By Siobhan Kelley - June 4, 2014
A parent looks away from a crowded swimming pool to answer a phone call; a driver makes a split-second decision to try to make it through a yellow light with a sudden burst of speed. We recoil when we read these scenarios because we know only too well that tragedy can result.
What happens when these incidents involve volunteers for your nonprofit? Your organization might be liable for the resulting injury.
Volunteers are the lifeblood of many nonprofits. But the actions of a volunteer can also create devastating liability for the organizations in a personal injury claim. While the law provides some relief for the negligent acts of volunteers, these laws vary widely from state to state and are often misunderstood. Don’t make the mistake of assuming that your nonprofit will be exempt from liability because its purposes are charitable, or because the person responsible for the harm is a volunteer.
A nonprofit will not necessarily be able to avoid liability for the negligent acts of its volunteers simply because they aren’t being paid. A volunteer might “step into the shoes” of an employee even where there is no actual employment relationship.
In general, the most important factor will be the extent of control that the nonprofit exerted over the volunteer’s activity. The more dangerous the activity, the more important it is that the nonprofit has exercised the appropriate care. A lack of training and oversight is a common theme in these cases.
For example, a California nonprofit was found liable for the acts of its volunteer scuba diving instructor after a student drowned. Nonprofit managers knew the volunteer was not a certified scuba instructor, and the court pointed out that activities that are extra hazardous or inherently dangerous may subject the nonprofit to liability.
A patchwork of laws offers limited immunity from personal liability for the volunteers, often with special requirements or exceptions. At the federal level, the Volunteer Protection Act of 1997 (the Act) offers qualified immunity for volunteers for acts of ordinary negligence that were committed while volunteering for a qualified nonprofit or governmental organization. Under the Act, a volunteer for a qualified nonprofit generally will not be personally liable for harm caused if:
1. They acted within the scope of their responsibilities;
2. They were properly licensed or certified (if required under the circumstances);
3. The harm was not caused by negligence and not willful or reckless misconduct; and,
4. The harm was not caused by the volunteer operating a motor vehicle, vessel, aircraft, or other vehicle for which the owner or operator is required to possess an operator’s license or maintain insurance.
The Act was intended to encourage individuals to volunteer by reducing their personal liability, but will not do the same for the nonprofit.
Unfortunately, nonprofit managers often mistakenly believe that these so-called Good Samaritan laws protect the organization. Nonprofits will not be able to avoid liability under state volunteer protection laws as they only protect the volunteer from personal liability. Laws protecting nonprofit organizations, called “charitable immunity” laws, have fallen out of favor. Courts have generally agreed that individuals’ right to recover for their injuries should not be limited because the institution responsible for the harm is a charity.
In a 1981 case, the U.S. Supreme Court found a nonprofit camp liable for the injuries to a camper who was injured by a rock thrown by another camper. The court called charitable immunity an “antiquated rule,” finding that “…a charitable institution is subject to liability for its tortuous conduct the same as any other person or corporation.” Although a minority of states offer some form of charitable immunity protection it is the nonprofit, not the volunteer, who usually ends up liable for harm caused by a volunteer.
While volunteer protection or charitable immunity may provide a limited defense for certain claims, nonprofit managers still must consider the costs of defending a lawsuit. Without adequate protection, in certain cases, a nonprofit’s officers and directors could be personally responsible for a judgment against the nonprofit. One of the most important ways to protect the nonprofit is with appropriate insurance coverage, including general liability and directors and officers coverage, that names volunteers as additional insureds.
A Directors and Officers policy should not be considered a replacement for other important forms of insurance such as an automobile, property and general liability. Ask whether a policy will cover acts of volunteers and in what circumstances. For example, most polices will not cover intentional acts. Some policies will provide an attorney, and others will only reimburse the legal costs after the conclusion of the case. Make sure you understand the exclusions, and what other coverage may exist to help cover these gaps.
Of course, the most effective way to manage the risk of being sued is to reduce the risk of harm in the first place. Consider that your volunteers might expose the nonprofit to the same risks as employees, and treat them accordingly. Best practices include a comprehensive risk management program, volunteer training, informed safety procedures and a robust procedure for reporting concerns. Some insurance companies offer special discounts or programs available to help nonprofits reduce risk.
While there is no silver bullet that eliminates all volunteer risk, you can protect your nonprofit and its board members by obtaining the appropriate insurance coverage and following best risk management practices. NPT
Siobhan Kelley is a labor employment risk manager with the Nonprofits Insurance Alliance Group. She previously served as in-house counsel for a large technology corporation. Her undergraduate degree is from the University of California San Diego and her law degree is from Santa Clara University School of Law. Kelley is a member of the California State Bar.