are not treated as "compensation" and do not count toward the monetary limit. However, any other "thing of value" that is received by the volunteer in lieu of actual monetary compensation is deemed to count toward the limit (e.g. a "gift" to the volunteer of an automobile "in appreciation of dutiful services rendered" would likely cause the limit to be exceeded for the year of receipt and thereby render the recipient a "non-volunteer.")
  46. ^ If a person does receive more than $500.00 per year, does that mean that he or she can never be a volunteer for the organization? Or that the bar only applies to acts and omissions within that year? Or something else? The Act does not say.
  47. ^ If Vicki eats lunch at a restaurant every non-volunteer day and spends $7.00 per day there, it seems that she has received a benefit of $720.00 per year. And it does not appear that the shelter meals are "reimbursement" to Vicki because eating is not an extra expense that she incurs as a result of volunteering; she eats lunch whether she volunteers or not. Would it make a difference if Vicki's non-volunteer lunches were always taken at home, at a maximum cost of $2.00, and the rules of the shelter prohibited bringing food from home (for health reasons)?
  48. ^ Some remarks of the House sponsors in the legislative history (in the House Judiciary Committee Report) suggest that trade and professional associations organized under Section 501(c)(6) are also entitled to be treated the same as those organized under the statutorily designated Section (c)(3). This seems questionable since the statutory language is so clear and it expressly designated (c)(3) organizations. In any event it would appear that organizations qualified only under 501(c)(4) and (c)(5) must meet the “public benefit” and “operating primarily” tests.
  49. ^ See the discussion under section 14503(f) for the definition of a hate crime. This restriction was no doubt aimed at organizations like the American Nazi Party or the Ku Klux Klan, but the breadth (and opaqueness) of the definition --"does not practice any action" -- as well as the breadth of the definition of "hate crime" may well have some unintended consequences.
  50. ^ See generally Wikipedia article on Pain and suffering and NY Pain and Suffering Litigation. These damages are by their very nature extremely difficult to quantify and often lead to claims that they foster abusive litigation.
  51. ^ See RiskVue Article and Bush Volunteer Initiatives. The Bush initiative came only months after the U.S. House unanimously passed a model volunteer protection act, which was later unceremoniously killed in a Senate/ House conference committee. It would be seven more years before both houses of the Congress would pass the VPA.
  52. ^ The VPA follows this same pattern.
  53. ^ However, it is completely clear that a state may, as New Hampshire has done, completely opt-out of the Act and, by state legislative directive, nullify any effect of the VPA within its borders, at least to state lawsuits solely between its own citizens. The state legislation must follow a precise protocol to achieve this result, however, as discussed above.
  54. ^ Which has no particular relationship to Vicki and simply wants its money back
  55. ^ Recall that under section 14503(b) of the Act, claims by the organization against the volunteer are not affected in any way, and the insurer is simply asserting the organization's claim that it took through subrogation.
  56. ^ And perhaps, more importantly, where the shelter does not have moral reservations about suing one of its own volunteers to recoup its losses based on the volunteer's conduct
  57. ^ Section 14503(b) is abundantly clear that claims by the organization against the volunteer are simply not affected by the VPA.
  58. ^ Or perhaps, more fairly, the decision to seek compensation from the volunteer will be passed from the injured third party to the organization itself; but this will be cold comfort to the volunteer who is called upon to indemnify the organization under ordinary common-law principles.
  59. ^ The FLSA is set out at 29 U.S.C. 201 et seq. The FLSA creates a federal tort claim against those employers who violate it, and the broad definition of an "employer" under the FLSA may extend not merely to employing organizations (such as the Youth Center) but also to those individuals who control the organizations, see definition at FLSA 203(b).
  60. ^ All parties stipulated that the Youth Center itself was unable to pay and that any recovery could only be against the individual Board members.
  61. ^ "Congress purposely failed to list the FLSA as an exception [to the VPA immunities].... the VPA applies to Plaintiff's FLSA claim....", p. 8-9 of opinion.

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