Join The NonProfit Times: or Become a member

Subscribe: Print Publication or Newsletter

Stay connected.
Stay informed.

Risky Business: There’s liability for the acts of your volunteers

By Siobhan Kelley - June 4, 2014

A parent looks away from a crowded swimming pool to answer a phone call; a driver makes a split-second decision to try to make it through a yellow light with a sudden burst of speed. We recoil when we read these scenarios because we know only too well that tragedy can result.

What happens when these incidents involve volunteers for your nonprofit? Your organization might be liable for the resulting injury.

Volunteers are the lifeblood of many nonprofits. But the actions of a volunteer can also create devastating liability for the organizations in a personal injury claim. While the law provides some relief for the negligent acts of volunteers, these laws vary widely from state to state and are often misunderstood. Don’t make the mistake of assuming that your nonprofit will be exempt from liability because its purposes are charitable, or because the person responsible for the harm is a volunteer.

A nonprofit will not necessarily be able to avoid liability for the negligent acts of its volunteers simply because they aren’t being paid. A volunteer might “step into the shoes” of an employee even where there is no actual employment relationship.

In general, the most important factor will be the extent of control that the nonprofit exerted over the volunteer’s activity. The more dangerous the activity, the more important it is that the nonprofit has exercised the appropriate care. A lack of training and oversight is a common theme in these cases.

For example, a California nonprofit was found liable for the acts of its volunteer scuba diving instructor after a student drowned. Nonprofit managers knew the volunteer was not a certified scuba instructor, and the court pointed out that activities that are extra hazardous or inherently dangerous may subject the nonprofit to liability.

A patchwork of laws offers limited immunity from personal liability for the volunteers, often with special requirements or exceptions. At the federal level, the Volunteer Protection Act of 1997 (the Act) offers qualified immunity for volunteers for acts of ordinary negligence that were committed while volunteering for a qualified nonprofit or governmental organization. Under the Act, a volunteer for a qualified nonprofit generally will not be personally liable for harm caused if:

1. They acted within the scope of their responsibilities;

2. They were properly licensed or certified (if required under the circumstances);

3. The harm was not caused by negligence and not willful or reckless misconduct; and,

4. The harm was not caused by the volunteer operating a motor vehicle, vessel, aircraft, or other vehicle for which the owner or operator is required to possess an operator’s license or maintain insurance.

The Act was intended to encourage individuals to volunteer by reducing their personal liability, but will not do the same for the nonprofit.

Unfortunately, nonprofit managers often mistakenly believe that these so-called Good Samaritan laws protect the organization. Nonprofits will not be able to avoid liability under state volunteer protection laws as they only protect the volunteer from personal liability. Laws protecting nonprofit organizations, called “charitable immunity” laws, have fallen out of favor. Courts have generally agreed that individuals’ right to recover for their injuries should not be limited because the institution responsible for the harm is a charity.

In a 1981 case, the U.S. Supreme Court found a nonprofit camp liable for the injuries to a camper who was injured by a rock thrown by another camper. The court called charitable immunity an “antiquated rule,” finding that “…a charitable institution is subject to liability for its tortuous conduct the same as any other person or corporation.” Although a minority of states offer some form of charitable immunity protection it is the nonprofit, not the volunteer, who usually ends up liable for harm caused by a volunteer.

While volunteer protection or charitable immunity may provide a limited defense for certain claims, nonprofit managers still must consider the costs of defending a lawsuit. Without adequate protection, in certain cases, a nonprofit’s officers and directors could be personally responsible for a judgment against the nonprofit. One of the most important ways to protect the nonprofit is with appropriate insurance coverage, including general liability and directors and officers coverage, that names volunteers as additional insureds.

A Directors and Officers policy should not be considered a replacement for other important forms of insurance such as an automobile, property and general liability. Ask whether a policy will cover acts of volunteers and in what circumstances. For example, most polices will not cover intentional acts. Some policies will provide an attorney, and others will only reimburse the legal costs after the conclusion of the case. Make sure you understand the exclusions, and what other coverage may exist to help cover these gaps.

Of course, the most effective way to manage the risk of being sued is to reduce the risk of harm in the first place. Consider that your volunteers might expose the nonprofit to the same risks as employees, and treat them accordingly. Best practices include a comprehensive risk management program, volunteer training, informed safety procedures and a robust procedure for reporting concerns. Some insurance companies offer special discounts or programs available to help nonprofits reduce risk.

While there is no silver bullet that eliminates all volunteer risk, you can protect your nonprofit and its board members by obtaining the appropriate insurance coverage and following best risk management practices. NPT

Siobhan Kelley is a labor employment risk manager with the Nonprofits Insurance Alliance Group. She previously served as in-house counsel for a large technology corporation. Her undergraduate degree is from the University of California San Diego and her law degree is from Santa Clara University School of Law. Kelley is a member of the California State Bar.

Podcast_forHub_500x500

Sponsored Podcasts

Welcome to the Raise & Engage podcast, a filters-off series for nonprofit professionals hosted by Blackbaud's straight-shooting expert Danielle Johnson Vermenton. During this open-mic session, you’ll hear honest advice to help YOU do more for your cause.

Episode 6: The Power of ‘No’ at Work|| daniellejohnson-76

You have a job description, but on any given day, you're probably doing dozens of things outside the scope of that description. Combine that with the challenge of a fast-paced environment and the shifting priorities of funders, colleagues, and board members and it’s easy to fall short of doing your best. By being mindful of your limitations and capacity—and saying “no” when your plate is full—you can actually do more for your cause. In the sixth installment of the Raise and Engage podcast Danielle Johnson and Robin Anderson discuss the power of saying “no” at work.

Episode 5: Professional Development: Getting Un-Stuck|| daniellejohnson-76

In the most recent episode of Raise + Engage, Danielle is back with Brian Reich from little m media to discuss how nonprofit professionals can stay motivated and energized in their day-to-day roles. Brian shares his experience working with nonprofits and the lessons and tips he's learn from and shared with them over the years, including tips for avoiding a professional rut, creating forward momentum in your career and pushing yourself outside of your comfort zone. If you're considering making a career move or want to ensure you're on the right path, you won't want to miss this inspo-packed episode!

Episode 4: Apps and Hacks to Stay (Mostly) Sane || daniellejohnson-76

Episode 4: Apps and Hacks to Stay (Mostly) Sane, is all about tips, tricks and tools for sanity. Blackbaud’s own interactive product marketer, Julia Lenz, joins host Danielle Johnson to share some high tech. (and no tech.) productivity tips to help nonprofit professionals stay sane in the crazy world of philanthropy.

Tune in to hear:

  • Tips for how to spend the first 30 minutes of your day
  • The benefits of 15 minute meetings
  • Why notebooks are still relevant to a successful organization
  • Ideas for better managing your inbox
  • Why you should take lunch outside the box
  • ...and much more!
Don’t forget to visit the #NoFilterNonprofit Hub afterwards to download our newest tip sheet10 Productivity Hacks for Nonprofits.

Episode 3: Tech. Connection: Solutions, Strategy, and Staff || daniellejohnson-76

Episode 3: Tech. Connection: Solutions, Strategy, and Staff In episode 3 of the Raise + Engage podcast, Danielle Johnson is joined by Chris Geady and William DaSilva, two IT experts in the nonprofit space, to talk technology integration for NPOs: when you need it, when you don’t, and how to do it successfully.


Tune in to hear:

  • When to say NO to integration
  • How to set your strategic plan before even looking at technologies
  • Ways to get your entire team on board
  • The importance of identifying a project lead
  • The RFP process - how it should and should not go
And William shares a story about a nonprofit that may or may not have still been using a typewriter. You don't want to miss this one!

Episode 2: From Socially Awkward to Socially Awesome! || daniellejohnson-76

According to Danielle Johnson, straight-shooting host of the Raise + Engage podcast series, if your staff members aren’t the number one advocates for your cause on social media, you’re failing. In the most recent episode, Danielle is joined by Blackbaud’s own social media guru Madeline Turner to discuss overcoming social struggles and creating a social ambassador program at your organization. This entertaining and insightful duo dishes on the importance of making your social media presence human, making the case for a formal social program to leadership, how University of Michigan turned a one time social media campaign into a long term social program, and how Madeline's mom unknowingly became a social ambassador on #GivingTuesday.

Episode 1: Corporate Culture & Development: Shake It Up! || daniellejohnson-76

In the premiere episode of Raise & Engage, Danielle is joined by three straight-shooting nonprofit rock-stars: Jodi Smith of Sanford Health Systems, Veronica Brown of Chicago Public Library Foundation and Ali Burke of Southlake Regional Health Centre Foundation. The group talks organizational culture, problem employees, why its important to celebrate and how to shake things up this year and build a better more authentic team that gets stuff done!

Newsletters

Stay informed, catch latest trends in the nonprofit space.

Subscribe to Our Free Newsletter

No obligation, unsubscribe at anytime.

Success! Check your email inbox.

Follow Us On Twitter

NPT 2016 Buyers' Guide

Newsletter Sign-up



click here to return to the previous page