Jeffrey P. Gale, P.A. // Florida’s Illusory Volunteer Protection Act

Some states exempt charities from liability for damages caused by their servants. Florida does not. Nicholson v. Good Samaritan Hospital, 199 So. 344 (Fla. 1940). This is consistent with the legal doctrine known as respondeat superior, which holds employers liable for the negligent or purposeful acts of their employees. See Valeo v. East Coast Furniture Co., 95 So. 3d 921, 925 (Fla. 4th DCA 2012) (negligence of employee imputed to employer when employee “committed the negligent act: (1) within the scope of employment, or (2) during the course of employment and to further a purpose or interest of the employer.”). This liability, also known as vicarious liability, applies even if the employer has done nothing wrong.

Most jurisdictions, either by state or federal law, exempt volunteers from all liability for injuries caused by negligence. This is an exception to the general rule that employees are liable for their negligence.

Congress enacted the “Volunteer Protection Act of 1997”

“to promote the interests of social service program beneficiaries and taxpayers and to sustain the availability of programs, nonprofit organizations, and governmental entities that depend on volunteer contributions by reforming the laws to provide certain protections from liability abuses related to volunteers serving nonprofit organizations and governmental entities.”

42 USC 14501 Sec. 2(b)

The Act preempts state law unless the state law provides greater protections to volunteers. Interestingly, it also authorizes states to enact laws under certain prescribed circumstances allowing civil suits against volunteers. Section 3(b).

Florida’s counterpart to the Federal Act is the “Florida Volunteer Protection Act.” Oddly, it seemingly provides less rather than more protection to volunteers than the Federal Act. A summary of the Federal Act finds the following elements:

SCOPE OF LIMITATION ON LIABILITY

Under the act no volunteer of a nonprofit organization or governmental entity can be liable for harm caused by his act or omission on its behalf if:

1. he was acting within the scope of his responsibilities at the time of the act or omission;

2. he was properly licensed, certified, or authorized by the appropriate authorities in the state where the harm occurred;

3. the harm was not caused by willful or criminal misconduct, gross negligence, reckless misconduct, or a conscious flagrant indifference to the rights or safety of the person harmed by the volunteer; and

4. the harm was not caused by the volunteer operating a motor vehicle, vessel, aircraft or other vehicle for which the state requires the operator or owner to possess a license or maintain insurance.

EXEMPTIONS TO IMMUNITY

5. occurred when the volunteer was under the influence of intoxicating liquor or any drug.

The gravamen of the federal law is that volunteers are immune from liability for simple acts of negligence. In contrast, volunteers under Florida’s law are not immune from liability for damages caused by simple acts of negligence. Campbell v. Kessler, 848 So. 2d 369 (Fla. 4th DCA 2003).

In speaking of volunteer immunity, section 768.1355 provides in pertinent part as follows:

(1)    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 any official duties performed under such volunteer service and such person was acting as an ordinary reasonably prudent person would have acted under the same or similar circumstances. 

The point is made in Campbell v. Kessler, 848 So. 2d 369 (Fla. 4th DCA 2003). Based on section 768.1355(1), Florida Statutes (2001), the trial court granted summary judgment to Berger, who hit Campbell’s car from behind while he was in uniform operating a Citizen Patrol car as a volunteer member of the Palm Beach Sheriff Office’s Citizen Observor Patrol. The Fourth DCA framed the issue as follows:

Campbell appeals, claiming summary judgment was improper because issues of fact remain regarding whether  Berger [the volunteer] acted in good faith and as a reasonable, prudent person and whether he was acting within the scope of his official duties at the time of the accident. The trial court found the reasonable person standard was inapplicable given the apparent legislative intent to provide immunity to volunteers for their negligent acts.

Reasoning as follows, the Fourth DCA reversed the summary judgment:

According to the language of the statute, a defendant cannot simply assert that he did not act willfully or wantonly pursuant to subsection (1)(b) to avoid liability, nor can a defendant simply assert he was in the scope of his volunteer duties pursuant to subsection (1)(a). Both conditions are tied to the core requirement, which is the reasonable person standard. If Berger was not acting as a reasonably prudent person, no protection is available to the estate under the statute [bold added for emphasis].

(2) Except as otherwise provided by law, if a volunteer is determined to be not liable pursuant to subsection (1), the nonprofit organization for which the volunteer was performing services when the damages were caused shall be liable for such damages to the same extent as the nonprofit organization would have been liable if the liability limitation pursuant to subsection (1) had not been provided [bold added].

The Federal Act (42 USC 14501) contains language similar to that in 768.1355(2):

SEC. 4. LIMITATION ON LIABILITY FOR VOLUNTEERS.
(c) NO EFFECT ON LIABILITY OF ORGANIZATION OR ENTITY.—
Nothing in this section shall be construed to affect the liability of any nonprofit organization or governmental entity with respect to harm caused to any person.

The meaning of the words contained in 768.1355(2), “shall be liable for such damages to the same extent as the nonprofit organization would have been liable if the liability limitation pursuant to subsection (1) had not been provided,” was explained by the Supreme Court of Florida in Nicholson v. Good Samaritan Hospital, 145 Fla. 360, 199 So. 344,  (Fla. 1940):  

“it would appear that the public policy of this state, as enunciated by its Constitution, is to put justice ‘by due course of law’ above or before charity … that to exempt charitable institutions from liability for the torts of their servants is to create an exception to the well founded and salutary doctrine of respondeat superior, which doctrine is in this State so much a part of ‘due course of law,’ referred to in … our Constitution…. There is no legal principle which would justify this Court in making such an exception, in view of the above quoted constitutional provision.” 

In some instances, the volunteer may be receiving compensation from another source for performing volunteer work for a nonprofit. A good example might be the Salvation Army paying one of its workers to perform volunteer work for a church. 768.1355(1) grants the source (e.g., Salvation Army) the same immunity from liability as it does the volunteer:

Such person, and the source of any such compensation [bold added], if the volunteer is not acting as an agent of the source, shall incur no civil liability for any act or omission by such person which results in personal injury or property damage….

Nonprofits should not read this part as applying to them. This was the conclusion reached by the Florida Senate in its 2011 analysis of the effect of proposed 2011 changes to 768.1355:

The bill also provides that the volunteer and the source that provides compensation, if the volunteer is not acting as an agent of the source, may not incur any civil liability for any act or omission by the volunteer which results in personal injury or property damage if other specified criteria in Act are also met.

There are no cases involving the Federal Statute or state laws patterned after it which grant immunity to a nonprofit for the simple negligence of a volunteer. This makes sense because the primary purpose of volunteer immunity laws is to encourage voluntarism. This goal is not advanced by also exempting the nonprofits for which the volunteer work is being performed. In Florida, any law exempting a nonprofit from liability under these circumstances would be unconstitutional. See, Nicholson v. Good Samaritan Hospital, 199 So. 344 (Fla. 1940).

Nonprofits will argue that the Campbell case, supra, stands for the proposition that if the volunteer is found negligent, liability for the negligence cannot be shifted to the Defendant nonprofit. This interpretation of the statute is wrong and their reliance on Campbell misplaced.

Campbell involved the alleged negligence of a volunteer Citizen Observer Program (COP) participant in causing a rear end vehicle collision. 848 So. 2d. at 370-371. The COP was a joint effort with the Palm Beach County Sheriff’s Office whereby the Sheriff’s Office would oversee the neighborhood patrol program and provide marked vehicles owned by the Sheriff’s Office for the volunteers to drive while on patrol. Id. The volunteer defendant in Campbell was operating a vehicle owned by the Sheriff’s Office when he rear-ended the plaintiff, but was not an employee of the Sheriff’s Office. He was a private citizen residing in a residential community and providing volunteer services to the homeowner association who died before suit was filed. Id.

The issue in Campbell was whether the volunteer’s Estate would be protected under the terms of the Florida Volunteer Protection Act, not whether a nonprofit organization would be protected under the Act. Defendants who argue otherwise are misreading the language of the Act which specifically states:

(2) Except as otherwise provided by law, if a volunteer is determined to be not liable pursuant to subsection (1), the nonprofit organization for which the volunteer was performing services when the damages were caused shall be liable for such damages to the same extent as the nonprofit organization would have been liable if the liability limitation pursuant to subsection (1) had not been provided.

(Emphasis added). This language does not shift liability, rather it merely provides that, even if the volunteer is found not liable because of the protection provided by the Act, the “nonprofit organization shall be liable for such damages to the same extent as the nonprofit organization would have been liable if the liability limitation of the Act had not been provided.” In other words, the nonprofit organization will still be liable for the volunteer’s acts or omissions irrespective of any protection afforded to the volunteer.

The Legislature’s Bill Analysis & Economic Impact Statement issued when §768.1355 was first enacted supports this reading of the statute:

B. EFFECT OF PROPOSED CHANGES:

PCS/HB 21 creates the Florida Volunteer Immunity Act and provides immunity from civil liability for acts or omissions resulting in personal injury or property damage by persons who perform volunteer services for nonprofit organizations. The bill also provides that if the volunteer is determined to be immune, the nonprofit organization for which the volunteer was performing services would be liable to the same extent as the nonprofit organization would have been liable had immunity not have been provided to the volunteer.

Nowhere in the Florida Volunteer Protection Act or the Bill Analysis did the Legislature suggest that the legislative intent was to shift liability to the nonprofit organization. The language of the FVPA regarding the liability of the nonprofit organization is obviously intended to make it clear a nonprofit organization will not escape liability even if its volunteer does. Since the issues before the district court in Campbell related only to whether the volunteer’s estate was immune under the FVPA and not the liability of the entity to which services were provided, the district court’s comment about intent of the legislature to shift liability from the volunteer to the non-profit was not essential to its decision and thus merely dicta and not of no precedential force.  See, State ex rel. Biscayne Kennel Club v. Board of Business Regulation of Department of Business Regulation, 276 So. 2d 823, 826 (Fla. 1973)(statements of district court not essential to the decision of that court are without force as precedent).

The Florida Volunteer Protection Act is misnamed. Instead, it should be named the Florida Victim Protection Act. It does not protect volunteers or nonprofits. Rather, it provides in no uncertain terms that volunteers are agents of the nonprofits and the nonprofits are liable for the harm caused by their agents. Period!

Any protections to volunteers seemingly arising from the Act’s name are illusory.