House Report 105-101 - VOLUNTEER PROTECTION ACT OF 1997

[House Report 105-101]
[From the U.S. Government Publishing Office]

105th Congress Rept. 105-101
HOUSE OF REPRESENTATIVES

1st Session Part 1
_______________________________________________________________________

VOLUNTEER PROTECTION ACT OF 1997

_______________________________________________________________________

May 19, 1997.--Ordered to be printed

_______

Mr. Hyde, from the Committee on the Judiciary, submitted the following

R E P O R T

together with

DISSENTING VIEWS

[To accompany H.R. 911]

[Including cost estimate of the Congressional Budget Office]

The Committee on the Judiciary, to whom was referred the
bill (H.R. 911) to encourage the States to enact legislation to
grant immunity from personal civil liability, under certain
circumstances, to volunteers working on behalf of nonprofit
organizations and governmental entities, having considered the
same, reports favorably thereon with an amendment and
recommends that the bill as amended do pass.

TABLE OF CONTENTS

Page

The Amendment.............................................. 2
Purpose and Summary........................................ 5
Background and Need for the Legislation.................... 5
Hearings................................................... 8
Committee Consideration.................................... 8
Vote of the Committee...................................... 9
Committee Oversight Findings............................... 12
Committee on Government Reform and Oversight Findings...... 12
New Budget Authority and Tax Expenditures.................. 12
Congressional Budget Office Cost Estimate.................. 12
Constitutional Authority Statement......................... 13
Section-by-Section Analysis and Discussion................. 13
Dissenting Views........................................... 17

The amendment is as follows:
Strike out 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
(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.

Purpose and Summary

The Volunteer Protection Act promotes the interests of
social services program beneficiaries and taxpayers, and
sustains the availability of programs, nonprofit organizations,
and governmental entities that depend on volunteer
contributions. The Act accomplishes this by providing
volunteers serving nonprofit organizations and governmental
entities reasonable protections from liability.
H.R. 911, as amended, immunizes a volunteer from liability
for harm caused by ordinary negligence, and prohibits the
recovery of punitive damages unless the volunteer's conduct was
willful, criminal, or in conscious flagrant indifference to the
rights or safety of the claimant. It also provides that a
volunteer's liability for noneconomic damages will be limited
to the proportion of harm for which that volunteer is found
liable. These modest limitations are intended to remove a
significant barrier--the fear of unreasonable legal liability--
to inducing individuals to volunteer their time to charitable
endeavors.

Background and Need for the Legislation

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. The proliferation of these types of lawsuits
is proof that no good deed goes unpunished.
The litigation craze is hurting the spirit of volunteerism
that is an integral part of American society. From school
chaperones to Girl Scout and Boy Scout troop leaders to Big
Brothers and Big Sisters, volunteers perform valuable services.
But rather than thanking these volunteers, our current legal
system allows them to be dragged into court and subjected to
needless and unfair lawsuits. In most instances the volunteer
is ultimately found not liable, but the potential for
unwarranted lawsuits creates an atmosphere where too many
people are pointing fingers and too few remain willing to offer
a helping hand.
The need for relief from these debilitating lawsuits has
increased over the last two decades. Until the mid-1980's, the
number of lawsuits filed against volunteers might have been
counted on one hand. Although the law permitted such suits, in
practice very few were filed. Volunteers had little reason to
worry about personal liability. In the last two decades,
however, the number of suits against volunteers has increased
substantially, and those suits have drawn national media
attention. The fear of being sued has had an impact on
volunteerism, in that it has caused non-profit organizations to
stop offering certain types of programs, caused potential
volunteers to stay home, and led to an increase in the cost of
insurance against potential verdicts.
The effect of this increase in litigation--and the media
attention it has drawn--has been to dampen the willingness of
people to give of their time to charity. Statistics show that
the rates at which people volunteer are on the decline,
particularly in categories where longstanding commitments are
required. According to a report by the Independent Sector, a
national coalition of 800 organizations, the percentage of
Americans volunteering dropped from 54 percent in 1989 to 51
percent in 1991 and 48 percent in 1993. The Gallup organization
studied volunteerism and found, in a study titled ``Liability
Crisis and the Use of Volunteers of Nonprofit Associations''
that approximately 1 in 10 nonprofit organizations has
experienced the resignation of a volunteer due to liability
concerns. Gallup also found that 1 in 6 volunteers reported
withholding services due to a fear of exposure to liability
suits. And, 1 of 7 nonprofit agencies had eliminated one or
more of their valuable programs because of exposure to
lawsuits.
The increase in liability concerns is also evidenced by the
increase in the liability insurance costs of nonprofit
organizations. The average reported increase for insurance
premiums for nonprofits over the period 1985-1988 was 155%. One
in eight organizations reported an increase of over 300%.
Little League Baseball reports the liability rate for a league
increased from $75 to $795 in just 5 years. In fact, the Little
League's major expenditure is not bats and balls, but the cost
of obtaining insurance against liability. Many leagues cannot
pay the $795 needed, so they operate their programs without
coverage or discontinue the program altogether.
It is sometimes difficult to quantify exactly how much of
an organization's time and money is spent on liability
protection. However, the Executive Director of the Girl Scout
Council of Washington, D.C., said in a February 1995 letter
that ``locally we must sell 87,000 boxes of . . . Girl Scout
cookies each year to pay for liability insurance.'' And Charles
Kolb of the United Way reports that insurance deductibles for
his organization fall into the range of $25,000-30,000 a year.
At three or four lawsuits a year, that diverts $100,000 or more
from charitable programs.
It is not enough to leave it to the States to solve this
problem. Volunteerism is a national activity and the decline in
volunteerism is a national concern. And in many cases,
volunteer activities cross state lines. Even a local group may
operate across state lines. A Boy Scout troop in Georgia may go
on an outing in Tennessee or Alabama. A Little League team
might routinely play games in Virginia, Maryland and the
District of Columbia. A meals-on-wheels volunteer might daily
deliver meals in Kansas City, Kansas, and Kansas City,
Missouri. In emergency situations and disasters, such as
hurricanes or the floods in our upper Midwest states,
volunteers come from many states.
Although every state now has a law pertaining specifically
to legal liability of at least some types of volunteers, many
volunteers remain fully liable for any harm they cause, and all
volunteers remain liable for some actions. Only about half of
the states protect volunteers other than officers and
directors. Moreover, every volunteer protection statute has
exceptions. As a result, state volunteer protection statutes
are patchwork and inconsistent. In many states, the volunteer
leaders are granted immunity while the direct service providers
remain exposed. Substantially different civil justice standards
apply to volunteers of the same organization, providing the
same services, depending on the state in which the service is
delivered. This inconsistency hinders national organizations
from accurately advising their local chapters on volunteer
liability and risk management guidelines.
This current hodgepodge of State laws has not provided the
buffer against liability that volunteers need and deserve. The
very minimum amount of protection--the freedom from suit
because of honest mistakes, or ordinary negligence, is not the
rule. In some States the law provides little or no protection
for the volunteer, and in others the law protects only certain
kinds of volunteers. Certainly there is no consistency across
State borders. Charities, especially small charities, do not
have the resources to determine the differences in state laws
affecting them so they can advise their volunteers accordingly,
or implement risk management programs adequate to meet them.
National nonprofit organizations are particularly burdened by
these inconsistent rules, since they are unable to develop
uniform management techniques which will be suitable for their
volunteers, regardless of where the volunteer serves.
The patchwork quality of State volunteer liability laws
also has a negative effect on the cost of insurance. Because of
the small size of the market for volunteer liability insurance,
insurers do not differentiate among the States. Thus,
regardless of the State in which organization operates, and how
broad or how narrow the relevant State volunteer protection
law, the price for insurance will be the same. This means that
not only are nonprofit organizations forced to use their scarce
resources to pay for insurance, but that those in States where
the law is protective are forced to vastly overpay if they wish
to obtain coverage at all.
The Committee heard repeatedly from witnesses, such as
representatives of the Big Brother/Big Sister Foundation, the
American Diabetes Association, and Habitat for Humanity, of the
many negative consequences the current volunteer liability
system has on the delivery of charitable services to the
community. The fear of litigation prevents these organizations
from successfully recruiting volunteers, which in turn requires
the organization to either expend funds to hire employees, or
to reduce the level of services it provides.
H.R. 911, the Volunteer Protection Act of 1997, addresses
all of these concerns. As introduced by Congressman John
Porter, the bill provided incentives to states to enact
legislation which would eliminate tort liability of any
volunteer if (1) the volunteer was acting in good faith and
within the scope of the volunteer's official functions and
duties within volunteer organization, and (2) the damage or
injury at issue was not caused by the volunteer's willful and
wanton misconduct. A State which could certify within two years
of enactment that it had adopted such reforms would have been
entitled to an additional one percent allotment in the State's
Social Services Block Grant award.
Based on the testimony of many witnesses of the need for
uniform national standards governing volunteer liability, the
Committee adopted an amendment in the nature of a substitute
which takes a more direct approach to the problem. H.R. 911, as
amended, preempts State law to provide that volunteers would
not be liable for harm if (1) they were acting in the scope the
volunteer activity, (2) they were properly licensed (if
necessary), (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
claimant, and (4) the harm was not caused by the volunteer
operating a vehicle.
In addition, H.R. 911 as amended does not allow punitive
damages to be awarded against a volunteer unless the harm was
caused by willful or criminal misconduct, or a conscious,
flagrant indifference to the rights or safety of the claimant.
In a suit against a volunteer, the volunteer's liability for
noneconomic damages would be several but not joint.
H.R. 911 does allow the States to opt out of coverage under
certain circumstances. It also specifies certain conditions and
restrictions which a state could impose without being
inconsistent with the Act. It further exempts from coverage any
misconduct which constitutes a crime of violence, an act of
international terrorism, a hate crime, a sexual offense, a
violation of a civil rights law, or where the volunteer was
under the influence of drugs or alcohol.

Hearings

The Full Committee held a hearing on H.R. 911 and related
bill H.R. 1167 on April 23, 1997. Testimony was received from
Speaker Newt Gingrich, Congressman John Porter of Illinois,
Senator Paul Coverdell of Georgia, Senator Mitch McConnell of
Kentucky, Senator John Ashcroft of Missouri, Senator Rick
Santorum of Pennsylvania, Lynn Swann, National Spokesman, Big
Brothers/Big Sisters of America, Conrad Teitell, Esq., on
behalf of the American Council on Gift Annuities, Terry Orr,
The Orr Company, Robert Goodwin, President and CEO, Points of
Light Foundation, Fred Hanzalek, American Society of Mechanical
Engineers, John Graham, CEO, American Diabetes Association
(also on behalf of the American Society of Association
Executives), Andrew Popper, Professor, Washington College of
Law, American University, Charles Tremper, Senior Vice
President, American Association of Homes and Services for the
Aging, and Dr. Thomas Jones, Habitat for Humanity. In the 104th
Congress, the Full Committee also held a hearing on H.R. 911
(the bill carried the same number in the preceding Congress),
on February 27 and 28, 1996.

Committee Consideration

On May 13, 1997, the Committee met in open session and
ordered reported the bill H.R. 911, with amendment, by a
recorded vote of 20 ayes to 7 nays, a quorum being present.

Vote of the Committee

The Committee considered the following amendments with
recorded votes:
Mr. Conyers offered an amendment to the Inglis amendment in
the nature of a substitute which would have allowed the States
to elect to apply limitations on volunteer liability in
exchange for an additional amount of federal funding. The
amendment was defeated by a vote of 5 ayes to 21 nays.

ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Sensenbrenner............................................... .............. .............. ..............
Mr. McCollum.................................................... .............. X ..............
Mr. Gekas....................................................... .............. X ..............
Mr. Coble....................................................... .............. X ..............
Mr. Smith (TX).................................................. .............. X ..............
Mr. Schiff...................................................... .............. .............. ..............
Mr. Gallegly.................................................... .............. X ..............
Mr. Canady...................................................... .............. X ..............
Mr. Inglis...................................................... .............. X ..............
Mr. Goodlatte................................................... .............. X ..............
Mr. Buyer....................................................... .............. X ..............
Mr. Bono........................................................ .............. X ..............
Mr. Bryant (TN)................................................. .............. X ..............
Mr. Chabot...................................................... .............. X ..............
Mr. Barr........................................................ .............. .............. ..............
Mr. Jenkins..................................................... .............. X ..............
Mr. Hutchinson.................................................. .............. X ..............
Mr. Pease....................................................... .............. X ..............
Mr. Cannon...................................................... .............. .............. ..............
Mr. Conyers..................................................... X .............. ..............
Mr. Frank....................................................... .............. X ..............
Mr. Schumer..................................................... .............. .............. ..............
Mr. Berman...................................................... .............. .............. ..............
Mr. Boucher..................................................... .............. .............. ..............
Mr. Nadler...................................................... X .............. ..............
Mr. Scott....................................................... X .............. ..............
Mr. Watt........................................................ .............. X ..............
Ms. Lofgren..................................................... .............. X ..............
Ms. Jackson Lee................................................. X .............. ..............
Ms. Waters...................................................... .............. .............. ..............
Mr. Meehan...................................................... .............. .............. ..............
Mr. Delahunt.................................................... X .............. ..............
Mr. Wexler...................................................... .............. X ..............
Mr. Rothman..................................................... .............. X ..............
Mr. Hyde, Chairman.............................................. .............. X ..............
-----------------------------------------------
Total....................................................... 5 21 ..............
----------------------------------------------------------------------------------------------------------------

Mr. Scott offered an amendment to the Inglis amendment in
the nature of a substitute which would make the Act effective
only as to claims where the harm that is the subject of the
claim or the conduct that caused the harm occurred after the
effective date. The amendment was adopted by a vote of 22 ayes
to 4 nays.

ROLLCALL NO. 2
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Sensenbrenner............................................... .............. X ..............
Mr. McCollum.................................................... X .............. ..............
Mr. Gekas....................................................... X .............. ..............
Mr. Coble....................................................... X .............. ..............
Mr. Smith (TX).................................................. X .............. ..............
Mr. Schiff...................................................... .............. .............. ..............
Mr. Gallegly.................................................... X .............. ..............
Mr. Canady...................................................... X .............. ..............
Mr. Inglis...................................................... .............. X ..............
Mr. Goodlatte................................................... X .............. ..............
Mr. Buyer....................................................... X .............. ..............
Mr. Bono........................................................ X .............. ..............
Mr. Bryant (TN)................................................. X .............. ..............
Mr. Chabot...................................................... .............. X ..............
Mr. Barr........................................................ .............. .............. ..............
Mr. Jenkins..................................................... X .............. ..............
Mr. Hutchinson.................................................. X .............. ..............
Mr. Pease....................................................... X .............. ..............
Mr. Cannon...................................................... .............. .............. ..............
Mr. Conyers..................................................... X .............. ..............
Mr. Frank....................................................... X .............. ..............
Mr. Schumer..................................................... .............. .............. ..............
Mr. Berman...................................................... .............. .............. ..............
Mr. Boucher..................................................... .............. .............. ..............
Mr. Nadler...................................................... .............. .............. ..............
Mr. Scott....................................................... X .............. ..............
Mr. Watt........................................................ X .............. ..............
Ms. Lofgren..................................................... X .............. ..............
Ms. Jackson Lee................................................. X .............. ..............
Ms. Waters...................................................... .............. .............. ..............
Mr. Meehan...................................................... .............. .............. ..............
Mr. Delahunt.................................................... X .............. ..............
Mr. Wexler...................................................... X .............. ..............
Mr. Rothman..................................................... X .............. ..............
Mr. Hyde, Chairman.............................................. .............. X ..............
-----------------------------------------------
Total....................................................... 22 4 ..............
----------------------------------------------------------------------------------------------------------------

Mr. Watt offered an amendment to the Inglis amendment in
the nature of a substitute which would have required an
affirmative vote of a state legislature before the terms of the
Act would be effective in that state. The amendment was
defeated by a vote of 5 ayes to 17 nays.

ROLLCALL NO. 3
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Sensenbrenner............................................... .............. X ..............
Mr. McCollum.................................................... .............. X ..............
Mr. Gekas....................................................... .............. X ..............
Mr. Coble....................................................... X .............. ..............
Mr. Smith (TX).................................................. .............. X ..............
Mr. Schiff...................................................... .............. .............. ..............
Mr. Gallegly.................................................... .............. .............. ..............
Mr. Canady...................................................... .............. X ..............
Mr. Inglis...................................................... .............. X ..............
Mr. Goodlatte................................................... .............. X ..............
Mr. Buyer....................................................... .............. X ..............
Mr. Bono........................................................ .............. X ..............
Mr. Bryant (TN)................................................. .............. X ..............
Mr. Chabot...................................................... .............. .............. ..............
Mr. Barr........................................................ .............. .............. ..............
Mr. Jenkins..................................................... .............. X ..............
Mr. Hutchinson.................................................. .............. X ..............
Mr. Pease....................................................... .............. X ..............
Mr. Cannon...................................................... .............. .............. ..............
Mr. Conyers..................................................... .............. .............. ..............
Mr. Frank....................................................... .............. X ..............
Mr. Schumer..................................................... .............. .............. ..............
Mr. Berman...................................................... .............. .............. ..............
Mr. Boucher..................................................... .............. .............. ..............
Mr. Nadler...................................................... .............. .............. ..............
Mr. Scott....................................................... X .............. ..............
Mr. Watt........................................................ X .............. ..............
Ms. Lofgren..................................................... .............. X ..............
Ms. Jackson Lee................................................. X .............. ..............
Ms. Waters...................................................... .............. .............. ..............
Mr. Meehan...................................................... .............. .............. ..............
Mr. Delahunt.................................................... X .............. ..............
Mr. Wexler...................................................... .............. X ..............
Mr. Rothman..................................................... .............. X ..............
Mr. Hyde, Chairman.............................................. .............. .............. ..............
-----------------------------------------------
Total....................................................... 5 17 ..............
----------------------------------------------------------------------------------------------------------------

Final Passage. Mr. Hyde moved to report H.R. 911, as
amended, favorably to the whole House. The bill was ordered
favorably reported by a roll call vote of 20-7.

ROLLCALL NO. 4
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Sensenbrenner............................................... X .............. ..............
Mr. McCollum.................................................... X .............. ..............
Mr. Gekas....................................................... X .............. ..............
Mr. Coble....................................................... X .............. ..............
Mr. Smith (TX).................................................. .............. .............. ..............
Mr. Schiff...................................................... .............. .............. ..............
Mr. Gallegly.................................................... .............. .............. ..............
Mr. Canady...................................................... X .............. ..............
Mr. Inglis...................................................... X .............. ..............
Mr. Goodlatte................................................... X .............. ..............
Mr. Buyer....................................................... X .............. ..............
Mr. Bono........................................................ X .............. ..............
Mr. Bryant (TN)................................................. X .............. ..............
Mr. Chabot...................................................... X .............. ..............
Mr. Barr........................................................ X .............. ..............
Mr. Jenkins..................................................... X .............. ..............
Mr. Hutchinson.................................................. X .............. ..............
Mr. Pease....................................................... X .............. ..............
Mr. Cannon...................................................... .............. .............. ..............
Mr. Conyers..................................................... .............. X ..............
Mr. Frank....................................................... .............. .............. ..............
Mr. Schumer..................................................... .............. .............. ..............
Mr. Berman...................................................... .............. .............. ..............
Mr. Boucher..................................................... .............. .............. ..............
Mr. Nadler...................................................... .............. X ..............
Mr. Scott....................................................... .............. X ..............
Mr. Watt........................................................ .............. X ..............
Ms. Lofgren..................................................... .............. X ..............
Ms. Jackson Lee................................................. X .............. ..............
Ms. Waters...................................................... .............. X ..............
Mr. Meehan...................................................... X .............. ..............
Mr. Delahunt.................................................... .............. X ..............
Mr. Wexler...................................................... X .............. ..............
Mr. Rothman..................................................... X .............. ..............
Mr. Hyde, Chairman.............................................. X .............. ..............
-----------------------------------------------
Total....................................................... 20 7 ..............
----------------------------------------------------------------------------------------------------------------

Committee Oversight Findings

In compliance with clause 2(l)(3)(A) of rule XI of the
Rules of the House of Representatives, the Committee reports
that the findings and recommendations of the Committee, based
on oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.

Committee on Government Reform and Oversight Findings

No findings or recommendations of the Committee on
Government Reform and Oversight were received as referred to in
clause 2(l)(3)(D) of rule XI of the Rules of the House of
Representatives.

New Budget Authority and Tax Expenditures

Clause 2(l)(3)(B) of House Rule XI is inapplicable because
this legislation does not provide new budgetary authority or
increased tax expenditures.

Congressional Budget Office Cost Estimate

In compliance with clause 2(l)(C)(3) of rule XI of the
Rules of the House of Representatives, the Committee sets
forth, with respect to the bill, H.R. 911, the following
estimate and comparison prepared by the Director of the
Congressional Budget Office under section 403 of the
Congressional Budget Act of 1974:

U.S. Congress,
Congressional Budget Office,
Washington, DC, May 16, 1997.
Hon. Henry J. Hyde,
Chairman, Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Office has prepared
the enclosed cost estimate for H.R. 911, the Volunteer
Protection Act of 1997.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contacts are John R.
Righter (for federal costs), who can be reached at 226-2860,
and Leo Lex (for the state and local impact), who can be
reached at 225-3220.
Sincerely,

June E. O'Neill, Director.
Enclosure.
H.R. 911--Volunteer Protection Act of 1997

H.R. 911 would protect individuals who volunteer their
services to nonprofit organizations and government agencies
from personal liability in certain cases. CBO estimates that
enacting this bill would have no impact on the federal budget.
Because the bill would not affect direct spending or receipts,
pay-as-you-go procedures would not apply.
H.R. 911 contains an intergovernmental mandate as defined
in the Unfunded Mandates Reform Act of 1995 (UMRA), but CBO
estimates that the costs of complying with that mandate would
be minimal and would not exceed the threshold established in
the law ($50 million in 1996, adjusted annually for inflation).
The bill contains no new private-sector mandates as defined in
UMRA.
The bill explicitly preempts any state law that would be
less strict or inconsistent with provisions in the bill. Such a
preemption constitutes an intergovernmental mandate as defined
in UMRA. However, by passing appropriate legislation, states
may elect to declare that the provisions of H.R. 911 do not
apply to cases in state courts if all of the parties to the
case are residents of the state.
Liability cases against volunteers are uncommon. Given
their limited number, and the even more limited number of cases
where a state, local, or tribal government might be a plaintiff
suing a volunteer, the costs resulting from this preemption of
state laws would be minimal.
The CBO staff contacts are John R. Righter (for federal
costs), who can be reached at 226-2860, and Leo Lex (for the
state and local impact), who can be reached at 225-3220. The
estimate was approved by Paul N. Van de Water, Assistant
Director for Budget Analysis.

Constitutional Authority Statement

Pursuant to rule XI, clause 2(l)(4) of the Rules of the
House of Representatives, the Committee finds the authority for
this legislation in Article I, section 8, clause 3 of the
United States Constitution, and the fourteenth amendment to the
United States Constitution.

Section-by-Section Analysis

Section 1. Short Title

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

Section 2. Findings and Purpose

Congress finds that volunteers have been deterred from
offering their services due to liability concerns; that
volunteers, nonprofit organizations, and government entities
have faced increased liability insurance costs due to
unwarranted litigation; that nonprofit organizations and
government entities have been adversely affected by a resulting
withdrawal of volunteers; and that much-needed contributions to
communities have thereby also been diminished. Clarifying and
limiting the liability risk assumed by volunteers is an
appropriate subject for federal legislation because of the
national scope of the problems, federal expenditures on
volunteer-based social programs, the federal government's
inability to carry out all services provided by such
organizations, and due to the effects on interstate commerce.
The legislation will serve those who need and use nonprofit and
government programs and will sustain the availability of
programs dependent on volunteers.

Section 3. Preemption and Election of State Nonapplicability

While the bill will generally preempt State law to the
extent that it is inconsistent with the bill, the bill will not
preempt any State laws that provide additional protections from
liability relating to volunteers, nonprofit organizations, and
government entities. This sets an outer limit of volunteer
liability, while permitting States to provide greater
protections.
The bill also permits a State to opt out of the bill's
coverage in any civil action against a volunteer, nonprofit
organization, or government entity in State court in which all
parties are citizens of the State. This permits States to elect
to apply their own legal rules in cases involving more purely
State interests. The state must opt out in a free-standing
bill.

Section 4. Limitation on Liability for Volunteers

The bill provides that a volunteer of a nonprofit
organization or government entity will generally be relieved of
liability for harm caused if (1) the volunteer was acting
within the scope of the volunteer's responsibilities; (2) the
volunteer was properly licensed, certified, or authorized by
the State in which the harm occurred, if such authorization is
required; (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
owner or operator to possess an operator's license or maintain
insurance. This section explicitly specifies that it does not
affect any civil action brought by any nonprofit organization
or government entity against any volunteer of such organization
or entity. This section also does not affect the liability of
any nonprofit organization or government entity with respect to
harm caused by a volunteer.
The bill further specifies that the following types of
State laws shall not be construed as inconsistent with the
bill: (1) any State law requiring a nonprofit organization or
governmental entity to adhere to risk management or mandatory
training procedures; (2) any State law making an 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) any State law making a
liability limit inapplicable if the civil action is brought by
an officer of a State or local government pursuant to State or
local law; (4) and any State law making a liability limit
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.
The bill also limits punitive damages that may be awarded
against volunteers based on harm caused by a volunteer acting
within the scope of the volunteer's responsibilities. In such
cases, punitive damages against any such defendant will be
available only where the claimant demonstrates by clear and
convincing evidence that the volunteer proximately caused the
harm through willful or criminal misconduct, or a conscious,
flagrant indifference to the rights or safety of the individual
harmed. This ensures that punitive damages, which are intended
to punish the defendant and not to compensate the plaintiff,
are available only where a volunteer has acted in an egregious
fashion warranting such an award.
The bill separately provides that none of the liability
limitations in the Act will apply to any misconduct that
constitutes a crime of violence, act of international
terrorism, or hate crime, or to any misconduct that involves a
sexual offense, the violation of any State or Federal civil
rights law, or intoxication or drug use. The provisions of this
subsection therefore also limit the provisions of Section 5
relating to joint and several liability.

Section 5. Liability for Noneconomic Loss

The bill includes joint and several liability reforms
applicable to any civil action against a volunteer based on an
action of a volunteer acting within the scope of the
volunteer's responsibilities. In such actions, the liability of
any defendant who is a volunteer for noneconomic loss will be
proportional to that defendant's responsibility for the harm.
Any such defendant will continue to be jointly and severally
liable for economic loss. This promotes a balance between
ensuring full compensation for economic losses (including
medical expenses, lost earnings, replacement services, and out-
of-pocket expenses, etc.), and ensuring fairness in not holding
volunteers responsible for noneconomic harm that they do not
cause.

Section 6. Definitions

This section defines significant terms in the bill:
``economic loss,'' ``harm,'' ``noneconomic loss,'' ``nonprofit
organization,'' ``state,'' and ``volunteer.''
The term ``nonprofit organization'' includes organizations
which have obtained tax exempt status under section 501(c)(3)
of the Internal Revenue Code. It also includes organizations
which may or may not have not obtained certification as tax-
exempt organizations under the Internal Revenue Code, but which
are nevertheless conducted for public benefit and operated
primarily for charitable, civic, educational, religious,
welfare or health purposes. For example, the definition is
intended to include trade and professional associations and
other business leagues which are exempt from taxation under
section 501(c)(6) of the Internal Revenue Code. It would also
include organizations which are not tax-exempt but which meet
the ``public benefit'' and ``operated primarily'' tests.
The Act specifically excludes from the definition of
``nonprofit organization'' any organization which practices any
action which constitutes a hate crime referred to in subsection
(b)(1) of the first section of the Hate Crimes Statistics Act.
In order to fall within this exclusion, it would not be
sufficient that the organization practice the conduct that
forms the predicate of a crime referenced in that statute. That
is, the organization's action must rise to the level of a
crime.

Section 7. Effective Date

The bill will take effect 90 days after the date of
enactment. It will apply to any claim filed on or after the
effective date, if the harm that is the subject of the claim or
the conduct that caused the harm occurred after the effective
date.
DISSENTING VIEWS

Although we are fully supportive of increased volunteerism
in our communities, we cannot support this well-intended, but
poorly conceived legislation. The substitute amendment to H.R.
911 approved by the Committee is not only irrelevant to the
issue of increasing volunteerism, it is redundant of many state
laws, and is dangerous because of drafting problems that are
likely to invite unintended consequences.
While we know of no volunteer liability case in the state
courts whose outcome would have changed had this proposal been
law, ¹ this legislation is a classic case of
unwarranted intrusion by the federal government into state
prerogatives. H.R. 911 is particularly unnecessary in light of
the fact that every state in the Union has enacted some form of
protection for volunteers and charities. ² We find
it ironic that this ``Washington knows best'' mandate is being
advanced by a party which repeatedly proclaims ``states'
rights'' as a governing philosophy.
---------------------------------------------------------------------------
\1\ We have done a Westlaw search of all reported decisions at the
federal and state level during the last seven years involving the terms
``volunteer,'' ``liability,'' and negligence, and H.R. 911 would not
have altered the outcome of any of these cases.
\2\ See infra n. 8.
---------------------------------------------------------------------------
Moreover, not only is there no evidence of a decline in
volunteerism in recent years, but there is no indication of any
relationship between volunteer activity and any perceived risk
of civil liability. We also oppose the legislation because it
continues to allow the insulation of tortious conduct by hate
groups and other undesirable entities, unnecessarily eliminates
joint and several liability and limits punitive damages, and
fails to adequately protect innocent victims.
For these and the reasons set forth below, we dissent from
H.R. 911 as reported by the Committee.

1. No Empirical Evidence of Link Between Volunteerism and Risk of Civil
Liability

While proponents of H.R. 911 claim that volunteerism is on
the decline because of a ``litigation explosion,'' there is no
verifiable evidence to support this notion. During hearings on
H.R. 911, no witness was able to identify a single case whose
outcome would have been altered had this proposal been law at
the time the case was brought. ³ At the Judiciary
Committee's recent hearing Professor Andrew Popper of American
University testified that no em empirical case has been made
for federal intervention in the area of volunteer liability.
---------------------------------------------------------------------------
\3\ To the extent some individuals have reduced their commitment to
volunteerism, the reason is unrelated to our tort laws. A landmark
study by Robert Putnam identified the five leading social and economic
factors which impact on volunteerism: (1) the movement of women into
the workforce; (2) the necessity for Americans to work more hours to
maintain their standard of living; (3) the mobility of people in
America; (4) demographic changes, such as fewer marriages, more
divorces, fewer children and lower real wages; and (5) the
transformation of leisure time from volunteering to watching
television. Robert D. Putnam, Bowling Alone: America's Declining Social
Capital. 6:1 Journal of Democracy 65, Jan. 1995. Another study shows
that for every 100 people who express interest in Big Brothers/Big
Sisters of America, only 43 actually apply learn the amount of work
involved. ``Work Defeating Volunteer Spirit: Summit to Address
Problem,'' The Chicago Tribune, March 27, 1997, A1. Similarly, the
Indiana University Center on Philanthropy concluded that time pressure
was the major factor effecting. Nearly 60 percent of those questioned
said they had no time to work without pay. ``Time Squeeze Pinches
Charities,'' The Indianapolis Business Journal, June 17, 1996.

The literature does not reveal a single independent
study, much less a juried piece of research, suggesting
that federally imposed tort immunity will increase the
number, frequency, or quality of volunteers. While
there has been frequent and well publicized speculation
that these benefits might accrue, speculation,
rhetoric, and emotionalism are hardly the basis for
federal preemption of state law. ⁴
---------------------------------------------------------------------------
\4\ Volunteer Liability Legislation: Hearing before the House Comm.
on the Judiciary, 105th Cong. 1st Sess. (April 23, 1997) [hereinafter,
``1997 Volunteer Liability Hearing''] (statement of Andrew Popper at
4).

To the contrary, the empirical evidence shows a strong
increase in volunteerism in recent years. Director of the Roper
Center, Everett C. Ladd, notes that evidence taken from
numerous polls documents a striking increase in such
involvement. ⁵ In addition, surveys by the Los
Angeles Times and Princeton Survey Research show growth in
volunteerism in recent years. ⁶
---------------------------------------------------------------------------
\5\ Pama Mitchell, ``Trend Watch: Volunteers of America,'' The
Atlanta Constitution (August 22, 1996).
\6\ Id.
---------------------------------------------------------------------------
Given the dearth of empirical support, it is premature to
consider federal preemptive legislation. As Professor Popper
observed, ``[t]he notion of a Congressional mandate changing
state law is troubling, particularly in the absence of a
showing that there is a national crisis, that a federal law
will resolve the crisis, or that the consumers who are effected
adversely by the law will be protected through some other
mechanism.'' ⁷
---------------------------------------------------------------------------
\7\ Id.
---------------------------------------------------------------------------

2. Abrogates Our Traditional Respect for State Authority in Tort Law

To the extent there is any problem with volunteer
liability, the states are fully capable of passing their own
laws protecting volunteers from personal civil liability. A
survey by the Nonprofit Risk Management Center reveals that
every state now has a law specifically limiting the legal
liability volunteers or non-profit organizations. ⁸
In addition to limitations on the liability of directors and
officers, ⁹ 38 states limit the liability of
volunteers for simple negligence, ¹⁰ and another 20
states provide additional exemptions for recklessness and gross
negligence by volunteers. ¹¹
---------------------------------------------------------------------------
\8\ Nonprofit Risk Management Center, ``State Liability Laws for
Charitable Organizations and Volunteers'' (1996).
\9\ Id. at 9.
\10\ Id. at 7.
\11\ Id. Several states also limit liability by the charitable
organizations themselves as well as their volunteers. Id. at 5.
---------------------------------------------------------------------------
Moreover, as the bill is drafted, it invites legal
challenges to Congressional authority to legislate in this
area, given the Supreme Court's recent decision in United
States v. Lopez. ¹² In particular, Justice
Department Office of Legal Counsel has expressed concern that
the bill would invite constitutional challenges because its
coverage is not limited to volunteer organizations that engage
in interstate commerce or liability that arises by reason of
volunteer services affecting interstate commerce. ¹³
Significantly, the Majority rejected an amendment offered by
Mr. Conyers which would have remedied the constitutional
concern by making the bill voluntary to the states.
---------------------------------------------------------------------------
\12\ 514 S.Ct. 549 (1995). In Lopez, The Court held that the Gun-
Free School Zones Act of 1990, which made illegal the knowing
possession of a gun in a school zone, was beyond Congress' Commerce
Clause authority. Last year, Congress acted to remedy the
constitutional infirmity in the Gun-Free School Zones law by limiting
it to firearms that ``ha[ve] moved in or that otherwise affects
interstate or foreign commerce.'' See 18 U.S.C. Sec. 922q.
\13\ Office of Legal Counsel Comments on S. 543, Volunteer
Protection Act of 1997. The amendment would have brought the
legislation within the exercise of Congress' Spending Power by
providing additional block grants for those states which enact
provisions of the bill. This is identical to the approach taken in the
original version of H.R. 911, introduced by Rep. Porter during the last
seven Congresses which had been approved by the 103rd Congress as an
amendment to the National and Community Service Act of 1990. See 139
Cong. Rec. P. 860 (July 28, 1993). The volunteer approach also avoids
the problem of creating a confusing federal overlay on top of state law
with ambiguities in interpretation only subject to final resolution by
the Supreme Court. See H. Rep. No. 104-64, 104th Cong., 1st Sess. 40
(1995).
---------------------------------------------------------------------------
Proponents' arguments that the legislation protects state
prerogatives because it allows the states to elect not to have
the provisions apply ¹⁴ miss the mark. It is an odd
formulation of federalism which grants all power to Congress
unless the states affirmatively act to protect their interests.
As proponents well know, it is no easy feat to obtain approval
in a state house and senate and obtain the governor's
signature. Moreover, many states only meet on a biennial basis
and couldn't even consider electing to opt-out for several
years.
---------------------------------------------------------------------------
\14\ Section 3(b).
---------------------------------------------------------------------------
Moreover, the opt-out provision is unduly narrow in that it
would only allow states to preserve their laws if all the
parties are residents of the state. This is a subset of the
types of matters that fall within state tort law under
traditional conflict of law principles, which frequently
include legal actions involving litigants who do not reside
within the state. ¹⁵
---------------------------------------------------------------------------
\15\ The Restatement Second of the Law provides, ``The rights and
liabilities of the parties with respect to an issue in tort are
determined by the local law of the state which, with respect to that
issue, has the most significant relationship to the occurrence and the
parties. . . .'' Thus state law would ordinarily apply even if a
party resided outside of the state if the injury took place within the
state. Restatement (Second) Conflict of Laws Sec. 145 (1971).
---------------------------------------------------------------------------

3. Fails To Protect Against Abuse by Hate Groups

Although H.R. 911 includes some minimal safeguards to
insure that protection from liability does not inure to members
of hate groups, these protections do not go nearly far enough.
For example, the provision in the bill exempting members of
hate groups from the liability limitations in the bill
¹⁶ does nothing to insure that state law does not
unnecessarily immunize such persons. Thus if a particular state
provides across the board immunity to volunteers, H.R. 911
continues to allow a member of a militia or hate group who
negligently entrusts a gun to a child (who in turn harms an
innocent victim) to avoid responsibility for the negligent
entrustment. This is not appropriate. It would seem that if
there truly is a basis for federalizing the field of volunteer
liability (as the legislation's proponents claim), no civil
immunity of hate group members should be tolerated.
---------------------------------------------------------------------------
\16\ Sec. 6(4). This language was added pursuant to an amendment
offered by Ms. Jackson Lee.
---------------------------------------------------------------------------
It is because of the bill's failure to provide full
protection against harm perpetrated by hate group members that
the Southern Poverty Law Center has chosen to oppose the
legislation. Their Chief Trial Counsel, Morris Dees, has
written:

Under this legislation . . . a state could maintain
or reinstate protections for volunteers of white
supremacists, neo-Nazi and violent militia groups--the
types of organizations the Southern Poverty Law center
has crippled over the past ten years through the use of
both federal and state tort laws. . . . Without two-
way preemption, ensuring that volunteers connected with
hate groups are never insulated from liability, we
would oppose H.R. 911. ¹⁷
---------------------------------------------------------------------------
\17\ Morris Dees, The Southern Poverty Law Center, Letter to
Congressman John Conyers, Jr. (May 16, 1997).
---------------------------------------------------------------------------

4. Unnecessarily Eliminates Joint and Several Liability and Limits
Punitive Damages

We also oppose the bill's elimination of joint and several
liability for non-economic damages because it severely
discriminates against women, children and seniors. This is
because losses incurred by high paid CEO's who are victims of
negligence are easily translated into economic damages (such as
lost wages) which will not be subject to this new limitation.
At the same time, damages incurred by a housewife or the loss
of a limb by a senior or child, are more likely to included a
larger proportion of ``pain and suffering'' damages which would
be subject to the proposed limitation on joint and several
damages. Moreover, as the bill is drafted, if a volunteer
negligently causes an accident while driving a Salvation Army
truck, the volunteer cannot be held jointly and severally
liable for any non-economic damages that result. ¹⁸
We don't believe this loophole was intended by the bill's
authors.
---------------------------------------------------------------------------
\18\ The joint and several liability provision of Sec. 5 of the
bill covers ``any civil action against a volunteer acting within the
scope of the volunteer's responsibilities. . . .'' Unlike section
4(a), which limits the application of the exemption for simple
negligence to volunteers (1) acting within the scope of their
responsibility to the nonprofit, (2) if appropriate, properly licensed,
certified or authorized, and (3) not caused by the operation of a motor
or other vehicle requiring license; section 4(e) and 5 (limiting the
award of punitive and non-economic damages) applies to any volunteer
acting within the scope of their responsibility to the nonprofit (i.e.,
the limitations would apply even to volunteers who weren't properly
licensed, certified or authorized or were operating a motor vehicle).
---------------------------------------------------------------------------
H.R. 911's limitations on punitive damages are similarly
ill-conceived. ¹⁹ Given that almost all volunteers
will already be totally exempt from legal liability under
section 4(a) of the bill, there is little reason to further
restrict the availability of punitive damages, which are
incredibly rare to begin with. ²⁰ The only parties
who remain subject to liability may well be the very parties
whose conduct society would want to deter--such as non-profit
fraternity engaging in a hazing ritual that results in
drunkenness and harm. ²¹ (The same concern exists
with respect to the limitation on noneconomic damages--it will
principally protect so-called ``bad actors'').
---------------------------------------------------------------------------
\19\ Section 4(e) provides, ``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.''
\20\ See H. Rept. No. 104-64, 104th Cong. 1st Sess. 39 (1999)
(citing numerous studies concerning the incidence of punitive damages).
\21\ The Majority rejected an en bloc amendment offered by Mr.
Scott which would have struck the non-economic damages and punitive
damage limitation.
---------------------------------------------------------------------------

5. Fails To Adequately Protect Innocent Victims

H.R. 911 is also deficient in that instead of merely
permitting the states to provide for adequate measures to
insure that non-profit organizations operate in a safe manner--
such as by allowing the states to require that non-profits
adopt risk management procedures (such as training of
volunteers), be subject to respondeat superior, ²²
and have a secure source of funds for victim recovery available
²³--it should have required that such procedures be
in place. In this way Congress could have helped insure that
there was at least a measure of protection for innocent
children and vulnerable individuals harmed by negligent conduct
without exposing volunteers to any increased risk of legal
liability. ²⁴ For example, if we are going to exempt
the volunteers of a non-profit gun club whose members
unintentionally harm a child during errant target practice, we
should make sure that the gun club is subject to liability and
has the resources to make the child's family whole.
---------------------------------------------------------------------------
\22\ The common law doctrine of respondeat superior provides that
employers are generally vicariously liable for the negligence of their
employees and volunteers.
\23\ Sec. 4(d)(1)-(4).
\24\ When Mr. Scott offered an amendment to this effect, it was
rejected by the Majority.
---------------------------------------------------------------------------

Conclusion

Like the other Members of this body, we believe that
volunteerism can and should play an important role in restoring
our communities. Unfortunately, H.R. 911 does nothing to
enhance volunteerism, or help our poor and underprivileged.
Instead, it creates a complex and inconsistent new overlay of
limitations, confusing a system of state tort law that has
served this nation well for more than 200 years. Our nation's
volunteers and the persons they serve deserve better than this.
John Conyers, Jr.
Jerrold Nadler.
Robert C. Scott.
Zoe Lofgren.