Risk Management for Volunteer Programs

LEGAL ISSUES

Knowledge about legal issues is critical in our current litigious society. Lawsuits abound involving nonprofit agencies, and protecting oneself against them is an important skill. Understanding applicable law is not as difficult as it might seem, and this paper explains the basics of legal matters that staff may encounter.

Two basic criteria in civil suits are LOSS and FAULT. It is not a function of the court system to develop rules or laws so that every injured person may find someone else to hold accountable. Before a person may collect money for damages caused by someone else, it must be established that the first person suffered a loss (e.g. physical injury, damage to property, loss of money, mental suffering) and the second person was at fault in causing the loss. More than one person may be sued for causing the same loss.

Tort Law

Tort is civil law, and a tort suit is a court action that allows legal recourse against someone who causes a loss. The plaintiff (the person suffering the loss and bringing the suit) must prove that the defendant (the person allegedly causing the loss) was liable.

Liability

Liability is a broad legal term, which assigns responsibility, both absolute and contingent. To summarize: the person suffering a loss may recover damages from the person(s) causing the loss, provided it can be proven that the latter was responsible for the loss.

In looking for proof of liability, the following are considered:

Due Care Instruction and Supervision

Negligence First Aid and Medical Treatment

Causation Defamation (slander and libel)

Foreseeability Assault and Battery

Property and Land Statute of Limitations (Notice of Claim)

Due Care

The standard for due care is that which any reasonable person would do or not do under similar circumstances. The court establishes determination of the standard of reasonableness. Reasonableness involves foreseeing a potential risk and taking steps to avoid it. Circumstances, however, play a part in determining reasonableness. There exists an assumption of risk doctrine, wherein a person is fully aware of exposing him/herself to danger. If a person falls while skiing down a mountain, he/she is unlikely to recover damages from the company operating the ski area; however, if an injury is caused by a malfunction of the ski lift, damages are likely to be recovered.

Negligence

Negligence is the failure to use due care, which results in damage, injury, or other loss. To prove negligence, it must be shown that 1) the defendant did not use due care, and 2) the absence of that care was the main cause of the loss.

Causation

Causation involves the determination of the cause of the loss. To be held liable, it must be proven that negligence was the main cause of the loss. If there were other contributing factors the court weighs their influence by asking if they alone, without the negligence, would have caused the loss.

Foreseeability

To foresee something means it must be seen as probable. It does not mean that one has some sort of prophetic vision as to what might conceivable happen. It is foreseeable that broken stairs may cause a fall. It is not foreseeable, under normal circumstances that a truck will crash into a building.

Property and Land

Reasonable efforts must be made by maintenance and operation to have property and land safe for those whom enter. This includes property and land owned, leased, or borrowed. If it is foreseeable that a condition related to the property or land could cause a loss, an obligation exists to fix the situation before the property is used. Another choice is not to use the property.

Instruction and Supervision

Supervisors are expected to provide proper instruction and adequate oversight to prevent accidents, injuries, and other losses. The greater the danger level, the more important this becomes. If a supervisor has been derelict, and the lack of instruction and/or supervision is found to be the main cause of the loss, the injured party may collect damages.

First Aid and Treatment

When rendering first aid and medical treatment, a person may be held liable if he/she were working beyond their skill level. Due care may be calling for professional help, rather than assisting personally. Today, it is imperative to be aware of the risks related to blood and body fluids and to use due care when dealing with them.

Defamation (Slander and Libel)

Defamation is communication that harms another’s reputation. Slander is oral; libel is written or printed. One is especially liable when making false or malicious statements outside the scope of one’s job description. All information is discoverable by the court, which means that letters, memos, recordings, computer disks and drives, etc. may need to be turned over.

Assault and Battery

Assault is an act that injures another person, by words, actions, or both. Battery is actual physical contact with another person. Liability requires proof of malice, of putting the other person in peril or threatened harm.

Statute of Limitation (Notice of Claim)

Most states place a limit on the number of years during which a suit may be filed following a loss. Minors suffering a loss may be given a greater number of years to file a claim.

Pre-Trial Statement

When a lawsuit comes to trial, a pre-trial statement is developed. While states differ, the following are usually part of the pre-trial statement, and they give an idea of the complexity of information required:

Uncontested facts . . . . . . . . Plaintiff’s specific claims ofliability.

Contested facts . . . . . . . . . Plaintiff’s latest demand and Defendant’s latest offer

Applicable law . . . . . . . . . . List of depositions to be read

List of exhibits . . . . . . . . . Waiver of claims or defenses

Defenses . . . . . . . . . . . . . Disputed issues of law

Specification of injuries. . . . . Itemizes statement of special damages (bills, wages)

List of witnesses . . . . . . . . Length of trial (anticipated)

View (what the trial will be like) Trial attorney

Waivers

A waiver, release from, or a consent form is often used to shield an organization from liability. They have value, but they do not release the organization from all liability. They do draw attention to the risk, and a participant’s signature is proof that he/she was aware of the danger.

If a participant is a minor, the signature of a parent/guardian is proof that the latter was aware of what the youth would be doing and under what conditions. A minor may not sign his/her own waiver.

It is important to be as specific as possible when describing the activities. If youth are going to stay in a hotel where there is a swimming pool, the waiver should indicate this and ask for permission for the youth to swim. This avoids a parent saying, “If I had known he was going to swim, I never would have let him go.”

If waivers are used, be sure that all participants provide one. It is helpful to have them days in advance of the activity, especially with youth. If allowed to bring them on the day of the activity, someone is sure to forget his/hers, which means he/she should not be allowed to participate. (This becomes difficult when the bus is ready to leave!)

Permission for Medical Treatment

Medical personnel and facilities are likely to refuse treatment to any person without signed permission from the person needing aid, or in the case of a minor, from the parent/guardian. It is advisable to create a form giving this signed permission, require the submission of this form before the activity, and most importantly carry these forms with you to the activity. Confer with an attorney and/or a medical facility in designing this form. They may have samples for you to use or copy.

This handout was written by Judith Lonergan as part of a cooperative effort to train those responsible for volunteer programs. Cooperating are Terry Knowles, New Hampshire Dept. of Justice, Div. of Charitable Trusts; Cynthia Flynn, New Hampshire Dept. of Labor; and Linda Quinn, New Hampshire Association of Nonprofits; and Judith Lonergan, Lonergan Associates and the University of New Hampshire Cooperative Extension. Please give credit to this team when the information is duplicated or otherwise used. Thank you.