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Volunteer
Immunity
Statutes
Merry Moiseichik, R.Ed, J.D
University of Arkansas
Jim Moss, J.D.
Recreation Law
US News and World Report
Volunteerism is at a 10 Year Low
U.S.C.A. § 14501
Volunteer Protection Act
Federal Volunteer Immunity Act
SEC. 2. FINDINGS AND PURPOSE
Volunteers are:
1. Deterred by liability
2. Programs then adversely affected
3. Thus Fewer pr...
Solution:
Increase programs by
reforming the laws to provide
volunteer protection from
liability
(42 USC 14501)
Pre-emption
Pre-empts state laws
Unless state law affords more
protection
Unless state elects non-applicability
(none did ...
Volunteer Protection Act
• Non-profit or governmental
volunteer
• Liable for harm caused by act or
omission
• Within scope...
Limitations (Sec. 4)
• Does not protect crime of
violence
• Hate crime
• Sexual offense
• Violation of civil rights
• Unde...
Exceptions
• If state limits volunteer liability
• Adhere to risk management and
trains volunteers
• Makes agency liable f...
Type of Volunteer Protection by State Statutes
Sports
Sports
Alaska
Hawaii
VPA
Insurance
Employee
More
Training
Sports
Spo...
Sample Statutes Statements
Insurance: (g) Sections 84.005 and
84.006 of this Act do not apply to any
charitable organizati...
Sample Statement
Employee: b) Liability insurance
may be provided by the
department utilizing their services
both to regul...
More Protection
(2) An action or omission of the
volunteer constitutes willful or wanton
misconduct or intentionally torti...
Training Example
Any person who provides services or assistance free of
charge, except for reimbursement of expenses, as a...
Application of the
Federal Volunteer
Protection Act
42 USCS §§ 14501 et seq.
The Wrongful Death Beneficiaries of Christopher
Elliot, Deceased, Plaintiffs v. La Quinta Corporation,
2007 U.S. Dist. LEX...
The Wrongful Death Beneficiaries of Christopher
Elliot, Deceased, Plaintiffs v. La Quinta
Corporation, 2007 U.S. Dist. LEX...
The Wrongful Death Beneficiaries of Christopher
Elliot, Deceased, Plaintiffs v. La Quinta Corporation,
2007 U.S. Dist. LEX...
The Wrongful Death Beneficiaries of Christopher
Elliot, Deceased, Plaintiffs v. La Quinta Corporation,
2007 U.S. Dist. LEX...
The Wrongful Death Beneficiaries of Christopher Elliot,
Deceased, Plaintiffs v. La Quinta Corporation, 2007 U.S
Dist. LEXI...
Stemke v. Mastrogiacomo, 2014
N.Y. Misc. LEXIS 906; 2014 NY Slip
Op 30504(U)
Lacrosse Practice
2 Players run into each oth...
Stemke v. Mastrogiacomo, 2014 N.Y. Misc.
LEXIS 906; 2014 NY Slip Op 30504(U)
Plaintiff argued volunteer coach was
working ...
Application of State
Law Volunteer
Protection Acts
Ohio
ORC Ann. 2305.38 (2014)
§ 2305.38. Civil immunity of
uncompensated volunteers of
nonprofit charitable organizations
Wagner v. McGrady, 2009-Ohio-987; 2009
Ohio App. LEXIS 798
Defendant was Volunteer for SPA (Society for
the Protection of ...
Wagner v. McGrady, 2009-Ohio-
987; 2009 Ohio App. LEXIS 798
In the present case, all of the evidence
offered at trial demo...
One of a kind case and
use of a state Volunteer
Immunity Act
Elliott v. Hurst, 307 Ark. 134; 817 S.W.2d 877; 1991
Ark. LEX...
Smith v. Kroesen, 9 F. Supp. 3d
439; 2014 U.S. Dist. LEXIS 39729
Rugby Game
Fight between players
Third play ran over and ...
Smith v. Kroesen, 9 F. Supp. 3d
439; 2014 U.S. Dist. LEXIS 39729
As noted by the New Jersey courts, the
question of the sc...
Smith v. Kroesen, 9 F. Supp. 3d
439; 2014 U.S. Dist. LEXIS 39729
Absent evidence that Cooley [the Defendant
Coach] directe...
Byrne, JR., v. Fords-Clara Barton Boys
Baseball League, Inc., 236 N.J. Super.
185; 564 A.2d 1222; 1989 N.J. Super.
LEXIS 3...
Byrne, JR., v. Fords-Clara Barton Boys
Baseball League, Inc., 236 N.J. Super.
185; 564 A.2d 1222; 1989 N.J. Super.
LEXIS 3...
Byrne, JR., v. Fords-Clara Barton Boys Baseball
League, Inc., 236 N.J. Super. 185; 564 A.2d 1222;
1989 N.J. Super. LEXIS 3...
Mooring v. Virginia
Wesleyan College, et al.
257 Va. 509; 514 S.E.2d
619; 1999 Va. LEXIS 69
Boys & Girls Club wanted help
Professor agreed to send students to help
Students had to spend 6 hours working at club
Stud...
Parties stipulated that Club was a Charity
Professor received no extra
compensation for being at B&G club
Not from the col...
Appeal to the VA Supreme Court
Professor’s presence did not directly
benefit the Club
Professor was at the Club to observe...
Summary
Ugh
If you are a Charity/Non-Profit
1.Buy Insurance
2.Educate your Volunteers
3.Have your Volunteers sign a
release
4.Educate ...
Get your State Volunteer Protection Act
1. Read it
2. Understand the Definition of a
Volunteer
3. Understand the Definitio...
http://rec-
law.us/2015-
SRLA-Vol
Documents & Presentation Can Be Found at:
Thank You
Merry Moiseichik, R.Ed, J.D
University of Arkansas
Jim Moss, J.D.
Recreation Law
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Volunteers - Sport & Recreation Law Association 2015

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Presentation on the application of state and federal volunteer immunity acts give at the 2015 Sport and Recreation Law Association
Merry L. Moiseichik co-presenter

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Volunteers - Sport & Recreation Law Association 2015

  1. 1. Volunteer Immunity Statutes Merry Moiseichik, R.Ed, J.D University of Arkansas Jim Moss, J.D. Recreation Law
  2. 2. US News and World Report Volunteerism is at a 10 Year Low
  3. 3. U.S.C.A. § 14501 Volunteer Protection Act Federal Volunteer Immunity Act
  4. 4. SEC. 2. FINDINGS AND PURPOSE Volunteers are: 1. Deterred by liability 2. Programs then adversely affected 3. Thus Fewer programs and higher cost 4. It is good for US to provide protection
  5. 5. Solution: Increase programs by reforming the laws to provide volunteer protection from liability (42 USC 14501)
  6. 6. Pre-emption Pre-empts state laws Unless state law affords more protection Unless state elects non-applicability (none did this) Unless there is diversity of jurisdiction
  7. 7. Volunteer Protection Act • Non-profit or governmental volunteer • Liable for harm caused by act or omission • Within scope of assignment • Properly licensed or certified • Ordinary negligence only • Not cause by operation of motor vehicle • Agency can still sue volunteer • No punitive damages awarded
  8. 8. Limitations (Sec. 4) • Does not protect crime of violence • Hate crime • Sexual offense • Violation of civil rights • Under the influence of alcohol or drugs • Shall be liable for non-economic loss allocated by % of fault (Sec. 5)
  9. 9. Exceptions • If state limits volunteer liability • Adhere to risk management and trains volunteers • Makes agency liable for its volunteers to same extent as employees • Makes liability inapplicable if brought by officer of the state • Agency provides source of recovery (insurance)
  10. 10. Type of Volunteer Protection by State Statutes Sports Sports Alaska Hawaii VPA Insurance Employee More Training Sports Sports sports
  11. 11. Sample Statutes Statements Insurance: (g) Sections 84.005 and 84.006 of this Act do not apply to any charitable organization that does not have liability insurance coverage in effect on any act or omission to which this chapter applies. The coverage shall apply to the acts or omissions of the organization and its employees and volunteers and be in the amount of at least $ 500,000 for each person and $ 1,000,000 for each single occurrence for death or bodily injury and $ 100,000 for each single occurrence for injury to or destruction of property.
  12. 12. Sample Statement Employee: b) Liability insurance may be provided by the department utilizing their services both to regular-service and occasional-service volunteers to the same extent as may be provided by the department to its employees. Volunteers in state service shall enjoy the protection of sovereign immunity of the State to the same extent as employees. S.C. Code Ann. § 8-25-40
  13. 13. More Protection (2) An action or omission of the volunteer constitutes willful or wanton misconduct or intentionally tortious conduct. Ohio: ORC Ann. 2305.38
  14. 14. Training Example Any person who provides services or assistance free of charge, except for reimbursement of expenses, as an athletic coach, manager, or official for a sports team which is organized or performing pursuant to a nonprofit or similar charter is immune from civil liability for any act or omission resulting in damage or injury to a player or participant if at the time of the act or omission all the following are met: c. The coach, manager, or official had participated in a safety orientation and training program established by the league or team with which the person is affiliated. N.D. Cent. Code, § 32-03-46
  15. 15. Application of the Federal Volunteer Protection Act 42 USCS §§ 14501 et seq.
  16. 16. The Wrongful Death Beneficiaries of Christopher Elliot, Deceased, Plaintiffs v. La Quinta Corporation, 2007 U.S. Dist. LEXIS 16837 Minor Basketball Team Out of State trip to Play Basketball Player drowns in hotel pool Suit against hotel & Coach Coach pleads defense of Volunteer Immunity
  17. 17. The Wrongful Death Beneficiaries of Christopher Elliot, Deceased, Plaintiffs v. La Quinta Corporation, 2007 U.S. Dist. LEXIS 16837 Issue was whether a Volunteer of an unincorporated non-profit could avail itself of the Federal Volunteer Protection Act Organization was the: Shaw Athletic Youth Association Organization was not associated with any other entity Organization was not recognized by the IRS
  18. 18. The Wrongful Death Beneficiaries of Christopher Elliot, Deceased, Plaintiffs v. La Quinta Corporation, 2007 U.S. Dist. LEXIS 16837 Court Held the Coach was protected by the act Act does not require an IRS determination that the entity to be protected is a IRC 501(c)(3)
  19. 19. The Wrongful Death Beneficiaries of Christopher Elliot, Deceased, Plaintiffs v. La Quinta Corporation, 2007 U.S. Dist. LEXIS 16837 The legislative history of the act reflects that the bill covers not only "501(c)(3) organizations, but it also covers volunteers of the organizations which do good work, but do not have a tax exemption under 501(c)(3).
  20. 20. The Wrongful Death Beneficiaries of Christopher Elliot, Deceased, Plaintiffs v. La Quinta Corporation, 2007 U.S Dist. LEXIS 16837 Given the extremely broad definition of "organization" under the Volunteer Protection Act as well as the fact that the youths traveled to Jackson together as a team to engage in recreational sport, this court finds that the group constitutes an organization for the purposes of the Volunteer Protection Act.
  21. 21. Stemke v. Mastrogiacomo, 2014 N.Y. Misc. LEXIS 906; 2014 NY Slip Op 30504(U) Lacrosse Practice 2 Players run into each other injuring the plaintiff Father sued volunteer coaches, facility, league,…..everyone
  22. 22. Stemke v. Mastrogiacomo, 2014 N.Y. Misc. LEXIS 906; 2014 NY Slip Op 30504(U) Plaintiff argued volunteer coach was working outside of his coaching responsibilities but offered no evidence of such Coach granted Summery Judgment based on the Federal Volunteer Protection Act
  23. 23. Application of State Law Volunteer Protection Acts
  24. 24. Ohio ORC Ann. 2305.38 (2014) § 2305.38. Civil immunity of uncompensated volunteers of nonprofit charitable organizations
  25. 25. Wagner v. McGrady, 2009-Ohio-987; 2009 Ohio App. LEXIS 798 Defendant was Volunteer for SPA (Society for the Protection of Animals) Volunteer found a dog at his back door Volunteer Followed rules, advertised lost dog, turned dog over to SPA Dog was adopted by third party Volunteer was sued for conversion Volunteer lost at trial
  26. 26. Wagner v. McGrady, 2009-Ohio- 987; 2009 Ohio App. LEXIS 798 In the present case, all of the evidence offered at trial demonstrates that appellant was acting in his capacity as a volunteer working for SPA, an undisputed nonprofit charitable organization. Trial Decision was reversed
  27. 27. One of a kind case and use of a state Volunteer Immunity Act Elliott v. Hurst, 307 Ark. 134; 817 S.W.2d 877; 1991 Ark. LEXIS 535
  28. 28. Smith v. Kroesen, 9 F. Supp. 3d 439; 2014 U.S. Dist. LEXIS 39729 Rugby Game Fight between players Third play ran over and kicked an opposing player in the face Injured Player/Plaintiff sued kicker and kicker’s coach Appeal of the Coaches Motion for Summary Judgment
  29. 29. Smith v. Kroesen, 9 F. Supp. 3d 439; 2014 U.S. Dist. LEXIS 39729 As noted by the New Jersey courts, the question of the scope of duty among coaches and players is intertwined with considerations of public policy. The "strong social policy to facilitate free and aggressive participation in athletic activity requires . . . leeway at least where no specific rule or statute has been violated. Otherwise courts and juries will become de facto athletic directors, second guessing actor's conduct in reviewing generalized claims of negligence."
  30. 30. Smith v. Kroesen, 9 F. Supp. 3d 439; 2014 U.S. Dist. LEXIS 39729 Absent evidence that Cooley [the Defendant Coach] directed Kroesen [the kicker] specifically, or his team in general, to inflict violence onto opposing team players as part of the game, Cooley cannot be held liable for plaintiff's injuries. Additionally, any of Cooley's alleged failings as a coach as articulated by Dr. Lucenko [Plaintiff’s Expert] cannot serve as the basis for finding proximate causation because there cannot be any definitive conclusion that even if Cooley were the perfect coach, Kroesen would not have acted as he did.
  31. 31. Byrne, JR., v. Fords-Clara Barton Boys Baseball League, Inc., 236 N.J. Super. 185; 564 A.2d 1222; 1989 N.J. Super. LEXIS 357 Plaintiff/Minor was the catcher on the baseball team He was warming up the pitcher with his gear on Except he was not wearing his catcher’s mask Ball hit him in face Incident ooccurred Day after NJ act became law
  32. 32. Byrne, JR., v. Fords-Clara Barton Boys Baseball League, Inc., 236 N.J. Super. 185; 564 A.2d 1222; 1989 N.J. Super. LEXIS 357 N.J.S.A. 2A:62A-6 Nothing in this section shall be deemed to grant immunity to any person causing damage by his willful, wanton, or grossly negligent act of commission or omission, nor to any coach, manager, or official who has not participated in a safety orientation and training program established by the league or team with which he is affiliated.
  33. 33. Byrne, JR., v. Fords-Clara Barton Boys Baseball League, Inc., 236 N.J. Super. 185; 564 A.2d 1222; 1989 N.J. Super. LEXIS 357 League had never established a training program so the plaintiff coach never took the safety training Reversed and Remanded for Trial The conclusion is, therefore, ineluctable that a volunteer coach who has not participated in a prescribed safety program, for whatever reason, is barred from reliance on the statutory immunity.
  34. 34. Mooring v. Virginia Wesleyan College, et al. 257 Va. 509; 514 S.E.2d 619; 1999 Va. LEXIS 69
  35. 35. Boys & Girls Club wanted help Professor agreed to send students to help Students had to spend 6 hours working at club Students received grade based on the work at B&G Club Professor was at club observing students Student instructed Professor to watch door Professor closed door on minor’s hand causing an amputation Mooring v. Virginia Wesleyan College, et al. 257 Va. 509; 514 S.E.2d 619; 1999 Va. LEXIS 69
  36. 36. Parties stipulated that Club was a Charity Professor received no extra compensation for being at B&G club Not from the college Not from the club Professor’s role at the Club was both supervising his students and "helping the Club perform its good work” Trial court agreed and dismissed based on Mooring v. Virginia Wesleyan College, et al. 257 Va. 509; 514 S.E.2d 619; 1999 Va. LEXIS 69
  37. 37. Appeal to the VA Supreme Court Professor’s presence did not directly benefit the Club Professor was at the Club to observe the activities of his student. He was not there to directly perform any of the Club's work; rather he was carrying out his duties as a professor at Virginia Wesleyan College Mooring v. Virginia Wesleyan College, et al. 257 Va. 509; 514 S.E.2d 619; 1999 Va. LEXIS 69
  38. 38. Summary Ugh
  39. 39. If you are a Charity/Non-Profit 1.Buy Insurance 2.Educate your Volunteers 3.Have your Volunteers sign a release 4.Educate your volunteers
  40. 40. Get your State Volunteer Protection Act 1. Read it 2. Understand the Definition of a Volunteer 3. Understand the Definition of a Charity or Non-profit 4. Understand the Duties you are required to perform as a Volunteer for that job 5. Make sure you have homeowners, condo or tenant insurance Maybe get an Umbrella Policy
  41. 41. http://rec- law.us/2015- SRLA-Vol Documents & Presentation Can Be Found at:
  42. 42. Thank You Merry Moiseichik, R.Ed, J.D University of Arkansas Jim Moss, J.D. Recreation Law

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