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Volunteer Protection Act of 1997 (Full Text - Long)
Poster: E L Wimett <SILVERDRAGON@Charleston.Net>
An Act
To provide certain protections to volunteers, nonprofit
organizations, and governmental entities in lawsuits based on the
activities of volunteers.
[Italic->] Be it enacted by the Senate and House of
Representatives of the United States of America in Congress
assembled, [<-Italic]
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.
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