[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 1747 Introduced in Senate (IS)]








109th CONGRESS
  1st Session
                                S. 1747

    To limit liability for volunteers and those providing goods and 
         services for disaster relief, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           September 21, 2005

  Mr. Cornyn (for himself, Mr. Vitter, Mrs. Hutchison, Mr. Thune, Mr. 
  Lott, Mr. Grassley, Mr. Brownback, and Ms. Landrieu) introduced the 
 following bill; which was read twice and referred to the Committee on 
                             the Judiciary

_______________________________________________________________________

                                 A BILL


 
    To limit liability for volunteers and those providing goods and 
         services for disaster relief, and for other purposes.

    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 ``Good Samaritan Liability Improvement 
and Volunteer Encouragement Act of 2005'' or the ``GIVE Act of 2005''.

SEC. 2. FINDINGS.

    Congress finds the following:
            (1) It is in the national interest to encourage individuals 
        to volunteer, and particularly to assist victims of national 
        disasters.
            (2) The willingness of volunteers to offer their services 
        is deterred by the potential for liability actions against 
        them.
            (3) The contribution of programs that use volunteers to 
        their communities is thereby diminished, resulting in fewer and 
        higher cost programs than would be obtainable if volunteers 
        were participating.
            (4) The exposure of potential volunteers, their employers, 
        and those who would use the services of volunteers under 
        existing law to compensatory and punitive damages for negligent 
        acts discourages the provision of these services.
            (5) The availability of damages for actions that constitute 
        gross negligence creates uncertainty concerning the actual 
        conduct that might cause liability to be imposed on volunteers.
            (6) Potential liability for acts of volunteers discourages 
        the employers or business partners of potential volunteers from 
        permitting those potential volunteers to provide disaster 
        relief services.
            (7) Potential liability for acts of volunteers discourages 
        entities that might use the services provided by volunteers 
        from doing so.
            (8) Well-founded fear of liability under existing law for 
        providing goods, equipment, access to facilities, and other in-
        kind contributions discourages those who would donate them from 
        doing so.
            (9) Well-founded fear of liability under existing law for 
        providing goods discourages governmental and intergovernmental 
        entities from providing needed disaster relief goods.
            (10) Well-founded fear of liability for punitive damages 
        under existing law discourages governmental and 
        intergovernmental entities from providing needed disaster 
        relief goods and discourages potential volunteers from 
        providing volunteer services to disaster victims.
            (11) Fear of compensatory and punitive damages for 
        providing volunteer services deters potential volunteers from 
        States located outside the national disaster area from 
        providing volunteer services.
            (12) Fear of compensatory and punitive damages for 
        providing volunteer services deters potential foreign 
        volunteers from providing disaster relief services.
            (13) Any lessening of liability for volunteers providing 
        disaster relief services, their employers and business 
        partners, and entities utilizing their services should maintain 
        adequate incentives for each of these classes of persons or 
        entities to avoid causing harm.
            (14) Unwillingness to provide volunteer services in the 
        face of uncertain liability substantially affects, burdens, and 
        deters interstate commerce and travel.
            (15) Unwillingness of employers and business partners to 
        allow their employees and business partners to provide 
        volunteer and disaster relief services in the face of uncertain 
        liability substantially affects, burdens, and deters interstate 
        commerce and travel.
            (16) Unwillingness of persons, entities, or organizations 
        to accept volunteer and disaster relief services from 
        volunteers in the face of uncertain liability substantially 
        affects, burdens, and deters interstate commerce and travel.
            (17) Unwillingness by foreigners to provide volunteer and 
        disaster relief services in the face of uncertain liability 
        substantially affects, burdens, and deters foreign commerce and 
        travel.
            (18) 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.
            (19) Services and goods provided by volunteers and 
        nonprofit organizations would often otherwise be provided by 
        private entities that operate in interstate commerce.
            (20) 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.
            (21) 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, 
                as 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 Constitution of the United States, and 
                the fourteenth amendment to the Constitution of the 
                United States.
            (22) Unless Congress provides uniform standards to address 
        disasters that could occur in any State or combination of 
        States, potential volunteers and others will not be certain 
        which laws would govern their providing disaster relief 
        services, which would substantially affect, burden, and deter 
        interstate and foreign commerce and travel in the event of a 
        national disaster.

             TITLE I--DISASTER RELIEF VOLUNTEER PROTECTION

SEC. 101. DEFINITIONS.

    In this title--
            (1) the term ``compensation''--
                    (A) means monetary or other compensation of any 
                kind provided in exchange for an individual's services; 
                and
                    (B) does not include--
                            (i) reasonable reimbursement or allowance 
                        for expenses actually incurred by such 
                        individual;
                            (ii) provision of reasonable supplies, 
                        lodging, or transportation to such an 
                        individual; or
                            (iii) the ordinary salary or compensation 
                        paid to such an individual by the employer of 
                        the individual while the individual is on leave 
                        from performing ordinary duties for the 
                        employer of the individual in order to provide 
                        disaster relief services;
            (2) the term ``declared disaster'' means--
                    (A) a public health emergency declared by the 
                Secretary of Health and Human Services under section 
                319 of the Public Health Services Act (42 U.S.C. 247d);
                    (B) a public health emergency, or a risk of such 
                emergency, as determined by the Secretary of Homeland 
                Security in accordance with clause (i) or (ii) of 
                section 2811(b)(3)(A) of the Public Health Services Act 
                (42 U.S.C. 300hh-11(b)(3)(A)), as transferred by 
                section 503(5) of the Homeland Security Act of 2002 (6 
                U.S.C. 313(5)); or
                    (C) an emergency or major disaster declared by the 
                President under section 401 or 501 of the Robert T. 
                Stafford Disaster Relief and Emergency Assistance Act 
                (42 U.S.C. 5170, 5191);
            (3) the term ``disaster relief goods'' means either--
                    (A) those goods provided in preparation for, 
                response to, or recovery from a declared disaster and 
                reasonably necessary to such preparation, response, or 
                recovery; or
                    (B) those goods defined by a supplemental 
                declaration under this title;
            (4) the term ``disaster relief services'' means services or 
        assistance provided in preparation for, response to, or 
        recovery from a declared disaster, including but not limited to 
        health, medical, firefighting, rescue, reconstruction, and any 
        other services or assistance specified by a supplemental 
        declaration under this title as necessary or desirable to 
        prepare for, respond to, or recover from such declared 
        disaster;
            (5) the term ``disaster relief volunteer'' means an 
        individual--
                    (A) who provides disaster relief services or 
                assistance in connection with a declared disaster 
                without expectation or receipt of compensation in 
                exchange for providing such services or assistance; and
                    (B) who, to the extent required by the appropriate 
                authorities of a State (even if such State is not the 
                State in which the volunteer provides services or 
                assistance) or, if, and to the extent, specified in a 
                supplemental declaration under this title, a foreign 
                country, is licensed, certified, or authorized to 
                provide the relevant services or assistance;
            (6) the term ``non-economic loss'' 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 non-pecuniary losses of any kind 
        or nature;
            (7) the term ``supplemental declaration'' means a 
        declaration under section 108 regarding the scope of a declared 
        disaster; and
            (8) the term ``State'' means each of the several States of 
        the United States, the District of Columbia, the Commonwealth 
        of Puerto Rico, the Virgin Islands, Guam, American Samoa, the 
        Commonwealth of the Northern Mariana Islands, any other 
        territory or possession of the United States, and any political 
        subdivision of any such State, territory, or possession.

SEC. 102. LIABILITY OF DISASTER RELIEF VOLUNTEERS.

    Except as provided in section 109, a disaster relief volunteer 
shall not be liable for harm caused by an act or omission of the 
volunteer that is within the scope of the activities of the volunteer 
to provide or facilitate the provision of disaster relief services in 
connection with a declared disaster if--
            (1) the harm was not caused by willful, knowing, or 
        reckless misconduct by the volunteer; and
            (2) 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.

SEC. 103. LIABILITY OF EMPLOYER OR PARTNER OF DISASTER RELIEF 
              VOLUNTEER.

    Except as provided in section 109, an employer or business partner 
of a disaster relief volunteer shall not be liable for any act or 
omission of such volunteer within the scope of the activities of the 
volunteer to provide or facilitate the provision of disaster relief 
services in connection with a declared disaster.

SEC. 104. LIABILITY OF HOST OR ENABLING PERSON, ENTITY, OR 
              ORGANIZATION.

    Except as provided in section 109, a person, entity, or 
organization, including a governmental or intergovernmental entity, 
that works with, accepts services from, or opens its facilities to a 
disaster relief volunteer to enable the volunteer to render disaster 
relief services in connection with a declared disaster shall not be 
liable for any act or omission of a disaster relief volunteer.

SEC. 105. LIABILITY OF GOVERNMENTAL AND INTERGOVERNMENTAL ENTITIES FOR 
              DONATIONS OF DISASTER RELIEF GOODS.

    Except as provided in section 109, a governmental or 
intergovernmental entity that donates disaster relief goods to an 
agency or instrumentality of the United States in connection with a 
declared disaster shall not be liable for harm caused by such donated 
goods if the harm was not caused by willful, knowing, or reckless 
misconduct by the governmental or intergovernmental entity.

SEC. 106. LIMITATION ON PUNITIVE AND NON-ECONOMIC DAMAGES BASED ON 
              ACTIONS OF DISASTER RELIEF VOLUNTEERS AND GOVERNMENTAL OR 
              INTERGOVERNMENTAL DONORS.

    (a) Punitive Damages.--Except as provided in section 109, punitive 
damages may not be awarded in any civil action against a disaster 
relief volunteer or governmental or intergovernmental entity unless a 
claimant establishes by clear and convincing evidence that the damages 
to the claimant were proximately caused by willful, knowing, or 
reckless misconduct by either--
            (1) a disaster relief volunteer in an action brought for 
        harm caused by the activities of the volunteer to provide or 
        facilitate the provision of disaster relief services in 
        connection with a declared disaster; or
            (2) a governmental or intergovernmental entity for harm 
        caused by disaster relief goods donated by such governmental or 
        intergovernmental entity in connection with a declared 
        disaster.
    (b) Non-Economic Damages.--
            (1) In general.--Except as provided in section 109, 
        liability for non-economic loss in any civil action brought 
        against either a disaster relief volunteer for harm caused the 
        activities of the volunteer to provide or facilitate the 
        provision of disaster relief services in connection with a 
        declared disaster, or a governmental or intergovernmental 
        entity for harm caused by disaster relief goods donated by such 
        governmental or intergovernmental entity in connection with a 
        declared disaster, if permitted under section 102 or section 
        105, shall be determined in accordance with paragraph (2).
            (2) Amount of liability.--
                    (A) In general.--The amount of damages for non-
                economic loss allocated to a disaster relief volunteer 
                or governmental or intergovernmental entity defendant 
                shall be in direct proportion to the percentage of 
                responsibility of that defendant, determined in 
                accordance with subparagraph (B), for the harm to the 
                claimant with respect to which that defendant is 
                liable.
                    (B) Percentage.--In a civil action described in 
                paragraph (1), for purposes of determining the amount 
                of non-economic loss, the trier of fact shall determine 
                the percentage of responsibility of each defendant 
                found liable for harm to the claimant.
                    (C) Separate judgments.--The court shall render a 
                separate judgment against each defendant for any non-
                economic loss.

SEC. 107. JUDICIAL REVIEW OF ALLEGATIONS.

    (a) In General.--A claimant in a civil action for an act or 
omission subject to the limitations of liability under this title shall 
attach 1 or more sworn affidavits or documents containing admissible 
evidence of an act or omission outside the limitations of section 102, 
103, 104, or 105.
    (b) Initial Review.--Before allowing a civil action described in 
subsection (a) to proceed into discovery, the trial judge shall 
determine whether, as a matter of law, the evidence submitted is 
sufficient to raise a genuine issue of material fact.

SEC. 108. SUPPLEMENTAL DECLARATION.

    (a) In General.--In the event of a declared disaster, the 
President, the Secretary of Health and Human Services, or the Secretary 
of Homeland Security may issue a supplemental declaration.
    (b) Temporal Effect.--A supplemental declaration may provide that, 
for purposes of this title, such declared disaster shall have such 
temporal effect as the President or the Secretary may deem necessary or 
appropriate to further the public interest, including providing that 
such declared disaster shall have an effective date earlier than the 
date of the declaration or determination of such declared disaster.
    (c) Geographic and Other Conditions.--A supplemental declaration 
may provide that, for purposes of this title, such declared disaster 
shall have such geographic or other conditions as the President or the 
relevant Secretary may deem necessary or appropriate to further the 
public interest.

SEC. 109. ELECTION OF STATE REGARDING NONAPPLICABILITY.

    A provision of this title shall not apply to any civil action in a 
State court against a person in which all parties are citizens of the 
State if such State enacts a statute--
            (1) citing the authority of this title;
            (2) declaring the election of such State that such 
        provision shall not apply to such civil action in the State; 
        and
            (3) containing no other provisions.

SEC. 110. CONSTRUCTION.

    Nothing in this title shall be construed to abrogate or limit any 
protection that a volunteer, as defined in section 6(6) of the 
Volunteer Protection Act (42 U.S.C. 14505(6)), may be entitled to under 
that Act. Neither shall anything in this title be construed to confer 
any private right of action or to abrogate or limit any protection with 
respect to either liability or damages that any person may be entitled 
to under any other provision of law.

              TITLE II--VOLUNTEER PROTECTION IMPROVEMENTS

SEC. 201. DEFINITIONS.

    In this title--
            (1) the term ``aircraft'' has the meaning given that term 
        in section 40102(6) of title 49, United States Code;
            (2) the term ``equipment'' includes mechanical equipment, 
        electronic equipment, and office equipment;
            (3) the term ``facility'' means any real property, 
        including any building, improvement, or appurtenance;
            (4) the term ``motor vehicle'' has the meaning given that 
        term in section 30102(6) of title 49, United States Code;
            (5) 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;
            (6) the term ``person'' includes any governmental or other 
        entity; and
            (7) 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 Commonwealth of the 
        Northern Mariana Islands, any other territory or possession of 
        the United States, or any political subdivision of any such 
        State, territory, or possession.

SEC. 202. LIABILITY PROTECTION FOR ACTIONS OF VOLUNTEERS GENERALLY.

    Section 4 of the Volunteer Protection Act of 1997 (42 U.S.C. 14503) 
is amended--
            (1) in subsection (a)(3), by striking ``willful or criminal 
        misconduct, gross negligence, reckless misconduct'' and 
        inserting the following: ``willful, knowing, or reckless 
        misconduct'';
            (2) by striking subsection (c) and inserting the following:
    ``(c) Effect on Liability of Nonprofit Organizations.--No nonprofit 
organization shall be liable for the acts or omissions of a volunteer 
with respect to harm caused to any person unless--
            ``(1) the acts or omissions of the volunteer are not 
        subject to the limitations on liability under subsection (a); 
        and
            ``(2) the nonprofit organization has willfully disregarded 
        or been recklessly indifferent to the reasonable expectations 
        or safety of the individual harmed by the volunteer.''; and
            (3) by adding at the end the following:
    ``(g) Judicial Review of Allegations.--
            ``(1) In general.--A claimant in a civil action for an act 
        or omission subject to the limitations of liability under this 
        Act shall attach 1 or more sworn affidavits or documents 
        containing admissible evidence of an act or omission outside 
        the limitations of subsection (a), (c), (e)(1), or (f)(1).
            ``(2) Initial review.--Before allowing a civil action 
        described in paragraph (1) to proceed into discovery, the trial 
        judge shall determine whether, as a matter of law, the evidence 
        submitted is sufficient to raise a genuine issue of material 
        fact.''.

SEC. 203. CHARITABLE DONATIONS LIABILITY REFORM FOR IN-KIND 
              CONTRIBUTIONS.

    (a) In General.--
            (1) Liability for donations of equipment to nonprofit 
        organizations.--
                    (A) In general.--Except as provided in subsection 
                (b), a person shall not be subject to civil liability 
                relating to any injury or death that results from the 
                use of equipment donated by such person to a nonprofit 
                organization.
                    (B) Application.--This paragraph shall apply with 
                respect to civil liability under Federal and State law.
            (2) Liability for providing use of facilities to nonprofit 
        organizations.--
                    (A) In general.--Except as provided in subsection 
                (b), a person shall not be subject to civil liability 
                relating to any injury or death occurring at a facility 
                owned or operated by the person in connection with a 
                use of such facility by a nonprofit organization, if--
                            (i) the use occurs outside of the normal 
                        use of the facility by the person;
                            (ii) such injury or death occurs during a 
                        period that such facility is used by the 
                        nonprofit organization; and
                            (iii) the person authorized the use of such 
                        facility by the nonprofit organization.
                    (B) Application.--This paragraph shall apply--
                            (i) with respect to civil liability under 
                        Federal and State law; and
                            (ii) regardless of whether a nonprofit 
                        organization pays for the use of a facility.
            (3) Liability for providing use of a motor vehicle or 
        aircraft.--
                    (A) In general.--Except as provided in subsection 
                (b), a person shall not be subject to civil liability 
                relating to any injury or death occurring as a result 
                of the operation of an aircraft or a motor vehicle the 
                person loaned to a nonprofit organization, if--
                            (i) the use occurs outside of the normal 
                        use of the aircraft or motor vehicle by the 
                        person;
                            (ii) such injury or death occurs during a 
                        period that such motor vehicle or aircraft is 
                        used by a nonprofit organization; and
                            (iii) the person authorized the use by the 
                        nonprofit organization of motor vehicle or 
                        aircraft that resulted in the injury or death.
                    (B) Application.--This paragraph shall apply--
                            (i) with respect to civil liability under 
                        Federal and State law; and
                            (ii) regardless of whether a nonprofit 
                        organization pays for the use of the aircraft 
                        or motor vehicle.
    (b) Exceptions.--Subsection (a) shall not apply to an injury or 
death that results from an act or omission of a person that constitutes 
willful, knowing, or reckless misconduct.
    (c) Judicial Review of Allegations.--
            (1) In general.--A claimant in a civil action for an act or 
        omission subject to the limitations of liability under this 
        section shall attach 1 or more sworn affidavits or documents 
        containing admissible evidence of an act or omission outside 
        the limitations of subsection (a).
            (2) Initial review.--Before allowing a civil action 
        described in paragraph (1) to proceed into discovery, the trial 
        judge shall determine whether, as a matter of law, the evidence 
        submitted is sufficient to raise a genuine issue of material 
        fact.
    (d) Superseding Provision.--
            (1) In general.--Except as provided in paragraph (2) and 
        subsection (e), this section preempts the laws of any State to 
        the extent that such laws are inconsistent with this section, 
        except that this section shall not preempt any State law that 
        provides additional protection for a person for an injury or 
        death described in paragraph (1), (2), or (3) of subsection (a) 
        with respect to which the conditions specified in such 
        paragraph apply.
            (2) Limitation.--Nothing in this section shall be construed 
        to supersede any Federal or State health or safety law.
    (e) Election of State Regarding Nonapplicability.--A provision of 
this section shall not apply to any civil action in a State court 
against a person in which all parties are citizens of the State if such 
State enacts a statute--
            (1) citing the authority of this section;
            (2) declaring the election of such State that such 
        provision shall not apply to such civil action in the State; 
        and
            (3) containing no other provisions.
    (f) Effective Date.--This section shall apply to liability for 
injury or death caused by equipment donated, facilities used, or 
aircraft or motor vehicles loaned on or after the date of the enactment 
of this Act.
                                 <all>