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Older adults love their communities-they with another thirty in development.4 Typically, have spent decades building their current home and Villages begin as community groups that enable older social life. Although some aging adults .choose to r�siµents to . stay in their neighborhood as they age. move to a retirement community or an assisted living Ev�ntually, the group formaliz�s the organization by facility, the majority of older Americans would like to becoming a nonprofit corporation. Day-to-day continue living in their own homes . for as long as operations are carriep. out by volunteers or a possible.2 These older adults do not want to disrupt combination of volunteers and paid employees. their lives; they do not want to lose contact with Although there is variety among individual Village friends, give up pets, or sacrifice their independence. models, all Villages exist to make daily living Grassroots organizations called "Villages" can make activities easier for people as they age in the "aging-in-place" a viable option by easing the access community. to services without which older persons would often The basic Village structure is straightforward: be forcedto move fromtheir homes. Members (i.e., older residents) pay an annual fee of The first Village, Beacon Hill Village in approximately $600 in exchange for an unlimited Boston, was founded in 2001 and has served as a number of services such as transportation, model for community organizers across the nation. 3 housecleaning, meal preparation, computer assistance, Today, there are ninety Villages in the United States, and home maintenance. 5 Most of these services are TYPICAL "VILLAGE" MODEL . , thre�t of Tort Liability
No matter how good the intentions of nonprofit organizations and their agents (e.g., volunteers), organizations can be held legally responsible if their agents harm others. Village organizers may believe that they are covered under the concept of "charitable immunity," a legal doctrine ihal proiected nonprofit organizations from tort liability. 8 However, because the doctrine failed to deter risky behavior and denied - compensation to injured parties, states began abolishing charitable immunity in the 1940s, and 9 today no state provides this protection. Organizations can be held accotmtable for torts that can occur in a variety of ways such as traffic accidents, dangerous structures, frauds, theft or violent employees. Thus, assault, battery, theft, prope1iy damage, misrepresentation, and negligence can result in tort liability. Torts are typically classified into two categories: Intentional wrongs and negligent
•····>- = Nol Applicable to all Villages wrongs. Intentional wrongs entail purposely engaging in harmful conduct. 1 ° For example, if a defendant deliberately hits a plaintiff in the face, the defendant provided by volunteers-able-bodied Village has committed the intentional tort of battery. Unlike members, younger neighbors, or youths doing intentional wrongs, negligent wrongs are characterized community service. However, if a requested service by unreasonably risky behavior akin to carelessness, requires an expert, the Village provides contact foolishness, or selfishness. 11 Specifically, negligence information for government programs such as Meals is the failure to exercise the level of care that a on Wheels (home-delivered meals) or vendors such as 6 reasonable, prudent person would have exercised plumbers, electricians, or home healthcare aides. under similar circumstances, resulting in a reasonably Vendor services are not included in the Village foreseeable loss or injury to another person. 12 membership, although Village members often benefit The biggest frustration for organizations :from negotiated discounts. The goal is that Village regarding tort law is that, because the law is comi members only need to call one number, their Village, made, there are not black and white rules that instruct to access any service they might require. well-intentioned organizations whether conduct will 13 The Village movement has tremendous never, sometimes, or always result in tort liability. potential, but one challenge to its growth involves An outcome depends on individual state laws as well liability concerns. Village organizers might wonder as the interpretation of the judge or jury who consider · what the organization's is for the actions of volunteers the particular case. It is often difficult, if not or recommended vendors. Based on exploratory 7 impossible, to predict whether conduct will be found research, this essay discusses the liability that might tortious and liability imposed. be incurred by a Village if a volunteer or vendor commits a tort-a private civil wrong resulting in an injury or loss to a person or property. After discussing the Village's potential vicarious and direct liability, the essay reviews insurance, contracts, and other means of controlling tort liability. The article culminates with suggested action items for Villages to manage the risk of using volunteers and recommending vendors.
25 property damage. Thus, failing to call an applicant's VILLAGES' RISK OF references or failing to conduct a criminal record DIRECT & VICARIOUS LIABILITY check could result in Village liability for negligent selection, especially since the research is relatively 26 DIRECTLIABILITY CLAIM fast and inexpeIJ.sive. The required level of inquiry into a volunteer's Village was Negligent in Village was NOT Negligent in background varies, depending on the extent to which Screening, Training, or Referring Screening, Training, or Referring the volunteer will be in contact with others. For instance, a higher degree of screening may be required . • No Direct Liability if the nature of the volunteer position would facilitate the commission of wrongful acts against third parties, such as working inside a member's home, as opposed 27 to working outside (e.g., pulling weeds). Failure to conduct a reasonable screening, however, is not alone enough to trigger liability; the Village's failure to investigate the volunteer's qualifications must be a 28 No Direct Liability cause of the injury. In other words, the nature of the negative information available about a volunteer must be related to the volunteer's position and 29 misconduct. No Vicarious Liability No Vicarious Liability Villages can be found liable for negligently training and supervising volunteers if they fail to prevent reasonably foreseeable harms through adequate direction. 30 In a negligent training or B. Direct Liability negligent supervision case, the primary issues are whether the Village knew or should have known harm A Village can also be directly responsible for could result from the volunteer's conduct and whether negligence by the Village staff or management. An the Village had the opportunity to control the organization's liability under its direct duty of care is 31 22 volunteer's conduct. Thus, a ·Village can be held separate from the organization's vicarious liability. liable for negligence. in failing to adequately instruct However, these two paths to liability can overlap. For volunteers or failing to assure that the Village's 32 example, if an organization negligently selects, trains, instructions are obeyed. Additionally, organizations or supervises a volunteer and the yolunteer negligently can be held negligent by failing to respond to 33 injures a third party (e.g., a member or bystander), the complaints about a volunteer's behavior. organization could be liable to the third party on two counts-vicariously, through the doctrine of respondeat superior for the volunteer's negligence, 2. Negligent Misrepresentation in Referring and directly, through the organization's own fault or Vendors 23 negligence. Recommending vendors provides Village 1. Negligent Selection, Training, and Supervision of members with an invaluable service, but it can also put Volunteers Villages at risk of liability. States do not recognize a cause of action specifically alleging "negligent Organizations conducting. activities through referrals." Instead, cases involving negligent agents (e.g., volunteers) have a duty to take reasonable endorsement of products or vendors have been care in selecting, training, and supervising the brought under "negligent misrepresentation"-a tort agents.24 So, if a Village knew or should have known involving the defendant making inaccurate statement, honestly believing them to be true, but without that a volunteer posed an unreasonable risk of harm to 34 others, the Village could be liable for the negligent reasonable grounds for such belief. For example, a selection of a volunteer that causes an injury or Village could be liable for making representations to I
members that a particular vend01: is well-qualified or ,.... "good," but failing to check the accuracy· of the 35 infonnation by calling references. · Whether a ptaintiff can assert a negligent misrepresentation claim based on faulty vendor referrals depends on whether the defendant organization should have anticipated the plaintiff's reliance and whether the plaintiff reasonably relied on � . the organization's representation. If an organization : provides information to another person and it knows - lIi) or should realize that the other person is depending on r:' '·.) the accuracy of this information, then the organization
is required to use reasonable care in investigating and !;'! ·,,./ \�{=-' making recommendations. In the case of Villages, members join Villages for the purpose of providing pre-screened or well-recommended vendors to use. 36 Accordingly, it is likely that a court would find that . the Village should have anticipated member reliance on vendor recommendations. tbt\•Viffagi. . ' introduces Mr.. Me11i.ber'to citfo, :ii;iid then: iit The plaintiff must prove that he reasonably liil;���;;�[�i!i�!t§I�ii:f ' . a.fiank��· 'a ' day: "ii6
, Scenario #3: ' The Village selects Victor Volunteer to. help ·Mrs. Membei'.'py iiio�ing, ii�/Hviri{r901� couch to . Nonprofits should employ various risk make r�OlTi for her Christm�s tree, i-fa�tng en��red. Mrs. management techniques to m1mm1ze the probability Member's home to h1ove the couch, \l)c{or assa,ults Mrs. Member. Prior to ritain1ng Victor, the Villa,ge conducted no and impact of liabilities. In addition to reallocating background check., Had the Village done so, they would risk by incorporating, contracting, and using statutes, have- . discovered- cri1trimil. convicticms. - for . assault.. . lf- the liability risks can be minimized by implementing Vill:ieP, h;id knmvri of VidQr's cri:m.iri�1-1 hi�tory,, they would procedures or by avoiding certain activities. have nevet allqwed Victot to v9'lunteer,
• • • l • • '' {,Risk Probable Result: The ViiJ�ge could be subject to li�bil1ty AUocation . to Mr.s. Member, 1. Incorporated Nonprofits - ' . Scenario #4: TheVillage assign� v�ierie Volunteer to . . Nonprofits typically use one of two · pick µp' Mr. N,[eml/ r, from· his, h�1;·e·.contract or tort claim against the organization. Probable Result: Because Valerie's driving duties do not Unincorporated associations, on the other i�volve tax"coinpliance and the Village �ould have allowed
hand, are typically formed by default when a group of Vakrie to be a volunteer driver ariyway1 thy. Villag� is people voluntarily join together to serve a common probably not liable fornegligent selectipii of Valerie �s a purpose.42 An unincorporated association is the most volunteer deipite the. car attident. · Eveh if the Vii lag� acted '. informal of the legal structures available to nonprofits · ca��lessly in failing'td cheJ½ V�lerie'.s 1ecbrd1 the Village's and the danger is that lawsuits brought against an failµre to detecr Va;)�rie's taf'.eYasiort:conviction: �as ri�ta . . . unincorporated association are actually against the cause of�atm to M1:\ 1vfemberbecaus� it did not iricfeas.�the · members of the association, with each member risk of driving negi,igt";nce'by VaJei·1e, running the risk of being held personally accountable.43 Although unincorporated associations are sometimes used for their simplicity, this form is not recommended because of the risk of liability to its members.44 Loosely organized community groups should consider becoming an incorporated nonprofit to protect it members from potential liability.
2. Insurance
Purchasing insurance has been the pnmary form of risk management of many nonprofits, including Villages.45 In the event the Village is found liable for damages within the scope of the insurance coverage, the insurance would compensate third parties who have been injured or whose property has been damaged.46 General liability insurance contracts for businesses and nonprofits are designed to be broad incurred by the driver, passengers, and others.so So, if a volunteer transports· a member and causes an accident resulting in physical injuries or automobile damage, the volunteer's insurance will likely cover the
damages, 1 thereby shielding the Village from liability.s Villages should require volunteer drivers to have personal automobile policies and to provide proof of insurance to the Village at the time of each 2 renewal.s Some general liability insurance companies will even require that the Village volunteer drivers have a certain minimum level of car insurance. Villages should insist that private vendors or service providers also have commercial general liability insurance that covers a vendor's negligence causing injury to third parties or their property.s3 The vendor will always be a named an "insured" party under the commercial general liability contract.54 To further protect itself from potential vicarious liability for the vendor's negligence, a Village can request that it be listed as an additional insured party under the vendor's policy.55 However, this may not be popular with vendors, and will likely only be done if the vendor does a large volume of business through the Village. At a minimum, Villages should verify that each vendor has liability insurance so that if something goes wrong, liability can be allocated between the Village and the vendor. Liability insurance protects the assets of the Village and assures that money is available to compensate an injured party. Without liability insurance recovery of damages is limited to the assets of.the Village or other party held responsible. Most non-profit Villages will have very limited assets and and they typically . cover the liability of the 47 paying a judgment without insurance would take all of organization for negligence. - For public policy the assets of the Village. If the assets of an uninsured reasons, liability policies exclude coverage for Village are less then the awarded damages, the injured intentional injuries.48 So, "slip and fall" (negligence) · party is left unable to collect. Liability insurance cases would be covered, but "push and fall" protects the Village from a financial loss and protects (intentional tort) cases would not. an injured party because he will be able to collect Liability insurance purchased by volunteers, damages. such as a volunteer's homeowners' policy or automobile insurance policy can help reduce the likelihood the Village will be sued. If a Village 3. Waiver or Exculpatory Agreements volunteer purchases homeowner's insurance, the policy typically covers a certain extent of any Another risk management tool that can shift negligence caused by the volunteer, regardless of liability away from Villages involves employing whether the personal injuryor property damage occurs release contracts to waive or limit potential tort 49 on the volunteer's property. Additionally, a liability for the Village and volunteers. For example, volunteer's automobile insurance policy covers a typical waiver provision would release the Village liability, vehicular damage, and medical expenses from all negligence, personal injury, or invasion of privacy liability arising from employee, volunteer, or third-party vendor activities; this would exempt the Sc�n�rio.'.#?:': :·the. Village asks Vera Volt111teer fo Village from being held vicariously and directly liable • drive}v,rf�s:Meih�e.{tl thi::, gr6cery sto�e. Miss. :Me1�ber is btit for negligent acts. Some Villages already require . ri1obii6, �h6 u��$ � �i\ke/and° f rte�ds assistance getting in members to sign waivers releasing the Villages from �hd 6�t df:;i:}�r. °tt\6 _1/il�ge tells voiunt�ers to assist , tn,�rrtbers 'When they ari:eritering artd exiting cars, but the all liability before they can receive services. p-airiibg A common misconception is that waivers are Villflg'J,provide$ :ho to its volunteers on proper lift not enforceable. However, a plaintiff who expressly · te�h1,11qlif�'for oider .-atl4lts."· \Vbe� V�r3: goes to hylp Miss f,1Crp)��r·fioTTJ. tl!c \�hj_�lc, sl}e �trcl-�11.i ;1tx bac½ and Jru·ps contracts to accept a risk of harm arising from the Misf;. Member. Mjss _Member suffers i;i hip fracture as a defendant's negligent or reckless conduct cannot . f�sult 6f the fall. recover forsuch harm, unless the agreement is invalid 61 as contrary to public policy. Generally, an Probabl�:Resuit: the '{i]iage is likely to be found liable agreement not to sue or an agreement excepting a . foj· n¢gljgeri"t-training O{thefr.vqJJnteeis because the ri;k of party from liability for future damages will be upheld . an oldet 1ilemp�1: .faiJirig'wf-iii'e 6ritering or existing a car is as long as any injuries were within the scope of fofe$ee�bI{ >: · . - .· . . . . injuries contemplated by the exculpatory clause.62 Two exceptions where public policy renders exculpatory clauses unenforceable are when they Sce:natio #6: Mr. Membet; a housebound Village request releases for intentional torts or crimes and 'n.1ei1-1ber.with seyei·� mobility impairments, asks the Village when they involve parties with grossly unequal 63 . :t°: hayy �'.v�luf1t�fryisithim regularly. The Village assigns bargaining power. . Vi��\?olG;�!��(�?/nff in on Mr. Member. Once b.i'twice To possess a grossly unequal bargaining '�_-w¢ek.Vi*,e:wil! :pick up Mt. Member's key fron, the advantage, a provider must typically offer a service . 'Vilt,aM ¢ffjtffn"drJer-_�l:{gain entry to the house because that is deemed "essential" in nature, such as schools or Mr, Mirnbi::ffihds it difficult to answer the door. The 64 ,foo public utilities. In determining whether a service is _·Vi]Ja:g�· \iJp�i·vi�e�.· Virtei6rtly by conducting occ;asional essential, courts will examine whether there are other spbt ,ch:ec:ks:;-""'�.��6 't�ey -tall .Mj.. · Member to yerify that competitors providi�g the same services and whether the plaintiff voluntarily applied for membership to a i private organization.65 Villages are unlikely to be �.rtr�::it;i deemed essential services because they are voluntary ;p1$W-f1 1 i�ii;�;;' '. �-;{;t! �:�;';'_- organizations and they are not the only provider of the services they offer. For instance, members could hire b l n handymen for small maintenance issues around the ''![t �:'tut;�!'.tf �i� /!1.tt;;�it:::it:::���;. house rather than using Village volunteers. which he pli�t steal from Mr. Memb_ei-. Acc<>rdingly, it is Additionally, members could subscribe to a local likely the. Village will . be fowid liable for negligent guide that evaluates vendor services. Because si.ipervision:, •.. Villages do not have a monopoly on the services they provide, it is likely a properly written waiver will be upheld.66 Exculpatory agreements are frequently preprinted contracts, offered on a take-it-or-leave-it basis, so many courts find these contracts to be contracts of adhe�ion-a form contract drafted by one party and signed by another with little or no negotiation power.67 The fact that a waiver is a "contract of adhesion" isn't enough to say the waiver 8 is unenforceable.◊ Adhesion contracts are typically enforceableas long as they are not unconscionable and as long as their language is unequivocal and clear. 69 Although waivers hold much potential as a way for Villages to shiftliability away from their own organization, waivers have their weaknesses. For instance, waivers will not protect the Village from all sources of liability. The Village will only be contracting with Village members, not other third parties like visitors in the member's home or bystanders. Some Villages also worry that prospective members will be disco�raged by having to sign a waiver as a condition to becoming a Village member. However, Villages that require waivers have not noticed any apprehension by members signing the contracts.70
4. Indemnification
Indemnity clauses are similar to exculpatory clauses in that they contractually reallocate liability. However, the exculpatory clause deprives an injured pa'.rty of his right to recover damages whereas the indemnity clause simply shifts the burden of paying damages.71 To indemnify another party is to c,ompensate that party for a loss that has occurred or to contractually agree to repay another party for future loss.72 Villages rarely contract with vendors, but in the rare instances they do, the organizations should require vendors to sign an indemnification clause. how much insurance coverage a Village needs to This would give Villages financial protection against purchase and how large its liability risk is. For expenses and liability incurred as a .result of the example, some states limit liability by limiting the vendor's fault. So, if the Village is found liable for amount of damages a liable organization will have to negligently referring or endorsing the vendor, the pay.74 In Colorado, judgments against nonprofits are Village could collect from the vendor. limited to the extent of existing insurance coverage.75 Even when indemnification has not been Similarly, Massachusetts caps tort damages at $20,000 contracted, an organization can sometimes sue for nonprofits if a tort was committed in the course of responsible parties, demanding compensation. For an ·activity that accomplished the charitable purposes example, an organization is legally entitled to of the organization.76 indemnification if it was held liable for a tort, but only While full charitable immunity has been vicariously.73 So, if a Village is found liable ·for a abolished, vestiges of this doctrine remain, to some volunteer's tort under the doctrine of respondeat degree, in a few states including Alabama, Arkansas, superior, the Village could sue the volunteer to Georgia, Maine, Maryland, New Jersey, Virginia, 7 recover the amount of damages it paid the plaintiff. Utah, and Wyoming.7 For instance, Georgia grants nonprofits immunity unless the nonprofit failed to 5. Statutory Protection exercise ordinary care in the selection of competent officers and employees, or where the plaintiff is a Some states have statutory protections that can paying recipient of nonprofit services.78 Similarly, limit a nonprofit' s liability, either by capping the Utah provides that a nonprofit is not liable fordamage amount that may be awarded as ·damages or by or injury caused by a volunteer's intentional harm granting partial immunity. These statutes can be a unless the nonprofit should have known of the driving force for Villages because they often dictate volunteer's unfitness.79 S��narj(/_ · #J; '.Nancy . Neighbor telis the Villag6 'organizers thaft�u1 -Plufube1'i.s "ireat" allcl_that the Villagi·-. sh.ouidrecoin.i#�4d P�l\Ii� i��.memb¢1f _tv[i:s. Mei:ib_er t��1:�::· . the ViHage fpqhe :nJm,e·ofa-pliimMr because she b.�.liey�s:
0 i!��]tf . :.\Tfbage''11�d t ·••iitli�II�f};quest�ct'r�f'�r�rice� arid c�i-tlficati�n:�!li:t, f would· .. . ,h.av� 'r�Jndthat Paul 0a� hQt-'a)iuaiifiedpi�11T1ber. Mrs .. Mefuber calls Pau( and has h1rri work on the pltirribing problem 111 her.; �athi"oom, Ra,ul punctures a pipe whfoh. - resuits in.. maJor wiltei;d ··•r!l!!ll!care in rJiitfn1B:�11dii1fi� P�4fli�II;}\;:���;;:}31�:� P,lµ1nper,.especially considering e l ob a cc r�k. f t i11 a u ���:r::;:::ti:!t1)IiX;iit�)!)f,trf:: define the Village mission, the volunteer duties, and the scope of those duties.83 1. Volunteers Requiring members to request services through the Village rather than directly through volunteers is a. Vicarious Liability also critical to minimizing vicarious liability. For instance, Villages. could face liability if volunteers act As· a vital part of the Villages' workforce, on their own, without being dispatched by the Village volunteers can be a major source of tort liability for to assist a member; if the Village cloaks the volunteer 80 these organizations. Some Villages rely on with the appearance of authority and the third paiiy volunteers as if they were staff, monitoring all of the reasonably relies on this appearance of authority, then work they do through a few key coordinating staff the Village can be held liable for volunteers' actions, members. Other Villages may not have staff to track e en if it did not e ressly ive the volunte :' . �p � �r the details of how or when volunteers carry 01it their d1rect10ns to do the act. The Village must make 1t services. Since nonprofits can be held vicariously clear to members that if a volunteer assists them, but liable for the tolis of their volunteers under respondeat the member has not called the Village asking for the superior, they should maintain the degree of control help, then the volunteer is not helping the member as a over volunteers that the law presumes exists.81 For Village volunteer, but as an independent neighbor or example, a Village might limit a volunteer's efforts to friend. only the task he was assigned. So, if a volunteer is at a member's home to perform a particular task, the b. Direct Liability volunteer is only pem1itted to perfonn that assigned task. Regardless of an individual Village's policy, VUlage volunteers are typically neighbors or effective control over volunteers' actions is directly Village members, often already known to the Village linked with providing · volunteers with proper board and members. However, since nonprofit training. 82 Villages should write policy and procedure organizations can be held liable for improper manuals and volunteer position descriptions that selection, training, and supervision of volunteers, Villages should put the same amount of effort into policies such as wearing seat belts when driving and screening volunteers as they do for paid employees. not speaking on a cell phone while assisting a Village 90 Specifically, Villages should investigate the criminal member. If a Village provides handbook materials, record, skills set, and temperament of each volunteer they must ensure that the materials are regularly in order to minimize the risk of volunteer wrongdoing updated.91 Some insurance companies provide or inadequacy.85 Per the requirement of their personnel handbook reviews, driver trainings, and insurance companies, many Villages use "IntelliCorp" webinars if an organization purchases liability 92 background check software to screen criminal records insurance with their company. for all volunteer applicants and traffic records of Providing training materials is critical to volunteer application who will be driving members. avoiding liability, but volunteer coordinators should One of the best ways to implement a consistent also assess preexisting skills of volunteers prior to screening process is to hire a volunteer coordinator to assigning tasks. This matching of skills to tasks can establish screening guidelines and perform criminal reduce the probability of accidents because the record, driving record, and character reference volunteers are already interested in the task and have investigations. 86 The volunteer coordinator should spent time doing the task on other occasions. So, if a examine the nature of the volunteer services, the volunteer is good at computers, he should not be sent anticipated extent of contact between the volunteer out to replac:e a light switch unless he also has those and member, the degree of supervision over the skills. volunteer, and the vulnerability of the members.87 For Villages have a duty to exercise care in example, if a volunteer position involves unsupervised supervising their volunteers, particularly because they contact with frail individuals, the organization should will be interacting with some vulnerable members of 93 use a more rigorous screening process. ' Likewise, the population. Supervising volunteers may be problematic because · of the variability of the screening volunteer driving records is more critical for 94 volunteers that will be driving than it would be for volunteer's time schedules and work sites. volunteers doing office work. Additionally, Village staff or board members cannot The volunteer coordinator should make a file go with each volunteer to every house call to monitor for every volunteer that includes the investigation their performance. Nonetheless, the Village can materials. 88 The file should contain notes of follow up with members after volunteer visits. Some conservations with references and interviews with the Villages follow up after every visit with an email or applicant to show due diligence in volunteer selection phone call while others spot check or simply should a third party later sue the Village for encourage members to inform the Village with negligently selecting a volunteer. 89 However the comments about volunteers. The Village's volunteer importance of investigating potential volunteers, there coordinator should develop complaint and follow-up is a constant push-pull between wanting to respect procedures as this will enable the Village to indentify volunteers' privacy and needing to protect Village re_occurring problems and careless or inattentive members. If Villages become too invasive with their volunteers. screening techniques, volunteer interest might decrease. 2. Vendors In addition to screening volunteers, providing volunteers adequate training is critical in assuring Vendors are unlikely to be considered Village volunteers safely perform activities. However, agents· or "servants" so vicarious liability is less of a Villages vary in the amount of training they give their risk with vendors than it is for volunteers. However, volunteers. Some give handbooks and . have Villages can be found liable of negligently endorsing orientation sessions while others are more informal, an unqualified vendor. There are two primary ways of giving lessons based on the volunteer's task at hand. minimizing this type of referralliabilit y-Villages can Training sessions might consist of educating a either thoroughly screen vendors prior to volunteer being dispatched to drive a frail member to recommending them to members or decline to the doctor or how to perform proper liftingtechniques formallyrecommend any vendors at all. when assisting an older person in and out of a car so For Villages that prefer to formally that the member is not injured. Handbooks can detail recommend vendors to Village members, there should be a structured vetting process that maps out how a sure vendors are qualified and that they have not taken Village will select and investigate vendors. Member advantage of Village members. recommendations can be useful for Villages seeking There is some argument that Villages should vendors to add to their list, but Villages should also always refer more than one vendor in order to force perform an independent vendor investigation. the member to share in the burden of vendor 99 Villages can begin by checking opinions in local selection. However, this would seem to defeat the guides like Washington, DC's Consumer's purpose of screened vendor referrals, which is to take Checkbook, national guides like Better Business the stress and work out of vendor selection for aging Bureau, or online review websites such as Yelp.com. Village members·. Adrlition::illy, Beacon Hill Village Once a Village determines that a vendor has has found that providing vendor referrals that have pote"ntial, it should contact the prospective provider to been vetted by the Village is a key factor in drawing determine if they are interested in becoming part of members to the Village. I00 the Village referral list. A follow up interview would 95 Although vendor screening is a big draw, some then occur. The Village ought to check references, Villages may decide that they do not have the perform a criminal check, and verify insurance, resources to adequately screen vendors. Instead, these certification, and bonding documents (if applicable); 96 Villages might decide to keep an informal Villages should also search the local public court neighborhood list or provide members with an online records to see if the service provider has had civil suits subscription to consumer rating services. To protect . . sue h as contracts or tort cases. 97 A s with screerung themselves, these Villages must make it clear to volunteers, it is important for Villages to maintain members that they offer no endorsements or opinions records on all vendor screenings so that, if sued, the regarding vendors and that they merely pass along Village can prove due diligence. infonnation provided by third paiiies such as other After a vendor has been added to the Village's Village members or rating services. I01 To emphasize referral list, the Village should periodically review the the fact that the Villages make no representations vendor's information. For example, insurance and regarding the quality of vendors, Villages should bonding need to be verified on an ongoing basis, based orally inform members that they do not screen or on the expiration dates of policies.98 In addition, the recommend vendors. And, to eliminate confusion, the Village should conduct follow-up interviews with Village should also include a clause in any member members after a vendor has perfon11ed services. waivers that states that the Village does not screen These vendor assessments allow the Village to make service providers or make formal refenals. . ;· Whatifa'\rqj-tmte.erls'iiijured. .. . . •· · · · ·-._ .· 6n... the' . job?. ',' ' '. . ' .. ',, '·:·,..- : ; · .. · ·.' :.' :· .. I·.• •;: . • . So1n¢'tii��s ·.·w1�1:( ·. �fg'ariii11t�ci�f , t�i�-,-· .of ,;volri�ree/ li;b1iity," the§:f'otgaab,d�it )ihbiiityfo' 'J�J4nteers ifthey are iojurecl. while provid_in'i services f�r- the organizatidn. The . pii1l}aryp;9tt::di.qn, for;_yoJLU*!i_r.)ri.j�ri�s should, be either • 56 ''accident insuiiihce';:o{' 1w�rkers,''cqrrip'ensation" �oHci�s. ;, Accident insuran�� p6Jj�j2� .'pay for' tlie cost of medical defense, the disruption of services, and the negative Conclusjon. publicity. 105 However, liability concerns should not prevent the progress in the Village movement. Villages serve a vital role in the lives of older Consistent risk management should be able to shield Americans. By enabling aging adults to remain in Village organizers, members, and volunteers from fear their own homes for longer, these organizations can of liability. prevent people from having to prematurely enter To safeguard in case it is ever held liable for nursing homes or assisted living facilities. personal injuries or property damage, Villages should Additionally, by encouraging aging-in-place, Villages become incorporated nonprofits and maintain liability can have a positive impact on an older individual's insurance within reasonable limits based on state law. physical and emotional wellbeing. 102 Volunteers help Additionally, Villages should verify the insurance of Village members so they do not have to strain to do their volunteers as well as any recommended vendors. physically exhausting tasks. Many Villages also assist As fmiher protection against liability, Villages may members socially by providing friendly visits from choose to require members to sign exculpatory volunteers and community events such as book club waivers and vendors to sign indemnification clauses. meetings, restaurant v1s1ts, and fitness classes. However useful, these risk management techniques Additionally, recent studies have shown that older only help nonprofits once a loss has occun-ed; they are adults who age-hi-place have lower Medicare and not designed to prevent losses. Thus, Villages should Medicaid costs as well as lower rates of depression preemptively reduce the risks of liability by screening, and higher levels of cognition than their nursing home training, and supervising volunteers as well as resident counterpaiis. 103 screening vendors. Villages should also setup a Despite these · benefits, the threat of t01i system to receive feedback from members on liability impacts Villages' viability. Villages fear tort volunteer and vendor activities. lawsuits because of the potential for monetary loss, but also the loss of reputation or funding and the loss About this Essay: of the volunteer or client base that can result from a 104 Any attempt to summarize tort liability is inherently unce1iain because tort allegation. Even if an organization is ultimately the United States has fifty sets of laws and even more courts making the not found liable for the damage or injury claimed, the determinations as to whether to1i liability exists in a particular instance. This essay is part of initial explorato1y research and is meant to flag key worry is that nonprofits may not be able to absorb liability issues. This essay does not replace legal, insurance, or any other costs related to litigation-the expense of a legal risk management advice. , ', 1-,· :-.:, :.,:_· Useful n�sourcefqr .Villages may).nclµde .. ,: ..F�t9re fo/ Steps. vm�g�:A4y9cat�s'�:,' ·- ;_'' ° '. . ., . i. ' . , . ' , .- • Voluriteer Management (2010) by Steve McCufley }'jllages, and their -�dvocate� s�cnii,� epc\oµrage legisiative, • The Vol tinteer.· Manage1��nt · }Ia�dbook: Leadership eijtitiys to pass ,sta,t_utes :gt�rWi1� qu�itfied.irnm'upify,, tQ , Strategiesfor S�cce�� (io 11} �dited by Tracic��tior; Vif!age�,!J�sedOil tlie �ehf62i�l;seivjc;:�s;th¢yptov1�� '6(d�r • No Surprises: Han110:hizing : Risk 'ani Re\vard. i11 adult�.- s�·ch � specific.st�tijte'may1 s�e�n�n:o; ��1d hard to . . )magine, but state,s sMc:ial :i�t\:#st. · . Vo]_unte6i' M�nag�1ne�t . (2(}09): '. hy' Nohp;q'fif . Risk '1�-v;provid(!� xadot;s . ' , groups .. imrnuhity, ; esp��ial)y'' ,_ if :t!J�y . ru·d' J�o�sicier¢d · ·. Management C�nter-'· ' . .. .• Staff _$cr��nih� � to'�f Kitc26o4f �y' N�riprofit��is)( . M�nagen,1erit Ceritet ...... , ; : . . . .• E�posed:· A Lega'l :Field Gulde foi-No�profitE��cutives . . . . ·•· !07 ...... ;:1�;t1{t;lf. · n��lige11.ce. t,�ttiil;;, t;�;i�i••· - (2009) by Ncmp�bfitRis.k Man�ge��nt Center ...... -- .'- : . . . - . '• telephone calls or visits, book-reading, shopping errands, and yard work. All three Villages said that transportation is the most popular service provided. Between May 28, 2012 and June 25, 2012 the author Household services and computer services are also in spoke to Village organizers from three Washington, demand. DC Villages. She spoke with a variety of Village partidpants including executive directors, board One Village stated that their volunteers also assist presidents, and pro bono attorneys. In order to protect older residents with sorting and discarding household the privacy of the Villages, the interview summaries items. Another Village offers a unique volunteer do not identifyVillages by name. provided service-medical advocacy. Volunteers go to medical appointments with older members with I. Village Organization Structure memory issues and record notes and ask questions. Then, the volunteers often communicate this All three Villages are incorporated nonprofits with information back to the member's family members. IRS non-profit 501 ( c )(3) status and were established by neighbors. These Villages rely heavily on Volunteers are often able-bodied Village members. volunteers to assist in organization administration. Younger neighbors in their thirties or forties also One Village has no paid employees, another Village provide services. All three Villages use youth has one paid employee, and a third Village has two volunteers to some extent, but in a restricted fashion. full-time employees and two half-time employees. One Village allows middle school volunteers to help with yard work, but only with the supervision of a One Village does not charge member dues in order to teacher; students are not permitted to enter member receive services. The two other Villages charge an houses. Similarly, another Village receives assistance annual fee in exchange for services and social from a Boy Scout troop, but the troop is only activities. One of these Villages charges $750 for a permitted to work on a specific project or task. The household and $500 for an individual. The other third Village said that youth volunteers are typically Village charges $800 fora household and $530 for an restricted to providing yard work and computer individual.. For older persons with a household assistance. income below $50,000, memberships are significantly discounted. One Village also offers a special associate b. Screening of Volunteers membership that allows members to only partake in Village social activities ( e.g., book clubs, museum Per the requirement of their insurance companies, all tours, or restaurant visits). three Villages use IntelliCorp background check software to screen criminal records for all volunteer One Village has 370 members and a second Village applicants. If a volunteer is going to drive, the has 120 members. A third Village does not have Vill�ges also run a traffic record screening. At least . "members" who pay a fee, but instead has 20 "service one Village also requires a volunteer to show proof of recipients" who can request services as needed. his personal car insurance coverage. Recipients and members are generally 70 and 80 years old. One Village president commented that he believes the IritelliCorp screening process seems to work well; he II. Volunteers noted two instances where volunteer applicants had poor driving records and the Village was able to tell a. Role of Volunteers them ·that they were not permitted to drive. Another Village mentioned an instance when an applicant's Volunteers provide direct services; assist in the office background check showed she had a theft charge management, serve on the board and committees,·and pending against her. The Village called the help out at social activities. Typical volunteer services prospective volunteer to ask her about the incident, but include ··transportation to appointments, friendly she never returned their call. Overall, the Villages do not seem to have a hard and Village will send someone else over for any other task fast rule about what sort of trafficviolations disqualify requested. The other two Villages, on the other hand, a volunteer from driving. One Village noted that want to keep interactions between volunteers and minor traffic violations ( e.g., a parking ticket or one members flexible; if a volunteer helps a member with speeding ticket) do not prevent a volunteer from one task, they may also perform an additional driving. unrelated task. c. Training and Supervision of Volunteers All three of the Villages require their members to request services through the Village. That is, the One Village does not require formal training of member should not call volunteers directly. Not only volunteers. However, this Village has all prospective do the Villages want to prevent volunteer "burnout," volunteers speak to one of the board members, a but the Villages also want to keep track of all the retired psychologist, so she can assess their interests services provided. The Village that offers a joint and skills as well as identify unusual personality volunteer-member orientation has found that this problems. mode of training decreases the likelihood of members requesting too much of a volunteer-both groups are In another Village the executive director individually aware of the boundaries of the volunteer-member orients volunteers; there is no handbook and the relationship. training mostly consists of simple suggestions (e.g., park on a level surface, help the member to the door). Ill. Vendors However, this Village does conduct training sessions on how to interact with persons with memory a. Role of Vendors problems or dementia. Most services are delivered by volunteers living in the The third Village has a formal handbook for volunteer Village neighborhood. However, when members reference. In the future, it will require volunteers to request services that volunteers cannot provide, the sign a statement that they have read and understood Villages provide access to a list of local vendors, such the Village training handbook. The Village also as plumbers, carpenters, or electricians. The goal is schedules an orientation introducing both volunteers that Village members only need to call one number, and members to Village procedures. Village their Village, to access anyservice they might require. volunteers are then individually directed regarding the particular services they will provide. Two Villages do not formally recommend or endorse any vendors. One of these Villages has an informal Follow-up after volunteers have provided services neighborhood list that is available for members to look varies. One Village has no formal follow-up at. The other Village maintains a list of vendors that procedure. The two other Villages actively seek members recommend and also provides members with feedback frommembers; one Village follows-up with an online subscription to Washington Consumer's members via email after each volunteer service Checkbook, a nonprofit rating service for local service provided. firms and health care providers. If a member calls the Village for a recommendation, the Village will either Villages have different organizational structures for give him listings from Checkbook or member handling volunteer activities. One Village assigns recommended providers (including the member name volunteers tasks and limits volunteer efforts to this and comments)-whichever the inquiring member task. For instance, if a volunteer is at a member's prefers. Then, the member contacts the vendor. The home to perform a particular task, the volunteer is only vendors that the Village personally reviewed only permitted to perform that assigned task (i.e., the were home health aide providers. Currently this volunteer should not be drawn into more tasks). The Village recommends three medical care providers and volunteers are trained to tell the member that the one non-healthcare provider. The third Village has an extensive list of member did complain about a volunteer's driving. recommended vendors (about 100 vendors). This list The Village dealt with the problem by shifting the is only available to the Village staff and it is not given volunteer into office management volunteer work. to members. The list consists of one vendor per category. If a.member requests a service where no The third Village has dealt with three complaints. The vendor is identified, the Village will vet providers and first issue occurred when a member accused a vetted find a vendor to add to the ever-growing list. house cleaner of stealing. The Village started the process of interviewing both the member and the b. '.,'.:ottii1g Process of Vendors house cleaner. However, the member later found the items she thought had been stolen. The second issue None of the Villages interviewed request vendors to involved younger volunteers who broke a member's provide evidence of licensing, bonding, or insurance. vase after entering a member's home while she was The two Villages that do not formally recommend out. The Village staff interviewed both parties, but the vendors do no quality screening. For the third Village member decided not to pursue the complaint further. that has a long list of vetted vendors, there is a The third incident occurred when a volunteer made a screening process before a vendor can be placed on member uncomfortable by asking inappropriate the list. The first step is reaching out to community questions. For instance, the volunteer asked the members and asking for any of their member if he wanted to move-in with her. The recommendations·. Then, the office manager reviews Village asked this volunteer to leave the organization. the Washington Consumer's Checkbook and Better Business Bureau evaluations of service providers. V. Waivers Third, the office manager phones promising vendors and asks for references. Then, the office manager Two Villages require members requesting services to checks the references. If these references prove to be sign waivers. One Village has a waiver provision that satisfactory, then the vendor can be added to the list. releases the Village from all negligence, personal injury, or invasion of privacy liability arising from c. Relationship with Vendors employee, volunteer, or third-party vendor activities. Additionally, the release provision states that the Two Villages have no relationship with any vendors. member understands that the Village is not affiliated One Village says they would like to foster with any third-party vendors. The second Village that relationships with vendors in order to obtain discounts requires members to sign a release form includes a for members. This Village keeps track of the number similar waiver that releases the Village from all of referrals they make and they make this information liability stemming from negligence of its volunteers, available to vendors. The Village also has a three-way employees, preferred or recommended vendors, or conference call (Village, member, and vendor), telling agents. the vendor that they are referring them to the member on the line. Generally, this Village does not have The third Village does not require members to sign a contracts with vendors, since they do not want to have waiver because they do not want to discourage long-term commitments to vendors. However, this membership. This Village prides itself on its ability to Village does have a contract with a home healthcare provide services with a personal touch and they feel provider. The contract states that the Village will only asking members to· sign release forms runsagainst that refer this particular provider and the provider will give goal. Village members a substantial discount. IV. Complaints about Volunteers or Vendors One Village reported that there have· been no complaints about volunteers or vendors. Another Village said that there have been no accidents, but one 1 Adrienne Lyon Buenavista is a law student at the Catholic caused by an act or omission ofthe volunteer if: (1) the volunteer University Columbus School of Law. She served as the 2012 was acting within the scope of his responsibilities, (2) the Coleman Summer Intern at the American Bar Association volunteer was properly licensed, certified,or authorized, as Commission on Law and Aging. needed, (3) the harm was not caused by willful or criminal 2 Jon Pynoos et al., Aging in Place, Housing, and the Law,16 misconduct, gross negligence,reckless misconduct, or a Elder L.J. 77, 79 (2008) (citing a 2000 AARPsurvey that found conscious,flagrant indifference to the rights or safety ofthe that 80% ofrespondents aged forty-fiveand over would like to harmed individual, ( 4) the harm was not caused by the volunteer stay in their current residences for as long as possible). operating a motor vehicle. 42 U.S.C.A. § 14503 (West, Westlaw 3 Villages: Helping People Age in Place, AARP, thro'ugh P.L. 112-142 (excluding P.L. 112-140 and 112-141)). http://www.aarp.org/home-garden/livabl e-comm uniti es/info-04- 22 Dobbs, supra note 10, at 906. 2 2011/villa:ges-real-social-network.htrnl(last visited July 25, 3 Id. 2012). 24 Restatement (Third) ofAgency § 7.05(1) (2006). 4 E-mail from Natalie Galucia, Project Coordinator, Vil!. to Vil!. 25 Herman,supra note 13,at 50. · Network, to Adrienne Lyon Buenavista, Coleman Intern,Am. 26 Whendetermining whether the volunteer selection process Bar Ass'n, Comm'n on Law and Aging (Jun. 27, 2012, 11:22 created an unreasonable risk, a court will consider whether EST) (on file with author). informationof a volunteer's incompetence was reasonably 5 In addition to providing services, some Villages organize social accessible to the organization, taking into account the time, events for members such as book clubs, restaurant outings,and effort,and expense burden of screening volunteer applicants. yoga classes. Mark C. Lear, Just Perfect forPedophiles? Charitable 6 AARP,supra note 3. Organizations That Work with Children and Their Duty To 7 The author researched basic tort principles, examined relevant Screen Volunteers, 76 Tex. L. Rev. 143, 172 (1998). statutory and case law,reviewed the Beacon Hill Village 27 30 C.J. S. Employer§ 203 (2012). This differentiation is Founder's Manual, and conducted informational interview with a discussed in Williams v. Feather Sound,in which the occupant of small sample of Villages with varying structures. a townhouse sued a developer forinjuries she sustained when 8 James D. DeWitt, A Legal Handbook for Nonprofit Corporation assaulted by one of the developer's employees who had been Volunteers, ch. 3 (2010) (unpublished manuscript), given access to the townhouses. Williams v. Feather Sound, http://www.iciclesoftware.com/vlh7/VLH9Torts.html (last visited Inc., 386 So.2d 1238, 1240 (Fla.App., 1980). The court July 31, 2012). discussed how a company had no duty to inquire beyond the 9 LiabilityBasics forNonprofit Organizations, PERI-Public information supplied by the job applicant ifhe is being hired to Entity Risk Institute, do only outside work, but that a company did have a duty to https://www .riskinstitute.org/peri/index.php?option=com_ bookm perform an independent inquiry or screening ofthe job applicant arks&task=detail&id=560, (last visited July 31,2012); Brenda ifhe will have easy access to the inside ofhomes. Id. Kimery, Tort Liabilityof Nonprofit Corporationsand Their 28 30 C.J. S. Employer§ 201 (2012). Volunteers, Directors, and Officers: Focus on Oklahoma, 33 29 Herman, supra note 13, at 50. For instance, the court in Doe v. Tulsa L.J. 683, 686 (1997-98). Boys Clubs ofGreater Dallas found that a nonprofitBoys Club 10 Dan B. Dobbs, The Law of Torts 2 (2000). breached its duty to exercise reasonable in selecting its volunteer 11 Kenneth S. Abraham, The Forms and Functions of Tort Law workers. Doe v. Boys Clubs ofGreater Dallas,Inc., 907 S. W.2d 60-61 (6th ed. 2012). 472,476 (Tex. 1995). However, the court foundthat the Boys 12 Restatement (Second) of Torts§ 281-82 (1965); Abraham, Club could not have reasonably foreseenthat the volunteer would supra note 11, at 67; Dobbs,supra note 10,at 335-36. Note that assault the boys because, ifthe club had investigated the the requisite foreseeability entails more than a mere possibility of volunteer's criminal record,the infqrmation would have revealed harm since,in hindsight, everything is foreseeable,even "freak one prior DWI,nothing to indicate the volunteer would assault accidents." Nicole M. v. Sears, Roebuck & Co,, 76 Cal.App.4th the children. Id. 1238, 1244 (Cal.App.6.Dist. 1999). 30 See Restatement (Third) of Agency§ 7.05(1) (2006); 30 C.J. S. 13 Melanie L. Herman, Ready in Defense: A Liabiilty, Litigation, Employer§ 205 (2012). 1 and Legal Guide for Nonprofits 1 (2003). 3 30 C.J. S. Employer§ 205 (2012). 2 14 Dobbs, supra note 10, at 906. 3 ld. 15 Amoco Oil Co. v. EPA, 543 F.2d 270, 276 (D.C.Cir. 1976). 33 Negligence in Employment Law 53 (AlfredG. Feliu & 16 Restatement (Second) of Agency§219(1) (1957). Weyman T. Johnson eds., 2002). 17 Jeffrey D. Kahn, Organizations' Liabilityfor Torts of 34 8 s·amuel Williston & Richard A. Lord, A Treatise on the Law Volunteers, 133 U. Pa. L. Rev. 1433,1440 (1985). ofContracts § 69:28 (4th ed. 2012). In a classic case, Hanberry 18 Id. v. Hearst, a plaintiffpurchased a pair of shoes that she read about 19 !Dennis Hynes & Mark J. Loewenstein, Agency, Partnership, in themagazine, "Good Housekeeping." Hanberryv. Hearst and the LLC 96 (1997). Corp., 276 Cal.App.2d 680, 683-86 (Cal.App.4.Dist. 1969). The 20 Id. magazine advertised that the shoes were "good ones" and gave 21 Unless otherwise provided, no volunteer ofa nonprofit the shoes their seal ofapproval. The Hanbeny court found that a organization or governmental entity·shall be liable forharm company may be liable if the company endorses a product for its own gain and a purchaser, relying on the endorsement,buys and Alan D. Hegi, Insurance Issues in the Owner/Contractor then is injured by the product because it is not as represented in Relationship, 5 Prac. Real Est. Law. 43, 48 (1989). 53 the endorsement. Id. Id. at 45. 35 Dobbs, supra note 10, at 1353. 54 Td.' 36 See Id. at 1350-51. 55 Td.' Id. at1358; Restatement (Second) of Torts§ 311 (1965). 56 fusuringVolunteers, PERI-Public Entity Risk Institute, 3837 Alissa J. Strong,"But He Told Me it Was Safe!": The· https ://www.riskinstitute.org/peri/index.ph p? opti on=com_ boo km Expanding Tort of Negligent Misrepresentation, 40 U. Mem. L. arks&task=detail&id=559 (last visited July 31,2012). Rev. 105, 151-52 (2009). For example, in Virginia Dare Stores 51 Id. v. Schuman, a store manager told a window washer that a display 58 Id. case would hold the washer's weight, but it did not and the 59. Id. washer felland was injured. Virginia Dare Stores v. Schuman, 60 Id. 175 Md. 287, 298 (Md. 1938). The court fourid that the store 61 Restatement (Second) of Torts § 496B (1965). manager was liable for negligent misrepresentation because the ?2Patricia C. Kussmann, Annotation, Validity,Construction, and store owned the display case, the washer could not have Effectof Agreement Exempting Operator ofFitness or Health otherwise reasonably ascertained the information, and the store Club or Gym fromLiability for Personal Injuryor Death of manager knew the washer was relying on him to convey accurate Patron,61 A.L.R. 147, § 3 (2011). 63 information. Id. at 291-92: See Seigneur v. National'Fitness Institute, Inc., 752 A.2d 631 39 See Yanase---;Automobile Club of So. Cal., 212 Cal.App.3d (Md.App. 2000). . 468. (Cal.App.4.Dist. 1989) (finding that there can be no cause of 64 Prosser, Wade and Schwarts's Torts: Cases and Materials 629 action for negligent misrepresentation when there was in fact no (Victor E. Schwartz,Kath ryn Kelly,David F. Partlett, eds., 12th representation made). ed. 2010). 40 Eugene Garfinkle, Liability of Members and Officers of 65 Id. Nonprofit UnincorporatedAssociations for Contracts and Torts, 66 Restatement (Second) of Torts § 496B cmt. j, (1965). 42 Cal. L. Rev. 812, 812-13 (1954). 67 Williston, supra note 34, at§ 19:22. 68 41 Hynes, supra note 19, at 195. Prosser,supra not 64. 42 Sarah J. Hastings, Cinderella's New Dress: A Better 69 Kossmann,supra note 62,at § 2. Although not required, the Organizational Option forchurches and Other Small Nonprofits, language of the waiver should be broad and explicit. 55 DrakeL. Rev. 813,820 (2007). Additionally,it is best for a waiver to be conspicuous,legible, 43 Id. at 829; Harry G. Henn & Michael GeorgePfeifer, Nonprofit and in large type. Id. at§ 3. Groups: Factors Influencing Choice ofForm,11 WakeForest L. 70 These Villages do worry that members signing waivers do not Rev. 181, 195-6 (1975). fully understand the agreement. Signing the contract without 44 Hastings, supra 42. understanding its contents does not exempt a member from the 45 Myths of Volunteer Risk Management-Part 2, NonprofitRisk agreement-unless the member is found to have been Management Center, incapacitated at the time he signed the e"!(culpatoryagreement. http://www.nonprofitrisk.org/libraty/artic1es/volunteer0900l998. Id. at§ 2. 71 shtml, (last visited July 31, 2012). For instance, Beacon Hill K. A. Drechsler, Annotation, Validityof ContractualPro vision Village spends $1,000 annually for a $1,000,000 coverage policy.· .by One Other Than Carrier or Employer for Exemption from Beacon Hill Village, The Village Concept: Leaming from Liability, or Indemnification, for Consequences of Own Experience 25 (2009). Negligence,175 A.L.R. 8, § 14 (1948). 46 Insurance, Britannica Online Encyclopedia, 72 See Hercules Inc. v. U.S.,516 U.S. 417,418 (1996); See http://www.britannica.com/EBchecked/topic/289 53 7 /insurance Restatement (Third) of Torts: Apportionment Liab.§ 22 (2000). (last visited July 31, 2012). A typical example of indemnification is when a construction 41 Id. subcontractor agrees to indemnify the general contractor for any 48 43 Am. Jur. 2d Insurance§ 672 (2012). losses occurringdue to the subcontractor's work. Thus, if the 49 Does Homeowners' Insurance CoverPersonal Liability?, 360 general contractor is found liable for damage resulting from the Degrees ofFinancial Literacy, subcontractor's work, the subcontractor will have to reimburse http://www.360financialliteracy.org/Topics/Home- the general contractor for the damages paid. 0wnership/Homeowners-Insurance/Does-homeowners 73 See Restatement (Third) of Torts: ApportionmentLiab. § 22 insurance-cover-personal-liability (last visited July 31, 2012). (2000). 50 Britannica, supra note 46. 74 Nonprofit Risk Management Center, State LiabilityLaws for 51 Id. Charitable Organizations and Volunteers 9 (2009). 52 Certificates ofinsurance issued by the insurance company 75 Id.; See Colo. Rev. Stat. Ann§ 7-123-105 (2006). summarize essential information such as the types of coverage, 76 Nonprofit Risk Management Center,supra note 74; See Mass. the amounts of coverage, theproperty protected, the insured Gen. Laws Ann. Ch. 231 § 85K (2009) parties protected, and any other agreements such as waivers or 77 Nonprofit Risk Management Center, supra note 74,at 8. cancelation notices. Billie J. Ellis, Michael S. Goodrich & 78 Id.; See Bagley v. Fulton-DeKalb Hosp. Autho .• 455 S.E. 2d depression and incontinence, as well as higher levels of cognition 325 (Ga. App. 1995). than their nursing home counterparts). 79 10 Nonprofit Risk Management Center. supra note 74, at 8; See 3 Id. 104 Utah Code Ann. § 78B-4-103 (2012). Kimery, supra note 9, at 687. 1 8 Kimery, supra note 9. at 703. 05 Id. ° 106 81 Id. See Terrence J. Centner, T�rt Liability for Sports and 82 Id. Recreational Activities: Expanding Statutory Immunityfor 83 Id. Protected Classes and Activities, 26 J. Legis. J (2000). 84 107 PERI, supra note 9. Id. at 9-10. 85 Kimery, supra note 9, at 703. 86 Hennan, supra note 13, at 51. '-'':�{''.,= 87 Id. at 52. "ij4 88 Id. at 51. 89 Id. at 51. 90 \Xh>rkplaceSafety Toolkit, Nonprofit Risk Management Center, http://nonpro fitrisk. orgltools/workp lace-safety/pub lic sector/wsp-ps.htm (last visited July 3 I, 2012). 91 Kimery, supra note 9, at 703. 92 FREE Services Available to Member-Insureds, Nonprofit Insurance Alliance Group, http://www.insurancefomonprofits.org/Insurance-for-Nonprofits Resources. cfin (last visited July 25, 2012). 93 Kimery, supra note 9, at 703. 94 Id. 95 Beacon Hill Village, supra note 45, at 27. 9 6 Id. 97 These freepublic records are typicallyavailable online or in local courthouses and can be searched by party name. See Court Cases Online, District of Columbia Courts, http://www.dccourts.gov/internet/CCO.jsf (last visited July 25, 2012). 98 The Village could even maintain a tracking system with expiration or renewal dates of all policies to verify that continuing coverage is maintained by the vendor. 9 9 See Referrals,NASW Assurance Servs., http://www.naswassurance.org/referrals.php (last visited July 25, 2012). 100 Beacon Hill Village, supra note 45, at 27. 101 By telling members that it only passively provides infonnation, the Village can hope to deflect liability for negligent misrepresentation in vendor referrals; members have no reason to '''": rely that vendors provided to them are "good" or "qualified." This is supported by Yanase v. Automobile Club of Southern . J1t\ Californiain which the court found that when a tour book stated that it only rated hotel accommodations, there was no negligent misrepresentation regarding the safety of hotel neighborhoods; the tour book was clear that it did not rate neighborhood safety. Yanase v. Automobile Club of So. Cal., 212 Cal.App.3d 468, 473 (Cal.App.4.Dist. 1989). In fact, the court held that there was no safetyrepresentation of any kind. Id. 102 Karen D. Marek et al., Aging in Place Versus Nursing Home Care: Comparison of Costs to Medicare and Medicaid, 4 Res. Gerontol. Nurs. I (2011) (finding that the Medjcare and Medicaid costs of residents that aged in place were approximately $1,600 lower than their nursing home counterparts); Karen D. Marek et al., Clinical Outcomes of Aging in Place, 54 Nurs. Res. 202 (2005) (finding that seniors who age-in-place had lower rates of