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Concerned that volunteer efforts, such as the Points of Light Foundation, were being thwarted by individuals' fears of personal liability and difficulties in obtaining reasonably priced insurance to protect against liability, the Bush Administration, in the late 1980s, developed a comprehensive Model State Act to afford protection to volunteers working with certain nonprofit organizations and governmental entities that make use of volunteers in carrying out their official functions.2 The Preamble of the Act justifies the need to protect volunteers and explains the intent of the Act. Similar justification is echoed in many state provisions. Accordingly, it may be worthwhile to quote the Preamble at length.
The legislature finds and declares that --
(a) the willingness of volunteers to offer their services has been increasingly deterred by a perception that they put personal assets at risk in the event of tort actions seeking damages arising from their activities as volunteers;
(b) the contributions of programs, activities and services to communities is diminished and worthwhile programs, activities and services are deterred by the unwillingness of volunteers to serve either as volunteers or as officers, directors or trustees of nonprofit public and private organizations;
(c) it is in the public interest to strike a balance between the right of a person to seek redress for injury and the right of an individual to freely give of his time and energy without compensation as a volunteer in service to his community without fear of personal liability for acts undertaken in good faith absent willful or wanton conduct on the part of the volunteer; and
(d) the provisions of the within Act are intended to encourage volunteers to contribute their services for the good of their communities and at the same time provide a reasonable basis for redress of claims which may arise relating to those services.3
The entire Model State Act is reproduced in Appendix B.
Under the Model Act, any volunteer is immune from civil liability in any action on the basis of any act or omission of the volunteer that results in damage or injury if: the volunteer was acting in good faith and within the scope of the volunteer's official functions and duties for a nonprofit organization, nonprofit corporation, hospital, or government entity; and the damage or injury was not caused by wilful or wanton misconduct of the volunteer.4 The Model Act contains a major exception to the immunity granted, in allowing a plaintiff to sue and recover civil damages from a volunteer on the basis of a negligent act or omission involving the operation of a motor vehicle during a volunteer activity. However, the amount that may be recovered can not exceed the limits of any applicable insurance coverage maintained by or on behalf of the volunteer.5
The Model Act is intended to have broad applicability. Thus the term volunteer is defined to include a wide range of uncompensated volunteers. Specifically, "volunteer" under the Model Act means: a person performing services for a nonprofit organization, a nonprofit corporation, a hospital, or a government entity without compensation, other than reimbursement for actual expenses incurred, and includes a volunteer serving as a director, officer, trustee, or direct service volunteer. Other pertinent terms have the following meanings:
(1) Nonprofit organization means any organization exempt from taxation pursuant to Section 501(c) of the Internal Revenue Code, 26 U.S.C. Section 501(c), as amended.
(2) Nonprofit corporation means any corporation exempt from taxation pursuant to Section 501(a) of the Internal Revenue Code, 26 U.S.C. Section 501(a), as amended.
(3) Government entity means any county, municipality, township, school district, chartered unit, or subdivision, governmental unit, other special district, similar entity, or any association, authority, board, commission, division, office, officer, task force, or other agency of any state.6
Despite its extensive applicability to individual volunteers, the Model Act does not shield the organization itself from liability for the negligent act or omission of its volunteer. Moreover, the Act specifies that, under the legal doctrine of respondeat superior, proof of the act or omission by the volunteer will be sufficient to establish the responsibility of the organization served by the volunteer.7
The final section of the Model Act offers two alternatives for an effective date. The first alternative provides that the Act shall be effective as to any civil suit commenced on or after 180 days from the date of enactment, regardless of whether the claim arose prior to its effective date. The second alternative would make the Act apply only to those claims accruing on or after 180 days from enactment.8
The Commentary that accompanies the Model Act notes that the intent is to "protect volunteers from civil liability in all instances in which they are acting pursuant to their voluntary undertaking in good faith regardless of whether their activity was negligent or amounts to 'gross negligence' or might be the basis for a strict liability claim."9 The Commentary also clarifies that, although entities are not immune from liability to the extent that state law otherwise permits suit against them, it is not the intent of the Act to subject entities to liability where liability would not otherwise exist.10 Finally, the Commentary explains the rationale behind the exception concerning motor vehicles, asserting that, because volunteers maintain automobile insurance policies based upon their own needs, the cost of such insurance "is not materially affected by the possibility that there might be claims arising from volunteer activities that are covered under these policies."11
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