What ‘Duty of Care’ Means for a Nonprofit That Uses Volunteers
A volunteer pushing an older man’s wheelchair picks up speed. Worried about the pace, the man puts his feet down to stop the chair and falls out. If he sued, he could name the volunteer for pushing too fast and the organization for failing to train volunteers to check in with clients. Whether either claim succeeds depends on duty of care.
Duty of care is a legal obligation, recognized by courts rather than written into a contract, to act as a reasonable, prudent organization would to prevent foreseeable harm to others. Meeting that standard limits your liability. If someone files a claim anyway, nonprofit liability insurance protects the organization.
Duty of Care Means Two Things in a Nonprofit
“Duty of care” also carries a governance meaning. For a board, the term means ensuring prudent use of all the organization’s assets, including facilities, people, and goodwill. Volunteers count among those people, and the same duty should prompt the board to confirm that the organization carries adequate insurance.
In negligence law, the duty runs outward: to the people volunteers serve, to the public, and to the volunteers themselves, who face injury risks of their own. When an injured person sues, a court applies the negligence meaning.
What a Court Asks When It Measures Duty of Care
A negligence claim must establish four links:
- Duty: The organization owed the injured person a duty of care.
- Breach: The organization failed to do something it should have known to do, or did something it should have known not to do.
- Causation: The breach caused the harm.
- Damages: The harm produced losses, such as medical bills.
If the claimant can’t prove any one link, the claim fails. In the wheelchair case, a claimant would argue that skipping communication training was the breach and that it led to the fall.
A court judges the breach against the standard of care, which doesn’t require every possible precaution. Your organization meets it by recognizing the harm volunteer work could cause and taking steps to reduce the likelihood of that harm.
Two Ways a Volunteer’s Mistake Becomes the Organization’s Liability
A volunteer’s mistake reaches the organization by two routes: vicarious liability or direct liability.
Vicarious liability holds the organization responsible even when it did nothing wrong, as long as it had the right to control the volunteer and the volunteer acted on its behalf, within the scope of their duties. Because vicarious liability requires control, some leaders assume that supervising volunteers less will reduce the risk, but weak supervision opens the second route.
Under direct liability, the organization answers for its own failure to meet the standard. A claim can target how the organization screens volunteers, matches tasks to ability, onboards new volunteers, supervises them, handles equipment, including tools volunteers bring from home, and decides whom to keep.
What the Volunteer Protection Act Covers and What It Leaves to the Organization
Federal law protects volunteers from some of these claims, within limits. The Volunteer Protection Act shields a volunteer only if they acted within the scope of their responsibilities, held any required license, and didn’t cause the harm through willful or criminal misconduct, gross negligence, reckless misconduct, or flagrant indifference to safety.
The act’s shield doesn’t extend to your organization. The injured person can still sue your nonprofit, which puts the claim on your own coverage.
Your organization’s choices can also affect what volunteers receive. Some states attach conditions to the act’s protection, such as mandatory volunteer training or proof that the organization maintains a financially secure source of funding for recovery, such as an insurance policy. In those states, your training and coverage decisions determine whether your volunteers qualify at all.
Nor does the act stop someone from suing a volunteer. The volunteer has to raise the act in court as a defense, which means paying a lawyer even if the case ends in his or her favor. Your organization’s exposure and your volunteers’ defense costs are the two gaps insurance has to fill.
How Nonprofit Liability Insurance Supports Your Duty of Care
Your organization’s nonprofit liability insurance responds to claims against the organization. One way to cover volunteers is to add them to that policy as insureds, but doing so creates a problem. The policy’s limits are fixed, and the insurer doesn’t divide them between your organization and a volunteer. A claim that names both draws from that single pool, and if defense costs, judgments, or settlements exceed it, your organization pays the difference out of pocket.
Insuring volunteers separately protects your limits and helps keep volunteer claims from raising your future premiums. The VIS volunteer liability policy responds to allegations of bodily injury or property damage made against volunteers, up to $1 million, and provides the volunteer with a legal defense. For the duty owed to volunteers themselves, volunteer accident insurance provides medical coverage of up to $50,000 when a volunteer is injured while serving. Together, the two policies help the board meet the insurance side of its governance duty of care.
Documenting the Care Your Organization Provides
Keep records of the decisions that direct liability claims target, including position descriptions, training logs, and supervisor assignments, so you can show your organization met the standard. Report incidents to your insurer promptly as well. Your policy requires timely notice, and liability claims can surface months after an incident, so waiting to see whether a claim develops can jeopardize coverage.
VIS members enjoy 24/7 access to the “VIS Vault” of risk-management resources, including dozens of “Preventer Papers” addressing injury prevention and vehicle safety. For details about the specialized volunteer insurance VIS offers, click the “VIS is…” tab at the top of the page and scroll down to the FAQ section, or call 800.222.8920.
Duty of Care FAQ
Does the Volunteer Protection Act apply in every state?
Not necessarily. A state can pass a law opting out of the act, but only for lawsuits filed in its own courts in which the volunteer and every other party are citizens of that state. A state can also give volunteers more protection than the federal act provides, and those stronger state laws still apply. Because the rules vary by state, check your own state’s law before relying on the act.
Does the Volunteer Protection Act protect nonprofit board members?
Yes, when the act’s conditions apply. The law defines “volunteer” to include directors, officers, and trustees who receive no more than $500 a year in compensation beyond reasonable expense reimbursement.
Does duty of care apply to one-time or event volunteers?
Yes. A volunteer who serves a single shift can still cause harm, so engage only as many volunteers as your organization can support and supervise. The care you owe scales with the role: An event greeter needs a briefing, while a volunteer who drives clients needs screening, training, and an annual motor vehicle record check.
About the Author
William R. Henry, Jr. is Vice President and Director of Member Benefits at Volunteers Insurance Service Association, Inc. (VIS), where he leads membership development and delivers risk management solutions tailored to volunteer-based organizations nationwide. A recognized authority on volunteer risk management, he is a frequent speaker and author on best practices for safe and effective volunteer engagement. He is accredited by the International Association of Business Communicators. With a background in communications, journalism, and public affairs, Henry brings a strategic perspective to supporting nonprofit organizations across the United States.
About VIS
Volunteers Insurance Service Association, Inc. (VIS) is a membership organization serving more than 3,500 volunteer-based nonprofit organizations and public entities nationwide. VIS is the only association that offers these three insurance programs designed specifically for volunteers: volunteer accident, volunteer liability, and volunteer excess automobile liability.
If you are interested in protecting your volunteers through the unique VIS insurance program, please click on the “Get volunteer insurance now” link on the home page, or call 800.222.8920. For more information on VIS’s risk-management resources for members and our vendor partners, click on the “Member Benefits” tab.
