Volunteers are the life blood of the horse industry. They make things work. They help run horse shows, handicapped riding programs, association, 4-H groups, scouting groups, pony clubs, humane societies, and more. Their assistance helps groups perform worthwhile activities smoothly and within budget.
The threat of liability is often blamed for keeping people from volunteering in greater numbers. For example, the Gallup organization, in a study of volunteerism, noted that 1 of 7 non-profit agencies eliminated one or more programs chiefly in response to a perceived threat of exposure to lawsuits. This article will explore liabilities involving volunteers as well as new laws that have helped reduce liability.
Liability and Volunteers
Generally speaking, before the passage of certain volunteer immunity laws, if a volunteer was accused of negligently injuring someone in the course of performing volunteer duties, the volunteer could be exposed to liability. This type of liability is based on the basic legal principle that one who undertakes to act of behalf of another — even if no money is exchanged — must exercise a reasonable degree of skill in performing the duties undertaken, the failure of which could make the person liable.
Negligent acts or omissions by a volunteer have also exposed the group that “hired” him or her to liability, as well. According to the law of some states, volunteers are treated the same as employees. That is, an organization that “hires” a volunteer or, in some way, derives a benefit from the volunteer’s services, could face the prospect of liability as long as the group somehow consented to the volunteer’s services.
In recent years, in an apparent attempt to control liability, the federal government and about half of the states have passed laws designed to in some way protect volunteers and/or organizations. Some of the laws address volunteer officers and directors of non-profit corporations. Others go farther to protect any person who merely performs volunteer services for a group. Many of these laws also protect the organizations that rely on volunteer workers.
State and Federal Statutes Creating Certain immunities from Liability
In an effort to encourage volunteerism, many states have enacted volunteer immunity statutes. These states include, but are not limited to, Arkansas, Colorado, Delaware, Georgia, Indiana, Kansas, Maine, Montana, North Carolina, Michigan, Ohio, South Dakota, and Utah. All of the laws differ in their coverage and scope.
The federal government has also joined the trend. On June 18, 1997, President Clinton signed into law the Volunteer Protection Act of 1997. This law immunizes from liability those who volunteer for non-profit groups or governmental entities for harm caused by ordinary negligence (the term “negligence” has been discussed in past articles by this author and in the book Equine Law & Horse Sense). The Volunteer Protection Act was designed to preempt (take priority over) inconsistent state laws, except when the state laws provide immunities that are broader than the federal law.
Under the Volunteer Protection Act, immunities apply if a volunteer (1) acts within the scope of his or her duties; (2) is licensed or otherwise authorized to perform the volunteer activities; (3) does not engage in willful or criminal misconduct, gross negligence or reckless misconduct; and (4) is not operating a motor vehicle or other vehicle for which the state law specifically requires the volunteer to have an operator’s license or maintain insurance.
The Volunteer Protection Act contains exceptions which allow liability to exist. They include: violent crimes, terrorism, or hate crimes committed by the volunteer, sex offenses or violations of civil rights laws, or inappropriate acts committed by volunteers who were under the influence of alcohol or drugs. The law also prevents injured people from recovering punitive damages against a volunteer, unless the volunteer acted willfully, criminally, or in conscious indifference to the rights of the injured person.
In States Without Broad Immunity Laws, What Defenses Can a Group Assert When it is Sued for Negligence Based on the Actions of a Volunteer?
When a group faces a lawsuit because a volunteer’s conduct has injured someone, here are some of the defenses that can be asserted:
- Sovereign immunity. If the volunteer performed work for a federal, state, or local entity, this defense might protect it from liability if the worker negligently performed certain types of work. This defense is not sweeping, however, and there are many exceptions.
- Charitable immunity. This defense is not always valid. Some states have indicated that non-profit entities can be liable for negligent and even criminal acts of a volunteer.
- No Control. In some states, if the group did not exercise control over the volunteer worker and the worker’s processes, then the group arguably should not be legally accountable for the worker’s alleged negligent acts. “Control” can, in some cases, be evidenced by the frequency in which the volunteer donates his or her time, the extent to which the group directed the volunteer to do certain things, and others.
- No Volunteer Activity Was Pursued When Someone Was Injured. This defense generally asserts that the volunteer was not acting “within the scope of employment” at the time the negligent act or omission occurred. For example, maybe the volunteer deviated from his assigned task of accepting registration forms on the club’s behalf and instead punched someone. In this and other settings some states might find that the worker was not acting “within the scope of employment” at the time he laid the punch and therefore spare the club from liability.
- The Culprit Was Not a Volunteer. The group should not be responsible for the actions of unrelated persons who do not even qualify as volunteers.
Suggestions to Help Groups Avoid Liability
Here are some ideas to help avoid liability while keeping a healthy volunteer force:
- Find out whether your state has enacted a volunteer immunity law and how it applied to your group’s operations.
- Consider giving volunteers basic training. For many groups, the issue of training volunteer workers seems like a double-edged sword. That is, some groups intentionally avoid training their volunteers for fear that training efforts, in themselves, could evidence a degree of control over workers and thus increase the group’s exposure to liability if a trained worker acts improperly. Depending on the group’s activities, however, the group may still have some basic obligation to train, especially if the volunteer activities at issue are hazardous by nature. Some groups provide their volunteers mandatory programs of instruction after which they “accredit” or certify the volunteers. The accreditation is the group’s way of assuring that the volunteer has received sufficient training to work safely and capably in the volunteer activities.
- Some organizations, in an effort to limit their liability for the negligent acts of volunteers, have established “sub-agencies” that are not answerable to the central branch but whose job is to directly handle and supervise volunteer activities, while the main branch does none of this. This can be very complex. Consequently, groups considering this structure would be wise to consult with counsel. An important concern is that the sub-agency needs to be a legitimate, independent legal entity and not a sham designed only to avoid liability; the latter could be rejected by a court and the main branch could face the very liability it tried to avoid.
- Make sure that volunteers are assigned duties within their capabilities. For example, before assigning tasks to a volunteer, carefully consider the volunteer’s age and the degree of supervision that he or she will receive while performing the volunteer duties.
- In all states, regardless of whether good immunity laws are in effect, organizations should consider buying appropriate insurance to cover volunteer activities.
This article does not constitute legal advice. When questions arise based on specific situations, contact a knowledgeable attorney.
Julie I. Fershtman, Esq.
About the Author
Foster Swift Collins & Smith PC
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