[Congressional Record Volume 143, Number 41 (Wednesday, April 9, 1997)]
[Senate]
[Pages S2926-S2931]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
By Mr. CRAIG (for himself and Mr. Kempthorne):
S. 538. A bill to authorize the Secretary of the Interior to convey
certain facilities of the Minidoka project to the Burley Irrigation
District and for other purposes; to the Committee on Energy and Natural
Resources.
the burley irrigation district transfer act
Mr. CRAIG. Mr. President, I am today introducing a bill to
authorize the Secretary of the Interior to transfer certain facilities
at the Minidoka irrigation project to the Burley Irrigation District.
The introduction of this legislation results from a hearing I held in
the Senate Energy Committee in the past Congress and is nearly
identical to S. 1291 from that Congress. I am introducing this project-
specific legislation because it is obvious to me a general transfer
bill is not workable; each reclamation project has unique qualities,
and projects should be addressed individually or in distinct groupings.
The Reclamation Act of 1902 was part of the history of Federal public
land laws designed to transfer lands out of Federal ownership and to
settle this Nation. The origins of that policy predate the Constitution
and derive from the early debates that led to the Northwest Ordinance
of 1787. The particular needs and circumstances of the arid and
semiarid lands west of the 100th meridian led to various proposals to
reclaim the lands, including the Desert Land Act and the Carey Act. In
his State of the Union Message of 1901, President Theodore Roosevelt
finally called for the Federal Government to intervene to develop the
reservoirs and works necessary to accomplish such irrigation. The
reclamation program was enormously successful. It grew from the
irrigation program contemplated by one President Roosevelt to the
massive works constructed four decades later by the second President
Roosevelt. For those of us in the Northwest, there is a very personal
meaning to a line from Woody Guthrie's song about the Columbia that
goes: ``your power is turning our darkness to dawn, so roll on
Columbia, roll on.''
If what is known now had been known then, some projects may have been
constructed differently. However, that is not the question we have
before us. The central question is whether and to what extent the
Federal Government should seek to transfer the title and responsibility
for these projects. Has the Federal mission been accomplished?
The best transfer case would be the single purpose irrigation or
municipal and industrial [M&I] system that is fully repaid, operation
has long since been transferred, and the water rights are held
privately. That is the case with the Burley Irrigation District
transfer.
The transfer of title is not a new idea. Authority to transfer title
to the All American Canal is contained in section 7 of the Boulder
Canyon Project Act of 1928. General authority is contained in the 1955
Distribution Systems Loan Act. Recently, Congress passed legislation
dealing with Elephant Butte and Vermejo.
The Burley Irrigation District is part of the Minidoka project that
was built under the authorization of the 1902. Reclamation Act. By a
contract executed in 1926, the District assumed the operation and
maintenance of the system.
All construction contracts and costs for the canals system, pumping
plants, power house, transmission lines and other improvements have
been paid in full. Contracts for storage space at Minidoka, American
Falls, and Palisades reservoirs have been paid in full, along with all
maintenance fees. This project is a perfect example of the Federal
Government maintaining only a bare title, and that title should now be
transferred to the project recipients who have paid for the facilities
and the rights of the Burley Irrigation District.
______
By Mr. BIDEN (for himself, Ms. Mikulski, and Mr. Torricelli):
S. 540. A bill to amend title XVIII of the Social Security Act to
provide annual screening mammography and waive coinsurance for
screening mammography for women age 65 or older under the Medicare
Program; to the Committee on Finance.
the medicare mammography screening expansion act
Mr. BIDEN. Mr. President, there is no doubt a lot of women in
their forties who are awfully confused these days about whether they
should receive a regular mammogram to test for breast cancer. Over the
last several years--and especially over the last couple of months--the
debate in the scientific community and the conflicting scientific
studies have not painted a very clear picture for younger women.
But, what is perfectly clear--what is not in dispute--is that older
women should receive regular mammograms. Mammograms save lives. And,
the scientific studies confirm it. If all women over 50 received
regular mammograms, breast cancer mortality could be reduced by one-
third. The recommended screening guidelines reflect this, no matter
what group's guidelines you read. The American Cancer Society, the
American College of Obstetricians and Gynecologists, the American
Medical Association, the American Academy of Family Physicians, and the
American College of Physicians all recommend that women over 50 receive
annual mammograms.
Now, here's the problem. Women 65 and over have Medicare as their
health insurance. The guidelines tell them--and their doctors are
telling them--to get a mammogram once a year. But, Medicare pays for
mammograms only once every 2 years. This means that an elderly woman
must pay the cost of every other mammogram herself--or go without a
mammogram every other year. And, even when Medicare pays for the
mammogram, the woman is still responsible for at least 20 percent of
the cost.
The result, Mr. President, is that too many women are following
Medicare's payment rules--and not getting tested--rather than following
the scientific guidelines--and being tested.
Two years ago, a study was published in the New England Journal of
Medicine. It found that only 14.4 percent of women without Medicare
supplemental insurance--that is, women who do not have, on top of
Medicare, private insurance that may cover mammograms on an annual
basis--only 14.4 percent of those women received even a mammogram once
every 2 years, let alone annually. Even among those women with
supplemental insurance, less than half had a mammogram over the course
of 2 years. The study concluded that a woman's inability to pay a share
of the costs for mammograms ``is an obstacle to the effective mass
screening of older women for breast cancer.'' And, I would add, an
obstacle to saving thousands of lives.
So, Mr. President, today I am introducing the Medicare Mammography
Screening Expansion Act. This bill does two things. First, it would
cover mammograms under Medicare once every year, as recommended by the
guidelines, instead of once every 2 years, which is now the law.
Second, it would eliminate the 20-percent copayment that is currently
charged to women when they receive a mammogram, so that women are not
discouraged from obtaining this important preventive measure because of
the cost. I should note that eliminating the copayment is not
unprecedented. Medicare already does not charge copayments for flu
shots and most clinical laboratory tests.
Mr. President, we know that mammograms save lives. Yet, current
Medicare policy creates barriers that are
[[Page S2927]]
preventing women from seeking this simple, life-saving procedure. I
urge my colleagues to join me in making mammography screenings more
available and more affordable for American women.
______
By Mr. ALLARD:
S. 541. A bill to provide for an exchange of lands with the city of
Greeley, CO, and the Water Supply and Storage Co. to eliminate private
inholdings in wilderness areas, and for other purposes; to the
Committee on Energy and Natural Resources.
the rockwell ranch land transfer act of 1997
Mr. ALLARD. Mr. President, today I am introducing legislation that
would provide for a land exchange between the city of Greeley, the
Water Supply and Storage Co., and the Forest Service. This legislation
was introduced last year and was passed by the House of Representatives
as part of the Presidio package. It's my hope that we can pass this
legislation and have it signed into law before the session ends.
The city of Greeley and Water Supply and Storage operate eight
reservoirs in the Arapaho-Roosevelt National Forest. Because of the
location of the reservoirs they are operated under Forest Service
supervision. This supervision has at times been controversial due to
disputes concerning whether being located on Forest Service property
allows them to divert water in the national forest for purposes other
than the benefit of the owners. The legislation I am introducing would
benefit Greeley and Water Supply and Storage by allowing them to
protect these significant investments. As an additional benefit this
legislation would put an end to a bitter dispute between Greeley and
the Forest Service. The national forest would also greatly benefit from
this legislation. It would receive 708 acres of inholdings within the
forest and the wilderness area. This land has been sought by the Forest
Service for some time and this exchange would finally allow them to
consolidate valuable resources in Colorado.
I offered this same bill last year when I was in the House of
Representatives. Unfortunately, it was caught up in election year
politics, specifically, my election. This year I want to put that
behind, and work toward passing this legislation as negotiated over the
past several years with Greeley, and with Water Supply and Storage, and
with the Forest Service.
I believe that as introduced this legislation strikes a balance
between protecting the rights of my constituents in Greeley and
Thornton and protecting the environment.
As currently drafted, Greeley and Thornton have not only agreed to
transfer their inholdings, they have also agreed to continue to
participate in negotiations with a variety of governmental
organizations and environmental groups to designate habitat for the
whooping crane. Furthermore, they have agreed to an improved stream
flow in the Poudre River as a condition of the exchange and since many
westerners would rather part with blood than water, I think they've
gone the extra mile.
This legislation is win/win for all involved. We should put all the
politics behind us, pass the legislation, and move on to matters that
are less easily resolved.
______
By Mr. COVERDELL (for himself, Mr. McConnell, Mr. Abraham, Mr.
Santorum, and Mr. Ashcroft):
S. 544. A bill to provide certain protections to volunteers,
nonprofit organizations, and governmental entities in lawsuits based on
the activities of volunteers; to the Committee on the Judiciary.
The volunteer protection act of 1997
Mr. COVERDELL. Mr. President, in just a few weeks, on April 27-29,
the Presidents' Summit for America's Future will assemble in
Philadelphia, cochaired by President Clinton and President Bush. This
is an effort to mobilize millions of citizens and thousands of
organizations to ensure a bright future for our youth and make
effective citizen service an integral part of the American way of life.
A number of leading corporations and service organizations have made
specific commitments of resources and volunteers to achieve the
summit's goal.
The leaders at the summit will issue a great call to action for
Americans, asking them to volunteer their time and efforts in community
service. This is in the best tradition of America. The thread of
helping your neighbor and taking an active part of civic life runs all
through the history of our Nation. It is woven deeply into the fabric
of our communities. It is a tie that binds us together as a robust and
healthy society.
Yet many who would heed that call to participate in the great
tradition of volunteerism will not do so. Not because they lack the
desire or the ability to help, but for fear of punitive litigation. In
a recent Gallup study one in six volunteers reported withholding their
services for fear of being sued. About 1 in 10 nonprofit groups report
the resignation of a volunteer over litigation fears.
That is why I am today introducing the Volunteer Protection Act of
1997, a bill to grant immunity from personal civil liability, under
certain circumstances, to volunteers working for nonprofit
organizations and governmental entities. Senators McConnell, Abraham,
Santorum, and Ashcroft have joined me as original cosponsors.
This act provides that no volunteer of a nonprofit organization or
governmental entity shall be liable for harm caused by the volunteer's
acts or omissions on behalf of the organization. To enjoy this
protection, the volunteer must be acting within the scope of his or her
responsibilities in the organization and must not cause harm by willful
or criminal misconduct, gross negligence, or reckless misconduct.
In other words, this act provides volunteers liability protection for
simple negligence only. It does not provide immunity from suit for
misconduct that includes violent crimes, hate crimes, sex crimes, or
civil rights violations. It does not apply where the defendant was
under the influence of drugs or alcohol.
It is intended to protect volunteers who make a simple, honest
mistake. The injured party will still have the recourse of suing the
organization itself to be made whole. Nonprofit organizations will
continue to have the duty to properly screen, train, and supervise
their volunteers. The organization's liability is not affected. But we
will free the volunteers from fear of crushing lawsuits for mistakes
made while trying to do a good deed.
Federalism concerns arise whenever Congress takes up tort law. Our
bill gives States flexibility to impose conditions and make exceptions
to the granting of liability protection. It allows States to
affirmatively opt out of this law for those cases where both the
plaintiff and defendant are citizens of the State.
This bill requires clear and convincing evidence of gross negligence
before punitive damages may be awarded against a volunteer, nonprofit
organization, or governmental entity because of a volunteer's actions.
It also establishes a rule of proportionate liability rather than joint
and several liability in suits based on the action of a volunteer.
Mr. President, the Volunteer Protection Act will encourage the spirit
of civic involvement and volunteerism that is so crucial to a healthy
civil society and stronger communities. I urge my colleagues to support
this legislation.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 544
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 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 S2928]]
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) reform efforts should respect the role of the States in
the development of civil justice rules, but recognize the
national Government's role.
(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--
(1) volunteers or to any category of volunteers in the
performance of services for a nonprofit organization or
governmental entity; and
(2) nonprofit organizations or governmental entities.
(b) Election of State Regarding Nonapplicability.--This Act
shall not apply to any civil action in a State court against
a volunteer, nonprofit organization, or governmental entity
in which all parties are citizens of the State if such State
enacts a statute--
(1) citing the authority of this subsection;
(2) declaring the election of such State that this Act
shall not apply 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; and
(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.
(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.--
Except as provided under subsection (e), 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 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 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.
(5) 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 of Volunteers, Nonprofit
Organizations, and Governmental Entities.--
(1) General rule.--Punitive damages may not be awarded
against a volunteer, nonprofit organization, or governmental
entity in an action brought for harm because of 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 State law to the extent that such law would further limit
the award of punitive damages.
(f) Exceptions to Limitations on Liability.--The
limitations on the liability of a volunteer, nonprofit
organization, or governmental entity under this section shall
not apply to any misconduct that--
(1) 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;
(2) constitutes a hate crime (as that term is used in the
Hate Crime Statistics Act (28 U.S.C. 534 note));
(3) involves a sexual offense, as defined by applicable
State law, for which the defendant has been convicted in any
court;
(4) involves misconduct for which the defendant has been
found to have violated a Federal or State civil rights law;
or
(5) 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.
SEC. 5. LIABILITY FOR NONECONOMIC LOSS.
(a) General Rule.--In any civil action against a volunteer,
nonprofit organization, or governmental entity 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 each defendant who is a
volunteer, nonprofit organization, or governmental entity for
noneconomic loss shall be determined in accordance with
subsection (b).
(b) Amount of Liability.--
(1) In general.--Each defendant shall be liable only for
the amount of noneconomic loss allocated to the defendant in
direct proportion to the percentage of responsibility of the
defendant (determined in accordance with paragraph (2)) for
the harm to the claimant with respect to which the 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 under this section, the trier of fact shall
determine the percentage of responsibility of each person
responsible for the claimant's harm, whether or not such
person is a party to the action.
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
[[Page S2929]]
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 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.
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 this unnecessary and unfair
burden of liability, I am pleased to join in the introduction of 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 unpaid rural 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 act in a willful,
criminal or grossly negligent fashion.
The bill recognizes that the States may enact their own form of
volunteer protection and provides that State laws may permit the
following:
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; and
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 look forward to the Senate's prompt consideration of this bill. Our
communities are depending upon us to enact this pro-volunteer
legislation. The time has come for us to help those who have given so
much to all of us.
Mr. ABRAHAM. Mr. President, I am extremely pleased to rise today to
join my colleagues, Senator Coverdell and Senator McConnell, in
introducing the Volunteer Protection Act of 1997. I commend Senators
Coverdell and McConnell for their leadership in encouraging and
supporting the voluntarism that is so important to communities in
Michigan and across this country.
This long overdue legislation will provide volunteers and nonprofit
organizations with desperately needed relief from abusive lawsuits
brought based on the activities of volunteers. Those are precisely the
activities that we should be protecting and encouraging.
Last Congress, I spoke on the floor many times concerning the need
for litigation reform and describing the litigation abuses that plague
our small businesses, our consumers, our schools, and others. I came to
Congress as a freshman Senator intending to press for lawsuit reforms,
and I did. I supported the securities litigation reform legislation,
which Congress successfully enacted over the President's veto, and I
also supported the product liability reform bill, which the President
unfortunately killed with his veto. I also introduced legislation with
Senator McConnell to provide broader relief in all civil cases, and
offered floor amendments that would do the same.
I continue to support broader civil justice reforms and I
particularly look forward to considering product liability reform
legislation both in the Commerce Committee and on the floor. But I
believe that our voluntary, nonprofit organizations urgently need
protection from current lawsuit abuses. I encourage my colleagues to
consider the problems facing our community groups and their volunteers,
and to support this legislation. I hope that in this instance President
Clinton will support this litigation reform bill, recognize the value
of volunteers and nonprofit groups, and give them the protection they
need to keep doing their good deeds.
Nonprofit organizations hold our Nation together. In them we learn to
care for our neighbors. They are key to our survival as a nation and we
must protect them with systemic reforms.
America has a vast interstate network of 114,000 operating nonprofit
organizations, ranging from schools to hospitals to clinics to food
programs.
This network's revenues totaled $388 billion in 1990. Meanwhile,
revenues for the 19,000 support institutions, which raise money to fund
operating organizations came to $29 billion. And total revenues for
religious congregations were $48 billion. That's $465 billion worth of
nonprofit activity we enjoyed in 1990 alone, Mr. President.
Nonprofit organizations rely heavily on volunteers, and Americans
gladly comply. According to a 1993 report from the Independent Sector,
a national coalition of 800 organizations, Americans donated 9.7
billion hours of their time to nonprofit organizations that year. This
volunteer time produced the equivalent of 5.7 million full time
volunteers, worth an estimated $112 billion.
Unfortunately voluntarism is declining nationwide. According to the
Independent Sector report, the percentage of Americans volunteering
dropped from 54 percent in 1989 to 51 percent in 1991 and 48 percent in
1993. Americans also are giving less money. The average household's
charitable donation dropped from $978 in 1989 to $880 in 1993.
The decline of giving and volunteering spells danger for our
voluntary organizations, for the people who depend on them, and for the
social trust that is based on the spirit of association.
But why is voluntarism on the decline? Obviously there are a number
of relevant factors, not least among them the need so many people today
feel to work ever-harder and ever-longer to bear our growing tax
burden. But one major reason for the decline is America's litigation
explosion. Nonprofit organizations are forced to spend an
increasing amount of time and resources preparing for, avoiding, and/or
fighting lawsuits. Thus litigation has rendered our nonprofit
organizations less effective at helping people, and allowed Americans
to retreat more into their private lives, and away from the public,
social activity that binds us together as a people.
The litigation costs facing voluntary associations are many. John
Graham, on behalf of the American Society of Association Executives
[ASAE], gave testimony last year arguing that liability insurance
premiums for associations have increased an average 155 percent in
recent years. Some of our most revered nonprofit institutions have been
put at risk by increased liability costs.
Dr. Creightin Hale of Little League Baseball reports that the
liability rate for a league increased from $75 to $795 in just 5 years.
Many leagues cannot afford this added expense, on top of increasing
costs for helmets and other equipment. These leagues operate without
insurance or disband altogether, often leaving children with no
organized sports in their neighborhood.
What kind of suits add to insurance costs? ASAE reports that one New
Jersey umpire was forced by a court to pay a catcher $24,000. Why?
Because the catcher was hit in the eye by a softball while playing
without a mask. The catcher complained that the umpire should have lent
him his.
Organizations that try to escape sky-rocketing insurance costs must
self-insure, and Andrea Marisi of the Red
[[Page S2930]]
Cross will describe self-insurance costs only as ``huge.'' The result?
Obviously, we have fewer funds available for providing services than
would otherwise be the case.''
Outside insurance generally comes with significant deductibles.
Charles Kolb of the United Way points out that insurance deductibles
for his organization fall into the range of $25,000-30,000. When, as
has been the case in recent years, the organization is subjected to
three or four lawsuits per year, $100,000 or more must be diverted from
charitable programs.
And there are even more costs. Mr. Kolb reports that the costs in
lost time and money spent on discovery, for example going through files
for hours on end to establish who did what when, can run into the
thousands of dollars. Further, as the Boy Scouts' William Cople puts
it: ``We bear increased costs from risk management programs of many
kinds--[including] those to prevent accidents. We have higher legal
bills as well. But even more of a problem is the need to find pro-bono
help to quell possible lawsuits. The Scouts must spend scarce time, and
use up scarce human capital in preventing suits. For example, 5 years
ago the General Counsel's office, a pro-bono operation, committed less
than 100 hours per year on issues relating to lawsuits. Last year we
devoted about 750 hours to that duty.'' The Boy Scouts must do less
good so that they can defend themselves from lawsuits.
Frivolous lawsuits also increase costs by discouraging voluntarism.
Dottie Lewis of the Southwest Officials Association, which provides
officials for scholastic games, observes, ``Some of our people got to
the point where they were just afraid to work because of the threat of
lawsuits.'' What makes this fear worse is the knowledge that one need
do no harm in order to be liable.
Take for example Powell versus Boy Scouts of America. While on an
outing with the Sea Explorers, a scouting unit in the Boy Scouts'
Cascade Pacific Council, a youth suffered a tragic, paralyzing injury
in a rough game of touch football. Several adults had volunteered to
supervise the outing, but none observed the game. The youth filed a
personal injury lawsuit against two of the adult volunteers. The jury
found the volunteers liable for some $7 million, which Oregon law
reduced to about $4 million--far more than the volunteers could
possibly pay.
What is more, as Cople points out, ``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.''
One child's tragedy led a jury to impose an unreasonable standard of
care on individuals who, after all, had volunteered their time and
effort for an outing, not a football game.
No one can provide the meticulous oversight demanded by the jury.
Thus volunteers are left at the mercy of events, and juries, beyond
their control.
Such unreasonable standards of care also penalize our nonprofit
organizations. Len Krugel of the Michigan Salvation Army reports that
regulations and onerous legal standards often keep his organization
from giving troubled youths a second chance. Because the organization
is held responsible for essentially all actions by its employees and
volunteers, it can take no risks in hiring. Thus the Salvation Army can
neither hire nor accept voluntary services from any individual with any
drug conviction, including a 0.3 reading on a breathalyzer test for
alcohol consumption. As Mr. Krugel observes, ``If we can't give these
kids a second chance, who can?''
Then there is the problem of joint and several liability, in which
one defendant is made to pay for all damages even though responsible
for only a small portion. Such findings are a severe burden on the
United Way, a national organization that sponsors numerous local
nonprofit groups. Although it cannot control local operations, the
United Way often finds itself a defendant in suits arising from
injuries caused by the local entity.
Such holdings result from juries' desire to find someone with the
funds necessary to pay for an innocent party's injuries. But this
search for the deep pocket leads to what Ms. Marisi calls a ``chilling
effect'' on Red Cross relations with other nonprofits. The Red Cross is
now less willing to cooperate with smaller, more innovative local
agencies that might make it more effective.
Thus nonprofits forbear from doing good because they cannot afford
the insurance, they cannot afford the loss of volunteers, they cannot
afford the risk of frivolous lawsuits.
The Volunteer Protection Act will address the danger to our nonprofit
sector, Mr. President. It will not solve all the problems facing our
volunteers and nonprofits, but it will provide voluntary organizations
with critical protection against improper litigation, at the same time
that it recognizes the ability of the States to take additional or even
alternative protections in some cases. By setting the standard for the
protection of volunteers outright, this bill provides much-needed
lawsuit relief immediately to volunteers and nonprofits wherever they
may be. Let me briefly describe what this bill does.
The bill protects volunteers from liability unless they cause harm
through action that constitutes reckless misconduct, gross negligence,
willful or criminal misconduct, or is in conscious, flagrant disregard
for the rights and safety of the individual harmed. This ensures that
where volunteers truly exceed the bounds of appropriate conduct they
will be liable. But in the many ridiculous cases I have discussed--
where no real wrongdoing occurred--the volunteer will not be forced to
face and defend a lawsuit.
In lawsuits based on the actions of a volunteer, the bill limits the
punitive damages that can be awarded. It is unfortunate that charities
and volunteers have punitive damages awarded against them in the first
place, but they do--Congressman John Porter reports that in August of
1990 a Chicago jury awarded $12 million to a boy who was injured in a
car crash. The ``negligent'' party? The estate of the volunteer who
gave his life attempting to save the boy.
Under this bill, punitive damages in cases involving the actions of a
volunteer could be awarded against a volunteer, nonprofit organization,
or government entity only upon a showing by the claimant that the
volunteer's action represented willful or criminal misconduct, or
showed a conscious, flagrant disregard for the rights and safety of the
individual harmed.
This should ensure that punitive damages, which are intended only to
punish a defendant and are not intended to compensate an injured
person, will only be available in situations where punishment really is
called for because of the egregious conduct of the defendant.
The bill also protects volunteers from excessive liability that they
might face through joint and several liability. Under the doctrine of
joint and several liability, a plaintiff can obtain full damages from a
defendant who is only slightly at fault. I have spoken many times
before about the unfairness that may result from the application of
this legal doctrine. The injustice that results to volunteers and
nonprofits is often even more acute, because they lack the resources to
bear unfair judgments.
This bill strikes a balance by providing that, in cases based on the
actions of a volunteer, any defendant that is a volunteer, nonprofit
organization, or government entity will be jointly and severally
responsible for the full share of economic damages but will only be
responsible for noneconomic damages in proportion to the harm that that
defendant caused. That is a fair approach.
Finally, I would like to speak for a moment about how this
legislation preserves important principles of federalism and respects
the role of the States. First, the bill does not preempt State
legislation that provides greater protections to volunteers. In this
way, it sets up outer protections from which all volunteers will
benefit and permits States to do more. Second, the bill includes an
opt-out provision that permits States, in cases involving only parties
from that State, to affirmatively elect to opt out of the protections
provided in the Volunteer Protection Act. A State can do so by enacting
a statute specifically providing for that. I suspect that no States
will elect to do so, but I feel that, as a matter of principle, it is
important to include that provision.
[[Page S2931]]
In short, these reforms can help create a system in which plaintiffs
sue only when they have good reason--and only those who are responsible
for their damages--and in which only those who are responsible must
pay. Such reforms will create an atmosphere in which our fear of one
another will be lessened, and our ability to join associations in which
we learn to care for one another will be significantly greater.
And that, Mr. President, will make for a better America.
I urge my colleagues on both sides of the aisle to support this
important piece of legislation.
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