Recreation Law Center: Use of Volunteer Leaders--Are you asking for Help...or Trouble?

Kerry Jordan v. YMCA of Middle Tennessee, et al., 2010 Tenn. App. LEXIS 616.

Kerry Jordan (“plaintiff”) was asked by a friend to volunteer to assist with a summer YMCA equine program for children at Camp Widjiwagan (“Camp”). The friend, Lynn Blair-Anton, was also a Camp volunteer. Ms. Jordan did not participate in any Camp orientation or training for volunteers.

On her first trip to the Camp, Ms. Jordan and several other volunteers decided to take a practice ride to a nearby lake, before assisting with any scheduled Camp rides. Ms. Jordan and the other volunteers chose their horses from the stable. The group of volunteers undertook the ride without the guidance of any paid Camp staff. During the ride, one of the other volunteers dismounted from her horse and the horse panicked and ran to the stable. Other than that, this first ride was uneventful.

Several weeks later, Ms. Jordan arrived to assist with a planned Camp ride. As the children and their parents were arriving, Ms. Anton suggested that Ms. Jordan “...grab a horse and go ahead and get in the ring, and we'll start sending people out.” Before choosing a horse, Ms. Jordan asked Ms. Anton’s teenage daughter whether she should wear a helmet for the ride (a posted sign directed all participants to “...wear a properly secured helmet at all times while riding”), and the teen replied that “…it was up to her if she wore one.” Because Ms. Jordan didn’t see anyone else wearing a helmet, she decided not to wear one; Ms. Jordan chose a horse (not the one that had panicked on the previous ride) that she believed displayed “a sweet disposition.”  No Camp employees assisted Ms. Jordan in making this choice. The horse was already saddled up and, without a helmet, Ms. Jordan mounted the horse. According to Ms. Jordan, the horse “…just started bucking as soon as I got into the ring." The horse bucked her off, and she broke her arm. She did not hit her head or suffer any head injury. Subsequently, Ms. Jordan discovered that the horse (a ten year old gelding named Siena) had thrown two experienced riders about ten days earlier.

Ms. Jordan proceeded to file a lawsuit against the YMCA and the Camp (“defendants”—according to the case, the YMCA “operated” the Camp). She claimed that the defendants and their employees’ negligence caused her injuries. The defendants raised several defenses, including that plaintiff’s injuries resulted—not from defendants’ negligence—but from the inherent risks of horseback riding, and alleging that, as a result, the Tennessee Equine Activities Act (“Act”—Tenn. Code Annot. (44-20-101)) barred plaintiff’s claim. (Like many similar equine laws enacted around the country, the Act provides that an equine “professional” or “activity sponsor” has no duty to protect participants from—and no liability for—injuries resulting from the inherent risks of equine activities. In addition, the Act outlined that it did not prevent or limit the liability of an equine activity professional or sponsor for certain listed responsibilities (what the Court termed “statutory exceptions to immunity”).

Before trial, defendants moved for summary judgment, citing the Act as a bar, and asserting that Ms. Jordan’s claim should be dismissed before trial because her injuries resulted from the inherent risks of an equine activity—namely, being thrown from a horse.  The lower court agreed with defendants, finding that plaintiff’s injuries resulted from the inherent risks of an equine activity, and that, as a result, plaintiff’s claim was barred by the Act. The Plaintiff appealed.

On appeal, the plaintiff urged that defendants had breached several of its enumerated duties under the Act, and that therefore, questions of fact remained that precluded summary judgment before trial. Pursuant to the Act, she claimed that defendants failed to:  1) make “reasonable and prudent efforts” to determine her ability to “safely manage” the particular equine,  2) warn her of dangers existing on the premises that, she claimed, had spooked her horse (construction activity near the stable), and   3) engaged in willful and wanton misconduct for failing to require her to wear a helmet.

Reviewing the deposition testimony and affidavits of several Camp employees and volunteers, the Court agreed that the evidence reflected that Ms. Jordan had “some experience” with horses. However, the Court found that there were clearly questions of fact regarding whether the YMCA had fulfilled its responsibility under the statute to make appropriate efforts to determine Ms. Jordan’s abilities to safely manage her horse, particularly considering the evidence that the horse that bucked Ms. Jordan had bucked two experienced riders just days before. (In fact, the Court noted, there was no evidence that the YMCA’s employees or volunteers made “any effort” to determine whether Ms. Jordan could safely manage her horse. In addition, the Court found questions of fact existed regarding whether construction activity near the stable was a potential factor in the horse’s behavior. (The Court found no evidence that defendants had engaged in willful or wanton misconduct in failing to require Ms. Jordan to wear a helmet, specifically because she did not claim (and the evidence did not support) that her failure to wear a helmet had anything to do with her injuries). The Court reversed the lower court’s grant of summary judgment and returned the case to the lower court for further proceedings.

Discussion:

Many organizations use volunteers to assist with and/or lead particular programs and classes. Volunteers can be a particular benefit for a non-profit or other organization with limited funds, some of which would be unable to operate WITHOUT the assistance of volunteers. However, there are several issues that organizations often overlook when utilizing volunteers in their operation—the Jordan case illustrates a few of these.

Volunteer screening and “hiring”:

The Jordan case doesn’t discuss this, but it appears that Ms. Jordan was not formally screened or interviewed (by the YMCA) before she was asked (by an existing Camp volunteer) to become a volunteer. Considering Ms. Jordan’s exposure to children in a Camp setting, organizations are wise to consider hiring and screening procedures, similar to those in place for paid staff, for their volunteers. Not only does this practice address competency issues (is the individual actually capable of engaging in the volunteer work), but it also addresses screening for child abuse or other misconduct in the individual’s past. Importantly, an organization’s insurance carrier may require it to utilize certain procedures in regard to the hiring and use of volunteers.

Volunteer training:

Ms. Jordan went through no training or orientation session before beginning her duties as an assistant adult leader for the children’s Camp equine program. In fact, the volunteers took it upon themselves the first day to take a practice ride to the lake, with no apparent guidance or direction from Camp personnel. In addition, although not relevant to the case (because it was not a cause of Ms. Jordan’s injuries), the use of helmets (a strict policy of the Camp’s, considering its posted sign mandate) was not discussed with the volunteers—nor was it apparently enforced, for the volunteers OR staff. [See Ransier v. Quirk Marine, 2006 NY Misc Lexis 181 (plaintiff claims the use of a volunteer (not an employee nor trained by the employer) in a parasailing service enlarged the risks) and Timmer v. Shamineau, 2005 Minn. App. Unpub. Lexis 576 a (volunteer spotter on a zip line was mowed down and awarded $2 million plus).]

Under the law, volunteers will most likely be held to the same standard of care as those teaching, leading, or conducting the same or a similar activity. In the context of a negligence claim, that is, their conduct will likely be compared to the conduct of a reasonably prudent person in the same or similar circumstances, teaching or leading those skills. As a result, organizations should be careful in their use of volunteers, and in their training of volunteers. If volunteers will be teaching or leading technical skills (like the equine activities in the Jordan Case), their training and skill should be consistent with appropriate practices in the industry for those leading or teaching the same or a similar activity (including consistent with the organization’s trained, paid staff members leading or teaching those skills). Contrary to the belief of some, a volunteer will not likely be held to a lower standard of care; that is, given ‘more room’ before being found negligent in a given situation, simply because the individual was a volunteer.

That being said, consider disclosing to potential participants (in appropriate documentation and/or the participation agreement) the organization’s use of volunteers, including the acknowledgment that these volunteers are not paid, professional leaders, and if and how an organization’s volunteer led trips may be structured differently than those run by its paid staff.

Organizations likely have worker's compensation insurance in place for their employees’ injuries occurring within the scope of their employment working for the organization. That is, workers’ compensation insurance generally provides “no fault” coverage and benefits for an organization’s employees for injuries arising out of and in the course of their work for the organization. A benefit to the employer is that workers’ compensation provides the employee with his or her exclusive remedy in the event of such an injury. That is, except in certain circumstances, an employer cannot be sued by the employee for its alleged negligence. In many cases, volunteers (because they are not considered a traditional “employee”) cannot be covered under the organization’s workers’ compensation policy (but importantly, organization’s should check with their carriers to confirm if coverage for volunteers is possible). This leaves the organization open to suits by the volunteer, for injuries occurring within the scope of the volunteer’s work for the organization—the Jordan case providing a good example.

One way for an organization to address this issue is to have the volunteer sign an agreement containing a release of liability (releasing the organization from liability for its negligence), and containing an acknowledgment and assumption of risks, among other important provisions. Such agreements must be drafted with care. (See Jenks v. N.H. Motor Speedway, 2010 U.S. Dist. LEXIS 19668—volunteers signed a group ‘sign in’ sheet, containing a release of liability, and suffered injuries. The court denied the defendant’s attempt to dismiss the matter before trial, on the strength of a release of liability signed before the volunteer was injured.  The court found that most of the document’s content was obscured by a staff member’s handwriting over the relevant release language, and that a reasonable person might not realize that a document presented as a “sign in” sheet was, in fact, a release of liability).

Organization exposure to liability for acts of volunteer:

In Jordan, the volunteer was injured and sued the YMCA.  What if Ms. Jordan’s conduct in assisting with a Camp trail ride was claimed to cause injury to one of the children? An organization can be found directly or vicariously liable for the acts of its volunteers (just as it can be for its paid staff members), acting within the scope of their responsibilities undertaken for the organization. For example, if a child were injured by Ms. Jordan’s alleged carelessness, a lawsuit might claim that the YMCA was negligent in hiring or training Ms. Jordan (direct liability), and/or, that the YMCA was liable for Ms. Jordan’s negligent instruction or supervision of the child, acting within the scope of her duties (vicarious liability). (See generally, for example, Voight v. Colorado Mtn. Club, 819 P.2d 1088 (Co. 1991); on appeal, court reinstated jury verdict finding CMC (a non-profit entity) liable for the negligence of its volunteer leader, occurring on a CMC sponsored hiking trip).

Volunteer immunity from liability:

Volunteers for non-profits (including board members) benefit from some limited immunity from liability, pursuant to the Federal Volunteer Protection Act (42 USC 14501, et seq) and, oftentimes, similar state laws. Generally, these laws protect the volunteer from liability for his or her negligence, with some exceptions, but not for more egregious misconduct (for example willful and wanton misconduct). However, in most jurisdictions, the non-profit organization utilizing the volunteer does not benefit from that immunity (although state law may provide caps on damages or other unique benefits to non-profits).  So, as discussed above, the organization can be exposed to liability for the volunteer’s actions within the scope of his or her work for the organization.

There are other issues raised by using volunteers, not discussed here. Work with your legal counsel and insurance representative to consider the issues in light of your state’s laws (both statutes and case law) if you plan to—or already utilize—volunteer leaders or guides in your operations.

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