By Paul Sanderson, Esq.
In recent years New Hampshire has seen its share of tragedy and disaster. One of the positive aspects of these events has been a renewed interest in volunteerism. At the local level, our citizens assist their communities in every aspect of civic life, including the provision of municipal services. New Hampshire also has resources at the state level to encourage and support volunteerism. The Volunteer NH! organization has placed information, tools and training resources on the Web at www.volunteernh.org. Some of these gifts of time and talent, such as part-time office support, bear small amounts of risk to either the volunteer or to the municipality. However, when money is involved, or there is a risk of harm to persons or property, there are concerns about liability. Liability simply means legal responsibility for a person’s acts or omissions. Volunteers are concerned that their good deeds do not expose them to an undue risk of liability to others, and municipalities are concerned that the persons acting in their behalf do not expose them to an undue risk of liability either to the persons served, or to the volunteer performing the work.
If a volunteer steals money belonging to the municipality, or a volunteer coach physically assaults a child or parent, these acts are prosecuted under the criminal law, and the volunteer bears the responsibility for the unlawful acts. When no criminal conduct is involved, disputes are resolved under the civil law, and the process of assigning responsibility is more complex. Disputes may arise under oral or written contracts, and although people will disagree about the meaning of their statements, or the text of written agreements, liability is usually in the form of money, or a court order to take some specific action required by an agreement.
When the injured person is a volunteer or a citizen, the person or entity that caused the loss is said to have “tort" liability, and the matter is resolved through a lawsuit. The word “tort" simply means “wrong." There are several types of conduct that constitute these legal wrongs. If the conduct causing harm is intentional, it is called an “intentional tort," and includes actions such as assaults that are not prosecuted as a crime. If the conduct invades a person’s privacy, such as breach of confidentiality in the health care area, it could result in tort liability. Most injuries to persons and property result in a claim of “negligence." If a legally responsible person or entity had a duty to either do something or not do something, and as a result of a failure to adhere to that duty, a person is injured or property is damaged to some degree, there is tort liability for the negligent act or omission.
Volunteers are involved in everyday activities that involve risk, such as operating a motor vehicle or equipment. The risk is much greater when medical services are provided to a victim, or when a natural disaster makes ordinary travel hazardous, or creates uncontrollable hazards such as a flood, a major snowstorm, or a hurricane. There are less obvious risks, such as the management of volunteers in a crisis, which may result in the wrong person being in the wrong place at the wrong time, with the result that a disaster may be created within a disaster.
Protection Under Federal and State Laws
Because the state and the nation wish to encourage volunteerism, and provide some limit to the risk that both the volunteer and the governmental entity must bear when volunteers are in service, both federal and state statutes have been passed to provide liability protection to either the governmental entity or to the volunteer.
At the federal level, Congress enacted the Federal Volunteer Protection Act of 1997 (VPA), which is found at 42 USC §§ 14501 through 14505. Normally, this federal law would preempt inconsistent state laws, but Congress included an “opt-out" provision. New Hampshire exercised this authority, and as of 1998, the VPA does not apply to any civil action against a volunteer in a New Hampshire court in which all parties are citizens of New Hampshire. See Chapter 129, Laws of 1998. Note that this federal law could apply to civil actions brought against a New Hampshire municipality or a New Hampshire volunteer in another state, or if the injured person or volunteer is not a New Hampshire citizen. This could happen in the aftermath of a disaster where persons from other states volunteer in New Hampshire.
If the act does apply, it provides protection to the volunteer against liability for simple negligence in the conduct of activities that are within the scope of the volunteer’s responsibilities in the organization. However, the protection is not available for the operation of a motor vehicle, or if the conduct was willful, criminal or grossly negligent. For a volunteer, the greatest concern is that the act does not protect against liability to the nonprofit or governmental organization for which the volunteer has acted. That is, while the act prevents the injured person from suing the volunteer directly, a lawsuit could be filed against a municipality for damages arising out of the acts of the volunteer, and the municipality could bring the volunteer into the lawsuit for the purpose of requiring the volunteer to pay some or all of the damages ultimately owed to the injured person. Thus, especially in New Hampshire, this law does not provide significant liability protection to a volunteer.
At the state level, the legislature has acted to protect volunteers in a series of statutes found in RSA 508. The “Good Samaritan" statute at RSA 508:12 protects persons, including law enforcement officers, who render immediate aid and assistance to the victim of a crime, delinquent act, or a person injured during an emergency from liability so long as the person receives no compensation for the care, and acts to place the victim into the care of a physician or other qualified person as soon as possible.
Sometimes a volunteer may be treated as a state employee and receive special liability protection when serving during an emergency. A person who serves as the agent of the state Department of Health and Human Services during a specific public health or public safety incident shall be protected from claims and civil actions arising from acts committed within the scope of his or her official duty as an agent to such departments to the same extent as state officers, trustees, officials, employees and members of the general court under RSA 99-D. See RSA 508:17-a.
Special liability protection is afforded to physicians, emergency medical service personnel, 911 operators, hospitals and nurses, fire department and rescue squad personnel who act to render emergency care in the field and during transport of injured persons by RSA 508:12-a, and 12-b. So long as the care is not provided in a reckless or grossly negligent manner, the injured person has no right of action against the provider of the care. This special protection encourages rescue squads and emergency medical personnel to act swiftly in the field, and communicate with hospitals and physicians during those efforts and during transport to provide the best available response to trauma and emergency.
Volunteers receive special liability protection in RSA 508:17. Volunteers are immune from civil liability for ordinary negligence, so long as they are acting within the scope of their duties for the organization. There are limits to the protection. The immunity does not extend to “transportation" activities, and does not protect against gross negligence, or reckless or criminal conduct. If the volunteer is a sports coach or official, the person must have proper certification in advance in the rules and procedures of the athletic activity. As in the federal act, the volunteer may still be found liable to the nonprofit or governmental entity for damages arising out of the act or omission. Under this section, the organization must have a record that the person is a volunteer, and the person must receive no compensation other than reimbursement for actual expenses.
Ordinarily, in order to receive the liability protection, a volunteer to a governmental entity or a nonprofit agency must receive no compensation other than reimbursement for expenses. This is also true for people who serve on the boards of nonprofit organizations. See RSA 508:16. However, a person who is a volunteer, “part paid’’ or “call’’ member of a nonprofit fire department, emergency service or rescue squad operating in any political subdivision is not limited by this rule. Their immunity extends to the level of receiving payment for each emergency response as a “call" member or an annual retainer or stipend of less than $5,000 for his services as a “part paid" member. RSA 508:12-b.
The relatively complete immunity against suit offered by these statutes to an individual volunteer does not extend to the entity receiving the volunteer services. The amount that may be recovered against a municipality is limited by RSA 507-B:4, and there are several additional requirements that a plaintiff must meet in order to be able to sue. Governmental entities are allowed, and encouraged, by the statutes to obtain insurance to protect against the liabilities to others that may arise out of their activities. A more complete discussion of the concepts of sovereign and municipal immunity is well beyond the scope of this article, but an interesting discussion of the matter in practice is found in the recent New Hampshire Supreme Court case of Cloutier v. Berlin, No. 2005-342, Opinion issued August 2, 2006.
Controlling Risk of Liability
Given this overview of special statutory protections for both volunteers and municipalities, what acts should both take to further control their risk of liability? For the volunteer, it must now be clear that these protections are not absolute, and that the law provides significant protection only against “ordinary negligence." The volunteer should not attempt to perform actions for which the person is not qualified. A volunteer should not drive unfamiliar vehicles, or operate unfamiliar equipment, and should not attempt to provide services without some background or training. Especially in a disaster situation, the immediate and positive desire to help may actually impede the response and transform the volunteer from a helper into an additional victim. More discussion of this issue is found on the Web sites of the New Hampshire Department of Safety and the federal Department of Homeland Security.
For the municipality, the issue is management of volunteers. Put in writing the scope of each volunteer’s activities. Doing so helps protect the municipality from liability when the volunteer acts outside the scope of his or her volunteer duties. Plan for significant events in your community, and outline how volunteers may be made a part of those events. Sometimes the event will be planned in advance, such as a fair or other community event. Identify volunteers in advance, and be sure that they have the necessary instructions, equipment and supervision to perform their tasks safely and appropriately. For the unplanned event, such as a natural disaster or severe storm, advance planning is a must. The local first responders and emergency management director have access to resources at the state and federal level to help in this task.
Paul Sanderson is a Staff Attorney with LGC’s Legal Services and Government Affairs Department.< Back to Town And City Home