Volunteer

Immunity

Statutes

Merry Moiseichik, R.Ed, J.D

University of Arkansas

Jim Moss, J.D.

Recreation Law

US News and World Report

Volunteerism is at a 10 Year Low

U.S.C.A. § 14501

Volunteer Protection Act

Federal Volunteer Immunity Act

SEC. 2. FINDINGS AND PURPOSE

Volunteers are:

1. Deterred by liability

2. Programs then adversely affected

3. Thus Fewer programs and higher cost

4. It is good for US to provide protection

Solution:

Increase programs by

reforming the laws to provide

volunteer protection from

liability

(42 USC 14501)

Pre-emption

Pre-empts state laws

Unless state law affords more protection

Unless state elects non-applicability

(none did this)

Unless there is diversity of jurisdiction

Volunteer Protection Act

• Non-profit or governmental volunteer

• Liable for harm caused by act or omission

• Within scope of assignment

• Properly licensed or certified

• Ordinary negligence only

• Not cause by operation of motor vehicle

• Agency can still sue volunteer

• No punitive damages awarded

Limitations (Sec. 4)

• Does not protect crime of violence

• Hate crime

• Sexual offense

• Violation of civil rights

• Under the influence of alcohol or drugs

• Shall be liable for non-economic loss allocated by % of fault (Sec. 5)

Exceptions• If state limits volunteer liability

• Adhere to risk management and trains volunteers

• Makes agency liable for its volunteers to same extent as employees

• Makes liability inapplicable if brought by officer of the state

• Agency provides source of recovery (insurance)

Type of Volunteer Protection by State Statutes

SportsSports

Alaska Hawaii

VPAInsuranceEmployeeMoreTraining

Sports

Sports

sports

Sample Statutes Statements

Insurance: (g) Sections 84.005 and 84.006 of this Act do not apply to any charitable organization that does not have liability insurance coverage in effect on any act or omission to which this chapter applies. The coverage shall apply to the acts or omissions of the organization and its employees and volunteers and be in the amount of at least $ 500,000 for each person and $ 1,000,000 for each single occurrence for death or bodily injury and $ 100,000 for each single occurrence for injury to or destruction of property.

Sample Statement

Employee: b) Liability insurance may be provided by the department utilizing their services both to regular-service and occasional-service volunteers to the same extent as may be provided by the department to its employees. Volunteers in state service shall enjoy the protection of sovereign immunity of the State to the same extent as employees. S.C. Code Ann. § 8-25-40

More Protection

(2) An action or omission of the volunteer constitutes willful or wanton misconduct or intentionally tortious conduct.

Ohio: ORC Ann. 2305.38

Training Example

Any person who provides services or assistance free of charge, except for reimbursement of expenses, as an athletic coach, manager, or official for a sports team which is organized or performing pursuant to a nonprofit or similar charter is immune from civil liability for any act or omission resulting in damage or injury to a player or participant if at the time of the act or omission all the

following are met:

c. The coach, manager, or official had participated in a safety orientation and training program established by the league or team with which the person is affiliated.

N.D. Cent. Code, § 32-03-46

Application of the

Federal Volunteer

Protection Act

42 USCS §§ 14501 et seq.

The Wrongful Death Beneficiaries of Christopher

Elliot, Deceased, Plaintiffs v. La Quinta Corporation,

2007 U.S. Dist. LEXIS 16837

Minor Basketball Team

Out of State trip to Play Basketball

Player drowns in hotel pool

Suit against hotel & Coach

Coach pleads defense of Volunteer Immunity

The Wrongful Death Beneficiaries of Christopher

Elliot, Deceased, Plaintiffs v. La Quinta

Corporation, 2007 U.S. Dist. LEXIS 16837

Issue was whether a Volunteer of an unincorporated non-profit could avail itself of the Federal Volunteer Protection Act

Organization was the: Shaw Athletic Youth Association

Organization was not associated with any other entity

Organization was not recognized by the IRS

The Wrongful Death Beneficiaries of Christopher

Elliot, Deceased, Plaintiffs v. La Quinta Corporation,

2007 U.S. Dist. LEXIS 16837

Court Held the Coach was protected by the act

Act does not require an IRS determination that the entity to be protected is a IRC 501(c)(3)

The Wrongful Death Beneficiaries of Christopher

Elliot, Deceased, Plaintiffs v. La Quinta Corporation,

2007 U.S. Dist. LEXIS 16837

The legislative history of the act reflects that the bill covers not only "501(c)(3) organizations, but it also covers volunteers of the organizations which do good work, but do not have a tax exemption under 501(c)(3).

The Wrongful Death Beneficiaries of Christopher Elliot,

Deceased, Plaintiffs v. La Quinta Corporation, 2007 U.S.

Dist. LEXIS 16837

Given the extremely broad definition of "organization" under the Volunteer Protection Act as well as the fact that the youths traveled to Jackson together as a team to engage in recreational sport, this court finds that the group constitutes an organization for the purposes of the Volunteer Protection Act.

Stemke v. Mastrogiacomo, 2014

N.Y. Misc. LEXIS 906; 2014 NY Slip

Op 30504(U)

Lacrosse Practice

2 Players run into each other injuring the plaintiff

Father sued volunteer coaches, facility, league,…..everyone

Stemke v. Mastrogiacomo, 2014 N.Y. Misc.

LEXIS 906; 2014 NY Slip Op 30504(U)

Plaintiff argued volunteer coach was working outside of his coaching responsibilities but offered no evidence of such

Coach granted Summery Judgment based on the Federal Volunteer Protection Act

Application of State

Law Volunteer

Protection Acts

Ohio

ORC Ann. 2305.38 (2014)

§ 2305.38. Civil immunity of uncompensated volunteers of nonprofit charitable organizations

Wagner v. McGrady, 2009-Ohio-987; 2009

Ohio App. LEXIS 798

Defendant was Volunteer for SPA (Society for the Protection of Animals)

Volunteer found a dog at his back door

Volunteer Followed rules, advertised lost dog, turned dog over to SPA

Dog was adopted by third party

Volunteer was sued for conversion

Volunteer lost at trial

Wagner v. McGrady, 2009-Ohio-

987; 2009 Ohio App. LEXIS 798

In the present case, all of the evidence offered at trial demonstrates that appellant was acting in his capacity as a volunteer working for SPA, an undisputed nonprofit charitable organization.

Trial Decision was reversed

One of a kind case and

use of a state Volunteer

Immunity Act

Elliott v. Hurst, 307 Ark. 134; 817 S.W.2d 877; 1991 Ark. LEXIS 535

Smith v. Kroesen, 9 F. Supp. 3d

439; 2014 U.S. Dist. LEXIS 39729

Rugby Game

Fight between players

Third play ran over and kicked an opposing player in the face

Injured Player/Plaintiff sued kicker and kicker’s coach

Appeal of the Coaches Motion for Summary Judgment

Smith v. Kroesen, 9 F. Supp. 3d

439; 2014 U.S. Dist. LEXIS 39729

As noted by the New Jersey courts, the question of the scope of duty among coaches and players is intertwined with considerations of public policy.

The "strong social policy to facilitate free and aggressive participation in athletic activity requires . . . leeway at least where no specific rule or statute has been violated. Otherwise courts and juries will become de facto athletic directors, second guessing actor's conduct in reviewing generalized claims of negligence."

Smith v. Kroesen, 9 F. Supp. 3d

439; 2014 U.S. Dist. LEXIS 39729

Absent evidence that Cooley [the Defendant Coach] directed Kroesen [the kicker] specifically, or his team in general, to inflict violence onto opposing team players as part of the game, Cooley cannot be held liable for plaintiff's injuries.

Additionally, any of Cooley's alleged failings as a coach as articulated by Dr. Lucenko [Plaintiff’s Expert] cannot serve as the basis for finding proximate causation because there cannot be any definitive conclusion that even if Cooley were the perfect coach, Kroesen would not have acted as he did.

Byrne, JR., v. Fords-Clara Barton Boys

Baseball League, Inc., 236 N.J. Super.

185; 564 A.2d 1222; 1989 N.J. Super.

LEXIS 357

Plaintiff/Minor was the catcher on the baseball team

He was warming up the pitcher with his gear on

Except he was not wearing his catcher’s mask

Ball hit him in face

Incident ooccurred Day after NJ act became law

Byrne, JR., v. Fords-Clara Barton Boys

Baseball League, Inc., 236 N.J. Super.

185; 564 A.2d 1222; 1989 N.J. Super.

LEXIS 357

N.J.S.A. 2A:62A-6

Nothing in this section shall be deemed to grant immunity to any person causing damage by his willful, wanton, or grossly negligent act of commission or omission, nor to any coach, manager, or official who has not participated in a safety orientation and training program established by the league or team with which he is affiliated.

Byrne, JR., v. Fords-Clara Barton Boys Baseball

League, Inc., 236 N.J. Super. 185; 564 A.2d 1222;

1989 N.J. Super. LEXIS 357

League had never established a training program so the plaintiff coach never took the safety training

Reversed and Remanded for Trial

The conclusion is, therefore, ineluctable that a volunteer coach who has not participated in a prescribed safety program, for whatever reason, is barred from reliance on the statutory immunity.

Mooring v. Virginia

Wesleyan College, et al.

257 Va. 509; 514 S.E.2d

619; 1999 Va. LEXIS 69

Boys & Girls Club wanted help

Professor agreed to send students to help

Students had to spend 6 hours working at club

Students received grade based on the work at B&G Club

Professor was at club observing students

Student instructed Professor to watch door

Professor closed door on minor’s hand causing an amputation

Mooring v. Virginia Wesleyan College, et

al. 257 Va. 509; 514 S.E.2d 619; 1999

Va. LEXIS 69

Parties stipulated that Club was a Charity

Professor received no extra compensation for being at B&G club

Not from the college

Not from the club

Professor’s role at the Club was both supervising his students and "helping the Club perform its good work”

Trial court agreed and dismissed based on

Mooring v. Virginia Wesleyan College, et

al. 257 Va. 509; 514 S.E.2d 619; 1999

Va. LEXIS 69

Appeal to the VA Supreme Court

Professor’s presence did not directly benefit the Club

Professor was at the Club to observe the activities of his student. He was not there to directly perform any of the Club's work; rather he was carrying out his duties as a professor at Virginia Wesleyan College

Mooring v. Virginia Wesleyan College, et

al. 257 Va. 509; 514 S.E.2d 619; 1999 Va.

LEXIS 69

Summary

Ugh

If you are a Charity/Non-Profit

1.Buy Insurance

2.Educate your Volunteers

3.Have your Volunteers sign a release

4.Educate your volunteers

Get your State Volunteer Protection Act

1. Read it

2. Understand the Definition of a Volunteer

3. Understand the Definition of a Charity or Non-profit

4. Understand the Duties you are required to perform as a Volunteer for that job

5. Make sure you have homeowners, condo or tenant insurance

Maybe get an Umbrella Policy

http://rec-

law.us/2015-

SRLA-Vol

Documents & Presentation Can Be Found at:

Thank You

Merry Moiseichik, R.Ed, J.D

University of Arkansas

Jim Moss, J.D.

Recreation Law