Copyright© 2012 by the American Bar Association. All rights reserved. The ABA hereby grants permission for this guide to be reproduced, in print or electronic form, for all educational or counseling purposes, provided that the materials are distributed gratis and that the recipients are not charged for the work in any way. All reproductions must contain the following attribution of original publication by the American Bar Association. Requests to reproduce these materials in any other manner should be e-mailed to [email protected]. The ABA also invites the collaboration of interested state groups, such as bar committees, to develop state­ specificversions of this manual. Contact the ABA Commission on Law and Aging at [email protected]. The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association and, accordingly, should not be construed as representing the policy of the American Bar Association. ··A;:V�t"'.. \:_, �;'..:�.t-�< :/:: The Agin g--i�.r.'f'·\3'.g·.i J\4�t�$sing �,l}'f 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