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Most states have adopted some type of volunteer protection law[* For convenience, the term "state" will be used, although the discussion will include the fifty states and the District of Columbia.]. However, the diversity among the state statutes is extensive. No state has adopted the language of the Model Act in its entirety, and even those states that have patterned their statute after it, have modified the language with peculiarities and nuances that reflect their own experiences. One authority has observed that this diversity "reflects varying conclusions of state legislatures that weighted the competing equities inherent in volunteer protection. Reasonable people can differ over the choice of protecting a volunteer from personal liability or providing compensation to the innocent victim of the volunteer's negligence."12
Comparison of state volunteer protection laws is further complicated by confusion over the scope of volunteers, entities, and acts encompassed under these laws. For example, under most states, but not all, only uncompensated volunteers are protected. However, determining who is an uncompensated volunteer is often problematic. Even the meaning of compensation varies from state to state. The term "compensation" generally excludes reimbursement or payment of actual expenses incurred. In addition, however, several states also exclude payment of a per diem, gifts up to a certain value, or an honorarium. The term "volunteer" in a number of jurisdictions includes directors, officers and sometimes trustees of nonprofit organizations, as well as direct service providers. In other jurisdictions, officers and directors are specifically excluded, although they may be addressed elsewhere. In about one-third of the states, the protection granted is limited to directors, officers and sometimes trustees of an entity, and volunteers in general are afforded no special protection.
Furthermore, in many instances, the type of volunteer protected is determined by the type of entity for which the volunteer provides services. The types of entities embraced under these laws cover the whole gamut of the spectrum. For example, jurisdictions may define applicable entities according to any one or more of the following criteria: nonprofit organizations exempt from federal and or state taxation; nonprofit organizations or corporations organized under state law and doing business within the state; nonprofit entities that provide a specified type of service or promote a specified interest. Some laws specify peculiar exceptions to the generally accepted notion of a nonprofit organization in order to meet a particular need. Finally, in addition to nonprofit organizations, volunteers of hospitals and governmental entities are sometimes included in the scope of protection. Accordingly, the actual scope of coverage under these laws may vary tremendously from state to state.
Adding to the difficulty in determining the exact scope of coverage is the fact that in some states the protection granted is fragmented; that is, parts of it are found in different sections of a state's statutes. As a result of this fragmentation, the wording of the various provisions of the same state's law is often different, especially with respect to definitions, and sometimes conflicting. In the usual case, fragmentation has occurred because the separate provisions deal with different types of volunteers. The most common of these are provisions that afford separate protection to directors and officers of certain types of organizations. Because of the piecemeal fashion in which legislation so often is enacted, even some jurisdictions that include officers and directors in their protection of general volunteers have these separate provisions. In addition, a number of states have specific laws protecting volunteers involved in various sports activities. Some states include other activities under these sports volunteer provisions, such as sailing or safety programs or activities for young people in these provisions; and a few states limit protection in such instances to activities involving children under a certain age. Finally, some states afford protection to a limited segment of volunteers in narrowly drawn circumstances.13
In addition, there are varying situations under each state's statute in which the immunity granted does not apply. For example, the grant of immunity, in some states, is conditioned on the individual volunteer or the entity for whom the volunteer is providing services having liability insurance applicable to damages being claimed. Moreover, the exceptions are not always uniform for states that have fragmented immunity provisions.
The most commonly stated exception to immunity is for conduct that is willful and wanton. Many jurisdictions also exclude other categories of conduct, such as conduct that is grossly negligent, reckless, malicious, in bad faith, fraudulent, or intentionally tortious or that is a knowing violation of law. A few even included ordinary negligence, which arguable negates the protection afforded. A number of jurisdictions also exclude from immunity acts or omissions involving the operation of a motor vehicle. Some employ terms other than "motor vehicle" or specify other types of vehicles used for transport, such as boats, trains or airplanes. Some of the jurisdictions providing for such exclusion, limit damages to the amount of applicable insurance.
Furthermore, it has been pointed out that, in addition to the expressed exceptions, there are gaps in protection that have resulted from "ambiguity in much of the legislation passed hastily at the height of the insurance crunch. Some of these laws are confusingly worded, exceptionally complicated, designed for profit-making corporations, or otherwise problematic. Even the very best laws require careful analysis to determine which volunteers they cover and what exceptions they contain."14
Additionally, all jurisdictions exclude acts or omissions occurring prior to the effective date of the protection law. Some states specify that actions brought by the state attorney general or another state officer are excluded from protection. Finally, it should be noted that, even if not specified, federal claims, such as civil rights or employment violations, are not protected.
Many jurisdictions also include specific caveats in their statute. The most common one is a clarification that protection does not extend to the entity served by the volunteer whose acts or omissions are the subject of the suit. However, most do not include the Model Act language that extends the doctrine of respondent superior to the entity/volunteer relationship. Only Arizona exempts a nonprofit entity from liability, although several jurisdictions provide for a monetary cap on liability. In a few jurisdictions, the cap is available only if the entity maintains general liability insurance in an amount that, at minimum, exceeds the statutory cap on liability. Also many state provisions include statements to the effect that they create no new causes of action or substantive legal rights and do not affect any immunities from civil liability or defenses established by any other provision of state law or available at common law.
The remainder of this chapter discusses in more detail each state's principal provisions dealing with volunteer protection. The chapter is divided into three major parts. The first part includes those states that afford protection to the broadest scope of volunteers. The second part includes states that limit protection to a more narrow group of volunteers. For the most part, these states focus protection on officers, directors or trustees of nonprofit organizations or other entities. The third briefly touches on additional immunity provisions for volunteers in some states, which are tailored to very narrowly drawn situations.
PART I: STATES PROTECTING THE BROADEST SCOPE OF VOLUNTEERS
Alabama
In 1991, the Alabama legislature enacted the "Volunteer Service Act,"15 with the intent 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" that might arise in connection with those services.16 The Alabama Act follows the Model Act, using identical language, with one major difference. It does not contain the Model Act's exception to immunity for negligent acts or omissions involving the operation of a motor vehicle. Thus it offers greater protection for a volunteer than the Model Act.17
Although the Alabama Volunteer Service Act, like the Model Act, includes officers, directors and trustees under the definition of volunteers,18 such individuals also are covered under a 1987 Alabama law. This law provides that certain uncompensated "officers"19 are immune from suit and not subject to civil liability arising from the conduct of the affairs of the qualified entity.20 However, for purposes of this statute, compensation does not include a per diem amount of not more than $300 per day and actual, reasonable and necessary expenses.21 Immunity does not apply if the act or omission of the officer amounts to willful or wanton misconduct, fraud or gross negligence.22 Also excluded is any claim or action brought against an officer for any personal injury to or death of another person or property damage arising out of an accident inflicted by that officer while acting within the line and scope of the officer's duties.23
Furthermore, the immunity does not, except as otherwise may be provided by law, extend to the qualified entity itself, a for- profit subsidiary of the qualified entity, or the officers of the subsidiary.24 A "qualified entity" under this statute includes: any not-for-profit corporation, association, or organization satisfying the criteria of Internal Revenue Code §501(c) or organized under one of several Alabama Code provisions; and certain state, county or municipal boards, authorities or commissions.25
Arizona
As with Alabama, Arizona's law with respect to volunteers is similar in some respects and different in others from the Model Act. It provides that a volunteer is immune from civil liability in any action based upon an act or omission of a volunteer resulting in damage or injury if: the volunteer acted in good faith and within the scope of the volunteer's official functions and duties for a nonprofit corporation or nonprofit organization, hospital or government entity. The definitions of "volunteer,"26 "nonprofit corporation"27 and "nonprofit organization,"28 are identical to the Model Act. The definition of "government entity"29 is nearly identical except that it excludes the reference to "township" found in the Model Act. The term "hospital" is not defined in the Model Act. For purposes of the Arizona statute, it means a health care facility, regardless of whether for profit, that provides "medical services, nursing services, health screening services, or other health-related services or supervisory care services."30
The exceptions to immunity under the Arizona law are broader than the Model Act, and include "grossly negligent" as well as willful and wanton misconduct by the volunteer.31 With respect to civil liability arising from the operation of a motor vehicle, the Arizona law does not exempt an individual from immunity like the Model Act. Instead, it has a unique provision which states that if the operator of a motor vehicle is acting as a volunteer for a nonprofit corporation or nonprofit organization, the coverage of any motor vehicle insurance policy32 applicable to the operator will extend to the corporation or organization.33
The most significant difference between the Arizona law and the Model Act, however, is that immunity is granted to the entity itself. Under this provision, nonprofit organizations or nonprofit corporations34 or governmental entities are immune from civil liability in any action based upon an act or omission of a volunteer resulting in damage or injury if: the volunteer acted in good faith and within the scope of the volunteer's official functions and duties for a nonprofit corporation or nonprofit organization or governmental entity; and the damage or injury was not caused by wilful, wanton or grossly negligent misconduct by the volunteer. However, the immunity provided to an entity does not extend to any liability arising out of the use of a motor vehicle by a volunteer acting within the scope of the volunteer's official duties.35 In enacting this provision, the Arizona legislature repealed Model Act language that had provided that, in any suit against an entity for damages based upon the negligent act or omission of a volunteer, proof that the act or omission was within the scope of the volunteer's official functions and duties is sufficient to establish the vicarious liability, if any, of the entity.36
Arizona law also provides immunity from civil liability for a director or member of a board or council serving in an advisory capacity to a nonprofit corporation or its board of directors for any act or omission resulting in damage or injury if the person was acting in good faith and within the scope of the person's official capacity, unless the damage or injury was caused by the person's wilful and wanton or grossly negligent conduct.37 Official capacity is defined as "any decision, act or event undertaken by the nonprofit corporation in furtherance of the purpose or purposes for which such organization is organized."38
Arkansas
The Arkansas Volunteer Immunity Act offers another variation of limited liability for volunteers. The Act exempts a "qualified volunteer" from liability for damages for personal injury or property damage sustained by a participant in or a recipient, consumer, or user of the services or benefits of a volunteer by reason of any act or omission of a qualified volunteer in connection with the volunteer.39 This immunity does not apply where the qualified volunteer:
(1) Is covered by an insurance policy, in which case liability for ordinary negligence is limited to the amount of the coverage provided;
(2) Acts in bad faith or is guilty of gross negligence;
(3) Operates negligently a motor vehicle, aircraft, boat, or other powered mode of conveyance (however, liability for ordinary negligence is limited to the amount of coverage of any applicable insurance); or
(4) Performs negligently professional services which the qualified volunteer is licensed under state law to perform.40
A qualified volunteer also is not vicariously liable for the negligence of another person in connection with or as a consequence of volunteer activities.41 However, like the Model Act, a volunteer entity is not immune from civil liability for the actions of its volunteers.42
The definition of terms in the Arkansas Act differ substantially from the Model Act:
(1) "Qualified volunteer" is defined as "any person who, of free will, provides goods or services without financial compensation to or through any volunteer agency in connection with a volunteer program."43
(2) "Volunteer agency" means "any volunteer program of all departments, institutions, and divisions of state government, community volunteer organization, or any not-for-profit corporation which has received a 501(c)(3) designation from the Internal Revenue Service, other than one established principally for the recreational benefit of its stockholders or members."44
(3) "Volunteer activity:" means "any activity within the scope of any project, program, effort, or other regular activity sponsored by a volunteer agency with the intent to effect a charitable purpose or confer other public benefit, including, but not limited to, enhancement of the cultural, civic, religious, educational, scientific, or economic resources of the community."45
Like most other states, Arkansas law also contains specific protection for a certain class of officers and directors. Immunity from personal liability is granted to any member of any board, commission, agency, authority, or other governing body of any governmental entity or to any member of the board of directors of a nonprofit corporation that holds a valid federal income tax exemption issued by the Internal Revenue Service for damages resulting from any negligent act or omission of: an employee of the nonprofit corporation or governmental entity; or another director of the nonprofit corporation or member of the governing body of the governmental entity.46 Excluded from this grant of immunity are: acts or omissions constituting ordinary or gross negligence personal to the director or member; intentional torts committed by a director or member; and acts or omissions of directors of nonprofit corporations licensed or permitted by the Arkansas Alcoholic Beverage Control to dispense alcoholic beverages, beer or wine.47 There is, however, no limitation on the liability of any nonprofit corporation for damage resulting from negligent acts or omissions of an employee of the corporation.48 Moreover, if a nonprofit corporation attempts to transfer assets to avoid claims against those assets, the immunity does not apply and any director to whom assets are transferred or any director of a corporation from which assets are transferred may be held personally liable.49
Arkansas is one of a number of states that has a law dealing specifically with sports related volunteers. Under this provision, no athletic official, during the officiating of an interscholastic, intercollegiate, or any other amateur athletic contest being conducted under the auspices of a nonprofit or governmental entity, shall be held personally liable in any civil action for damages to a player, participant, or spectator as a result of acts of commission or omission arising out to the officiating duties and activities. Malicious, willful, wanton, or grossly negligent acts are excluded.50
Colorado
Colorado adopted its Volunteer Service Act in 1992. The law is similar to the Model Act, except that governmental entities are not included and the term "volunteer" is defined to specifically exclude any volunteer serving as a director, officer or trustee.51 The Act provides that any volunteer shall be immune from civil liability in any action on the basis of any act or omission of a volunteer resulting 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, a nonprofit corporation or a hospital; and the damage or injury was not caused by willful or wanton misconduct by the volunteer.52 As with the Model Act, acts or omissions involving the operation of a motor vehicle are not protected; provided that the amount recovered from the volunteer is limited to the amount of applicable insurance coverage maintained by or on behalf of the volunteer.53 The Act is also similar to the Model Act in specifying that the immunity granted to volunteers does not shield the entity itself from liability for the negligence of a volunteer.54
The definitions of nonprofit corporations and nonprofit organizations differ somewhat from the Model Act by including nonprofit corporations and nonprofit organizations that are listed as exempt organizations under sections 501(a) and 501(c) respectively of the Internal Revenue Code and including as a nonprofit organization home owners associations satisfying the criteria section 528 of the Internal Revenue Code.55
Unlike the Model Act, directors, officers and trustees of nonprofit organizations and nonprofit corporations are not included under the Volunteer Service Act. They are, however, protected by two other provisions of law. The first provides that uncompensated56 directors, officers and trustees of nonprofit organizations and nonprofit corporations shall be immune from civil liability for any act or omission that results in damage or injury if the person was acting within the scope of the person's official functions and duties as a director, officer or trustee and the act or omission was not willful or wanton.57 Excluded is any act or omission resulting from the operation of any motor vehicle, airplane, or boat.58
In addition to the foregoing, a second provision grants immunity to the members of boards of directors of nonprofit corporations or nonprofit organizations for actions taken or omissions made in the performance of duties as a board member, except for wanton and willful acts or omissions.59
Finally, Colorado has a unique provision dealing with volunteers assisting organizations for "young persons". This statute provides, in pertinent part, that:
No person who performs a service or an act of assistance, without compensation or expectation of compensation as a leader, assistant, teacher, coach, or trainer for any program, organization, association, service, group, educational, social, or recreational group, or nonprofit corporation serving young persons or providing sporting programs or activities for young persons shall be held liable for actions taken or omissions made in the performance of duties, except for wanton and wilful acts or omissions; except that such immunity from liability shall not extend to protect such persons from liability for acts or omissions which harm third persons.60
Delaware
Delaware's law with respect to volunteers is patterned after the Model Act, but with some differences. It provides that no volunteer of an organization shall be subject to suit directly, derivately or by way of contribution for any civil damages under state law resulting from any negligent act or omission performed during or in connection with an activity of the organization.61 Excluded is any act or omission constituting willful and wanton or grossly negligent conduct.62 As with the Model Act, the protection granted to volunteers is not extended to the entity. The law provides that in any suit against an organization for civil damages based upon the act or omission of a volunteer, proof of the act or omission is sufficient to establish the liability of the organization under the doctrine of respondeat superior.63
The definitional language of Delaware's statute is markedly different from the Model Act:
(1) "Volunteer" is defined as "any trustee, ex officio trustee, director, officer, agent or worker who is engaged in an activity without compensation."64
(2) Activity" is defined as "any decision, act or event undertaken by an organization in furtherance of the purpose or purposes for which such organization was organized and exempted from federal income tax, and in the case of a government entity ... , in furtherance of the exercise of any governmental function."65
(3) "Organization" includes: any nonprofit organization exempt from section 501(c) of the Internal Revenue Code; and any governmental entity, including the United States, the State of Delaware, and any board, commission, division, office, task force or other agency of the State, or the United States.66
Delaware also has a unique law protecting volunteers involved in nonprofit sports activities by providing a cap on damages linked to insurance coverage. Specifically, the law provides that neither any person sponsoring or operating a nonprofit sports program nor any person rendering services without compensation as a member of the qualified staff of a nonprofit sports program shall be liable for civil damages resulting from any negligent act or omission of the qualified staff member to the extent that damages exceed either: the existing liability insurance coverage applicable to the act or omission; or the minimum liability insurance coverage required by law if no applicable coverage exists.67 Excluded are reckless acts or omissions and grossly negligent acts or omissions.68
The term "member of the qualified staff" means any person who: is, or is an assistant to, a manager, coach, umpire or referee; prepares any playing field for any practice session or any formal game; or is an officer or ride leader of a formally organized bicycle club.69 "Nonprofit sports program" means any program, regardless of whether registered with or recognized by the State or any of its political subdivisions:
(1) That is a competitive sport, formally recognized as a sport (on the date the cause of action arises) by the Amateur Athletic Union or the National Collegiate Athletic Association, or is a formally organized noncompetitive recreational bicycle club, regardless of whether recognized by the Amateur Athletic Union or the National Collegiate Athletic Association;
(2) That is organized for recreational purposes and whose activities are substantially for such purposes; and
(3) No part of whose earnings inures to the benefit of any private person.70
Finally, volunteers may have some protection under Delaware's sovereign immunity provisions, which define "employee" as any person acting on behalf of a governmental entity in any official capacity, whether permanent or temporary, and whether with or without compensation, including elected or appointed officials, volunteer firefighters, and members of rescue squads that receive financial support from the state or a political subdivision, but excludes independent contractors.71 Such individuals are immune from suit on tort claims seeking recovery of damages, except that an "employee" may be personally liable for acts or omissions not within the scope of employment or performed with wanton or willful and malicious intent.72
District of Columbia
The District of Columbia provides limited protection for volunteers under the District of Columbia Nonprofit Corporation Amendment Act of 1992.73 The Act exempts from civil liability a volunteer of a nonprofit corporation that either: maintains liability insurance with a limit of coverage of not less than $200,000 per individual claim and $500,000 per total claims that arise from the same occurrence; or has annual total functional expenses, exclusive of grants and allocations, of less than $100,000, and is exempt from federal taxation under section 501(c)(3) of the Internal Revenue Code of the United States."74 The exception does not apply to situations where the injury or damage is the result of:
(1) Willful misconduct;
(2) A crime, unless the volunteer had reasonable cause to believe that the act was lawful;
(3) A transaction resulting in an improper personal benefit of money, property, or service to the volunteer;
(4) An act or omission occurring prior to the Act's effective date; or
(5) An act or omission not in good faith and beyond the scope of the lawful authority of the corporation.75
Furthermore, although the corporation itself is not exempt from liability for the conduct of its volunteers, the liability of a corporation is limited under the Act to the amount of the applicable insurance coverage the corporation maintains.76 The term "volunteer" is defined broadly, as in the Model Act, to mean an officer, director, trustee or other person who performs services for the corporation without compensation, other than reimbursement.77
In addition to the protection given to volunteers, the Act also amended a related provision of the D.C. Code to impose a cap on the liability of employees of a nonprofit corporation. Employees are exempt from personal liability for damages for any acts or omissions in providing services or performing duties on behalf of the corporation "in an amount greater than the amount of total compensation, other than reimbursement of expenses, received from the corporation for performing those services or duties during the 12 months immediately preceding the act or omission for which liability was imposed."78 An "employee" is defined as "a person regularly employed to perform a service for a salary or wages."79 This limitation on liability does not apply to "any licensed professional employee operating in his or her professional capacity."80
As with the protection for volunteers, excepted from the limitation on liability are situations in which the injury or damage is the result of:
(1) Willful misconduct;
(2) A crime, unless the volunteer or employee had reasonable cause to believe that the act was lawful;
(3) A transaction resulting in an improper personal benefit of money, property or service to the volunteer or employee;
(4) An act or omission occurring prior March 17, 1993; or
(5) An act or omission not in good faith and beyond the scope of the lawful authority of the corporation.81
The liability of the corporation under this section also is limited to the amount of the applicable insurance coverage it maintains.82
Florida
Florida law provides protection to volunteers generally, but imposes a reasonably prudent person standard. The Florida Volunteer Protection Act states, in pertinent part, that:
Any person who volunteers to perform any service for any nonprofit organization, including an officer or director of such organization, without compensation, except reimbursement for actual expenses, shall be considered an agent of such nonprofit organization when acting within the scope of any official duties performed under such volunteer services. Such person shall incur no civil liability for any act or omission by such person which results in personal injury or property damage if:
(a) Such person was acting in good faith within the scope of official duties performed under such volunteer services and such person was acting as an ordinary reasonably prudent person would have acted under the same or similar circumstances; and
(b) The injury or damage was not caused by any wanton or willful misconduct on the part of such person in the performance of such duties."83
Under the Act, nonprofit organization means any organization exempt from taxation pursuant to 26 U.S.C. §501, or any federal, state, or local governmental entity.84 Similar to the Model Act, this liability limitation for volunteers has no effect upon the liability of the nonprofit organization for which the volunteer was performing services.85
In addition to this Act, Florida law protects an officer or director of a nonprofit organization recognized under §501(c)(3), (4), or (6) of the Internal Revenue Code of 1986, as amended, or an agricultural or horticultural organization recognized under §501(c)(5) of the Internal Revenue Code.86 An officer or director is not personally liable for monetary damages to any person for any statement, vote, decision, or failure to take an action regarding organizational management or policy by an officer or director, unless the person breached or failed to perform duties as an officer or director and the breach of or failure to perform the duties constitutes either:
(1) A violation of law, unless the officer or director had reasonable cause to believe the conduct was lawful or had no reasonable cause to believe it was unlawful;
(2) A transaction from which the officer or director derived an improper personal benefit, either directly or indirectly; or
(3) Recklessness or an act or omission committed in bad faith or "with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property."87
Georgia
The scope of immunity granted to volunteers under Georgia law is quite broad. The law extends to persons "serving with or without compensation as a member, director, or trustee, or as an officer of the board without compensation, of any nonprofit hospital or association or of any nonprofit, charitable, or eleemosynary institution or organization or of any local governmental agency, board, authority, or entity ...."88 Immunity is granted from civil liability for any act or omission arising out of the person's service; provided that the person was acting in good faith within the scope of the person's official actions and duties and the damage or injury was not caused by the person's willful or wanton misconduct.89 Unlike the Model Act, there are no other limitations on the immunity granted.
Georgia also provides considerable protection for those volunteers involved in sports or safety programs. The law shields any volunteer for a sports program or safety program of a nonprofit association or any employee or officer of such association conducting or sponsoring such program from liability to any person as a result of any act or omission in rendering services or conducting or sponsoring such program if the person was acting in good faith within the scope of assigned duties. Conduct that amounts to willful and wanton misconduct or gross negligence is excluded from this immunity.90 Furthermore, the defense of immunity is waived as to actions for which liability insurance protection has been provided, but only to the extent of the available liability insurance.91 The law makes explicit that the immunity provision is not to be construed as affecting or modifying the liability of any person or entity for acts or omissions relating to the:
(1) Transportation of participants in a sports program or safety program to or from a game, training session, event or practice; or
(2) Care and maintenance of real estate unrelated to the practice, training or playing areas owned, possessed or controlled by such person or entity.92
For purposes of this provision, a nonprofit association is broadly defined to mean "any entity which is organized as a nonprofit corporation or a nonprofit unincorporated association under the laws of this state including, but not limited to, youth or sports associations, volunteer fire associations, or religious, charitable, fraternal, veterans, civic, county fair, or agricultural associations, or any separately chartered auxiliary of the foregoing, if organized and operated on a nonprofit basis."93 The scope of immunity is also broadened by the unusual inclusion of safety programs. The statute defines "safety program" as "a program designed for education and training with respect to safety and accident prevention as related to the home, vehicle maintenance and operation, boating, hunting, firearms, self-protection, fire hazards, or other activity which may involve exposures to personal injury or property damage.94 "Sports program" is defined as "any program or organized activity:
(A) Which conducts any competitive sport which is formally recognized as a sport, on the date on which any cause of action arises to which this Code section is applicable, by the United States Olympic Committee as specified by and under the jurisdiction of the Amateur Sports Act of 1978, Public Law 95-606, 36 U.S.C. Section 371 et. seq., the Amateur Athletic Union, or the National Collegiate Athletic Association; and
(B) Which is organized for recreational purposes and related training and education and the activities of which are substantially for such purpose."95
A volunteer is defined as "any person rendering services as a manger, coach, instructor, umpire, or referee, or assistant to such person, who performs such services without compensation."96
Idaho
Idaho has one of the more lucid statutes limiting the liability of volunteers. Officers, directors and volunteers of nonprofits are covered under a single provision. Section 6-1605 of the Idaho Code provides that officers, directors and volunteers who serve nonprofit corporations or organizations97 without compensation shall be personally immune from civil liability arising out of their conduct as an officer, director or volunteer, if the conduct is within the course and scope of the duties and functions of the individual and at the direction of the corporation or organization.98 However, the law excepts from the immunity provision any conduct to the extent it is covered under a policy of liability insurance, regardless of whether the policy is purchased by the entity, the individual or a some third party.99 The following are also excluded:
(1) Conduct that is willful, wanton, or involves fraud, knowing violations of law;
(2) Certain intentional breaches of fiduciary duty or duty of loyalty;
(3) Acts or omissions not in good faith or that involve intentional misconduct;
(4) Transactions from which the individual derives an improper personal benefit; and
(5) Damages resulting from the operation of a motor vehicle.100
Illinois
Illinois law grants immunity from civil suit for three distinct categories of nonprofit corporate volunteers. Any person who renders service without compensation to or for any corporation organized under the Illinois Nonprofit Corporations Act and satisfying the criteria of section 501(c)(3) of the Internal Revenue Code shall not be liable, and no cause of action may be brought, for damages resulting from an act or omission in rendering services, unless the act or omission involved willful or wanton conduct. Also, directors or officers, serving without compensation, of any corporation organized under the Illinois Nonprofit Corporations Act and satisfying the criteria of Internal Revenue Code §501(c) are not liable for any damages resulting from the exercise of judgment or discretion in connection with the director's or officer's duties or responsibilities, unless the act or omission involved willful or wanton conduct.101 Another provision grants identical protection to directors, earning no more than $5,000 annually for such duties, of any corporation satisfying the criteria of section 501(c) of the Internal Revenue Code and organized under the Illinois Nonprofit Corporations Act for the purposes of: agricultural; professional, commercial, industrial, or trade association; electrification on a cooperative basis; or telephone service on a mutual or cooperative basis.102 Also immune is any person who renders service without compensation to or for any corporation, organized under the Illinois Nonprofit Corporations Act and satisfying the criteria of Internal Revenue Code section 501(c)(3), for damages resulting from an act or omission in rendering services, unless the act or omission involved willful or wanton conduct.103
Illinois law also provides limited protection for an uncompensated104 volunteer who renders services as a manager, coach, instructor, umpire or referee or who assists a manager, coach, instructor, umpire or referee in a sports program of a nonprofit association. The law provides in pertinent part that no such person:
Shall be liable to any person for any civil damages as a result of any acts or omissions in rendering such services or conducting or sponsoring such sports program, unless the conduct of such person falls substantially below the standards generally practiced and accepted in like circumstances by similar persons rendering such services or conducting or sponsoring such sports programs, and unless it is shown that such person did an act or omitted the doing of an act which such person was under a recognized duty to another to do, knowing or having reason to know that such act or omission created a substantial risk of actual harm to the person or property of another.105
The law cautions that a showing that conduct fell below ordinary standards of care is insufficient to impose liability. Furthermore, the law makes explicit that the immunity provision is not to be construed as affecting or modifying the liability of any person or nonprofit association for acts or omissions relating to the:
(1) Transportation of participants in a sports program or safety program to or from a game, training session, event or practice; or
(2) Care and maintenance of real estate unrelated to the practice, training or playing areas owned, possessed or controlled by such person or entity.106
For purposes of this provision, a nonprofit association is defined similar to the Georgia statute to mean any entity that is organized or authorized to do business as a nonprofit corporation or a nonprofit unincorporated association under state law, including, but not limited to, "youth or athletic associations, volunteer fire, ambulance, religious, charitable, fraternal, veterans, civic, county fair, or agricultural associations, or any separately chartered auxiliary of the foregoing, if organized and operated on a nonprofit basis."107 Sports program means:
[B]aseball (including softball), football, basketball, soccer and any other competitive sport formally recognized as a sport by the United States Olympic Committee as specified by and under the jurisdiction of the Amateur Sports Act of 1978, the Amateur Athletic Union or the National Collegiate Athletic Association. The term shall be limited to a program or that portion of a program that is organized for recreational purposes and whose activities are substantially for such purposes and which is primarily for participants who are 18 years of age or younger whose 19th birthday occurs during the year of participation or the competitive season, whichever is longer. There shall, however, be no age limitation for programs operated for the physically handicapped or mentally retarded.108
Indiana
Protection under Indiana law for general volunteers is limited to those involved in sports or leisure activities. However, qualified directors serving, without compensation, a wide range of entities, including board and commission members of the state or a political subdivision or officers or directors of: traditional charities; homeowners associations; certain advocacy groups; national, regional or local fraternities or sororities; the Special Olympics, or the Pan America Games, are immune from civil liability for negligence in setting policy and controlling or overseeing the activities or functional responsibilities of the entity.109
Indiana's provision dealing with sports volunteers is quite different from that of other states. Protection is limited to uncompensated volunteers involved in sports or leisure activities, such as baseball, basketball, football, soccer, hockey, volleyball, or cheerleading, involving children under the age of sixteen.110 Such persons are not liable for civil damages proximately caused by a negligent act or omission in the personal services provided by the volunteer or another person selected, trained, supervised or otherwise under the control of the volunteer in the course of a sports or leisure activity. For purposes of this provision, compensation does not include: any award, meal or other gift not exceeding $100 in value if given as a token of appreciation or recognition; any per diem payment not exceeding $50 for personal services as a referee, umpire, judge or assistant to a referee, umpire or judge; or reimbursement or payment of reasonable expenses incurred.111 The grant of immunity does not apply to behavior that is intentional, willful, wanton or reckless or to damages caused by the negligent operation of a motor vehicle. The provision also does not apply to individuals who are registered, certified or licensed under state law. Furthermore, the provision affords immunity to a government entity and its employees and agents for civil damages proximately caused by:
(1) The negligent selection, training, or supervision of a volunteer providing personal services in the course of a sports or leisure activity; or
(2) A negligent act or omission in the personal services provided by either the volunteer or another person selected, trained, supervised or otherwise under the control of the volunteer.112
Iowa
Iowa law provides broad immunity to directors, officers, employees, members, trustees and volunteer of nonprofit organization.113 Such persons are not liable on the debts or obligations of the nonprofit organization nor are they personally liable for a claim based upon an act or omission of the person performed in the discharge of the person's duties. Excluded from protection are acts or omissions that involve intentional misconduct or a knowing violation of law or a transaction from which the person derives an improper personal benefit. The term nonprofit organization is defined quite broadly to include an unincorporated club, association, or other similar entity, if no part of its income or profit is distributed to members, directors or officers.
Another provision of the Iowa Code provides similar protection for directors, officers, employees or members of nonprofit corporations.114 However, in addition to the exclusions noted previously, breaches of the duty of loyalty to the corporation and acts or omissions not in good faith are exempted from protection. Interestingly, unlike most other states' laws, there is no requirement under Iowa law that these individuals be uncompensated.
Two other provisions of law protect uncompensated state volunteers115 and municipal volunteers116 from personal liability for claims based upon acts or omissions performed within the person's duties, except for acts or omissions involving intentional misconduct or knowing violation of law or transactions from which the person derives an improper personal benefit.
Kansas
Kansas law also provides broad protection for volunteers, but only if there is an existing general liability insurance policy applicable. The provision provides that if a nonprofit organization117 carries general liability insurance coverage, a volunteer of the organization shall not be liable for damages in a civil action for acts or omissions of the volunteer unless: the "conduct constitutes willful or wanton misconduct or intentionally tortious conduct; or [the] volunteer is required to be insured by law or is otherwise insured against such acts or omissions but, in such case, liability shall be only to the extent of the insurance coverage."118 In addition, a volunteer is not vicariously liable for the actions or omissions of any of the officers, directors, trustees, employees or other volunteers of the nonprofit organization under the same conditions, unless the volunteer authorizes, approves, ratifies or otherwise actively participates in the action or omission and the action or omission constitutes willful or wanton misconduct or intentionally tortious conduct.119 The statute specifically states that the grant of immunity does not affect the liability of the nonprofit organization itself for the negligent or wrongful act or omission of its volunteer, which shall be imputed to the nonprofit organization for the purpose of apportioning liability for damages to a third party.120 The term volunteer under this provision includes an officer, director, trustee or other uncompensated person performing services, but specifically excludes a person who delivers health care services to patients in a medical care facilities.121
Unlike many states that undertake to protect volunteers involved in sports activities, Kansas's "sports law" is extremely narrow, granting immunity from damages in a civil action only to certain "athletic officials" who administer the rules of a game or sport.122 Athletic officials are not liable for ordinary negligence for actions or omissions arising out of or in the course of officiating at an interscholastic, intercollegiate or any other amateur athletic contest being conducted by a nonprofit organization, educational institution or governmental entity. Excluded from this immunity are damages caused by willful or wanton misconduct or intentionally tortious conduct. This provision also contains similar language with respect to the liability of the entity and imputing actions or omissions to the entity for purposes of apportioning liability for damages to a third party as discussed previously.
Kentucky
Kentucky has a liberal immunity provision for volunteers. Any person who serves, uncompensated, as a director, officer, trustee or volunteer of a nonprofit organization, qualified as tax-exempt under section 501(c) of the Internal Revenue Code, is immune from civil liability for any act or omission resulting in damage or injury if the person was acting in good faith and within the scope of the person's official functions and duties for a nonprofit organization, a nonprofit corporation, hospital, or a government entity, unless the damage or injury was caused by wilful or wanton misconduct of the person.123 No other limitations or immunity are expressed. The Kentucky attorney general reportedly has questioned the constitutionality of this provision.124
In addition to the foregoing, two other provisions grant protection to officers125 and directors126 of nonprofit corporations. These provide that no action or failure to act by such individuals shall be the basis for monetary damages or injunctive relief, absent a breach or failure to perform duties in compliance with state law or, in the case of monetary damages, unless the breach or failure to perform constitutes willful misconduct or wanton or reckless disregard for human rights, safety or property. Furthermore, these provisions require the plaintiff to meet a clear and convincing standard of proof.
Louisiana
Louisiana offers protection to volunteers under a number of different provisions of law. The language of these provisions is fairly unique and, in some cases, is not restricted to uncompensated individuals. The first states that a volunteer, officer, director or trustee serving, with or without compensation, any nonprofit organization (specifically including any organization that sponsors fairs or festivals or any nonprofit historical organization organized for a civic or historical purpose) shall not be individually liable for any act or omission resulting in damage or injury, arising out of the exercise of judgment in the formation and implementation of policy or arising out of the management of the affairs of that organization. This immunity does not apply if the acts are not in good faith or constitute willful or wanton misconduct.127 Another provision states that a person serving, with or without compensation, as a member, officer, director or trustee of any public, charitable or nonprofit hospital, institution, or organization is not individually liable to any person, firm, or entity, public or private, receiving benefits from the hospital, institution, or organization for any act or omission to act by any employee or other officer of the hospital, institution, or organization.128
A third provision states that an uncompensated officer, director or trustee of a nonprofit organization, qualified as tax-exempt under section 501(c) of the Internal Revenue Code, shall not be individually liable for any act or omission resulting in damage or injury, arising out of the exercise of judgment in the formation and implementation of policy while acting as a director, officer or trustee of that organization or arising out of the management of the affairs of that organization; provided that the officer, director or trustee was acting in good faith and within the scope of official functions and duties. The immunity granted herein does not apply if the damage or injury was caused by willful or wanton misconduct.129 Identical protection also is provided to members of boards, commissions, or authorities of political subdivisions.130
Finally, Louisiana grants immunity from suit for any volunteer athletic coach, manager, athletic trainer, team volunteer health care provider, or sports team official for any loss or damage caused by an act or omission to act directly related to the person's responsibilities while actively conducting, directing, or participating in the sporting activities or in the practice thereof, unless the loss or damage was caused by the gross negligence of the coach, manager, athletic trainer, team volunteer health care provider, or sports team official.131 This protection does not apply to any volunteer who has not participated in a safety orientation and training skills program, unless the requirement is waived by the applicable league or team upon submission of appropriate documented evidence of the person's proficiency in first aid and safety.
Maine
Maine also has a liberal provision protecting volunteers. It provides that an uncompensated "director, officer or volunteer is immune from civil liability for personal injury, death or property damage, including monetary loss:
A. When the cause of action sounds in negligence and arises from an act or omission by the director, officer or volunteer which occurs within the course and scope of the activities of the charitable organization in which the director, officer or volunteer serves; or
B. Arising from any act or omission, not personal to the director, officer or volunteer, which occurs within the course and scope of the activities of the charitable organization in which the director, officer or volunteer serves."132
The term charitable organization is broadly defined to mean any nonprofit organization: satisfying the criteria of Internal Revenue Code §501(c)(3), (4), (6)(chambers of commerce only), (10), (13), or (14) or that would qualify under (3), but for engaging in legislative activities; or organized either under various categories of the Maine Nonprofit Corporation Act or as a rural electrification cooperative.133
Maryland
Maryland has a number of provisions that shield volunteers from liability. The Maryland Volunteer Service Act is somewhat similar to Kansas law, in that protection is dependant upon the existence of an applicable liability insurance policy. Under the Maryland Act, a volunteer is not liable in damages, beyond the limits of any personal insurance, in any suit arising from the volunteer's act or omission in connection with any service provided or duty performed on behalf of an organization or association, unless the act or omission of the volunteer constitutes gross negligence, reckless, willful or wanton misconduct or intentionally tortious conduct.134 Furthermore, a volunteer is not liable in damages, beyond the limits of any personal insurance, in any suit arising from the act or omission of a director, officer, employee, trustee or another volunteer of the entity unless the volunteer:
(1) Knew or should have known of an act or omission of a particular officer, director, trustee, employee, or another volunteer and the volunteer authorizes, approves, ratifies or otherwise actively participates in the act or omission; or
(2) After the commission of the act or omission and with full knowledge of it, ratifies it.135
For purposes of the Volunteer Service Act, the term volunteer means a director, officer, trustee or other person who performs duties for an association or organization without receiving compensation, but excludes a provider of health care services or an employee who performs duties on behalf of a charitable organization, as such persons are covered under another provision.136 The term association or organization means a: business league; charitable organization; civic league; club; labor, agricultural, or horticultural organization; or local association of employees.137
Protection under the Maryland Associations, Organizations, and Agents Act is also dependent upon the existence of adequate liability insurance coverage. The Act provides that an agent of an organization or association is not personally liable for damages in any suit if:
(1) The organization or association maintains insurance covering liability incurred by the organization or association or its agents, or both, as a result of acts or omissions of its agents in providing services or performing duties on its behalf;
(2) The terms of the insurance policy provide coverage for the particular act or omission and no meritorious basis exists for denial of coverage; and
(3) The insurance has: a limit of coverage of not less than $200,000 per individual claim and $500,000 per total claims arising from the same occurrence or of $750,000 per policy year and $500,000 per total claims arising from the same occurrence; and a deductible (if present) in an amount not greater than $10,000 per occurrence or a rate of coinsurance (if present) not greater than twenty percent.138
Under this Act, a plaintiff's damages are limited to the extent of the applicable limit of insurance coverage, including any amount for which the organization or association is responsible as a result of any deductible or coinsurance provision.139 However, if it is found that the agent acted with malice or gross negligence, the agent is liable for damages to the extent the judgment exceeds this limit.140
For purposes of this Act, the term agent of an organization or association means a director, officer, trustee, employee or volunteer of an organization or association who provides services or performs duties on its behalf, but does not include an independent contractor.141 Organization or association means a: charitable organization; civic league or organization; athletic club; cooperative housing corporation; council of unit owners of a condominium; or homeowners' association.142
Finally, Maryland law provides protection to community recreation program volunteers and athletic officials.143 A community recreation program volunteer is not personally liable for damages in any civil action brought against the volunteer by virtue of the volunteer's act or omission in providing services or performing duties on the program's behalf, unless it is found that the damages were the result of the volunteer's:
(1) Negligent operation of a motor vehicle;
(2) Willful, wanton or grossly negligent act or omission; or
(3) Negligence in permitting an unsupervised competition, practice or activity.
In addition, an athletic official is not personally liable for damages in any civil action brought against the athletic official by a player, participant or spectator by virtue of the athletic official's act or omission in providing services or performing duties while acting in the capacity of athletic official, unless it is found that the damages were the result of the athletic official's willful, wanton or grossly negligent act or omission.
For purposes of this provision, volunteer means a person who provides services or performs duties without receiving compensation as an athletic coach, manager, official, program leader, or assistant for a community recreation program. A community recreation program means an athletic, fitness or recreation activity: organized for pleasure, recreation or other nonprofit purposes; that has substantially all of its activities conducted for pleasure, recreation or other nonprofit purposes; and that does not have any part of the net earnings benefiting any private shareholder, but does not include a public or private educational institution's athletic program. An athletic official means an individual who officiates, referees or umpires an interscholastic, intercollegiate or any other amateur athletic contest conducted by a nonprofit or governmental body.144
Massachusetts
Protection of volunteers under Massachusetts law is somewhat limited. Except for in relation to sports programs, the protection provided does not include volunteers generally, but focuses on officers, directors and trustees. Immunity is given to persons serving without compensation, other than reimbursement of actual expenses, as "an officer, director or trustee of any nonprofit charitable organization including those corporations qualified under 26 U.S.C. section 501(c)(3)" for civil damages as a result of any acts or omissions relating solely to the performance of duties.145 Excluded are acts or omissions intentionally designed to harm and grossly negligent acts or omissions that result in harm to the person.146 Immunity does not extend to "acts or omissions committed in the course of activities primarily commercial in nature even though carried on to obtain revenue to be used for charitable purposes" or for any cause of action arising out to the person's operation of an "automobile."147
A separate provision provides that an uncompensated director, officer or trustee of an educational institution that is a charitable organization, qualified as a tax-exempt organization under 26 U.S.C. section 501(c)(3), shall not be liable solely by reason of service as a director, officer or trustee for any act or omission resulting in damage or injury to another, if the person was acting in good faith and within the scope of official duties and functions, unless the damage or injury was caused by willful or wanton misconduct. Excluded from this limitation on liability is any action arising out to the person's operation of a "motor vehicle."148 This section also puts a cap of $20,000 (exclusive of interest and costs) on the liability of charitable organizations if a tort is committed "in the course of any activity carried on to accomplish directly the charitable purposes of [the] corporation, trust, or association ...."149 The limitations on liability provided in this section do not apply if the tort was committed "in the course of activities primarily commercial in character even though carried on to obtain revenue to be used for charitable purpose."150
Finally, another section provides immunity for volunteer officials in nonprofit sports or sailing programs. The section provides that no:
(1) Uncompensated volunteer rendering services as a manager, coach, umpire or referee, or as an assistant to a manager or coach, in a sports program of a nonprofit association or rendering services to a sailing program of a nonprofit association;
(2) Nonprofit association conducting a sports or a sailing program; or
(3) Officer, director, trustee or member thereof, serving without compensation,
shall be liable to any person for any action in tort as a result of any acts or failures to act in rendering the services or in conducting the sports program.151 Excluded are acts or failures to act that intentionally are designed to harm and grossly negligent acts or failures to act that result in harm to the person.152 A caveat also states that this section is not intended to affect or modify the liability of a person or nonprofit association for acts or failures to act:
(1) Committed in the course of primarily commercial activities, even though carried on to obtain revenue for maintaining the sports program or revenue used for other charitable purposes;
(2) Relating to the transportation of participants on a sports program or others to or from a game, event or practice; or
(3) Relating to the care and maintenance of real estate that the person or nonprofit association owns, possess or controls and that is used in connection with a sports program or other nonprofit association activity.153
For purposes of this section, nonprofit association means an entity organized as a nonprofit corporation or nonprofit unincorporated association under state or federal law or any entity authorized to do business in the state as a nonprofit corporation or unincorporated association. The term sports program has nearly the identical definition as found in the Illinois Statute.154
Michigan
Under Michigan law, nonprofit corporations are permitted to amend their articles of incorporation to limit the liability of certain types of volunteers.155 A nonprofit corporation may include a provision that it assumes liability for all acts or omissions of a nondirector volunteer, occurring on or after the effective date of the provision, provided that:
(1) The volunteer was acting, or reasonably believed the volunteer was acting, within the scope of authority;
(2) The volunteer was acting in good faith;
(3) The volunteer's conduct did not amount to gross negligence, willful and wanton misconduct or an intentional tort; and
(4) The volunteer's conduct was not a tort arising out of the ownership, maintenance or use of a motor vehicle for which tort liability may be imposed under the state insurance code.156
Furthermore, a tax exempt corporation, under section 501(c)(3) of the Internal Revenue Code, may include a provision that the corporation assumes all liability to any person, other than the corporation, its shareholders, or its members, for all acts or omissions of a volunteer director incurred in the performance of the volunteer director's duties.157
Minnesota
Minnesota law provides that:
[A] person who serves without compensation as a director, officer, trustee, member, or agent of an organization exempt from state income taxation ... , or who serves without compensation as a fire chief of a nonprofit firefighting corporation or municipal volunteer fire department, or of a public corporation established by law but not considered a municipality, is not civilly liable for an act or omission by that person if the act or omission was in good faith, was within the scope of the person's responsibilities as a director, officer, trustee, member, agent, or fire chief of the organization, and did not constitute willful or reckless misconduct.158
A 1994 amendment extended the application of immunity to an economic development authority or to a nonprofit corporation exercising the powers of an economic development authority.159
The immunity is not applicable to actions brought by the attorney general for a breach of fiduciary duty as a director, contract actions, federal claims, or actions based upon a breach of public pension plan fiduciary responsibility. This provision also does not limit: an individual's liability for physical injury to the person of another or for wrongful death that is personally and directly caused by the individual; or the liability of a municipality arising out of the performance of firefighting or related activities.160 For purposes of this provision, "compensation" excludes reimbursement for actual expenses incurred, a per diem in an amount not more than that authorized for state advisory councils and committees, and payment of insurance premiums or employee benefit plan against liability.161
In 1994, Minnesota adopted a separate provision that addresses volunteers in sports programs.162 Covered under this provision are:
(1) Any individuals who provide services or assistance without compensation either as an athletic coach, manager, official, physician, or certified athletic trainer for a sports team that is organized or performing under a nonprofit charter or as a physician or certified athletic trainer for a sports team or athletic event sponsored by a public or private educational institution; and
(2) Any community-based, voluntary nonprofit athletic association or any volunteer of such nonprofit athletic association.163
Such individual or association is not liable for money damages to a player, participant or spectator as a result of an individual's acts or omissions in the providing of service or assistance either at the scene or, in the case of a physician or athletic trainer, while the player, participant or spectator is being transported to a hospital, physician's office or other medical facility.164 This section is applicable to organized sports competitions and practice and instruction in the sport.165
There are, however, a number of exceptions to the immunity provided. Acts or omissions that are covered under an insurance policy issued to the entity for whom the coach, manager, official, physician, or certified trainer serves are excluded from immunity, but only to the extent of the liability stated in the insurance policy.166 The grant of immunity also does not apply to:
(1) An athletic coach, manager or official who provides services or assistance as part of a public or private educational institution's athletic program;
(2) A public or private educational institution for which a physician or certified athletic trainer provides services;
(3) Individuals acting in a willful and wanton or reckless manner in providing services or assistance;
(4) Acts or omissions arising out of the operation, maintenance or use of a motor vehicle; and
(5) Acts violating federal, state or local law.167
Mississippi
The language of Mississippi's law protecting volunteers is somewhat similar to Arkansas's, except that it lacks the provision exempting acts covered under a liability insurance policy and negligent performance of licensed professional services and includes an exemption from immunity for misconduct that is intentional, willful, wanton, or reckless.168 Under Mississippi law, a qualified volunteer is exempt from civil damages for personal injury or property damage sustained by a participant in, or a recipient, consumer, or user of, the services or benefits of a volunteer activity as a result of any act or omission of a qualified volunteer committed in good faith, except where the qualified volunteer: engages in acts or omissions that are intentional, willful, wanton, reckless or grossly negligent; or operates negligently a motor vehicle, aircraft, boat, or other powered mode of conveyance.169 Also, a qualified volunteer is not vicariously liable for the negligence of another person in connection with or as a consequence of volunteer activities.170
The definitions of the terms "qualified volunteer," "volunteer agency," and "volunteer activity" are almost identical to those in the Arkansas law except that:
(1) Providing use of real or personal property or equipment is included in the definition of qualified volunteer;
(2) Reference to a division of state government does not appear in the definition of volunteer agency; and
(3) Fire protection and rescue services and equine activity are included in the definition of volunteer activity.171
Finally, the Mississippi law makes clear that, for purposes of its application, the following are not considered "monetary compensation": reimbursement of actual expenses, including travel expense necessarily incurred in the discharge of duties; insurance coverage; and worker compensation coverage of volunteers.172
Mississippi's protection for sports officials is fairly liberal. Sports officials who officiate athletic contests at any level of competition in the state are not liable to any person or entity in any civil action for injuries or damages claimed to have arisen by virtue of actions or inactions related in any manner to officiating duties within the confines of the athletic facility at which the athletic contest is played, unless the actions or inactions are intentional, willful, wanton, reckless, malicious or grossly negligent.173 Sports officials mean "those individuals who serve as referees, umpires, linesmen and those who serve in similar capacities but may be known by other titles and are duly registered or members of a local, state, regional or national organization which is engaged in part in providing education and training to sports officials."174
Finally, under Mississippi's Nonprofit Corporation Act, directors and officers are not liable for actions taken within the scope of their duties and in accordance with the good faith belief they are acting in the best interest of the corporation.175
Missouri
Missouri's protection of volunteers is similar to the Model Act, but with three main differences: the definition of volunteer limits it to an individual performing services for a nonprofit organization or government entity; the exceptions to immunity are limited to intentional or malicious conduct or negligence; and there is no similar provision exempting conduct with respect to motor vehicles.176 In addition, a separate provision of Missouri law grants immunity to uncompensated officers and members of governing bodies of entities, meeting the standards of Internal Revenue Code §501(c), from personal liability for civil damages arising from actions within official capacity but for which "the person would not otherwise be liable, but for [the person's] affiliation with [the] entity."177 Intentional, willful or wanton conduct or gross negligence is excluded.
Montana
Montana's law protecting volunteers is quite simple compared to that of most states. The law states that a director, officer or volunteer of a nonprofit corporation is not individually liable for any act or omission made in the course and scope of the person's official capacity on behalf of the corporation.178 Excluded from this immunity is willful or wanton misconduct.
Nevada
Nevada's law protecting volunteers states that a volunteer of a charitable organization179 is immune from liability for civil damages as a result of an act or omission:
(1) Of an agent of the organization; or
(2) Concerning services the volunteer performs for the organization that are "not supervisory in nature and not part of any duties or responsibilities [the volunteer] may have as an officer, director or trustee" of the organization, unless the act is intentional, willful, wanton, or malicious.180
The term agent means an officer, director, trustee, or employee, regardless of whether compensated, or a volunteer. A volunteer means a director, officer, trustee, or other person who performs services without compensation for or on behalf of the organization.
Nevada law also grants immunity to sports officials. The language of the provision is similar to that of Mississippi's, although the exclusionary language refers only to gross negligence.181 Finally, Nevada law prohibits an action against a director, officer, trustee, or "other possessor of the corporate powers" of certain nonprofit entities based upon any act or omission arising from failure in an official capacity to exercise due care regarding the management or operation of the entity, unless the act or omission involves intentional misconduct, fraud or a knowing violation of law.182
New Hampshire
New Hampshire's law providing protection for volunteers has far-reaching application. It applies to any government entity or nonprofit entity, including but not limited to nonprofit corporations, organizations, community chests, funds or foundations:
(1) Organized and operated exclusively for religious, cultural, charitable, scientific, recreations, literacy, agricultural, or educational purposes or to foster amateur competition in a sport formally recognized by the National Collegiate Athletic Association;
(2) Exempt under Internal Revenue Code §501(c); or
(3) Incorporated in the state or having a principal place of business in the state.183
It grants immunity to volunteers who are acting in good faith and with prior written approval from the entity to act on its behalf.184 The protection excludes willful, wanton or grossly negligent misconduct or activity related either to transportation or to the care of the entity's premises. Furthermore, in actions brought against an entity alleging negligence on the part of one of its volunteers, the law limits liability for damages or injury to $250,000 for any one person in a single incident or occurrence and to $1,000,000 for injury or damage sustained by any number of persons in a single incident or occurrence.185
Another Nevada provision grants immunity to uncompensated directors and officers of any charitable organization or society organized or incorporated in the state, or having its principal place of business in the state, for damages for bodily injury or personal injury or property damages, unless actions are not in good faith or constitute willful or wanton negligence.186
New Jersey
New Jersey's volunteer immunity law is patterned after the Model Act, except that grossly negligent acts are not protected and the language defining the scope of entities to which the law applies differs substantially.187
New Jersey also provides immunity to certain volunteer athletic coaches, managers and officials for a nonprofit sports team, or member team of a league organized or affiliated with a county or municipal recreation department, for damages to a player, participant or spectator arising during a sports competition, practice or instruction.188 Excluded from protection is damage caused by: willful, wanton or grossly negligent acts or omissions; the negligent operation of a motor vehicle; or the volunteer permitting the competition or practice to be conducted without supervision. The protection also does not apply to a volunteer who has not participated in a safety orientation and training skills program that includes injury prevention, first aid procedures and general coaching concepts.189
New Mexico
New Mexico does not protect volunteers generally, except those involved with an athletic association. Any person or entity who volunteers services without compensation as a manager, coach, athletic instructor, umpire, referee or other league official in a formally organized nonprofit sports association for persons under the age of eighteen, is not liable, except to the extent covered by insurance, to any person for civil damages as a result of acts or omissions in rendering services or in conducting or sponsoring sports programs, unless: the conduct falls substantially below the standards generally accepted or practiced in the sport in like circumstances by similar persons or nonprofit associations; it was foreseeable that the conduct would create substantial risk of injury or death to the person or property of another; and the harm complained of was not part of the ordinary give and take common to the particular sport.190
New Mexico's Nonprofit Corporation Act also provides protection for directors of nonprofit corporations. They shall not be held personally liable for any damages resulting from:
(1) Any negligent act or omission of an employee of the corporation;
(2) Any negligent act or omission of another director of the corporation; or
(3) Any action taken, of failure to take any action, as a director unless the director breached or failed to perform the duties of office and the breach or failure constitutes willful misconduct or recklessness.191
North Carolina
North Carolina has yet another variation of the Model Act. The provision applies only to direct service provider volunteers of a charitable organization, which is defined as "an organization that has humane and philanthropic objectives, whose activities benefit humanity or a significant rather than limited segment of the community without expectation of pecuniary profit or reward" and is exempt from taxation under state law or section 501(c)(3) of the Internal Revenue Code.192 Such volunteers are protected from liability for injury, death or loss to person or property if:
(1) The volunteer was "acting in good faith and the services rendered were reasonable under the circumstances";
(2) The acts or omissions do not amount to gross negligence, wanton conduct or intentional wrongdoing; and
(3) The acts or omissions did not occur while the volunteer "was operating or responsible for the operation of a motor vehicle."193
Directors and officers are protected under North Carolina's Nonprofit Corporation Act, which provides that they are immune individually from civil liability for monetary damages, except to the extent covered by insurance, for any act or failure to act arising out of their service, except where the person:
(1) Is compensated for services beyond reimbursement of expenses;
(2) Was not acting within the scope of official duties;
(3) Was not acting in good faith;
(4) Committed gross negligence or willful or wanton misconduct that resulted in damage or injury;
(5) Derived an improper person financial benefit from the transaction;
(6) Incurred liability from the operation of a motor vehicle; or
(7) Is a defendant in an action relating to certain improper uses of corporate assets.194
North Dakota
North Dakota's grant of immunity to volunteers who provide services or perform duties on behalf of a nonprofit organization is simply stated. A volunteer is immune form civil liability for any act or omission if: the volunteer "was acting in good faith, in the exercise of reasonable and ordinary care, and in the scope of [the volunteer's] duties" for the organization; the act or omission did not constitute willful misconduct or gross negligence; and the damage was not caused by the negligent operation of a motor vehicle.195
North Dakota also provides immunity to volunteer athletic coaches and other officials. This provision is very similar to New Jersey's except that North Dakota requires that: the volunteer be "acting in good faith, in the exercise of reasonable and ordinary care, and in the scope of the person's duties for the sports team"; and that the act or omission not constitute willful misconduct or gross negligence.196
In addition, North Dakota provides protection to directors, officers or trustees of nonprofit organizations that meet the criteria of section 501(c)(3), (4), (5), (6), (7), (10) and (19) of the Internal Revenue Code. Any such person is immune from civil liability for damages resulting from an act or omission if: the person was acting in good faith and within the scope of official duties; the act or omission did not constitute willful misconduct or gross negligence; and the person did not receive or expect to receive reimbursement for or payment of expenses in excess of $2,000 per year for expenses actually incurred for services and did not receive or expect to receive compensation or anything in lieu of compensation as payment for services.197
In distinct contrast with other states' statutes, the North Dakota provisions contain no definitions of terms used.
Ohio
The scope of Ohio's volunteer protection law is expanded by the definitions contained therein. For example: "volunteer" means an officer, trustee or other person performing uncompensated services for a charitable organization. "Charitable organization" means any charitable nonprofit organization pursuant to Chapter 1702 or any charitable association, group, institution, or society that is not organized and not operated for profit and includes entities "organized and operated for education-related purposes."198 The Ohio statute provides protection in three instances. First, reminiscent of Maryland's law, it provides for vicarious liability only for actions that the volunteer approved, authorized, participated in or ratified.199 Second, a volunteer is not liable in a civil action for damages for injury, death or loss to persons or property as a result of the volunteer's own actions or omissions in connection with any supervisory or corporate services performed for the charitable organization, unless: the volunteer approved, authorized, participated in or ratified the act or omission of another; or an act or omission of the volunteer constituted negligence, willful or wanton misconduct or intentionally tortious conduct.200 Finally, with respect to nonsupervisory or noncorporate services performed for the charitable organization, a volunteer is not liable unless: the volunteer approved, authorized, participated in or ratified; or the act or omission constitutes willful or wanton misconduct or intentionally tortious conduct.201
Pennsylvania
Pennsylvania law establishes a negligence standard to determine liability of volunteers. The language is similar to that of Illinois's and New Mexico's provisions relating to sports programs. The law provides that any person who serves, without compensation, as a volunteer for any nonprofit organization under section 501(c)(3) or (4) of the Internal Revenue Code, or for a Commonwealth or local government agency conducting or sponsoring a public service program or project, is not liable for civil damages as a result of acts or omissions in rendering services unless: the person's conduct falls substantially below the standards generally accepted or practiced in like circumstances by similar persons rendering such service; and it is is shown that the person committed or omitted an act that the person was under a recognized duty to another to do, knowing or having reason to know that the conduct created a substantial risk of actual harm to the person or property of another. Under this standard, proof that the conduct fell below the ordinary standard of care is insufficient to impose liability.202 This protection is inapplicable to conduct relating to the transportation of participants in a public service program or project.
Other provisions apply this standard for determining liability to: uncompensated directors, officers or trustees of nonprofit organization under section 501(c)(3) of the Internal Revenue Code;203 and any person voluntarily serving as a manager, coach, athletic instructor, umpire or referee in a sports program of a nonprofit association or a nonprofit association, or any officer or employee thereof, conducting or sponsoring a sports program.204
The latter provision relating to sports programs specifically excludes conduct relating to: the transportation of participants in a sports program or others to or from a game, event or practice; or the care and maintenance of real estate unrelated to the practice or playing areas that is owned, possessed or controlled by the person or nonprofit association. Furthermore, for purposes of this provision, nonprofit association is broadly defined to mean any entity that is organized, or authorized to do business, as a nonprofit corporation or a nonprofit unincorporated association under the state law, including but not limited to youth or athletic associations, volunteer fire, ambulance, religious, charitable, fraternal, veterans, civic, county fair, or agricultural associations, or any separately chartered auxiliary of the foregoing, if organized and operated on a nonprofit basis.205 The definition of sports program is the same as that found in the Massachusetts statute.206
Rhode Island
Like Montana's volunteer protection law, Rhode Island's is fairly succinct. It provides that an uncompensated director, officer, trustee or volunteer of a nonprofit corporation, an unincorporated nonprofit organization or an unincorporated public charitable institution qualified as tax exempt under section 501(c) of the Internal Revenue Code is not liable to any person based solely on conduct in the execution of office or duty, unless the conduct, with respect to the person asserting liability, constituted malicious, willful or wanton misconduct or involved ownership or operation of a motor vehicle.207 For this purpose, compensation does not include a per diem or per meeting allowance, health insurance benefits, or reimbursement for out of pocket costs and expenses incurred in the service. Interestingly, the section also includes a unique provision that directors, officers, agents, servants, employees and volunteers of a corporation shall not be liable for bodily injury to any person incurred while the person is practicing for or participating in any contest or exhibition of an athletic or sports nature sponsored by the corporation; provided the person has signed a written waiver of liability of the corporation and acknowledgement of assumption of risk.
Rhode Island law also grants immunity from civil damages to:
(1) Persons rendering service as, or assisting, a manager, coach, instructor, umpire, referee or official in certain interscholastic or intramural sports programs;
(2) Any uncompensated person voluntarily serving as or assisting a manager, coach, instructor, umpire, referee or official in a youth sports program organized and conducted by or under the auspices of a nonprofit corporation; or
(3) Directors, officers, trustees or employees of any nonprofit organization, authorized to do business in the state, that organizes, conducts or sponsors a youth sports program.208
This provision excludes damages caused as the result of negligent operation of a motor vehicle or acts or omissions committed in willful, wanton or reckless disregard for the safety of the participants in the program.
South Dakota
The protection provided to volunteers by South Dakota's law is similar in scope to the Model Act, except that immunity is deemed waived and may not be raised as an affirmative defense to the extent of any liability insurance coverage or participation in a risk sharing pool.209 This waiver provision does not apply to a volunteer serving as a director, officer or trustee.210 Another provision grants immunity to a director, officer or trustee serving without compensation for damages resulting from the exercise of judgment or discretion while in official capacity, unless willful or wanton misconduct is involved.211
Texas
The Texas Charitable Immunity and Liability Act offers several different levels of protection for charitable organizations, their volunteers and employees.212 The term volunteer is defined to mean a person rendering service for or on behalf of a charitable organization who does not receive compensation in excess of reimbursement for expenses incurred and includes a person serving as a director, officer, trustee or direct service volunteer.213 A direct service volunteer of a charitable organization is immune from civil liability in any action on the basis of any act or omission of the volunteer resulting in death, damage or injury, if the volunteer was acting in good faith and within the course and scope of the volunteer's functions and duties within the organization.214 There is no similar good faith requirement for a volunteer serving as a director, officer or trustee of a charitable organization. Such a volunteer is immune from civil liability in any action on the basis of any act or omission resulting in death, damage or injury, if the volunteer was acting within the course and scope of the volunteer's functions and duties as a director, officer or trustee.215 A volunteer under this Act is liable for death, damage or injury to a person or property proximately caused by any act or omission involving the operation or use of any motor- driven equipment, including an airplane, to the extent insurance is required under state law and to the extent of any existing, applicable insurance coverage.216
The Act also imposes a limit on money damages in any civil action brought against a nonhospital charitable organization217 or an employee thereof,218 in a maximum amount of $500,000 for each person and $1,000,000 for each single occurrence of bodily injury or death and $100,000 for each single occurrence for injury or destruction of property. These limits apply, however, only if the charitable organization has applicable liability insurance coverage in at least the maximum amount recoverable under the Act.219
There are a number of instances in which the Texas Act is inapplicable. For example, the Act does not:
(1) Apply to acts or omissions that are intentional, willfully or wantonly negligent, or done with conscious indifference or reckless disregard for the safety of others;
(2) Limit or modify the duties or liabilities of a director or officer to the organization or its members and shareholders;
(3) Limit the liability of an organization or its employees or volunteers if the organization was formed substantially to limit its liability; or
(4) Apply to governmental units, private primary or secondary schools, alumni associations or other related on-campus organizations, and organizations formed to dispose, remove or store hazardous waste, radio active waste, solid waste, garbage or sludge.220
The definition of a charitable organization under the Texas Act is extremely broad. It means:
(1) Any nonprofit corporation, foundation, community chest, or fund satisfying criteria of section 501(c)(3) or (4) of the Internal Revenue Code and organized and operated exclusively for charitable, religious, prevention of cruelty to children or animals, youth sports and youth recreational or educational purposes, or for the promotion of social welfare, by being primarily engaged in promoting the common good and general welfare of the people in the community;
(2) Any bona fide organization that: is organized and operated exclusively for, and dedicates its assets to achieving, one of the foregoing purposes; receives annually more than one-third of its support from private or public gifts, grants, contributions or membership fees; does not engage in activities that are not in furtherance of its stated purpose or, directly or indirectly, in political activities; and does not allow any part of its net assets, on dissolution of the organization, to inure to the benefit of any group, shareholder or individual; or
(3) A homeowners' association as defined in section 528 of the Internal Revenue Code.221
Utah
Utah's law granting liability protection for volunteers presents yet another variation. A volunteer providing services for a nonprofit organization is immune from legal liability and incurs no personal financial liability for any tort claim or other action seeking damage for an injury arising from any act or omission of the volunteer while providing such services if: the volunteer was acting in good faith and reasonably believed the volunteer was acting within the scope of the volunteer's official functions and duties; and the damage or injury was not caused by an intentional or knowing act by the volunteer that constitutes illegal, wilful or wanton misconduct.222
The Utah law is particularly distinct in denying protection in situations in which the nonprofit organization has failed to provide a financially secure source of recovery for individuals who suffer injuries as a result of actions taken by the volunteer on behalf of the nonprofit organization.223 A financially secure source of recovery means that, at the time of the incident, a nonprofit organization: has an insurance policy in effect that covers the activities of the volunteer and has a limit of not less than the limits established under the Utah Governmental Immunity Act; or has established a qualified trust with a value not less than the combined limits for property damage and single occurrence liability established under the Utah Governmental Immunity Act.224 Other instances in which immunity does not apply include: when injuries are the result of a volunteer's operation of a motor vehicle, vessel, aircraft or other vehicle for which a pilot or operator's license is required; or when suit is brought by an authorized state or local official to enforce a federal, state or local law.225
For purposes of the foregoing provisions, the term volunteer means an individual, including a director, officer, trustee or direct service volunteer, who: performs services for any organization, other than a public entity, described in section 501(c) and exempt from taxation under section 501(a) of the Internal Revenue Code; and does not receive anything of value from the organization for those services, except payment of expenses actually incurred or compensation or honoraria totaling less than $300 per calendar year.226 The phrase damage or injury specifically includes physical, nonphysical, economic and noneconomic damage.227
Utah law also protects volunteers who perform services under the supervision of, or on behalf of, public entities and who are uncompensated, except for payment solely for subsistence, travel, or other expenses incurred in performance of service.228 Such persons are immune from liability with respect to any decisions or actions, other than in connection with the operation of a motor vehicle, taken during the course of those services. Excluded are actions or decisions that are grossly negligent, not made in good faith or made maliciously.229
Finally, Utah law protects a trustee or officer of a nonprofit corporation from personal liability to the corporation or its members for civil claims arising from acts or omissions made in the performance of official duties, unless the acts or omissions are the result of intentional misconduct.230
Wisconsin
The language under Wisconsin's volunteer protection law is also distinct. A volunteer is not liable to any person for damages, settlements, fees, fines, penalties or other monetary liabilities arising from any act or omission as a volunteer, unless the act or omission constitutes:
(1) A violation of law, unless the volunteer had reasonable cause to believe the conduct was lawful or had no reasonable cause to believe it was unlawful;
(2) Willful misconduct;
(3) An act or omission from which the volunteer received compensation or anything of substantial value in lieu of compensation; or
(4) An act or omission within the scope of the volunteer's duties, if the volunteer is a director or officer of the corporation.231
This provision does not apply in a number of instances, including any of the following:
(1) Civil or criminal proceedings brought by or on behalf of any governmental unit, authority or agency;
(2) Proceedings bought by any person for a violation of state or federal law pursuant to statutory private right of action;
(3) Claims arising from the negligent operation by the volunteer of an automobile, truck, train, airplane, or other vehicle;
(4) Proceedings against a volunteer who is licensed, certified, permitted or registered under state law and is based upon an act or omission within the volunteer's scope of practice thereunder; or
(5) Proceedings based upon a cause of action for which the volunteer is otherwise immune under state law.232
The term volunteer means any natural person, other than an employee, who provides services without compensation to or on behalf of a nonstock corporation.
Another Wisconsin provision grants additional protection to directors or officers of nonstock corporations. A director or officer is not liable to the corporation, its members or creditors or any person asserting rights on behalf thereof, for damages, settlements, fees, fines, penalties or other monetary liabilities arising from a breach of, or failure to perform, any duty resulting solely from the person's status as a director or officer, unless the breach or failure to perform constitutes: a willful failure to deal fairly with the corporation or its members in connection with a matter in which the director or officer has a material conflict of interest; a violation of criminal law, unless the officer or director had reasonable cause to believe the conduct was lawful or had no reasonable cause to believe it was unlawful; a transaction from which the officer or director derived an improper personal benefit; or willful misconduct.233
The protection under this provision does not apply to a director who votes in favor of making a loan to an officer or director or to either: a civil or criminal proceeding brought by or on behalf of any governmental unit, authority or agency; or a proceeding bought by any person for a violation of state or federal law pursuant to a statutory private right of action, unless the proceeding is brought by or on behalf of a governmental unit, authority or agency in its capacity as a private party or contractor.
Wyoming
The immunity provided to volunteers under Wyoming law is patterned after the model Act, with some exceptions.234 The primary differences are that: there is no good faith requirement; gross negligence is included as a basis for exclusion; damages caused as a result of the negligent operation of a motor vehicle is not limited to the amount of insurance coverage; compensation excludes any "incidental personal privileges" received by volunteers for their services, as well as reimbursement of actual and necessary expenses; and the scope is limited to volunteers of nonprofit organizations exempt from federal income taxation pursuant to section 501(c) of the Internal Revenue Code.
In addition, members of any governmental board, agency, council, commission, or governing body are not individually liable for official actions. This provision excludes intentional torts or illegal acts.235
PART II: STATES THAT LIMIT PROTECTION TO A NARROW GROUP OF VOLUNTEERS
As noted previously, some states limit the protection of volunteers to a narrow group. For the most part, these states afford protection only to directors, officers and, in some cases, trustees of certain types of entities. These states' laws are discussed below.
Alaska
Alaska law provides for limited liability for a variety of directors, officers, committee and commission members and, in limited instances, employees. A person may not recover tort damages for personal injury, death, or damage to property for an act or omission to act in the course and scope of official duties from any of the following:
(1) A director or officer of a nonprofit corporation meeting the criteria of section 501 (c)(3) or (4) of the Internal Revenue Code;
(2) A director of a public or nonprofit hospital;
(3) A member of a citizen's advisory board of any hospital;
(4) A member of a school board;
(5) A member of the governing body, a commission, or citizen's advisory committee of a municipality of the state; or
(6) A director, officer or employee of a regional development organization.236
The limitation on liability does not apply if the act or omission constitutes gross negligence. The statute stipulates, however, that the duties and liabilities of a director or officer to the corporation itself or to its shareholders may not be limited or modified.237
California
California law provides immunity under three distinct provisions to officers and directors of various types of entities. The first provision protects uncompensated directors and officers of nonprofit corporations satisfying the criteria of section 501(c)(3) of the Internal Revenue Code or organized to provide religious, charitable, literary, educational, scientific, social, or other forms of public service.238 This provision disallows a cause of action for monetary damages based upon any negligent act or omission occurring within the scope of the director's or officer's duties, in good faith, in a manner believed to be in the best interest of the corporation, and in the exercise of policymaking judgment.239 The following are excluded from protection:
(1) Intentional, wanton or reckless acts;
(2) Gross negligence;
(3) Actions based upon fraud, oppression or malice;
(4) Certain self-dealing transactions;
(5) Certain conflicts of interest;
(6) Certain improper uses of corporate assets;
(7) Actions by a beneficiary of a charitable trust against a trustee;
(8) Proceedings initiated by the attorney general; and
(9) Certain illegal restraints on competition.
Furthermore, if the claim against the director or officer also may be made directly against the nonprofit corporation, the immunity provided in this section applies only if: a general liability policy is in force both at the time of injury and at the time the claim is made against the corporation, and the coverage is in an amount of at least $500,000 if the corporation's annual budget is less than $50,000 and in amount of at least $1,000,000 if the corporation's annual budget equals or exceeds $50,000.240
Two other provisions of California law afford similar protection to volunteer directors and volunteer executive officers of nonprofit public benefit corporations241 and of nonprofit religious corporations242 against third parties for monetary damages. These provisions apply only if damages caused by an act or omission are covered pursuant to a liability insurance policy (in the form of either general liability, director's or officer's liability, or personal policy), or if the board of directors and the individual director or officer made reasonable good faith efforts to obtain available liability insurance.243 For purposes of these latter two sections, "compensation" does not include payment of per diem, mileage, or other reimbursement expenses.244
Connecticut
Connecticut provides no immunity for volunteers generally, but does grant immunity to persons serving as uncompensated directors, officers or trustees of nonprofit organizations, qualified as a tax-exempt organization under section 501(c) of the Internal Revenue Code, from civil liability for damage or injury resulting from any act, error or omission made in the exercise of the person's policy or decision-making responsibilities, if the person was acting in good faith and within the scope of the person's official functions and duties. Damage or injury caused by reckless, willful or wanton misconduct is excepted.245 Similar protections apply to any person serving in an uncompensated capacity as a member of any board, commission, committee or agency of a municipality; provided the person was acting in good faith, within the scope of the person's official functions and duties, and was not acting in violation of any state, municipal or professional code of ethics regulating conduct or in violation of provisions dealing with preparation of explanatory texts of local proposals and questions or with access to public records and meetings.246
Hawaii
The exception to liability for officers and directors under Hawaii's law is straight-forward. The law provides that any director or officer who serves without remuneration, or without expectation of remuneration, shall not be liable for damage, injury, or loss caused by the person's performance of, or failure to perform, duties of the position to which the person was appointed, unless the person was grossly negligent in the performance or failure to perform the duties.247
In addition, Hawaii law provides limited immunity to another very narrow segment of volunteers--those who serve as volunteers for state agencies. Volunteers of state agencies are deemed employees of the State for purposes of the State Tort Liability Act, when acting for an agency in their capacity as volunteers.248 Accordingly, the State may be liable for the negligent acts of its volunteers and judgment against the State would bar any action against an employee. Intentional torts are excepted. This protection does not extend to volunteers for county agencies.
Nebraska
Nebraska law provides immunity from civil liability to any person serving as a director, officer or trustee of a not-for- profit organization and who is not compensated for such services, on a salary or a prorated equivalent basis, for any act or omission that results in damage or injury if the person was acting within the scope of official functions and duties as a director, officer or trustee, unless the damage or injury was caused by the willful or wanton act or omission of the person.249 Excluded from the grant of immunity are any acts or omissions of a director, officer or trustee resulting in damage or injury caused by the director, officer or trustee either: during the operation of any motor vehicle, airplane, or boat; or while impaired by alcohol or any controlled substance under state law.250 The immunity granted has no effect upon the duties that a director, officer or trustee of a not-for-profit organization has to that organization.251
For purposes of this provision, compensation does not include payment of actual expenses incurred in attending meetings or in executing office, receipt of meals at meetings, or receipt of gifts not exceeding a total value of $100 in any twelve consecutive months.252 A not-for-profit organization is defined as any not-for-profit entity exempt from federal income taxation pursuant to section 501(a) of the Internal Revenue Code and listed as an exempt organization in section 501(c)(2) through (8), (11), or (19) of the Internal Revenue Code and engaged in one or more activities within the state in furtherance of a purpose for which it is organized.253
New York
In a similar vein, New York law provides that no person serving without compensation as a director, officer or trustee of a corporation, association, organization, or trust described in section 501(c)(3) of the Internal Revenue Code shall be liable to any person, other than the organization, based solely on the person's conduct in the execution of office, unless the conduct, with respect to the person asserting liability, constituted gross negligence or was intended to cause the harm that resulted.254
Oklahoma
Oklahoma law has two provisions offering protection to directors of nonprofit corporations holding a valid exemption from federal taxation pursuant to section 501(a) of the Internal Revenue Code and listed as an exempt organization in section 501(c). The first states that no director shall be held personally liable for damages resulting from any negligent act or omission of an employee or another director of the corporation. This provision does not apply: to intentional torts or grossly negligent acts or omissions personal to the director; or if the corporation transfers assets to avoid judgment.255 The second grants a director immunity from personal liability to the corporation or its members for monetary damages for breach of fiduciary duty as a director, but not for: breach of duty of loyalty; acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law; or any transaction from which the director derives an improper personal benefit.256
Oregon
Oregon's law limiting liability of officers and director is simply put. It provides that the civil liability of a qualified director for the performance or nonperformance of the director's duties is limited to gross negligence or intentional misconduct.257 The statute applies to a wide range of persons serving without compensation, except reimbursement for expenses or a stipend to compensate for "average expenses," as an officer, director or member of an executive board for the purpose of setting policy and controlling or otherwise overseeing the activities or functional responsibilities of any of the following:
(1) A governmental board or commission;
(2) A nonprofit corporation, unincorporated association or nonprofit cooperative corporation that has as its primary purpose religion, charity, benevolence, providing free goods and services to the general public, education, scientific activity, medical or hospital service at reduced costs, or engaging in activities listed in section 501 of the Internal Revenue Code;
(3) An organization that acts as an advocate for a particular trade or industry or members of the business community in a particular municipality or area of the state; or
(4) Certain nonprofit homeowners' associations.258
South Carolina
South Carolina law states simply that directors, trustees or members of governing bodies of nonprofit organizations exempt from taxation under section 501(c)(3), (6) or (12) of the Internal Revenue Code or of certain electric cooperatives organized under state law are immune from suit arising from the conduct of the affairs of the organization, unless conduct amounts to willful, wanton or gross negligence.259
Tennessee
Tennessee law provides that directors, trustees or members of governing bodies, regardless of whether compensated, of certain nonprofit organizations exempt from taxation under section 115 or section 501(c)(3), (4), (5), (6) or (13) of the Internal Revenue Code, public broadcast stations or telephone or electric cooperatives are immune from suit arising from the conduct of the affairs of the organization, unless the conduct amounts to willful, wanton or gross negligence.260 Similar immunity is granted to all members of boards, commissions, agencies, authorities, and other governing bodies of any governmental entity, created by public or private act, and regardless of whether compensated.261
Tennessee also offers protection to sports officials similar to Nevada, although the definition of sports official is more nearly identical to Mississippi's.262
Vermont
Vermont law states that an uncompensated director, officer or trustee of a nonprofit organization qualified as tax-exempt under section 501(c) of the Internal Revenue Code shall not be held personally liable for damages resulting from any act or omission:
(1) Within the scope of the person's official functions or duties that is done in good faith, unless the act or omission constitutes an intentional tort or gross negligence or the damages result from the operation of a motor vehicle;
(2) Of an employee of the nonprofit organization; or
(3) Of another director, officer or trustee.263
Virginia
Under Virginia law, an uncompensated officer or director who serves a corporation exempt from taxation under section 501(c) of the Internal Revenue Code shall not be liable for any damages, unless the officer or director engaged in willful misconduct or a knowing violation of criminal law.264 In addition, a separate provision grants immunity to uncompensated officers, directors or trustees of organizations exempt from income taxation under section 501(c) or 528 of the Internal Revenue Code from civil liability for acts taken in their official capacities. Immunity does not apply if the officer, director or trustee engaged in willful misconduct or a knowing violation of criminal law or if liability derives from the operation of a motor vehicle or from the violation of a fiduciary obligation imposed on developers relating to control of condominium associations.265 For purposes of this section, compensation excludes payment for per diem and expenses.
Washington
The liability protection provided under Washington law is succinct. Members of the board of directors or an officer of any nonprofit corporation are not individually liable for any discretionary decision or failure to make a discretionary decision within the person's official capacity as a director or officer unless the decision or failure to decide constitutes gross negligence.266 The duties or liabilities of a director or officer of a corporation to the corporation or its members are in no way limited or modified by this limited grant of immunity.267
West Virginia
West Virginia law states that a qualified director shall not be personally liable for negligence, either through act or omission, or whether actual or imputed, in the performance of managerial functions performed on behalf of a volunteer organization or entity, unless the director: is found to be grossly negligent in the performance of duties; or causes damage or injury to another person through the operation of a motor vehicle.268
This provision has fairly wide application, applying to any person serving without compensation, (except for reimbursement for expenses, incidental meals, lodging or other accommodations or payment of statutory per diem), as an officer or member or director of a board, commission, committee, agency or other nonprofit organization that is a volunteer organization or entity.269 Likewise, the definition of "volunteer organization or entity" is all-encompassing. It is defined to mean:
(1) The state or any political subdivisions;
(2) Nonprofit corporations defined by statute or other nonprofit organizations that provide or promote religion, charity, music, art or other literary or cultural activities, benevolence, child placement or child care, indigent or elderly care, education, scientific activity, community or economic development, recreation, maintenance and repair of community owned real property or of real property maintained by a homeowners' association, legal services for the indigent, conservation of natural resources or animal habitat, or firefighting and other public safety services; and
(3) Any organization that acts as an advocate for its members who are members of a particular trade or industry, the business community or armed services veterans associations.270
A separate provision provides immunity from liability for an employee, including an officer, agent, servant, elected or appointed official, regardless of whether compensated and whether full-time, of a political subdivision. Immunity does not apply if liability is expressly imposed by statute upon the employee or if the employee's acts or omissions are: manifestly outside the scope of employment or official responsibilities; with a malicious purpose; in bad faith; or in a wanton or reckless manner.271
In addition to the outright grant of immunity by statute for officers and directors a number of states, also have a provision that allows nonprofit corporations to include in their articles of incorporation a provision eliminating or limiting the personal liability of officers and directors to the corporation or its members for monetary damages for breach of fiduciary duty as an officer or director, notwithstanding any law imposing such liability. Typically, the provision states that liability may not be limited or eliminated for any of the following: breach of duty of loyalty; for acts or omissions not in good faith; intentional misconduct or a knowing violation of law; any transaction from which the officer or director derives an improper personal benefit; or any act occurring prior to the section's effective date.272
PART III: OTHER LIMITATIONS ON LIABILITY
A number of states have specific laws in addition to those discussed in Parts I and II, affording immunity from liability in narrowly drawn situations. Although an extended discussion of these specific immunity laws are beyond the general scope of this study, a few examples are offered as illustration of the undoubtedly multitude of others that exist to encourage uncompensated individuals to engage in activities deemed worthy and desired. For example, most states have some type of good samaritan law that covers such situations as medical personnel providing emergency assistance and donation of food to the poor or indigent. Another example is a provision of the Maryland Code that deals with volunteer health care providers and physicians who render health care services voluntarily and without compensation to persons seeking health care at a charitable organization or through a charitable organization chartered to provide health care services to the homeless or indigent. Such persons are not liable for damages in excess of any applicable limit of insurance coverage, unless the act or omission giving rise to suit constitutes willful or wanton misconduct, gross negligence, or intentionally tortious conduct.273
Although these laws are rather common, there are others that are more unusual. A few states protect volunteers involved with rodeos or equine activities.274 Indiana offers immunity for negligent acts or omissions to volunteers contributing personal time to the Special Olympics.275 Louisiana provides protection to approved volunteers working in elementary or secondary schools.276 New Hampshire law grants immunity to those volunteers who assist the police standard and training council in its training program.277 New Jersey affords immunity to trustees of free public or regional libraries or the county library commissions.278 Oregon protects providers of volunteer transportation services for the disabled or elderly.279 Wisconsin offers immunity, identical that for volunteers generally, to volunteers who provide services, without compensation, to or on behalf of the Roman Catholic Church.280
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