[Congressional Record Volume 141, Number 189 (Wednesday, November 29, 1995)]
[Senate]
[Pages S17777-S17780]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. McCONNELL (for himself and Mr. Warner):
  S. 1435. A bill to grant immunity from personal civil liability, 
under certain circumstances, to volunteers working on behalf of 
nonprofit organizations and governmental entities; to the Committee on 
the Judiciary.


                      THE VOLUNTEER PROTECTION ACT

  Mr. McCONNELL. Mr. President, volunteer service has become a high-
risk venture. Our ``sue happy'' legal culture has ensnared those 
selfless individuals who help worthy organizations and institutions 
through volunteer service. And, these lawsuits are proof that no good 
deed goes unpunished.
  In order to relieve volunteers from these million dollar liability 
judgments, I am pleased to introduce the Volunteer Protection Act.
  The litigation craze is hurting the spirit of voluntarism that is an 
integral part of American society. From school chaperones to Girl Scout 
and Boy Scout troop leaders to good samaritan doctors and nursing home 
aides, volunteers perform valuable services. And, these volunteers are 
being dragged into court and needlessly and unfairly sued. The end 
result? Too many people pointing fingers and too few offering a helping 
hand.
  So, this bill creates immunity from lawsuits for those volunteers who 
act within the scope of their responsibilities, who are properly 
licensed or certified where necessary, and who do not cause harm 
willfully and wantonly.
  In addition to creating a Federal standard for volunteer protection, 
the bill allows the States to add further refinements to the Federal 
standard. This will give the States a degree of flexibility and it 
strikes a balance between the federalism interest and the need to 
protect volunteers from these lawsuits. If a State enacts one or more 
of these additional criteria, the State law will be consistent with the 
Federal standard:
  A requirement that the organization or entity adhere to risk 
management procedures, including the training of volunteers.
  A requirement that the organization or entity be accountable for the 
actions of its volunteers in the same way that an employer is liable 
for the acts of its employees.
  An exemption from the liability protection in the event the volunteer 
is using a motor vehicle or similar instrument.
  An exemption from the liability protection if the lawsuit is brought 
by a State or local official in accordance with State or local law.
  A requirement that the liability protection applies only if the 
nonprofit organization or government entity provides a financially 
secure source of recovery, such as an insurance policy, for those who 
suffer harm.

  I ask unanimous consent that a copy of the bill be printed in the 
Record and Legal Backgrounder entitled, ``Unfair Lawsuits Threaten 
Volunteers'' as well as the American Tort Reform Association's ``A Few 
Facts About Volunteer Liability'' also be printed in the Record.
  Mr. President, this bill is widely supported by those organizations 
who rely on volunteers to provide important services to our 
communities. Some 150 organizations have endorsed this bill and I ask 
that a list of the Coalition for Volunteer Protection be printed in the 
Record.
  I look forward to the Senate's consideration of this bill and to 
prompt passage. We cannot afford not to enact this legislation. Our 
communities are depending upon us.
  There being no objection, the materials were ordered to be printed in 
the Record, as follows:

                                S. 1435

       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 
     1995''.

     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 potential for liability actions against them 
     and the organizations they serve;
       (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 

[[Page S 17778]]
     than would be obtainable if volunteers were participating; and
       (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.
       (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 protection from personal financial liability to 
     volunteers serving nonprofit organizations and governmental 
     entities for actions undertaken in good faith on behalf of 
     such organizations.

     SEC. 3. 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 
     incentives or protections to volunteers, or category of 
     volunteers.

     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 his or her 
     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 
     undertaken within the scope of his or her responsibilities in 
     the nonprofit organization or governmental entity; and
       (3) the harm was not caused by willful and wanton 
     misconduct by the volunteer.
       (b) Concerning Responsibility of Volunteers With Respect to 
     Organizations.--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.--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 Act:
       (1) A State law that requires the organization or 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 the limitation of liability does not 
     apply if the volunteer was operating a motor vehicle, vessel, 
     aircraft, or other vehicle for which the State requires the 
     operator or vehicle owner to possess an operator's license or 
     to maintain insurance.
       (4) A State law that the limitation of liability does not 
     apply if the civil action was brought by an officer of a 
     State or local government pursuant to State or local law.
       (5) A State law that the limitation of liability shall 
     apply 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 entity will be 
     able to pay for losses up to a specified amount. Separate 
     standards for different types of liability exposure may be 
     specified.

     SEC. 5. DEFINITIONS.

       For purposes of this Act--
       (1) the term ``economic losses'' means objectively 
     verifiable monetary losses, including past and future medical 
     expenses, loss of past and future earnings, cost of obtaining 
     replacement services in the home (including child care, 
     transportation, food preparation, and household care), cost 
     of making reasonable accommodations to a personal residence, 
     loss of employment, and loss of business or employment 
     opportunities;
       (2) the term ``harm'' includes physical, nonphysical, 
     economic, and noneconomic losses;
       (3) 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) the term ``nonprofit organization'' means any 
     organization described in section 501(c) of the Internal 
     Revenue Code of 1986 and exempt from tax under section 501(a) 
     of such Code;
       (5) 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; and
       (6) the term ``volunteer'' means an individual performing 
     services for a nonprofit organization or a governmental 
     entity who does not receive--
       (A) compensation (other than reimbursement or allowance for 
     expenses actually incurred); or
       (B) any other thing of value in lieu of compensation,

     in excess of $300 per year, and such term includes a 
     volunteer serving as a director, officer, trustee, or direct 
     service volunteer.

     SEC. 6. EFFECTIVE DATE.

       This Act applies to any claim for harm caused by an act or 
     omission of a volunteer filed on or after the date of 
     enactment 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 date of enactment.
                                                                    ____



                             American Tort Reform Association,

                                                   Washington, DC.

                          Volunteer Liability

       In October 1983, Craig Fredborg celebrated his birthday by 
     climbing Box Springs Mountain, overlooking Riverside, 
     California. To his companions' horror, Fredborg slipped on a 
     boulder and plummeted some 90 feet, sustaining severe spinal 
     injuries.
       Alerted that Fredborg lay helpless on the slope, Walter 
     Walker, now 54, and his son Kevin, 31, and teammates from the 
     volunteer Riverside Mountain Rescue Unit scrambled to aid a 
     physician and a paramedic in mounting a ticklish nighttime 
     helicopter evacuation. Over the last 30 years, the unit's 
     volunteers have saved hundreds of lives. But for their 
     troubles, the Walkers and the others involved in the 
     emergency mission were sued two years later by the victim, 
     who asked $12 million in damages, claiming that `reckless and 
     negligent' rescue techniques had caused him to become a 
     quadriplegic.
       The lawsuit eventually was dropped. But not before the 
     Walkers lost a lot of hours from their family printing 
     business giving depositions and meeting with defense 
     attorneys provided them by the county sheriff's department. 
     Perhaps the most significant consequence of the suit, says 
     Walker, is that meticulous documentation and planning 
     procedures have been instituted in its wake to forestall 
     future liability claims. `Probably we were a little weak in 
     that,' he concedes. Nevertheless, he adds, `It definitely has 
     slowed us down in getting the team into the field . . . 
     Concern about liability exposure has complicated how we look 
     at every mission.' ''--David O. Weber, ``A Thousand Points of 
     Fright?'', Insurance Review, February 1991.
       A man who was high on LSD was rescued by a student, after 
     he had jumped from a 30 foot dockside bar into a seven foot 
     pool of water. The man suffered a broken neck and was left 
     paralyzed for life. However, he subsequently sued both the 
     school and the student. The judge eventually threw the case 
     out, but unfortunately, this is just another prime example of 
     a waste of tax payers money.--Mississippi Press, May 2, 1993.
       ``Amateur referees at softball diamonds, high school 
     stadiums and college field houses are finding that their 
     decisions can trigger major-league lawsuits.'' An Iowa 
     souvenir company faced with a suddenly devalued inventory 
     challenged the last-second foul call of a part-time Big Ten 
     basketball official with a $175,000 negligence suit. The 
     official eventually won his court battle, but only after a 
     costly two-year fight that went all the way to the Iowa 
     Supreme Court.
       ``Some of our people got to the point where they were just 
     afraid to work because of the threat of lawsuits,'' says 
     Dottie Lewis of the Southwest Officials Association in 
     Dallas. The Association provides officials for scholastic 
     games.
       A New Jersey umpire was sued by a catcher who was hit in 
     the eye by a softball while playing without a mask; he 
     complained that the umpire should have lent him his. The 
     catcher walked away with a $24,000 settlement.--The Wall 
     Street Journal, Friday, August 11, 1989.
       58% of the principals responding to a survey sponsored by 
     the National Association of Secondary School Principals said 
     that they had noticed a difference in the kinds of school 
     programs being offered in schools because of liability 
     concerns, and the use of non-faculty volunteers was affected. 
     Typically, parent volunteers assist schools with tutoring, 
     science programs, class trips and social activities.--1989 
     Survey Members of the National Association of Secondary 
     School Principals.
                                                                    ____


              National Coalition for Volunteer Protection

       Academy of Medicine of Columbus and Franklin County, Air 
     Force Association, Alabama Forestry Association, Alabama 
     Oilmens Association, Alabama Textile Manufacturers 
     Association, Alliance for Fire and Emergency Management, 
     American Association of Blood Banks, American Association 

[[Page S 17779]]
     of Equine Practitioners, American Association of Museums, American 
     Association of Nurserymen, American Association of 
     Occupational Health Nurses, American Chamber of Commerce 
     Executives, American College of Emergency Physicians--
     National Office.
       American College of Healthcare Executives, American 
     Diabetes Association Kentucky Affiliate, American Hardware 
     Manufacturers Association, American Horse Council 
     Incorporated, American Horticultural Therapy Association, 
     American Industrial Hygiene Association, American Institute 
     of Architects North Carolina Chapter, American Physical 
     Therapy Association California Chapter, American Physical 
     Therapy Association Louisiana Chapter, American Production 
     and Inventory Control Society, American Red Cross, American 
     Society of Anesthesiologists, American Society of Association 
     Executives, American Society of Mechanical Engineers 
     Washington Office, American Society of Safety Engineers.
       American Tort Reform Association, Anchorage Convention and 
     Visitors Bureau, Arizona Academy of Family Physicians, 
     Arizona Cable Television Association, Arizona Contractors 
     Association, Arizona Motor Transport Association, Arkansas 
     Hospital Association, Arkansas Hospitality Association, 
     Arkansas Pharmacists Association, Arthritis Foundation 
     National Office, Associated Builders and Contractors of 
     Wisconsin Incorporated.
       Associated California Loggers, Associated Industries of 
     Massachusetts, Association Management Services, Association 
     of Graphic Communications, Baton Rouge Apartment Association, 
     Beacon Consulting Group, Building Industry Association of 
     Tulare/Kings Counties Incorporated, California Association of 
     Employers, California Association of Marriage and Family 
     Therapists, California Chamber of Commerce, California Dental 
     Association, California Independent Petroleum Association, 
     California Society of Enrolled Agents, Catholic Health 
     Association, Chicagoland Chamber of Commerce.
       Childrens Alliance, Colorado Society of Association 
     Executives, Community and Economic Development Association of 
     Cook County Incorporated, Community Associations Institute, 
     Connecticut Association of Not for Profit Providers for the 
     Aging, Council of Community Blood Centers, Eastern Building 
     Material Dealers Association, Fazio International Ltd, 
     Financial Managers Society Incorporated, Florida Nurserymen 
     and Growers Association Incorporated, Florida Optometric 
     Association, General Federation of Womens Clubs, Greater 
     Washington Society of Association Executives, Home Builders 
     Association Holland Area, Home Builders Association of 
     Kentucky.
       Howe and Hutton Limited, Illinois Lumber and Material 
     Dealers Association Incorporated, Independent Insurance 
     Agents of Arkansas, Independent Insurance Agents of Virginia, 
     Independent Sector, International Association for Financial 
     Planning, Iowa and Nebraska Equipment Dealers Association, 
     Iowa Bankers Association, Iowa Society of Certified Public 
     Accountants, Kansas City Area Hospital Association, Kentucky 
     Automobile Dealers Association Incorporated, Kentucky Derby 
     Festival Incorporated, Kentucky Grocers Association, Kentucky 
     Medical Association, Literacy Volunteers of America.
       Long Island Convention and Visitors Bureau, MACU 
     Association Group, Maine Association of Broadcasters, 
     Maryland State Dental Association, Massachusetts Association 
     of Rehabiitation Facilities, Mechanical Contractors 
     Association of America Incorporated St. Louis Chapter, 
     Metropolitan Detroit Plumbing and Mechanical Contractors 
     Association, Michigan Chamber of Commerce, Michigan Dental 
     Association, Michigan Pork Producers Association, Midwest 
     Equipment Dealers Association Incorporated, Minnesota 
     Automobile Dealers Association, Minnesota Electrical 
     Association, Mississippi Malt Beverage Association.
       Mississippi Optometric Association, Missouri Association of 
     Homes for the Aging, Missouri Automobile Dealers Association, 
     Modular Building Institute, National Association for Campus 
     Activities, National Association of Hosiery Manufacturers, 
     National Electrical Contractors Association St. Louis 
     Chapter, National Electronic Distributors Association, 
     National Federation of Nonprofits, National Glass 
     Association, National Parent Teachers Association, National 
     Small Business United, National Society of Professional 
     Engineers, National Student Nurses Association, Nevada 
     Association of Realtors.
       Nevada Society of Certified Public Accountants, North 
     American Equipment Dealers Association, Ohio Lumberman's 
     Association, Ohio Osteopathic Association, Ohio Society of 
     Association Executives, Ohio Society of Certified Public 
     Accountants, Oklahoma Public Employees Association, 
     Professional Meetings and Association Services, Public Risk 
     Management Association, Recreation and Welfare Association, 
     Relationship Management Incorporated, Religious Conference 
     Management Association, Smith Bucklin and Associates 
     Incorporated Washington Office, Soroptimist International of 
     the Americas.
       South Dakota Dental Association and Foundation, Texas 
     Association of Nurserymen Incorporated, Texas Land Title 
     Association, Texas Oil Marketers Association, Towing and 
     Recovery Association of America, United States Hang Gliding 
     Association, United States Pony Clubs, United Way of America, 
     Utah Mechanical Contractors Association, Virginia Society of 
     Association Executives, Water Environment Federation, Western 
     Retail Implement and Hardware Association, Wisconsin Home 
     Organization, Wisconsin League of Financial Institutions Ltd, 
     Wisconsin Ready Mixed Concrete Association, Wisconsin 
     Restaurant Association, Wisconsin Wholesale Beer Distributors 
     Association, YMCA of the USA.
       150 Members as of November 27, 1995.
                                                                    ____



                                  Washington Legal Foundation,

                                Washington, DC, December 16, 1994.

                  Unfair Lawsuits Threaten Volunteers

                     (By William J. Cople III) \1\

       Volunteer service is under assault from an unlikely 
     quarter--the civil justice system. Like so many others, 
     volunteers and their service organizations have been swept 
     into the courts to face potential liability in civil suits. 
     Under the rule of law, our actions are judged by common 
     standards of conduct. This provides the basis for the courts 
     to recognize rights and afford remedies to those who claim to 
     be aggrieved. But civil justice should not be used recklessly 
     to inhibit beneficial conduct that may involve some amount of 
     risk. In order for volunteer service to survive and prosper, 
     the civil justice system must find an equilibrium under which 
     it recognizes and protects personal and property rights 
     without stifling the volunteer spirit so necessary to a vital 
     and self-reliant community.
     \1\ William J. Cople III is a partner with the Washington, 
     D.C. law firm of Spriggs & Hollingsworth and serves pro bono 
     as the General Counsel of the National Capital Area Council 
     of the Boy Scouts of America.
---------------------------------------------------------------------------
       Efforts to achieve this balance have been hindered by the 
     civil justice system itself. Both federal and state courts 
     seem to be trapped in a disturbing pattern of recognizing 
     novel rights and enlarging the scope of existing rights in an 
     effort to redress a multitude of real and perceived wrongs 
     and injuries. The courts have regrettably found rights, and 
     corresponding remedies, to exist in cases involving 
     grievances that are trivial or mundane and in cases where 
     acts or omissions were not previously understood to be a 
     legal wrong. In other cases, judges and juries have found 
     serious injuries and other matters of grave concern to 
     deserve recompense, even though the legal duty was uncertain 
     or the causal connection to the harm was attenuated.
       As a result, the value of rights that historically have 
     been recognized in the courts as a proper subject of redress 
     has been debased by according them respect no greater than 
     the most tenuous rights now being recognized. Moreover, the 
     expansion of potential liability may diminish desirable and 
     beneficial conduct, such as the willingness to serve as a 
     volunteer. In the past, the courts seem to have understood 
     that some circumstances, even ones of tragic proportion, are 
     simply caused by accident or misfortune, and not necessarily 
     by culpable conduct on the part of any other person. Yet, 
     this now has become an unacceptable conclusion. Every 
     conceivable circumstance in which we deal and interact with 
     each other seems to create a victim. This has spawned the 
     civil litigation clogging the courts, as every victim of 
     circumstances seeks compensation by shifting the blame for 
     those circumstances to someone else.
       An unfortunate effect of this civil litigation is to 
     heighten the risks of volunteer service. In thousands of 
     service organizations, volunteers give freely of their time 
     and effort to support activities that they believe to be 
     worthwhile for a host of personal reasons. This is done 
     without expectation of compensation or other remuneration of 
     any kind. Nonetheless, many volunteer organizations have been 
     forced by the growing threat of civil litigation to purchase 
     and maintain liability insurance or other forms of legal 
     indemnity covering volunteers for their services.
       Even with insurance coverage, the increasing risk of 
     litigation no doubt has a chilling effect on the willingness 
     and enthusiasm of volunteers to donate their time and effort. 
     Many volunteers may think twice before becoming involved, 
     while others may continue to participate, but curtail their 
     services to those activities that seem relatively risk-free. 
     Still others may cease to be a volunteer, out of an abundance 
     of caution and justifiable aversion to being caught up in 
     civil litigation. Quantifying the effects of increased risk 
     of civil liability on volunteer service will have to await 
     empirical evidence. It is fair to say, however, that 
     volunteers themselves have become victims of the civil 
     justice system. The increasing propensity to enlarge the 
     universe of rights and award compensation, often in stunning 
     amounts, may be to the detriment of volunteer service.
       This danger was illustrated recently in a personal injury 
     lawsuit brought against volunteers serving a local council of 
     the Boy Scouts of America. In a case brought in Oregon state 
     court, Powell v. Boy Scouts of America, et al., a youth 
     seriously injured in an activity sponsored by Scouting sued 
     the Boy Scouts and its adult volunteers for negligence.
       The Boy Scouts of America is a national volunteer service 
     organization, chartered by the U.S. Congress in 1916, 
     pursuant to 36 U.S.C. Sec. Sec. 21-29. Acting primarily 
     through its volunteers, the Boy Scouts is dedicated to the 
     training of youth in accordance with long-established 
     Scouting ideals and principles. Id. Sec. 23. The Boy Scouts 
     operates 

[[Page S 17780]]
     through several hundred local Scout councils. Community organizations 
     within each Council, including churches, schools, and civic 
     groups, among others, conduct Scouting programs and 
     activities. The availability of these programs and activities 
     depends upon individual volunteers willing to devote 
     considerable time and effort in providing adult supervision 
     for participating Scouts. These volunteers provide their time 
     and resources to support the Council and the local 
     organizations. They not only develop and plan the Scouting 
     activities, but also raise the funds in the community 
     necessary to support them. Without these volunteers, the Boy 
     Scouts would be deprived of its principal resource for 
     carrying out its national charter as a youth service 
     organization.
       In the Powell case, several adults in Portland, Oregon 
     volunteered to supervise an outing of the Sea Explorers, a 
     Scouting unit in the Boy Scouts' Cascade Pacific Council. In 
     a tragic accident, one of the young men participating in the 
     Sea Explorer outing suffered a paralyzing injury in a rough 
     game of touch football. The injured youth, who was 16 years 
     of age at the time of the accident, broke his neck during the 
     football game and is now quadriplegic. At least one of the 
     adult volunteers apparently knew that the boys were throwing 
     a football around, but neither observed the game in which the 
     boy was injured.
       Based on this incident, the injured youth filed a personal 
     injury lawsuit against the Boy Scouts and the Columbia 
     Pacific Council (predecessor to Cascade Pacific Council) in 
     Multnomah County Circuit Court, Oregon. The suit alleged that 
     the youth's injury was foreseeable and preventable, and that 
     the Boy Scouts and its volunteers negligently failed to 
     supervise him adequately during the Sea Explorer outing.
       The Court dismissed the original lawsuit, evidently based 
     on an insufficient nexus between the Boy scouts and the 
     youth's injury. Subsequently, the injured young man filed his 
     personal injury lawsuit directly against two of the adult 
     volunteers who participated in the Sea Explorer outing. 
     Following trial, an Oregon jury entered a verdict against the 
     two adult volunteers, finding them liable for some $7 
     million. In one of the largest monetary verdicts in Oregon, 
     the jury awarded $4.89 million dollars for future care and 
     lost earnings plus $2.14 million dollars for pain and 
     suffering. In accordance with Oregon state law, the amount of 
     the verdict will be reduced by the proportionate negligence, 
     approximately one-third, that the jury assigned to the 
     injured youth for his own negligent conduct. The Oregon 
     Circuit Judge presiding at trial also reduced the amount 
     awarded by the jury for pain and suffering to $500,000, 
     reflecting a statutory limit on non-economic damages that may 
     be awarded in personal injury suits in Oregon.
       The Oregon jury's verdict in this case against the Sea 
     Explorer adult volunteers brings the civil justice dilemma 
     into striking focus. The case was born of a tragic accident 
     in which a young man's life and future were forever changed 
     by a debilitating permanent injury. But this tragedy may have 
     been compounded, not alleviated, by finding culpability and 
     imposing liability on the adult volunteers under 
     circumstances suggesting an enlargement of the volunteers' 
     legal duty. The jury seemingly held the volunteers to a 
     standard of care requiring them constantly to supervise the 
     youth entrusted to their charge, even for activities which 
     under other circumstances may routinely be permitted without 
     such meticulous oversight.
       Any parent entrusting their children to the care and 
     supervision of another should expect and demand that all 
     reasonable and prudent care be taken in discharging that 
     responsibility. However, this does not mean that this duty of 
     care must be carried out in such an extraordinary manner that 
     only constant supervision of the youth in their care, 
     regardless of age and other factors, will suffice for 
     volunteers to satisfy their legal responsibility. Certainly, 
     the circumstances surrounding tragic incidents should be 
     carefully examined. All relevant facts and circumstances 
     should be given due weight and consideration in judging 
     whether an adult volunteer has adequately met the 
     responsibility to supervise a child entrusted to his care. 
     But circumstances will nonetheless occur where senseless 
     tragedies happen without anyone being legally to blame. As in 
     the case of other legal duties, adequate supervision should 
     mean reasonable and prudent conduct as required under the 
     circumstances as they existed at the time. Organizations 
     serving the youth in our community, as well as those 
     fulfilling other beneficent purposes, should not be forced 
     into the role of guaranteeing a safe harbor free of all risk. 
     Likewise, neither should volunteers be held a standard that 
     may be infeasible, or even unattainable.
       To choose otherwise would mean that the civil justice 
     system needs to resolve every mishap and inexplicable tragedy 
     by identifying someone to bear legal responsibility for a 
     victim of those circumstances. This may, or may not, have 
     happened in the case of the Multnomah County Circuit Court 
     jury's verdict against the Scout volunteers. But the 
     circumstances of the case, and the available evidence that 
     has been reported, seem to suggest that the jury overreached 
     in an effort to assign blame.
       As is the case of the Oregon verdict against the Sea 
     Explorer volunteers, there are a great many cases involving 
     injury to person, property, or other rights, which are 
     anything but trivial. In fact, their dimensions may be so 
     tragic that such cases motivate judges or juries to find 
     fault and assign blame where it might otherwise hesitate and 
     decline to do so. The judgments entered in such cases, 
     however, have other serious consequences. They obscure the 
     standards of conduct under which we should expect to comport 
     ourselves. This expectation of being able to determine, 
     before we act, whether we are engaging in conduct that is 
     right or wrong is a critical component to civil justice. 
     Moreover, when civil litigation affords redress to every 
     injury, regardless of whether the circumstances justify it 
     under the rule of law, those rights that are long established 
     and highly prized are commensurately demeaned. If virtually 
     every injury is entitled to compensation, then the most 
     important rights become lost in the sea of compensable 
     grievances that the courts recognize. Finally, we need to 
     underscore that a legal judgment entered in a single case can 
     have a multitude of consequences extending far beyond that 
     case itself. This surely is a reason for concern in the case 
     of volunteers to service organizations.
       The Boy Scouts afford their volunteers certain insurance 
     liability coverage or other indemnity for their acts or 
     omissions that may occur in the course of providing services 
     as a Scouting volunteer. This coverage is far from unlimited. 
     Similarly, other youth service and charitable organizations 
     may also be able to provide such insurance coverage for their 
     volunteers, but still others may not. Even with insurance 
     coverage available, many of the most talented and energetic 
     volunteers may eschew volunteer service, fearing that their 
     good intentions will buy themselves a lawsuit. This is a 
     particularly invidious effect, which is difficult to measure 
     and even harder to correct. Existing and prospective 
     volunteers may refuse to participate in many organizations 
     out of a genuine concern with accepting an unreasonable risk 
     of potential liability. Volunteers who might otherwise be 
     motivated to serve may be deterred from doing so based solely 
     on this concern for liability.
       The Supreme Court of the United States aptly characterized 
     the problem in Parratt v. Taylor 451 U.S. 527, 101 S. Ct. 
     1908 (1981). In Parratt, a prisoner, who lost his mail order 
     hobby materials when normal procedures for receipt of mail 
     packages were not followed, brought a federal civil rights 
     case for the alleged deprivation of a Constitutional right. 
     In its decision in that case, the Court seemed to forewarn 
     the civil justice system that not every wrong is entitled to 
     redress as a violation of Constitutional rights because 
     ``[i]t is hard to perceive any logical stopping place for 
     such a line of reasoning.'' Id. at 544. The Court's 
     observation, though made in the context of a civil rights 
     suit more than ten years ago, is equally salient today. The 
     civil justice system should not recognize a legal right for 
     every victim of circumstances. The rule of law should be used 
     to define our standards of conduct and promote consistency 
     and reasonable expectations in their application. The case 
     involving the Sea Explorer volunteers in Oregon serves to 
     reveal a truth. Despite the best of intentions, when misused 
     or used in unpredictable ways, the civil justice system ends 
     up serving no one, least of all those who volunteer.
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