[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[S. 543 Referred in House (RFH)]

  1st Session
                                 S. 543


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                              May 5, 1997

               Referred to the Committee on the Judiciary

_______________________________________________________________________

                                 AN ACT


 
To provide certain protections to volunteers, nonprofit organizations, 
   and governmental entities in lawsuits based on the activities of 
                              volunteers.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Volunteer Protection Act of 1997''.

SEC. 2. FINDINGS AND PURPOSE.

    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 described in section 501(c)(3) 
                of the Internal Revenue Code of 1986 and exempt from 
                tax under section 501(a) of such Code; or
                    (B) any not-for-profit organization organized and 
                conducted for public benefit and operated primarily for 
                charitable, civic, educational, religious, welfare, or 
                health purposes.
            (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, without regard to whether the harm that 
is the subject of the claim or the conduct that caused the harm 
occurred before such effective date.

            Passed the Senate May 1, 1997.

            Attest:

                                                    GARY SISCO,

                                                             Secretary.