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

1. Volunteer
Immunity
Statutes
Merry Moiseichik, R.Ed, J.D
University of Arkansas
Jim Moss, J.D.
Recreation Law

2. US News and World Report
Volunteerism is at a 10 Year Low

3. U.S.C.A. § 14501
Volunteer Protection Act
Federal Volunteer Immunity Act

4. SEC. 2. FINDINGS AND PURPOSE
Volunteers are:
1. Deterred by liability
2. Programs then adversely affected
3. Thus Fewer programs and higher
cost
4. It is good for US to provide
protection

5. Solution:
Increase programs by
reforming the laws to provide
volunteer protection from
liability
(42 USC 14501)

6. Pre-emption
Pre-empts state laws
Unless state law affords more
protection
Unless state elects non-applicability
(none did this)
Unless there is diversity of jurisdiction

7. Volunteer Protection Act
• Non-profit or governmental
volunteer
• Liable for harm caused by act or
omission
• Within scope of assignment
• Properly licensed or certified
• Ordinary negligence only
• Not cause by operation of motor
vehicle
• Agency can still sue volunteer
• No punitive damages awarded

8. Limitations (Sec. 4)
• Does not protect crime of
violence
• Hate crime
• Sexual offense
• Violation of civil rights
• Under the influence of alcohol or
drugs
• Shall be liable for non-economic
loss allocated by % of fault (Sec. 5)

9. Exceptions
• If state limits volunteer liability
• Adhere to risk management and
trains volunteers
• Makes agency liable for its
volunteers to same extent as
employees
• Makes liability inapplicable if
brought by officer of the state
• Agency provides source of recovery
(insurance)

10. Type of Volunteer Protection by State Statutes
Sports
Sports
Alaska
Hawaii
VPA
Insurance
Employee
More
Training
Sports
Sports
sports

11. Sample Statutes Statements
Insurance: (g) Sections 84.005 and
84.006 of this Act do not apply to any
charitable organization that does not
have liability insurance coverage in effect
on any act or omission to which this
chapter applies. The coverage shall apply
to the acts or omissions of the
organization and its employees and
volunteers and be in the amount of at
least $ 500,000 for each person and $
1,000,000 for each single occurrence for
death or bodily injury and $ 100,000 for
each single occurrence for injury to or
destruction of property.

12. Sample Statement
Employee: b) Liability insurance
may be provided by the
department utilizing their services
both to regular-service and
occasional-service volunteers to the
same extent as may be provided by
the department to its employees.
Volunteers in state service shall
enjoy the protection of sovereign
immunity of the State to the same
extent as employees. S.C. Code
Ann. § 8-25-40

13. More Protection
(2) An action or omission of the
volunteer constitutes willful or wanton
misconduct or intentionally tortious
conduct.
Ohio: ORC Ann. 2305.38

14. Training Example
Any person who provides services or assistance free of
charge, except for reimbursement of expenses, as an
athletic coach, manager, or official for a sports team which
is organized or performing pursuant to a nonprofit or
similar charter is immune from civil liability for any act or
omission resulting in damage or injury to a player or
participant if at the time of the act or omission all the
following are met:
c. The coach, manager, or official had
participated in a safety orientation and
training program established by the
league or team with which the person is
affiliated.
N.D. Cent. Code, § 32-03-46

15. Application of the
Federal Volunteer
Protection Act
42 USCS §§ 14501 et seq.

16. The Wrongful Death Beneficiaries of Christopher
Elliot, Deceased, Plaintiffs v. La Quinta Corporation,
2007 U.S. Dist. LEXIS 16837
Minor Basketball Team
Out of State trip to Play Basketball
Player drowns in hotel pool
Suit against hotel & Coach
Coach pleads defense of Volunteer
Immunity

17. The Wrongful Death Beneficiaries of Christopher
Elliot, Deceased, Plaintiffs v. La Quinta
Corporation, 2007 U.S. Dist. LEXIS 16837
Issue was whether a Volunteer of an
unincorporated non-profit could avail itself of
the Federal Volunteer Protection Act
Organization was the: Shaw Athletic Youth
Association
Organization was not associated with any
other entity
Organization was not recognized by the IRS

18. The Wrongful Death Beneficiaries of Christopher
Elliot, Deceased, Plaintiffs v. La Quinta Corporation,
2007 U.S. Dist. LEXIS 16837
Court Held the Coach was
protected by the act
Act does not require an IRS
determination that the
entity to be protected is a
IRC 501(c)(3)

19. The Wrongful Death Beneficiaries of Christopher
Elliot, Deceased, Plaintiffs v. La Quinta Corporation,
2007 U.S. Dist. LEXIS 16837
The legislative history of the act reflects
that the bill covers not only "501(c)(3)
organizations, but it also covers
volunteers of the organizations which
do good work, but do not have a tax
exemption under 501(c)(3).

20. The Wrongful Death Beneficiaries of Christopher Elliot,
Deceased, Plaintiffs v. La Quinta Corporation, 2007 U.S
Dist. LEXIS 16837
Given the extremely broad
definition of "organization" under
the Volunteer Protection Act as
well as the fact that the youths
traveled to Jackson together as a
team to engage in recreational
sport, this court finds that the
group constitutes an organization
for the purposes of the Volunteer
Protection Act.

21. Stemke v. Mastrogiacomo, 2014
N.Y. Misc. LEXIS 906; 2014 NY Slip
Op 30504(U)
Lacrosse Practice
2 Players run into each other
injuring the plaintiff
Father sued volunteer coaches,
facility, league,…..everyone

22. Stemke v. Mastrogiacomo, 2014 N.Y. Misc.
LEXIS 906; 2014 NY Slip Op 30504(U)
Plaintiff argued volunteer coach was
working outside of his coaching
responsibilities but offered no evidence
of such
Coach granted Summery Judgment
based on the Federal Volunteer
Protection Act

23. Application of State
Law Volunteer
Protection Acts

24. Ohio
ORC Ann. 2305.38 (2014)
§ 2305.38. Civil immunity of
uncompensated volunteers of
nonprofit charitable organizations

25. Wagner v. McGrady, 2009-Ohio-987; 2009
Ohio App. LEXIS 798
Defendant was Volunteer for SPA (Society for
the Protection of Animals)
Volunteer found a dog at his back door
Volunteer Followed rules, advertised lost dog,
turned dog over to SPA
Dog was adopted by third party
Volunteer was sued for conversion
Volunteer lost at trial

26. Wagner v. McGrady, 2009-Ohio-
987; 2009 Ohio App. LEXIS 798
In the present case, all of the evidence
offered at trial demonstrates that
appellant was acting in his capacity as a
volunteer working for SPA, an
undisputed nonprofit charitable
organization.
Trial Decision was reversed

27. One of a kind case and
use of a state Volunteer
Immunity Act
Elliott v. Hurst, 307 Ark. 134; 817 S.W.2d 877; 1991
Ark. LEXIS 535

28. Smith v. Kroesen, 9 F. Supp. 3d
439; 2014 U.S. Dist. LEXIS 39729
Rugby Game
Fight between players
Third play ran over and kicked an
opposing player in the face
Injured Player/Plaintiff sued kicker and
kicker’s coach
Appeal of the Coaches Motion for
Summary Judgment

29. Smith v. Kroesen, 9 F. Supp. 3d
439; 2014 U.S. Dist. LEXIS 39729
As noted by the New Jersey courts, the
question of the scope of duty among coaches
and players is intertwined with considerations
of public policy.
The "strong social policy to facilitate free and
aggressive participation in athletic activity
requires . . . leeway at least where no specific
rule or statute has been violated. Otherwise
courts and juries will become de facto athletic
directors, second guessing actor's conduct in
reviewing generalized claims of negligence."

30. Smith v. Kroesen, 9 F. Supp. 3d
439; 2014 U.S. Dist. LEXIS 39729
Absent evidence that Cooley [the Defendant
Coach] directed Kroesen [the kicker] specifically,
or his team in general, to inflict violence onto
opposing team players as part of the game,
Cooley cannot be held liable for plaintiff's
injuries.
Additionally, any of Cooley's alleged failings as a
coach as articulated by Dr. Lucenko [Plaintiff’s
Expert] cannot serve as the basis for finding
proximate causation because there cannot be
any definitive conclusion that even if Cooley
were the perfect coach, Kroesen would not have
acted as he did.

31. Byrne, JR., v. Fords-Clara Barton Boys
Baseball League, Inc., 236 N.J. Super.
185; 564 A.2d 1222; 1989 N.J. Super.
LEXIS 357
Plaintiff/Minor was the catcher on the
baseball team
He was warming up the pitcher with his
gear on
Except he was not wearing his catcher’s
mask
Ball hit him in face
Incident ooccurred Day after NJ act
became law

32. Byrne, JR., v. Fords-Clara Barton Boys
Baseball League, Inc., 236 N.J. Super.
185; 564 A.2d 1222; 1989 N.J. Super.
LEXIS 357
N.J.S.A. 2A:62A-6
Nothing in this section shall be deemed to
grant immunity to any person causing damage
by his willful, wanton, or grossly negligent act
of commission or omission, nor to any coach,
manager, or official who has not participated
in a safety orientation and training program
established by the league or team with which
he is affiliated.

33. Byrne, JR., v. Fords-Clara Barton Boys Baseball
League, Inc., 236 N.J. Super. 185; 564 A.2d 1222;
1989 N.J. Super. LEXIS 357
League had never established a training
program so the plaintiff coach never
took the safety training
Reversed and Remanded for Trial
The conclusion is, therefore, ineluctable
that a volunteer coach who has not
participated in a prescribed safety
program, for whatever reason, is barred
from reliance on the statutory
immunity.

34. Mooring v. Virginia
Wesleyan College, et al.
257 Va. 509; 514 S.E.2d
619; 1999 Va. LEXIS 69

35. Boys & Girls Club wanted help
Professor agreed to send students to help
Students had to spend 6 hours working at club
Students received grade based on the work at
B&G Club
Professor was at club observing students
Student instructed Professor to watch door
Professor closed door on minor’s hand causing
an amputation
Mooring v. Virginia Wesleyan College, et
al. 257 Va. 509; 514 S.E.2d 619; 1999
Va. LEXIS 69

36. Parties stipulated that Club was a Charity
Professor received no extra
compensation for being at B&G club
Not from the college
Not from the club
Professor’s role at the Club was both
supervising his students and "helping
the Club perform its good work”
Trial court agreed and dismissed based
on
Mooring v. Virginia Wesleyan College, et
al. 257 Va. 509; 514 S.E.2d 619; 1999
Va. LEXIS 69

37. Appeal to the VA Supreme Court
Professor’s presence did not directly
benefit the Club
Professor was at the Club to observe the
activities of his student. He was not
there to directly perform any of the
Club's work; rather he was carrying out
his duties as a professor at Virginia
Wesleyan College
Mooring v. Virginia Wesleyan College, et
al. 257 Va. 509; 514 S.E.2d 619; 1999 Va.
LEXIS 69

38. Summary
Ugh

39. If you are a Charity/Non-Profit
1.Buy Insurance
2.Educate your Volunteers
3.Have your Volunteers sign a
release
4.Educate your volunteers

40. Get your State Volunteer Protection Act
1. Read it
2. Understand the Definition of a
Volunteer
3. Understand the Definition of a
Charity or Non-profit
4. Understand the Duties you are
required to perform as a Volunteer
for that job
5. Make sure you have homeowners,
condo or tenant insurance
Maybe get an Umbrella Policy

41. http://rec-
law.us/2015-
SRLA-Vol
Documents & Presentation Can Be Found at:

42. Thank You
Merry Moiseichik, R.Ed, J.D
University of Arkansas
Jim Moss, J.D.
Recreation Law