Begun and held at the City of Washington on Tuesday, the seventh day
of January, one thousand nine hundred and ninety-seven
SECTION 1. SHORT TITLE.
This Act may be cited as the `Volunteer Protection Act of
1997'.
SECTION 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.
SECTION 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.
SECTION 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).
SECTION 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.
SECTION 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.
SECTION 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.
