[Congressional Record Volume 143, Number 68 (Wednesday, May 21, 1997)]
[Senate]
[Pages S4915-S4918]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
VOLUNTEER PROTECTION ACT OF 1997
Mr. STEVENS. Mr. President, I ask the Chair lay before the Senate a
message from the House of Representatives on (S. 543) a bill to provide
certain protections to volunteers, nonprofit organizations, and
governmental entities in lawsuits based on the activities of
volunteers.
The PRESIDING OFFICER laid before the Senate the following message
from the House of Representatives:
Resolved, That the bill from the Senate (S. 543) entitled
``An Act to provide certain protections to volunteers,
nonprofit organizations, and governmental entities in
lawsuits based on the activities of volunteers'', do pass
with the following amendment:
Strike all after the enacting clause and insert in lieu
thereof the following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Volunteer Protection Act of
1997''.
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 the potential for liability actions against
them;
(2) as a result, many nonprofit public and private
organizations and governmental entities, including voluntary
associations, social service agencies, educational
institutions, and other civic programs, have been adversely
affected by the withdrawal of volunteers from boards of
directors and service in other capacities;
(3) the contribution of these programs to their communities
is thereby diminished, resulting in fewer and higher cost
programs than would be obtainable if volunteers were
participating;
(4) because Federal funds are expended on useful and cost-
effective social service programs, many of which are national
in scope, depend heavily on volunteer participation, and
represent some of the most successful public-private
partnerships, protection of volunteerism through
clarification and limitation of the personal liability risks
assumed by the volunteer in connection with such
participation is an appropriate subject for Federal
legislation;
(5) services and goods provided by volunteers and nonprofit
organizations would often otherwise be provided by private
entities that operate in interstate commerce;
(6) due to high liability costs and unwarranted litigation
costs, volunteers and nonprofit organizations face higher
costs in purchasing insurance, through interstate insurance
markets, to cover their activities; and
(7) clarifying and limiting the liability risk assumed by
volunteers is an appropriate subject for Federal legislation
because--
(A) of the national scope of the problems created by the
legitimate fears of volunteers about frivolous, arbitrary, or
capricious lawsuits;
(B) the citizens of the United States depend on, and the
Federal Government expends funds on, and provides tax
exemptions and other consideration to, numerous social
programs that depend on the services of volunteers;
(C) it is in the interest of the Federal Government to
encourage the continued operation of volunteer service
organizations and contributions of volunteers because the
Federal Government lacks the capacity to carry out all of the
services provided by such organizations and volunteers; and
(D)(i) liability reform for volunteers, will promote the
free flow of goods and services, lessen burdens on interstate
commerce and uphold constitutionally protected due process
rights; and
(ii) therefore, liability reform is an appropriate use of
the powers contained in article 1, section 8, clause 3 of the
United States Constitution, and the fourteenth amendment to
the United States Constitution.
(b) Purpose.--The purpose of this Act is to promote the
interests of social service program beneficiaries and
taxpayers and to sustain the availability of programs,
nonprofit organizations, and governmental entities that
depend on volunteer contributions by reforming the laws to
provide certain protections from liability abuses related to
volunteers serving nonprofit organizations and governmental
entities.
SEC. 3. PREEMPTION AND ELECTION OF STATE NONAPPLICABILITY.
(a) Preemption.--This Act preempts the laws of any State to
the extent that such laws are inconsistent with this Act,
except that this Act shall not preempt any State law that
provides additional protection from liability relating to
volunteers or to any category of volunteers in the
performance of services for a nonprofit organization or
governmental entity.
(b) Election of State Regarding Nonapplicability.--This Act
shall not apply to any civil action in a State court against
a volunteer in which all parties are citizens of the State if
such State enacts a statute in accordance with State
requirements for enacting legislation--
(1) citing the authority of this subsection;
(2) declaring the election of such State that this Act
shall not apply, as of a date certain, to such civil action
in the State; and
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(3) containing no other provisions.
SEC. 4. LIMITATION ON LIABILITY FOR VOLUNTEERS.
(a) Liability Protection for Volunteers.--Except as
provided in subsections (b) and (d), no volunteer of a
nonprofit organization or governmental entity shall be liable
for harm caused by an act or omission of the volunteer on
behalf of the organization or entity if--
(1) the volunteer was acting within the scope of the
volunteer's responsibilities in the nonprofit organization or
governmental entity at the time of the act or omission;
(2) if appropriate or required, the volunteer was properly
licensed, certified, or authorized by the appropriate
authorities for the activities or practice in the State in
which the harm occurred, where the activities were or
practice was undertaken within the scope of the volunteer's
responsibilities in the nonprofit organization or
governmental entity;
(3) the harm was not caused by willful or criminal
misconduct, gross negligence, reckless misconduct, or a
conscious, flagrant indifference to the rights or safety of
the individual harmed by the volunteer; and
(4) the harm was not caused by the volunteer operating a
motor vehicle, vessel, aircraft, or other vehicle for which
the State requires the operator or the owner of the vehicle,
craft, or vessel to--
(A) possess an operator's license; or
(B) maintain insurance.
(b) Concerning Responsibility of Volunteers to
Organizations and Entities.--Nothing in this section shall be
construed to affect any civil action brought by any nonprofit
organization or any governmental entity against any volunteer
of such organization or entity.
(c) No Effect on Liability of Organization or Entity.--
Nothing in this section shall be construed to affect the
liability of any nonprofit organization or governmental
entity with respect to harm caused to any person.
(d) Exceptions to Volunteer Liability Protection.--If the
laws of a State limit volunteer liability subject to one or
more of the following conditions, such conditions shall not
be construed as inconsistent with this section:
(1) A State law that requires a nonprofit organization or
governmental entity to adhere to risk management procedures,
including mandatory training of volunteers.
(2) A State law that makes the organization or entity
liable for the acts or omissions of its volunteers to the
same extent as an employer is liable for the acts or
omissions of its employees.
(3) A State law that makes a limitation of liability
inapplicable if the civil action was brought by an officer of
a State or local government pursuant to State or local law.
(4) A State law that makes a limitation of liability
applicable only if the nonprofit organization or governmental
entity provides a financially secure source of recovery for
individuals who suffer harm as a result of actions taken by a
volunteer on behalf of the organization or entity. A
financially secure source of recovery may be an insurance
policy within specified limits, comparable coverage from a
risk pooling mechanism, equivalent assets, or alternative
arrangements that satisfy the State that the organization or
entity will be able to pay for losses up to a specified
amount. Separate standards for different types of liability
exposure may be specified.
(e) Limitation on Punitive Damages Based on the Actions of
Volunteers.--
(1) General rule.--Punitive damages may not be awarded
against a volunteer in an action brought for harm based on
the action of a volunteer acting within the scope of the
volunteer's responsibilities to a nonprofit organization or
governmental entity unless the claimant establishes by clear
and convincing evidence that the harm was proximately caused
by an action of such volunteer which constitutes willful or
criminal misconduct, or a conscious, flagrant indifference to
the rights or safety of the individual harmed.
(2) Construction.--Paragraph (1) does not create a cause of
action for punitive damages and does not preempt or supersede
any Federal or State law to the extent that such law would
further limit the award of punitive damages.
(f) Exceptions to Limitations on Liability.--
(1) In general.--The limitations on the liability of a
volunteer under this Act shall not apply to any misconduct
that--
(A) constitutes a crime of violence (as that term is
defined in section 16 of title 18, United States Code) or act
of international terrorism (as that term is defined in
section 2331 of title 18) for which the defendant has been
convicted in any court;
(B) constitutes a hate crime (as that term is used in the
Hate Crime Statistics Act (28 U.S.C. 534 note));
(C) involves a sexual offense, as defined by applicable
State law, for which the defendant has been convicted in any
court;
(D) involves misconduct for which the defendant has been
found to have violated a Federal or State civil rights law;
or
(E) where the defendant was under the influence (as
determined pursuant to applicable State law) of intoxicating
alcohol or any drug at the time of the misconduct.
(2) Rule of construction.--Nothing in this subsection shall
be construed to effect subsection (a)(3) or (e).
SEC. 5. LIABILITY FOR NONECONOMIC LOSS.
(a) General Rule.--In any civil action against a volunteer,
based on an action of a volunteer acting within the scope of
the volunteer's responsibilities to a nonprofit organization
or governmental entity, the liability of the volunteer for
noneconomic loss shall be determined in accordance with
subsection (b).
(b) Amount of Liability.--
(1) In general.--Each defendant who is a volunteer, shall
be liable only for the amount of noneconomic loss allocated
to that defendant in direct proportion to the percentage of
responsibility of that defendant (determined in accordance
with paragraph (2)) for the harm to the claimant with respect
to which that defendant is liable. The court shall render a
separate judgment against each defendant in an amount
determined pursuant to the preceding sentence.
(2) Percentage of responsibility.--For purposes of
determining the amount of noneconomic loss allocated to a
defendant who is a volunteer under this section, the trier of
fact shall determine the percentage of responsibility of that
defendant for the claimant's harm.
SEC. 6. DEFINITIONS.
For purposes of this Act:
(1) Economic loss.--The term ``economic loss'' means any
pecuniary loss resulting from harm (including the loss of
earnings or other benefits related to employment, medical
expense loss, replacement services loss, loss due to death,
burial costs, and loss of business or employment
opportunities) to the extent recovery for such loss is
allowed under applicable State law.
(2) Harm.--The term ``harm'' includes physical,
nonphysical, economic, and noneconomic losses.
(3) Noneconomic losses.--The term ``noneconomic losses''
means losses for physical and emotional pain, suffering,
inconvenience, physical impairment, mental anguish,
disfigurement, loss of enjoyment of life, loss of society and
companionship, loss of consortium (other than loss of
domestic service), hedonic damages, injury to reputation and
all other nonpecuniary losses of any kind or nature.
(4) Nonprofit organization.--The term ``nonprofit
organization'' means--
(A) any organization which is described in section
501(c)(3) of the Internal Revenue Code of 1986 and exempt
from tax under section 501(a) of such Code and which does not
practice any action which constitutes a hate crime referred
to in subsection (b)(1) of the first section of the Hate
Crime Statistics Act (28 U.S.C. 534 note); or
(B) any not-for-profit organization which is organized and
conducted for public benefit and operated primarily for
charitable, civic, educational, religious, welfare, or health
purposes and which does not practice any action which
constitutes a hate crime referred to in subsection (b)(1) of
the first section of the Hate Crime Statistics Act (28 U.S.C.
534 note).
(5) State.--The term ``State'' means each of the several
States, the District of Columbia, the Commonwealth of Puerto
Rico, the Virgin Islands, Guam, American Samoa, the Northern
Mariana Islands, any other territory or possession of the
United States, or any political subdivision of any such
State, territory, or possession.
(6) Volunteer.--The term ``volunteer'' means an individual
performing services for a nonprofit organization or a
governmental entity who does not receive--
(A) compensation (other than reasonable reimbursement or
allowance for expenses actually incurred); or
(B) any other thing of value in lieu of compensation,
in excess of $500 per year, and such term includes a
volunteer serving as a director, officer, trustee, or direct
service volunteer.
SEC. 7. EFFECTIVE DATE.
(a) In General.--This Act shall take effect 90 days after
the date of enactment of this Act.
(b) Application.--This Act applies to any claim for harm
caused by an act or omission of a volunteer where that claim
is filed on or after the effective date of this Act but only
if the harm that is the subject of the claim or the conduct
that caused such harm occurred after such effective date.
Mr. LEAHY. Mr. President, I commend the House Judiciary Committee and
the House of Representatives for their consideration and passage of
H.R. 911, the Volunteer Protection Act of 1997.
At the beginning of this month, the senior Senator from Georgia and I
worked out a compromise version of the Volunteer Protection Act, S.
543. Our bipartisan legislation extended reasonable liability
protection to individual volunteers for honest mistakes with no effect
on liability of nonprofit organizations and governmental entities. The
Coverdell-Leahy substitute offered liability protection for individuals
who are volunteering to help others and acting in good faith and passed
the Senate by a 99-1 vote.
I am pleased that the House Judiciary Committee adopted the
Coverdell-Leahy substitute version of the Volunteer Protection Act at
its mark-up of H.R. 911. During its consideration of H.R. 911, the
House Judiciary Committee adopted two amendments that improve our
legislation.
First, the House Judiciary Committee adopted an amendment by
Representative Scott that applies the act's protection to conduct after
the act's effective date. Prospective application makes sense since the
act's passage will give notice to all parties of their new legal
rights.
Second, House Judiciary Committee adopted an amendment by
Representative Jackson-Lee that exempts members of hate groups from the
liability protections in the bill. Although I am
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not completely comfortable with the language of this amendment, its
purpose is clear--to make sure that this legislation provides no
protection whatsoever to anyone who is involved in a hate crime. I know
that every one of my colleagues opposes hate groups and would not
support liability protection for them and this amendment makes that
explicitly clear.
I recommend that my colleagues review the House Judiciary Committee
report on H.R. 911, House Report 105-101, for a section-by-section
analysis and summary of the bill.
Although I support the Volunteer Protection Act, I realize that it is
not perfect. I am troubled by its possible preemption of existing state
law. While the bill's preemption provision has been significantly
narrowed from the original version of S. 543, this legislation still
preempts state laws that do not provide more protection for volunteers.
If preemption occurs, State legislatures may pass legislation to opt
out of the bill's coverage.
Rather than preempting some State laws, I would prefer that Congress
offer Federal incentives to States to enact model language for limiting
volunteer liability. Many States have already acted on this issue with
at least 44 States having passed some protection for volunteers. If we
can achieve the shared objective of protecting individual volunteers
without preempting State tort law, I think we should be pursuing that
route. That approach, however, was not acceptable to the majority.
I am also troubled by the manner that the Senate considered the
Volunteer Protection Act. S. 543 was brought to the Senate floor
without notice, without hearings and without a committee report.
Although Senator Coverdell and I were able to work together to fashion
a bipartisan bill, I believe that process would have been much easier
had we gone through the normal process of considering the Volunteer
Protection Act through the Senate Judiciary Committee.
Mr. President, I share a profound sense of gratitude and appreciation
for the thousands of Vermonters and millions of volunteers nationwide
whose selfless acts make the world a better place for us all. The
people who spend their weekends preparing dinners for the homeless and
poor, the parents who organize a carwash to raise money for the local
PTA, the neighbors who donate to those displaced by flood, fire and
other disasters--these generous acts of voluntarism and countless
others are an essential element of the American social fabric.
The Presidents' Summit on America's Future last month in Philadelphia
was a tribute to the spirit of American voluntarism and a magnifying
glass that will help spark intensified efforts by all Americans to be
better citizens and better neighbors; citizens who will be more willing
to give of ourselves to make life better in our communities and nation.
The events in Philadelphia were nonpartisan and inclusive of the
interests of all. I am pleased that we in the Senate and House of
Representatives were able to work in that spirit to craft bipartisan
legislation that promotes the worthy goals of voluntarism in America.
I believe we are building on the success of the Presidents' Summit on
America's Future by working together to pass a good bill that provides
volunteers involved in the delivery of needed services with reasonable
liability protection. I urge my colleagues to support S. 543, the
Volunteer Protection Act.
Mr. COVERDELL. Mr. President, we have today taken an important step
to encourage more people to step forward and serve their communities as
volunteers by removing the fear of unwarranted lawsuits against
volunteers. Our adoption of S. 543, the Volunteer Protection Act of
1997, will grant immunity from personal civil liability, under certain
circumstances, to volunteers working for nonprofit organizations and
governmental entities.
This legislation has enjoyed overwhelming bipartisan support in both
bodies. I want to thank all of those members who supported this bill to
help our volunteers all across America. In particular, I would like to
recognize the leadership of Senator McConnell, who has been a strong
advocate of reform in this area, and the other cosponsors of the bill:
Senator Abraham, Senator Ashcroft, Senator Enzi, Senator Gramm, Senator
Gregg, Senator Hutchinson of Arkansas, Senator Kyl, Senator Santorum,
and Senator Sessions. All of them were extremely helpful during the
original Senate debate and in many other ways as we moved this
legislation forward.
I thank also Senator Leahy for his cooperation and leadership in
striking a compromise that both sides of the aisle, and indeed both
Chambers, could support.
From the other body, I thank Congressman John Porter of Illinois, who
has been promoting the issue of volunteer protection since 1986 and
truly laid the foundation for today's success. Henry Hyde, Chairman of
the House Judiciary Committee, was instrumental in holding hearings on
volunteer protection legislation. I should also thank Congressman Bob
Inglis for his leadership on this issue. And Speaker Gingrich lent his
strong support to our effort. We worked in close coordination with our
colleagues in the other body and I appreciate their cooperation and
hard work to make this victory possible for volunteers.
We now send the Volunteer Protection Act to the White House with the
expectation that the President will enthusiastically sign it. This
legislation bears directly on the mission of the Philadelphia Summit
held last month at which President Clinton, and former Presidents Bush,
Carter, and Ford joined with Gen. Colin Powell and other leaders to ask
Americans to make a commitment to volunteerism.
Congress has now said to would-be volunteers that you don't have to
be afraid of being named in a frivolous lawsuit based on your volunteer
service. If you make a simple, honest mistake, we are not going to put
all your assets on the block in a lawsuit lottery. Don't be afraid to
step forward, get involved, and take an active part in the affairs of
your community.
We hope the President will join with the overwhelming majorities in
both houses of Congress and sign the Volunteer Protection Act into law.
Mr. ABRAHAM. Mr. President, I am very pleased that the House passed
volunteer protection legislation this week and that the Senate is now
voting on final passage of the Volunteer Protection Act. I look forward
to our sending this important legislation to the President for his
signature.
Thanks to the tireless efforts of my distinguished colleagues,
particularly Senators Coverdell and McConnell, but also Senators
Santorum, Ashcroft and others, including Representatives Porter and
Inglis in the House, we were able to pass this legislation, which will
grant meaningful relief from unwarranted litigation to volunteers.
I have heard from my constituents in Michigan and others time and
again about baseless lawsuits that have plagued volunteers and about
how some have declined to volunteer or have limited their voluntary
activities out of concern for being sued. Volunteers with the Boy
Scouts, Little League, the Red Cross, and many other fine organizations
have been subject to frivolous and baseless litigation. They have had
to spend considerable time and money defending lawsuits. That time and
money could be going to charitable activities, instead of going to
increased legal fees and liability insurance costs.
We heard many examples of frivolous lawsuits and their costs during
floor debate on this legislation, and I am pleased that Congress is
taking action to address these significant problems that have hindered
charitable activities. While many other sectors of our society and our
economy continue to face equally harmful lawsuit abuses and while we
need broader litigation reforms to address those abuses, this
legislation represents a significant step forward in reintroducing some
measure of fairness and justice in our civil justice system. In the
coming weeks, I plan to introduce a bill that would provide relief from
abusive lawsuits to small businesses, and I also plan to join Senator
McConnell in introducing a broad civil justice reform bill similar to
the bill on which he and I collaborated last Congress. Those efforts
are no less needed, but voluntary activity does provide some very
special benefits that justify kicking off legal reform efforts this
Congress by focussing on volunteers.
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Charitable activity in particular provides a unique link between us
as members of the same community. Through volunteer work and efforts,
each of us think of our neighbors, and even strangers, as our brothers
and sisters, deserving of our care and help. All too often, abusive
litigation has broken down that community spirit and made us look at
each other as potential plaintiffs and defendants, rather than as
neighbors and friends.
The Volunteer Protection Act will help rebuild that spirit by
reducing litigation excesses. The bill provides relief from punitive
damages for volunteers by providing that punitive damages may only be
awarded against a volunteer in cases in which the claimant proves by
clear and convincing evidence that the harm was caused by the defendant
through criminal or willful misconduct or through a conscious, flagrant
indifference to the rights and safety of the claimant.
The act also reintroduces some fairness into the system by reforming
joint and several liability rules so that, where a volunteer is a
defendant in an action, the volunteer will be liable for noneconomic
damages only in proportion to the volunteer's responsibility for
causing the harm. That is only fair. In addition, where a volunteer is
not acting with gross negligence, recklessness, or in a more egregious
fashion, that volunteer will not be liable for harm caused in the scope
of the voluntary activity.
This legislation also includes a State opt-out provision, under which
a State may opt out of the bill's provisions for cases in State court
in which all parties are citizens of the State. No State is expected to
elect out of the coverage of this bill's worthy provisions, but it was
important to include such a provision out of respect for principles of
federalism.
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.
I thank my colleagues on both sides of the aisle for supporting this
legislation, I look forward to continuing to work to achieve broader
legal reforms, and I hope that the President will demonstrate his
support for voluntarism by signing the Volunteer Protection Act into
law.
Mr. McCONNELL. Mr. President, I am proud tonight to see that we are
one small step away from providing protections for one of our most
cherished resources--that is, the men and women who serve as volunteers
throughout our communities. The Senate is prepared to pass this bill
tonight, and we anxiously await the President's signature.
This country's long line of volunteerism is built upon the principle
of loving your neighbor as yourself--of being a ``Good Samaritan'' and
stopping along side the road to lend a helping hand. People from my
home state of Kentucky understand and live this simple, yet powerful
principle.
Unfortunately, this volunteer spirit has become another victim to our
national epidemic of litigation. William Cople, former pro bono General
Counsel for the National Capital Area Council of the Boy Scouts of
America has written that, ``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.''
Moreover, even the Little League faces major league liabilities. As
Dr. Creighton Hale, former CEO of Little League Baseball, has noted,
the Little League has become the ``Litigation League.'' For example,
one woman won a cash settlement when she was struck by a ball that a
player failed to catch. Incidentally, the player was her daughter.
The chilling effect of even one settlement or judgment is astounding.
Again, I quote the Boy Scouts' former General Counsel who has
explained: ``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.''
It is precisely this type of reasoning and this type of horror
stories-come-to-life that prompted me to introduce legislation to
protect volunteers. I have introduced such legislation in 1990, 1993,
and 1995. In this Congress, I have been proud to work with Senator
Coverdell to bring this bill to final passage, and I greatly appreciate
his leadership.
Specifically, our bill protects volunteers: First, who act within the
scope of their responsibilities, second, who are properly licensed or
certified, where necessary, and third, who do not act in a willful,
criminal or grossly negligent fashion.
The organizations whose volunteers will receive protection are both
broad and worthy. Our bill not only covers 501(c)(3) organizations, but
it also covers volunteers of the organizations which do good work, but
do not have a tax exemption under 501(c)(3). For example, our bill
covers volunteers of local charities, volunteer fire departments,
little leagues, veterans groups, trade associations, chambers of
commerce, and other nonprofit entities that exist for charitable,
religious, educational, and civic purposes.
Finally, this bill is significant because it provides a national
solution for a national problem. Bob Goodwin, president and CEO of The
Points of Light Foundation, testified recently that a national solution
is necessary because ``there is no consistency among our states with
regard to volunteer liability statutes.'' Moreover, Mr. Goodwin
explained that ``the lack of consistency has led to confusion in the
volunteer community.'' The Volunteer Protection Act responds to this
need and provides a uniform minimum standard to protect our volunteers.
In closing, let me say a deep word of thanks to all the volunteers
and leaders who have helped me push for this legislation over the past
7 years. In particular, I want to offer a special and heartfelt thank
you to my wife, Elaine Chao, who has kept me focused on this issue, and
been such a steady and constant voice for the men and women who serve
in our communities.
I also thank the President for his efforts in joining with Gen. Colin
Powell and with President Bush to promote volunteerism throughout our
country. I encourage President Clinton to sign this legislation and
provide much-needed protection for our volunteers.
Mr. STEVENS. I ask unanimous consent the Senate concur in the
amendment of the House.
The PRESIDING OFFICER. Without objection, it is so ordered.
____________________