THE VOLUNTEER PROTECTION ACT OF 1997

Alissa Pyrich, Esq.

The Scope of the Act
        First, and most importantly, the Act does appear to apply to the Society.  For the purposes of the Act, a “non-profit organization” is any organization allowed tax-exempt status as a non-profit, as well as any organization organized primarily for educational activities.2   So long as the Society retains its tax-exempt status as a non-profit educational organization, it should continue to fall under the protection of the Act.
        Likewise, most officers and legal representatives of the Society probably fall under the definition of “volunteer” spelled out in the Act.  A volunteer is a person who provides services to a non-profit organization but does not receive compensation or any thing of value in excess of $500.00 per year for his or her services.3   A person may receive reimbursement of his or her expenses and still be protected as a volunteer by the Act.4   For Kingdoms that reimburse officers for their expenses based on the submission or receipts or invoices, there should be no problem showing that Kingdom Officers are “volunteers” under the Act.  Kingdoms that provide their officers with a regular, fixed stipend may want to make further inquiries and re-evaluate their policies.
        Within the structure of the Society, a wide variety of people and positions may be considered “volunteers” within the meaning of the Act.  Marshals are one obvious example of volunteers who provide services without compensation.  They are also among the people most likely to encounter a situation involving injuries or other problems.  Likewise, chiurgens, autocrats, cooks and exchequers are other clear examples of volunteers who would be protected by the Act.

Immunity from Personal Liability
        The Act states that a volunteer for a non-profit or charitable organization may not be held personally liable for harm caused in the course of his or her work for the organization if certain criteria are met.  If all of these criteria are not present, then the volunteer could be held personally liable.
        First, the volunteer must have been acting within the scope of his or her responsibilities for the organization at the time the harm took place.5   For example, a marshal enforcing the rules of the lists would be acting within the scope of his or her responsibilities for the organization.
        Second, the volunteer must be properly licensed, authorized, certified or warranted to do the thing that he or she was doing at the time the harm took place.   This criteria applies only if a license, authorization, certification or warrant is required in order to undertake the activity.  For example, a person acting as a marshal will have to show that he or she was properly warranted as a marshal in order to enjoy the benefits of the Act. In addition, professionals providing their services to the Society should be properly licensed and in good standing in their respective professions. However, a person cooking a feast may not need to show that he or she is licensed or certified, unless the particular State or municipality requires it.
        Third, the volunteer must show that the harm in question was not caused by his or her willful or criminal misconduct, gross negligence, reckless misconduct or a conscious, flagrant indifference to the rights or safety of others.7   These terms are all legal terms with specific meanings that can vary slightly from state to state.  But, in general, merely being careless or inattentive is not willful, gross or reckless -- to rise to that level, the volunteer usually must know that the thing he or she is doing is wrong or against the rules, and do it anyway.
        For example, knowing violating or allowing violations of the rules of the lists might be reckless or willful.  Certainly, such violations would be used as evidence of recklessness or willfulness.  Marshals who know that armor is not up to standard but pass the armor anyway should be particularly concerned -- their conduct might be considered reckless of willful indifference to the safety of the person they are inspecting.  These examples are purely hypothetical  -- the outcome of any individual case depends on the specific facts and circumstances involved.
        The final requirement is that the harm in question not have been caused by the volunteer’s operation of a motor vehicle or other vessel for which an operating license is required.8   This requirement is probably not as important for the Society’s purposes as the other three requirements.
        There are a number of exceptions to the general immunity afforded by the Act9.   A volunteer may still be held personally liable for harm he or she causes in the following situations:
(1)     If he or she commits a crime of violence or an act of international terrorism.
(2)     If he or she commits a hate crime.
(3)     If he or she commits and is convicted for a sexual offense
(4)     If he or she violates a federal or state civil rights law
(5)     If he or she was under the influence of alcohol or an intoxicating drug at the time he or she committed the acts complained of.
Each of these exceptions is defined by reference either to the applicable state criminal laws or to specific federal laws.

Limitations on Damages
        In addition to dealing with issues of liability, the Act also limits the kinds and amounts of damages that can be awarded against a volunteer who is being sued for activities on behalf of a non-profit or charitable organization.  The first limitation on damages relates to punitive damages.
        Punitive damages are damages that are not related to the actual losses, injuries or harmed suffered by a person.  They are generally assessed based on the how bad the defendant’s conduct was.  Punitive damages are intended to punish a wrongdoer for exceptionally bad conduct, not to compensate anyone for losses.  The Act states that punitive damages may not be awarded against a volunteer who has been acting within the scope of his or her duties unless certain criteria are proven at trial by clear and convincing evidence.10   Specifically, in order to obtain punitive damages, the plaintiff must prove that the volunteer’s actions rose to the level of willful or criminal misconduct, or exhibited a conscious, flagrant indifference to the rights or safety of others.  Based on this standard, merely being careless could not result in an award of punitive damages, even if the volunteer were somehow held personally liable for his or her carelessness.
        Another section of the Act limits a volunteer’s liability for damages for non-economic losses.  Non-economic losses include claims for pain and suffering, emotional distress and other non-tangible losses.11   A volunteer may be held personally liable for such losses only to the extent that he or she is responsible for the overall harm alleged.12   The judge or jury in a case will determine the percentage responsibility of each person whose actions contributed to the injuries claimed (with a total of 100%).
        For example, in a case arising out of an injury on the list field, the plaintiff might be found 45% responsible for causing the accident, the opponent found 45% responsible for causing the accident and the marshal only 10% responsible.  Under the Act, the marshal would then be obligated to pay only 10% of any non-economic losses (pain and suffering, etc.) proven by the plaintiff.

What the Act Does Not Cover
        There are several things that the Act does not do.  Importantly, the Act does not prevent non-profit organizations from suing their volunteers for misconduct.   Thus, the Society could still conceivably sue one of its officers or legal representatives for misconduct.13
        In addition, the Act does not protect the organization itself from liability for harms suffered in the course of its activities.14   As a result, a person injured in the course of the Society’s martial activities could still sue the Society as an organization based on the alleged misconduct or negligence of the marshals.  Because they are legal representatives of the organization, the Society is responsible for the acts of its marshals, even if the marshals themselves might be immune to personal liability.
        The Act does not prevent individuals acting as volunteers from being sued or being named in a lawsuit.  Instead, the Act provides an affirmative defense to liability, which the lawyers for the volunteer would be raise in the course of the case.  Since issues of immunity to suit are usually raised at a fairly early stage in any lawsuit, a volunteer with good lawyers probably would not remain in such a lawsuit for very long.
        The Act also does not eliminate all the laws of the individual States relating to the liability of volunteers.  Instead, the Act is sets a floor for the protection that is to be afforded volunteers.  States may create additional protections, but may not mandate less protection or pass other inconsistent laws.15   State laws16 that are considered consistent with the Act will remain in force.
        In addition, individual States are expressly permitted to pass legislation stating that the Act does not apply in that State.17   Such legislation would apply only if all of the parties in a lawsuit were citizens of the same State.   Whether individual States will take advantage of the leeway provided by this portion of the Act remains to be seen.
        Finally, one important thing to keep in mind when reading the Act is that there are several areas which Congress left unclear.  These areas will have to be fleshed out, either by the individual States or by cases interpreting the Act.  At this point, there are not yet any reported court decisions interpreting the Act.  I would not expect to see such a decision for at least another year.  Until some of these ambiguities are resolved, it is impossible to predict with certainty how the Act would be applied in any given situation.
 
Conclusion
        The Act is not a perfect or a comprehensive statute.  However, it is an important step in standardizing the protection afforded to volunteers throughout the country.  It should provide some measure of comfort to those who volunteer their services to organizations such as the Society.  Reducing the possibility of personal liability for volunteers should make people more willing to contribute their time and energy, and re-direct existing resources to more productive efforts than worrying about potential lawsuits.

     1. 42 U.S.C. § 14501 et seq.
      2.  42 U.S.C. § 14505(4).
      3.  42 U.S.C. § 14505(6).
     4. 42 U.S.C. § 14505(6)(A).
    5.  42 U.S.C. § 14503(a)(1).
      6.  42 U.S.C. § 14503(a)(2).
      7.  42 U.S.C. § 14503(a)(3).
      8.  42 U.S.C. § 14502(a)(4).
      9.  42 U.S.C. § 14503(f).
     10.  42 U.S.C. § 14503(e).
     11. 42 U.S.C. § 14505(3).
     12.  42 U.S.C. § 14504(b).
     13.  42 U.S.C. § 14503(b).
     14.  42 U.S.C. § 14503(c).
     15.  42 U.S.C. § 14502(a).
      16.  Congress specifically defined certain kinds of statutes that it considers to be consistent with the provisions and purposes of the Act.  These kinds of statutes include State laws requiring non-profit organizations to adhere to risk management procedures, State laws requiring training of volunteers, and State laws making organizations liable for the actions of their legal representatives.
17. 42 U.S.C.§ 14503(d).
18. 42 U.S.C. § 14502(b).
 
    Alissa Pyrich, Esq. is a litigation associate in the firm of Reed Smith Shaw & McClay LLP, specializing in complex commercial litigation and product liability defense litigation.  Ms. Pyrich obtained her J.D. cum laude from Harvard Law School in 1992 and a B.A. in Political Science and French Literature summa cum laude from Fordham University in 1989.  Ms. Pyrich is known in the Society as Ailis Catriona Mac an Toisich (CGR, CSC).  She has served as East Kingdom Marshal of ‘Fence and has provided legal advice to the East Kingdom Seneschal on various topics.
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