A Volunteer and a Violent Stranger - A Question of Liability
Nonprofit assignments can place volunteers in precarious positions of potential, personal liability. Prior to the 1940s, the Charitable Immunity Doctrine shielded nonprofits from tort liability, but did not protect volunteers. To prevent volunteers from abandoning volunteerism because of liability concerns, the Volunteer Protection Act (VPA) was signed into law by President Clinton in 1997. The VPA provides conditional immunity for volunteers who are:
- acting within the scope of their assigned tasks;
- not grossly negligent;
- not operating a motor vehicle that requires state licensure; and
- not committing acts of violence, terrorism, hate crimes, sexual offenses, or, while intoxicated.
(Gross negligence is defined as willful, criminal and/or reckless misconduct, and conscious, flagrant indifference to the rights and safety of the injured.) To elucidate the provisions of the VPA, I have created a hypothetical scenario that presents conditions under which the volunteer might be protected. This scenario identifies an assigned volunteer task, an exigent circumstance, a discussion of whether the volunteer acted negligently, mitigating circumstances, and a discussion about the vicarious liability of the nonprofit.
In this example, a volunteer is assigned to provide tutoring to grade school students on campus. After the tutoring session, and in accordance with his training, the volunteer escorts the student back to the classroom. While en route, the volunteer is accosted by a stranger who attempts to grab the child and pull him away. The child cries out for help, and the volunteer begins struggling with the stranger for control of the child. In the scuffle, the child is knocked to the ground and stepped upon, causing a head injury, scrapes, bruises, and contusions. His injuries are significant enough that he is subsequently transported to the hospital for treatment.
Unknown to the volunteer is the fact that the stranger is the child’s angry, non-custodial parent who is attempting to remove the child from the school’s campus. Since the volunteer does not know this (and possibly even if this fact were known), the volunteer’s reactions could be deemed reasonable under the circumstances. The VPA should protect this volunteer from personal liability claims because he reacted in a manner he believed was reasonably prudent to protect the child in his care. The volunteer had received no formal training from the nonprofit in dealing with the exigent circumstance of being accosted by a violent stranger on school grounds because the school was ultimately responsible for the security of the campus, and the school’s front desk represented the frontline defense. Since no school security or personnel were present, the volunteer felt compelled to act on his own to protect the child. The child’s injuries, while fairly substantial, were accidental, and not due to negligence on the part of the volunteer. The VPA does not provide protection for the nonprofit, though.
The doctrine of respondeat superior provides the framework under which the nonprofit can potentially be found partially and/or vicariously liable. To successfully prevail against a nonprofit utilizing this doctrine, the injured accuser must prove that: 1) his injury was proximally caused by the negligence of the volunteer; 2) a master/servant relationship existed between the nonprofit and the volunteer; and 3) the volunteer was acting within the scope of his duties. In our scenario, the non-custodial parent was injured in the melee with the volunteer; but, the courts could find that, as the aggressor, he was feloniously culpable for his own injuries.
For the child’s injuries, the volunteer could expect to be protected by the VPA; however, the nonprofit could be held partially liable for the child’s injuries. A circumstance mitigating the nonprofit’s liability is that the school would no doubt be found the primary responsible party because of the breakdown in its security procedures. This potential liability for the nonprofit brings up an important consideration for all nonprofits – the urgent need for purchasing a comprehensive insurance policy with additional liability coverage to protect itself from liability claims resultant from injuries caused by its volunteers. The imprudence of failing to purchase liability-coverage insurance for the negligent acts of volunteers can prove costly for nonprofits, and can possibly even lead to insolvency. Therefore, the expense of comprehensive liability insurance is money well-spent by the nonprofit.
- Lopatka, D., (2010). Protecting Volunteers and Your Nonprofit From Liability. Dugan Lopatka, Certified Public Accountants and Consultants. www.duganlopatka.com/articles/non-for-profit-articles/262-protecting-volunteers-and-your-nonprofit-from-liability.
- NPCCNY. Volunteer Protection Act of 1997. NY Nonprofits/Nonprofit Coordinating Committee of New York, June 1998. www.npccny.org/info/gti2.
- Oshinsky, J., Gheiza, M., (2002). Liability of Not-for-Profit Organizations and Insurance Coverage for Related Liability. The International Journal of Not-for-Profit Law, 4, (2-3), International Center for Not-for-Profit Law. www.icnl.org/research/journal/vol14iss2_3/art_3.
Kathy Renfro received her honor's B.A. from the University of Minnesota with a triple major in African-American, American Indian, and Women's Studies, and was subsequently inducted into Phi Beta Kappa. In her second semester at ASU, her GPA qualified her for a sponsorship from ASU for the Fulbright Scholarship Program. Kathy is a concert pianist and cellist.