|Volunteer Legal Handbook, 9th Edition
Handbook > Law > Torts
CHAPTER 3. TORT LIABILITY
With all of the foregoing in mind, the first group of risks of liability for volunteers is "tort liability." Forty years ago, nonprofit, charitable organizations enjoyed a general immunity from liability for torts. That immunity was created by case law, and, beginning in 1965, was abolished by case law or statute in most states. Immunity from tort liability as it exists today in Alaska arises from statute, and is discussed below.
A tort is a civil wrong, misconduct which society may or may not deem "bad" enough to warrant being a crime but, in any event, is "bad" enough to make the wrongdoer financially liable for injuries suffered by the victim of the "bad" act.
Some torts are also crimes. For example, punching someone in the nose is the crime of assault; it is also the tort of assault. Driving 100 mph is a crime called reckless driving; it is also a tort called "gross negligence." Generally, torts that are also crimes involve a significantly worse kind of misconduct than torts that are not crimes. Tort liability generally results in monetary damages that must be paid in order to compensate the victim. Torts that are crimes also carry a risk of a special kind of damages intended to punish the wrongdoer and not just compensate the victim.
Most kinds of torts involving volunteers are purely civil wrongs, where there is no crime associated with them. Of the five examples given in Chapter 1, the auto accident and the fired volunteer involve a tort but, more likely than not, no crime. The embezzling employee and the sexual misconduct claim involve torts that are also crimes. The overpaid executive director involves neither a crime nor a tort.
General Categories of Tort Liability.
Negligent and Intentional Actions. Torts can arise from legally different kinds of conduct, ranging from very innocent conduct in the case of the tort of innocent misrepresentation (innocently relaying information that turns out to be false) to intentional bad conduct (again, punching someone in the nose). These are several classifications of bad conduct, and classifications tend to matter a great deal in terms of your exposure to damages and your risk of liability for the actions of another.
Intentional Bad Actions. In the "worst" class of tortious conduct are intentional bad actions. Intentional torts usually involve bad faith, purposeful misconduct or deliberate wrong. Punitive damages are almost always awarded to the victims of intentional torts.
Grossly Negligent Actions or Inactions. Grossly negligent actions usually involve action or inaction which substantially varies from the expected norm, a reckless disregard for the rights of others. Grossly negligent conduct can sometimes result in awards of punitive damages.
Negligent Actions or Inactions. Perhaps the most common kind of tort, negligence involves a failure to meet a duty of care. Almost always, the wrongdoer has failed to exercise that degree of care in a situation which would be expected of a hypothetical reasonable person. The failure to exercise the duty of care must be the proximate cause or legal cause of the injuries sustained by the victim.
Innocent Actions or Inactions. Under some circumstances, even innocent conduct can be the basis for tort liability, particularly where the wrongdoer owes a higher duty of care to the victim than is owed to the ordinary person. For example, if you innocently relay false information to a victim, who reasonably relies upon that false information, you might be liable for the tort of innocent misrepresentation.
Liability for Acts of a Volunteer.
Under some circumstances, one person can be liable for the wrongdoing of another. For example, if you direct a person to commit a tort, you are liable for the victim’s injuries as if you had performed the acts yourself. But in addition, you can be liable for actions or inactions of your employees and agents.
An employer is responsible for torts committed by an employee while the employee is acting in the course and scope of his employment. This is the legal doctrine of respondeat superior, "the master will respond," and dates from the days of masters and apprentices.
Alaska courts have not yet addressed the issue, but a number of other states have held that the doctrine of vicarious liability applies to volunteers acting for the benefit of a nonprofit corporation. Certainly, many of the policies that justify the application in the employer-employee arrangement are present in the nonprofit corporation-volunteer arrangement. There is quite a good chance that Alaska courts will apply the doctrine if invited to do so, and you should assume in your risk management procedures that your nonprofit corporation will be liable for any tort committed by a volunteer in the course and scope of the volunteer’s duties.
On one memorable occasion, a nonprofit corporation in interior Alaska found itself using as a driver for its transportation services a person required to do volunteer work as a part of a criminal sentence. The criminal sentence was for repeated drunk driving offenses. Obviously, volunteers do need to be screened and the failure to screen can lead to tort liability. A nonprofit corporation owes a duty to the persons it services to use a reasonable degree of care in selecting the volunteers to deliver those services. This is particularly true for nonprofit corporations that provide services to minors.
Liability for Injury to a Volunteer.
There is the obverse situation: while your volunteer is acting in the course and scope of her duties, someone injures the volunteer. The liability of the nonprofit corporation for the injuries of the volunteer is less certain in this situation.
In the traditional employer-employee relationship, the legislature by statute has established a duty in an employer to an employee who is injured in the course and scope of his or her work. The system of worker’s compensation laws, described in the labor law section of this manual, describes the employer’s duty to compensate the employee for injuries sustained by the employee in the course and scope of his or her duties. A nonprofit corporation needs to be careful to distinguish between employees, who are subject to worker’s compensation provisions, and volunteers, who may not be.
Case law and statutes have established the employer’s duty to maintain safe working premises for an employee. Several states have applied this doctrine expressly to nonprofit corporations, requiring them to maintain a safe place for volunteers to work. Other states have held nonprofit corporations to be negligent in failing to provide a safe place for a volunteer to deliver services, the same result by different reasoning. Note this rule can apply if the volunteer is working at someone else’s premises on business of the nonprofit corporation, making the nonprofit corporation liable for the actions or inactions of a third party.
Nonprofit corporations may also be liable for the negligent failure to supervise in some situations. For example, if a nonprofit corporation offers day care services, and one child injures another child, the nonprofit corporation could be liable, not because it is somehow liable for the actions of the wrongdoing child, but because the nonprofit corporation negligently failed to adequately supervise the wrongdoing child.
Terminating a volunteer’s service to a nonprofit corporation also presents some risks of tort liability. There is a risk that an unhappy volunteer will claim he or she has been defamed; that his or her character has been damaged by being "fired" as a volunteer. This issue is discussed in more detail at wrongful dismissal or termination later in the Handbook.
Alaska Statutory Tort Immunity.
Statutory tort immunity occurs when the legislature enacts a statute protecting certain kinds of persons from certain kinds of claims. Generally, Alaska has only very limited statutory immunity for special kinds of volunteers. Fairly recent changes in Federal law have altered the picture somewhat.
In 1993, Alaska adopted a limited liability statute for certain kinds of persons. The statute does not provide a very complete form of protection, but it is interesting. AS 09.65.170 provides some protection:
Other Special Alaska Statutory Immunity.
Emergency Aid. A person who provides emergency care or emergency counseling to a person in immediate need of emergency aid in order to avoid serious harm or death is not liable for civil damages, unless the person is grossly negligent, reckless or engages in intentional misconduct. This is commonly called a "good Samaritan" statute. AS 09.65.090(a).
A recent California case, however, significantly narrowed the application of California’s good Samaritan law. In Van Horn v. Watson, 197 P.3d 164 (Cal. 2008), the California Supreme Court considered a case where Lisa Torti removed Alexandra Van Horn from a vehicle that was involved in an accident because Torti thought Van Horn’s car would catch fire. Van Horn suffered permanent paralysis. The trial court dismissed the claim against Torti under the California good Samaritan law, which immunized an “person who ... renders emergency care at the scene of an emergency” from civil liability. The California Supreme Court held, however, that the good Samaritan law implicitly applied to emergency medical care, not any emergency care. Since Torti was not providing emergency medical care, her actions were not immune.
The Alaska good Samaritan statute is worded similarly to the California statute and may be susceptible to similar interpretation in the future. Of course, the common law rule remains that ordinarily, a person has no duty to render aid.
Emergency Service Organizations. A member of an organization that exists for the purpose of providing emergency services is not liable for damages unless the volunteer is grossly negligent, reckless or engages in intentional misconduct, or attempts to provide certain highly specialized kinds of emergency aid. AS 09.65.090(b).
A "volunteer" is defined for this specific section as "a person who is paid not more than $10 per day and a total of not more than $500 a year, not including ski lift tickets and reimbursement for expenses actually incurred, for providing emergency services." AS 09.65.090(b).
Aid in a Disaster. A person acting at the direction of the police, firemen or emergency services personnel during a declared state of emergency is not liable for his or her actions, unless the person is grossly negligent, reckless or engages in intentional misconduct. AS 09.65.091.
Emergency Veterinary Care. Dog mushing has a veterinarian’s good Samaritan law. AS 09.65.097.
Voluntary Aircraft Safety Inspection. If an FAA certified mechanic participates without compensation in a voluntary aircraft safety inspection, he or she is not liable for civil damages, unless there was gross negligence. AS 09.65.092.
Aircraft and Watercraft Guest Passengers. An owner or operator of an aircraft or a watercraft is not liable as long as the aircraft or watercraft is not being used for commercial purposes. The limit on liability does not apply if insurance will cover the claim, although the owner or operator is not liable for damages that exceed the amount of insurance coverage. AS 09.65.112.
Disclosure of Job Performance Information. An employer or former employer is not liable for disclosure in good faith of job performance to a prospective employer. There are numerous exceptions and qualifications. AS 09.65.160. It’s unclear whether this immunity would be available for information provided for a volunteer. One principle of case law in this area is that laws restricting rights are interpreted narrowly; interpreting this law narrowly would mean it would not apply to volunteers.
Livestock Activities. The Alaska Legislature decided that livestock are “inherently dangerous” and determined that people who place themselves in proximity to livestock assume the risk of injury or death caused by the livestock. The statute contains numerous exclusions, exceptions, qualifications and definitions. AS 09.65.145.
Sports or Recreational Activities. A person who participates in a sports or recreational activity assumes the risks inherent in that activity and is legally responsible for injuries to themselves or others and for property damages that results from that sport or activity. A “provider” of a sports or recreational activity is not required to “eliminate, alter or control” the inherent risks. The statute does not prohibit civil actions based on negligence or product liability actions for sports or recreational equipment. A “provider” of such activities is defined as a person or government agency that promotes, offer, or conducts a sports or recreational activity whether “for pay or otherwise.” Boxing, wrestling and certain other activities are excluded, however. AS 09.65.290.
Parental Waiver. A parent’s child can release or waive the child’s prospective claim for negligence against a provider of a sports or recreational activity. The waiver must be clear, conspicuous, otherwise valid, in writing, and signed. A parent cannot waive claims for reckless or intentional misconduct on behalf of their child. AS 09.65.292.
Federal Statutory Immunity.
Effective September 18, 1997, the federal Volunteer Protection Act went into effect. The statute shows a lot of competing influences, and it’s not clear how much impact it is going to have. To date, its impact would have to be described as slight. But potentially it will provide volunteers, including most nonprofit board of director members, with some protection.
The U.S. Supreme Court in the last two decades has shown signs it wants to limit the scope of federal regulation of activities that are restricted to one state. Legal commentators have noted the court may be taking a less expansive view of the Fourteenth Amendment. The Volunteer Protection Act of 1997 reflects Congress’s attempts to deal with that potential higher level of scrutiny. There is a lot of uncertainty in this area as a result of the U.S. Supreme Court’s apparent change of views. The constitutionality specifically, whether the statute improperly trespasses on powers reserved to the individual states of the Act is pretty much an unknown.
Generally, Federal law preempts state law, meaning it displaces conflicting state law. But in the case of the Act, Congress went to some pains to describe in the Act exactly why they are seeking to protect volunteers from civil liability, attempting to link protection of volunteers from civil liability to interstate commerce. As a part of that effort, Congress acknowledged the rights of states to "opt out" of the Act if they wish. And the Act provides that if individual states have tougher laws protecting volunteers, then those tougher laws control and displace the Act. One California court decision has addressed the “opt out” provision and the interaction of the Act and state law. See, e.g. Galindo v. Board of Directors of Latin American Civic Assoc., 2006 Cal. App. Unpub. LEXIS 378, 11 (Cal. App. 2006) (unpublished).
Section 3 of the Act describes the process by which a state may elect to opt out of the Volunteer Protection Act of 1997. Essentially, the Alaska Legislature would have to adopt a statute. Alaska has not taken this step. Thus, to the extent that the Alaska statutory protections described above provide additional protection to volunteers, those state laws and not the Federal act are the controlling laws.
Some states have adopted laws granting volunteers conditional immunity from liability. For example, some states provide immunity only if the nonprofit corporation maintains a minimum level of liability insurance. The following kinds of conditional immunity are not inconsistent with the Act and remain in effect despite other provisions of the Act. Put another way, the following conditions and limitations to volunteer immunity are permitted by the Act. Presently, no Alaska statute attaches any condition to the limited liability protections afforded to volunteers.
Requirements for Federal Volunteer Protection.
There are five requirements which must be met for a volunteer to be immune to claims of liability under the federal Volunteer Protection Act of 1997, detailed below. But note that there are also exclusions from immunity: conduct for which a volunteer will be liable despite the provisions of the Act. Some of what Congress has described as the requirements for immunity might be better characterized as exclusions from immunity.
Exclusions from Federal Immunity.
Even if all of those requirements are met, there are certain kinds of conduct and actions for which, as a matter of policy, there is no federal immunity. In addition, the immunities provided by the Act don’t help a volunteer being sued by the nonprofit entity for whom he or she delivered services, and they don’t help the nonprofit organization itself. These types of conduct are deemed so offensive by Congress that there is no immunity, although it is difficult to see how you could engage in this conduct and still meet the requirements for immunity described above.
(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
- Acts of international terrorism, defined at 18 U.S.C. §2331, are also excluded. Note there must have been a criminal conviction for the exclusion to operate.
- Hate Crimes. A hate crime is defined at 28 U.S.C. §534 in a note as:[C]rimes that manifest evidence of prejudice based on race, religion, disability, sexual orientation, or ethnicity, including where appropriate the crimes of murder, non-negligent manslaughter; forcible rape; aggravated assault, simple assault, intimidation; arson; and destruction, damage or vandalism of property.
Note there must have been a criminal conviction for the exclusion to operate.
- Sexual Offenses. A crime involving a sexual offense, as defined by state and not federal law. Note there must have been a criminal conviction for the exclusion to operate.
- Civil Rights Violations. There is no immunity for conduct that "involves misconduct for which the defendant has been found to have violated a Federal or State civil rights law." This is a very broad exclusion and does not explicitly require a criminal conviction. Because many kinds of claims can be asserted as civil rights violations under federal law pursuant to 42 U.S.C. §1983, this may be an extremely broad and important exception.
- Claims Involving Use of Alcohol or Drugs. There is no immunity for claims where the volunteer was under the influence, under state law, of alcohol or drugs at the time of the misconduct. Note that this exclusion does not require a conviction of a criminal offense.
There are some important miscellaneous provisions in the Act regarding the liability of volunteers and the nonprofit corporations.
The Act provides that there is no protection from liability to the nonprofit organization by reason of the Act; that is, it protects individuals and not the nonprofit corporation for whom the volunteer provides services. However, there may be indirect protection. In many cases, a nonprofit corporation may be liable to third parties injured by volunteers under the doctrine of respondeat superior, "the master will respond," page 10 above. It’s not clear from the Act whether the immunity of the volunteer will protect the nonprofit corporation from liability under the doctrine of respondeat superior.
Some of these rules were at issue in Armendarez v. Glendale Youth Center, Inc., 265 F.Supp. 2d 1136 (D.C. AZ 2003), where the former CEO of a nonprofit sued the nonprofit corporation and its individual, volunteer board of directors for unpaid wages. The court held that the federal Volunteer Protection Act protected the individual board members from liability under the Fair Labor Standards Act, 29 U.S.C. §201, even if the nonprofit corporation was unable to pay any judgment in favor of the former employee.
A federal court in Oregon similarly found that the uncompensated president of a nonprofit was entitled to immunity under the Act. See Nunez v. Duncan, 2004 U.S. Dist. LEXIS 11037 (D.Or. 2004). The court relied on Armendarez and essentially determined that there were no facts that would remove the nonprofit’s president from the protection of the Act. The California Court of Appeals reached essentially the same conclusion in Galindo, cited above, under both state and federal law. Unfortunately, Nunez does not contain substantial analysis of the Act or its application.
There has been a smattering of subsequent cases that mention the Volunteer Protection Act. Most are unreported and offer little analysis. However, a few cases have introduced a couple of interesting points. In Elliot v. La Quinta Corp., 2007 WL 757891 (N.D. Miss. 2007) (unpublished), the court determined that the Act did not confer federal jurisdiction. The Tennessee Court of Appeals determined that the Act did not prevent a nonprofit organization from suing a volunteer to remove him from the Board of Directors. Memphis Health Center, Inc. v. Grant, 2006 WL 2088407 (Tenn. Ct.App. 2006).
There are some unresolved issues for unincorporated associations and the federal Volunteer Protection Act. For example, what happens if the nonprofit is an unincorporated association? Remember the federal law leaves the entity liable, and only protects the volunteers. But in the case of an unincorporated association, the members are jointly and severally liable for the obligations of the entity. We don’t know yet whether the Act will protect volunteers in the context of an unincorporated association.
However, it is clear that nothing in the Act protects the volunteer from liability to the nonprofit corporation. If the nonprofit corporation is liable even if the volunteer is immune, then the nonprofit corporation could still have the right to recover its losses from the volunteer in many cases.
The Act provides that volunteers are only liable for the portion of any injuries that they caused, not for all of the injuries without regard to the actions of others. Alaska’s tort reform laws already provide that kind of protection generally.
The Act also provides for some limits on the amounts that can be recovered from volunteers, where they are held liable. A volunteer may not be held liable for punitive damages unless the volunteer’s actions are proven by clear and convincing evidence to have constituted willful or criminal misconduct or a conscious, flagrant indifference to the rights or safety of the victim. There are limits on non-economic losses, as that term is defined in the Act. Those limits resemble existing provisions of Alaska’s tort reform laws.
It’s not clear whether the law will withstand constitutional challenge. If it does, it provides some useful benefits to volunteers concerned about personal liability for merely negligent acts.
Improving Volunteer Protections.
There are ways nonprofit corporations can improve the chances that their volunteers will be protected under the Federal Act:
Volunteer Work Descriptions. One of the requirements for immunity is that the volunteer be working within the scope of his assigned tasks. That will be much easier to establish if you have written work descriptions for your volunteers. See page 100.
Meet Licensing Requirements. Another requirement for immunity is that any licensing requirement be met. Work descriptions should be evaluated for any licensing requirements; for example, if the work of the volunteer can be characterized as child day care services, is there a licensure requirement? If there are permissive, rather than mandatory licensing requirements, consider whether your nonprofit corporation should require compliance by the volunteer.
Auto Insurance. There is an broad exclusion under the Act for matters involving motor vehicles. The Act provides no protection whatsoever for injuries caused by a volunteer while operating a motor vehicle. This underscores the need to be certain auto insurance is in place. See page 104.