2000
<PRE>[DOCID: f:s543enr.txt]
        S.543

                       One Hundred Fifth Congress

                                 of the

                        United States of America


                          AT THE FIRST SESSION

          Begun and held at the City of Washington on Tuesday,
 the seventh day of January, one thousand nine hundred and ninety-seven


                                 An Act


 
 To provide certain protections to volunteers, nonprofit organizations, 
    and governmental entities in lawsuits based on the activities of 
                               volunteers.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

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 enti
1ca7
ty 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.

                               Speaker of the House of Representatives.

                            Vice President of the United States and    
                                               President of the Senate.

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