Good Samaritan Liability Improvement and Volunteer Encouragement Act of 2005 (GIVE Act of 2005) - Exempts from liability for acts or omissions: (1) disaster relief volunteers; (2) employers or business partners of disaster relief volunteers; (3) hosts or enabling persons, entities, or organizations; and (4) governmental and intergovernmental entities for donations of disaster relief goods.
Specifies limits to punitive and non-economic damages for willful, knowing, or reckless misconduct based on the actions of disaster relief volunteers and governmental or intergovernmental donors.
Provides for: (1) judicial review of allegations; (2) supplemental disaster declarations by the President, the Secretary of Health and Human Services, or the Secretary of Homeland Security; and (3) state election for nonapplicability of a provision of this Act to certain civil actions in state court.
Amends the Volunteer Protection Act of 1997 with respect to liability protection for actions of volunteers generally.
Exempts persons from civil liability relating to any injury or death involving: (1) donations of equipment to nonprofit organizations; or (2) use of facilities, a motor vehicle or aircraft provided to nonprofit organizations.
Provides for judicial review of allegations
[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 1747 Introduced in Senate (IS)]
109th CONGRESS
1st Session
S. 1747
To limit liability for volunteers and those providing goods and
services for disaster relief, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
September 21, 2005
Mr. Cornyn (for himself, Mr. Vitter, Mrs. Hutchison, Mr. Thune, Mr.
Lott, Mr. Grassley, Mr. Brownback, and Ms. Landrieu) introduced the
following bill; which was read twice and referred to the Committee on
the Judiciary
_______________________________________________________________________
A BILL
To limit liability for volunteers and those providing goods and
services for disaster relief, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Good Samaritan Liability Improvement
and Volunteer Encouragement Act of 2005'' or the ``GIVE Act of 2005''.
SEC. 2. FINDINGS.
Congress finds the following:
(1) It is in the national interest to encourage individuals
to volunteer, and particularly to assist victims of national
disasters.
(2) The willingness of volunteers to offer their services
is deterred by the potential for liability actions against
them.
(3) The contribution of programs that use volunteers to
their communities is thereby diminished, resulting in fewer and
higher cost programs than would be obtainable if volunteers
were participating.
(4) The exposure of potential volunteers, their employers,
and those who would use the services of volunteers under
existing law to compensatory and punitive damages for negligent
acts discourages the provision of these services.
(5) The availability of damages for actions that constitute
gross negligence creates uncertainty concerning the actual
conduct that might cause liability to be imposed on volunteers.
(6) Potential liability for acts of volunteers discourages
the employers or business partners of potential volunteers from
permitting those potential volunteers to provide disaster
relief services.
(7) Potential liability for acts of volunteers discourages
entities that might use the services provided by volunteers
from doing so.
(8) Well-founded fear of liability under existing law for
providing goods, equipment, access to facilities, and other in-
kind contributions discourages those who would donate them from
doing so.
(9) Well-founded fear of liability under existing law for
providing goods discourages governmental and intergovernmental
entities from providing needed disaster relief goods.
(10) Well-founded fear of liability for punitive damages
under existing law discourages governmental and
intergovernmental entities from providing needed disaster
relief goods and discourages potential volunteers from
providing volunteer services to disaster victims.
(11) Fear of compensatory and punitive damages for
providing volunteer services deters potential volunteers from
States located outside the national disaster area from
providing volunteer services.
(12) Fear of compensatory and punitive damages for
providing volunteer services deters potential foreign
volunteers from providing disaster relief services.
(13) Any lessening of liability for volunteers providing
disaster relief services, their employers and business
partners, and entities utilizing their services should maintain
adequate incentives for each of these classes of persons or
entities to avoid causing harm.
(14) Unwillingness to provide volunteer services in the
face of uncertain liability substantially affects, burdens, and
deters interstate commerce and travel.
(15) Unwillingness of employers and business partners to
allow their employees and business partners to provide
volunteer and disaster relief services in the face of uncertain
liability substantially affects, burdens, and deters interstate
commerce and travel.
(16) Unwillingness of persons, entities, or organizations
to accept volunteer and disaster relief services from
volunteers in the face of uncertain liability substantially
affects, burdens, and deters interstate commerce and travel.
(17) Unwillingness by foreigners to provide volunteer and
disaster relief services in the face of uncertain liability
substantially affects, burdens, and deters foreign commerce and
travel.
(18) Because Federal funds are expended on useful and cost-
effective social service programs, many of which are national
in scope, depend heavily on volunteer participation, and
represent some of the most successful public-private
partnerships, protection of volunteerism through clarification
and limitation of the personal liability risks assumed by the
volunteer in connection with such participation is an
appropriate subject for Federal legislation.
(19) Services and goods provided by volunteers and
nonprofit organizations would often otherwise be provided by
private entities that operate in interstate commerce.
(20) Due to high liability costs and unwarranted litigation
costs, volunteers and nonprofit organizations face higher costs
in purchasing insurance, through interstate insurance markets,
to cover their activities.
(21) Clarifying and limiting the liability risk assumed by
volunteers is an appropriate subject for Federal legislation
because--
(A) of the national scope of the problems created
by the legitimate fears of volunteers about frivolous,
arbitrary, or capricious lawsuits;
(B) the citizens of the United States depend on,
and the Federal Government expends funds on and
provides tax exemptions and other consideration to,
numerous social programs that depend on the services of
volunteers;
(C) it is in the interest of the Federal Government
to encourage the continued operation of volunteer
service organizations and contributions of volunteers,
as the Federal Government lacks the capacity to carry
out all of the services provided by such organizations
and volunteers; and
(D)(i) liability reform for volunteers, will
promote the free flow of goods and services, lessen
burdens on interstate commerce and uphold
constitutionally protected due process rights; and
(ii) therefore, liability reform is an appropriate
use of the powers contained in article 1, section 8,
clause 3 of the Constitution of the United States, and
the fourteenth amendment to the Constitution of the
United States.
(22) Unless Congress provides uniform standards to address
disasters that could occur in any State or combination of
States, potential volunteers and others will not be certain
which laws would govern their providing disaster relief
services, which would substantially affect, burden, and deter
interstate and foreign commerce and travel in the event of a
national disaster.
TITLE I--DISASTER RELIEF VOLUNTEER PROTECTION
SEC. 101. DEFINITIONS.
In this title--
(1) the term ``compensation''--
(A) means monetary or other compensation of any
kind provided in exchange for an individual's services;
and
(B) does not include--
(i) reasonable reimbursement or allowance
for expenses actually incurred by such
individual;
(ii) provision of reasonable supplies,
lodging, or transportation to such an
individual; or
(iii) the ordinary salary or compensation
paid to such an individual by the employer of
the individual while the individual is on leave
from performing ordinary duties for the
employer of the individual in order to provide
disaster relief services;
(2) the term ``declared disaster'' means--
(A) a public health emergency declared by the
Secretary of Health and Human Services under section
319 of the Public Health Services Act (42 U.S.C. 247d);
(B) a public health emergency, or a risk of such
emergency, as determined by the Secretary of Homeland
Security in accordance with clause (i) or (ii) of
section 2811(b)(3)(A) of the Public Health Services Act
(42 U.S.C. 300hh-11(b)(3)(A)), as transferred by
section 503(5) of the Homeland Security Act of 2002 (6
U.S.C. 313(5)); or
(C) an emergency or major disaster declared by the
President under section 401 or 501 of the Robert T.
Stafford Disaster Relief and Emergency Assistance Act
(42 U.S.C. 5170, 5191);
(3) the term ``disaster relief goods'' means either--
(A) those goods provided in preparation for,
response to, or recovery from a declared disaster and
reasonably necessary to such preparation, response, or
recovery; or
(B) those goods defined by a supplemental
declaration under this title;
(4) the term ``disaster relief services'' means services or
assistance provided in preparation for, response to, or
recovery from a declared disaster, including but not limited to
health, medical, firefighting, rescue, reconstruction, and any
other services or assistance specified by a supplemental
declaration under this title as necessary or desirable to
prepare for, respond to, or recover from such declared
disaster;
(5) the term ``disaster relief volunteer'' means an
individual--
(A) who provides disaster relief services or
assistance in connection with a declared disaster
without expectation or receipt of compensation in
exchange for providing such services or assistance; and
(B) who, to the extent required by the appropriate
authorities of a State (even if such State is not the
State in which the volunteer provides services or
assistance) or, if, and to the extent, specified in a
supplemental declaration under this title, a foreign
country, is licensed, certified, or authorized to
provide the relevant services or assistance;
(6) the term ``non-economic loss'' means losses for
physical and emotional pain, suffering, inconvenience, physical
impairment, mental anguish, disfigurement, loss of enjoyment of
life, loss of society and companionship, loss of consortium
(other than loss of domestic service), hedonic damages, injury
to reputation, and all other non-pecuniary losses of any kind
or nature;
(7) the term ``supplemental declaration'' means a
declaration under section 108 regarding the scope of a declared
disaster; and
(8) the term ``State'' means each of the several States of
the United States, the District of Columbia, the Commonwealth
of Puerto Rico, the Virgin Islands, Guam, American Samoa, the
Commonwealth of the Northern Mariana Islands, any other
territory or possession of the United States, and any political
subdivision of any such State, territory, or possession.
SEC. 102. LIABILITY OF DISASTER RELIEF VOLUNTEERS.
Except as provided in section 109, a disaster relief volunteer
shall not be liable for harm caused by an act or omission of the
volunteer that is within the scope of the activities of the volunteer
to provide or facilitate the provision of disaster relief services in
connection with a declared disaster if--
(1) the harm was not caused by willful, knowing, or
reckless misconduct by the volunteer; and
(2) 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 the owner of the vehicle, craft,
or vessel to--
(A) possess an operator's license; or
(B) maintain insurance.
SEC. 103. LIABILITY OF EMPLOYER OR PARTNER OF DISASTER RELIEF
VOLUNTEER.
Except as provided in section 109, an employer or business partner
of a disaster relief volunteer shall not be liable for any act or
omission of such volunteer within the scope of the activities of the
volunteer to provide or facilitate the provision of disaster relief
services in connection with a declared disaster.
SEC. 104. LIABILITY OF HOST OR ENABLING PERSON, ENTITY, OR
ORGANIZATION.
Except as provided in section 109, a person, entity, or
organization, including a governmental or intergovernmental entity,
that works with, accepts services from, or opens its facilities to a
disaster relief volunteer to enable the volunteer to render disaster
relief services in connection with a declared disaster shall not be
liable for any act or omission of a disaster relief volunteer.
SEC. 105. LIABILITY OF GOVERNMENTAL AND INTERGOVERNMENTAL ENTITIES FOR
DONATIONS OF DISASTER RELIEF GOODS.
Except as provided in section 109, a governmental or
intergovernmental entity that donates disaster relief goods to an
agency or instrumentality of the United States in connection with a
declared disaster shall not be liable for harm caused by such donated
goods if the harm was not caused by willful, knowing, or reckless
misconduct by the governmental or intergovernmental entity.
SEC. 106. LIMITATION ON PUNITIVE AND NON-ECONOMIC DAMAGES BASED ON
ACTIONS OF DISASTER RELIEF VOLUNTEERS AND GOVERNMENTAL OR
INTERGOVERNMENTAL DONORS.
(a) Punitive Damages.--Except as provided in section 109, punitive
damages may not be awarded in any civil action against a disaster
relief volunteer or governmental or intergovernmental entity unless a
claimant establishes by clear and convincing evidence that the damages
to the claimant were proximately caused by willful, knowing, or
reckless misconduct by either--
(1) a disaster relief volunteer in an action brought for
harm caused by the activities of the volunteer to provide or
facilitate the provision of disaster relief services in
connection with a declared disaster; or
(2) a governmental or intergovernmental entity for harm
caused by disaster relief goods donated by such governmental or
intergovernmental entity in connection with a declared
disaster.
(b) Non-Economic Damages.--
(1) In general.--Except as provided in section 109,
liability for non-economic loss in any civil action brought
against either a disaster relief volunteer for harm caused the
activities of the volunteer to provide or facilitate the
provision of disaster relief services in connection with a
declared disaster, or a governmental or intergovernmental
entity for harm caused by disaster relief goods donated by such
governmental or intergovernmental entity in connection with a
declared disaster, if permitted under section 102 or section
105, shall be determined in accordance with paragraph (2).
(2) Amount of liability.--
(A) In general.--The amount of damages for non-
economic loss allocated to a disaster relief volunteer
or governmental or intergovernmental entity defendant
shall be in direct proportion to the percentage of
responsibility of that defendant, determined in
accordance with subparagraph (B), for the harm to the
claimant with respect to which that defendant is
liable.
(B) Percentage.--In a civil action described in
paragraph (1), for purposes of determining the amount
of non-economic loss, the trier of fact shall determine
the percentage of responsibility of each defendant
found liable for harm to the claimant.
(C) Separate judgments.--The court shall render a
separate judgment against each defendant for any non-
economic loss.
SEC. 107. JUDICIAL REVIEW OF ALLEGATIONS.
(a) In General.--A claimant in a civil action for an act or
omission subject to the limitations of liability under this title shall
attach 1 or more sworn affidavits or documents containing admissible
evidence of an act or omission outside the limitations of section 102,
103, 104, or 105.
(b) Initial Review.--Before allowing a civil action described in
subsection (a) to proceed into discovery, the trial judge shall
determine whether, as a matter of law, the evidence submitted is
sufficient to raise a genuine issue of material fact.
SEC. 108. SUPPLEMENTAL DECLARATION.
(a) In General.--In the event of a declared disaster, the
President, the Secretary of Health and Human Services, or the Secretary
of Homeland Security may issue a supplemental declaration.
(b) Temporal Effect.--A supplemental declaration may provide that,
for purposes of this title, such declared disaster shall have such
temporal effect as the President or the Secretary may deem necessary or
appropriate to further the public interest, including providing that
such declared disaster shall have an effective date earlier than the
date of the declaration or determination of such declared disaster.
(c) Geographic and Other Conditions.--A supplemental declaration
may provide that, for purposes of this title, such declared disaster
shall have such geographic or other conditions as the President or the
relevant Secretary may deem necessary or appropriate to further the
public interest.
SEC. 109. ELECTION OF STATE REGARDING NONAPPLICABILITY.
A provision of this title shall not apply to any civil action in a
State court against a person in which all parties are citizens of the
State if such State enacts a statute--
(1) citing the authority of this title;
(2) declaring the election of such State that such
provision shall not apply to such civil action in the State;
and
(3) containing no other provisions.
SEC. 110. CONSTRUCTION.
Nothing in this title shall be construed to abrogate or limit any
protection that a volunteer, as defined in section 6(6) of the
Volunteer Protection Act (42 U.S.C. 14505(6)), may be entitled to under
that Act. Neither shall anything in this title be construed to confer
any private right of action or to abrogate or limit any protection with
respect to either liability or damages that any person may be entitled
to under any other provision of law.
TITLE II--VOLUNTEER PROTECTION IMPROVEMENTS
SEC. 201. DEFINITIONS.
In this title--
(1) the term ``aircraft'' has the meaning given that term
in section 40102(6) of title 49, United States Code;
(2) the term ``equipment'' includes mechanical equipment,
electronic equipment, and office equipment;
(3) the term ``facility'' means any real property,
including any building, improvement, or appurtenance;
(4) the term ``motor vehicle'' has the meaning given that
term in section 30102(6) of title 49, United States Code;
(5) the term ``nonprofit organization'' means--
(A) any organization described in section 501(c)(3)
of the Internal Revenue Code of 1986 and exempt from
tax under section 501(a) of such Code; or
(B) any not-for-profit organization organized and
conducted for public benefit and operated primarily for
charitable, civic, educational, religious, welfare, or
health purposes;
(6) the term ``person'' includes any governmental or other
entity; and
(7) the term ``State'' means each of the several States,
the District of Columbia, the Commonwealth of Puerto Rico, the
Virgin Islands, Guam, American Samoa, the Commonwealth of the
Northern Mariana Islands, any other territory or possession of
the United States, or any political subdivision of any such
State, territory, or possession.
SEC. 202. LIABILITY PROTECTION FOR ACTIONS OF VOLUNTEERS GENERALLY.
Section 4 of the Volunteer Protection Act of 1997 (42 U.S.C. 14503)
is amended--
(1) in subsection (a)(3), by striking ``willful or criminal
misconduct, gross negligence, reckless misconduct'' and
inserting the following: ``willful, knowing, or reckless
misconduct'';
(2) by striking subsection (c) and inserting the following:
``(c) Effect on Liability of Nonprofit Organizations.--No nonprofit
organization shall be liable for the acts or omissions of a volunteer
with respect to harm caused to any person unless--
``(1) the acts or omissions of the volunteer are not
subject to the limitations on liability under subsection (a);
and
``(2) the nonprofit organization has willfully disregarded
or been recklessly indifferent to the reasonable expectations
or safety of the individual harmed by the volunteer.''; and
(3) by adding at the end the following:
``(g) Judicial Review of Allegations.--
``(1) In general.--A claimant in a civil action for an act
or omission subject to the limitations of liability under this
Act shall attach 1 or more sworn affidavits or documents
containing admissible evidence of an act or omission outside
the limitations of subsection (a), (c), (e)(1), or (f)(1).
``(2) Initial review.--Before allowing a civil action
described in paragraph (1) to proceed into discovery, the trial
judge shall determine whether, as a matter of law, the evidence
submitted is sufficient to raise a genuine issue of material
fact.''.
SEC. 203. CHARITABLE DONATIONS LIABILITY REFORM FOR IN-KIND
CONTRIBUTIONS.
(a) In General.--
(1) Liability for donations of equipment to nonprofit
organizations.--
(A) In general.--Except as provided in subsection
(b), a person shall not be subject to civil liability
relating to any injury or death that results from the
use of equipment donated by such person to a nonprofit
organization.
(B) Application.--This paragraph shall apply with
respect to civil liability under Federal and State law.
(2) Liability for providing use of facilities to nonprofit
organizations.--
(A) In general.--Except as provided in subsection
(b), a person shall not be subject to civil liability
relating to any injury or death occurring at a facility
owned or operated by the person in connection with a
use of such facility by a nonprofit organization, if--
(i) the use occurs outside of the normal
use of the facility by the person;
(ii) such injury or death occurs during a
period that such facility is used by the
nonprofit organization; and
(iii) the person authorized the use of such
facility by the nonprofit organization.
(B) Application.--This paragraph shall apply--
(i) with respect to civil liability under
Federal and State law; and
(ii) regardless of whether a nonprofit
organization pays for the use of a facility.
(3) Liability for providing use of a motor vehicle or
aircraft.--
(A) In general.--Except as provided in subsection
(b), a person shall not be subject to civil liability
relating to any injury or death occurring as a result
of the operation of an aircraft or a motor vehicle the
person loaned to a nonprofit organization, if--
(i) the use occurs outside of the normal
use of the aircraft or motor vehicle by the
person;
(ii) such injury or death occurs during a
period that such motor vehicle or aircraft is
used by a nonprofit organization; and
(iii) the person authorized the use by the
nonprofit organization of motor vehicle or
aircraft that resulted in the injury or death.
(B) Application.--This paragraph shall apply--
(i) with respect to civil liability under
Federal and State law; and
(ii) regardless of whether a nonprofit
organization pays for the use of the aircraft
or motor vehicle.
(b) Exceptions.--Subsection (a) shall not apply to an injury or
death that results from an act or omission of a person that constitutes
willful, knowing, or reckless misconduct.
(c) Judicial Review of Allegations.--
(1) In general.--A claimant in a civil action for an act or
omission subject to the limitations of liability under this
section shall attach 1 or more sworn affidavits or documents
containing admissible evidence of an act or omission outside
the limitations of subsection (a).
(2) Initial review.--Before allowing a civil action
described in paragraph (1) to proceed into discovery, the trial
judge shall determine whether, as a matter of law, the evidence
submitted is sufficient to raise a genuine issue of material
fact.
(d) Superseding Provision.--
(1) In general.--Except as provided in paragraph (2) and
subsection (e), this section preempts the laws of any State to
the extent that such laws are inconsistent with this section,
except that this section shall not preempt any State law that
provides additional protection for a person for an injury or
death described in paragraph (1), (2), or (3) of subsection (a)
with respect to which the conditions specified in such
paragraph apply.
(2) Limitation.--Nothing in this section shall be construed
to supersede any Federal or State health or safety law.
(e) Election of State Regarding Nonapplicability.--A provision of
this section shall not apply to any civil action in a State court
against a person in which all parties are citizens of the State if such
State enacts a statute--
(1) citing the authority of this section;
(2) declaring the election of such State that such
provision shall not apply to such civil action in the State;
and
(3) containing no other provisions.
(f) Effective Date.--This section shall apply to liability for
injury or death caused by equipment donated, facilities used, or
aircraft or motor vehicles loaned on or after the date of the enactment
of this Act.
<all>
Introduced in Senate
Sponsor introductory remarks on measure. (CR S10301-10302)
Read twice and referred to the Committee on the Judiciary.
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