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Volunteers, non-profit organizations must be aware of liability issues

Mississippi is a charitable state with a high level of contributing and volunteering service to others. But should volunteers and non-profit organizations be aware of possible liability issues?

Kelly Simpkins, an attorney with Wells Marble & Hurst of Jackson, answers a resounding “yes” to that question. “Organizations need to be aware of liability when recruiting volunteers. Up until the 1950s, there was a common law of immunity for charitable organizations,” he says. “At that point, the Mississippi Supreme Court said organizations can be held accountable for the acts of their volunteers. The most acute area is working with children.”

This attorney of 17 years says volunteers working with children must have criminal background checks and be carefully scrutinized. Many groups run summer camps and other programs for children. Intense background checks should be conducted, then immediate steps of correction taken if a discrepancy is found.

“While a professional who’s volunteering has a certain amount of immunity, the organization does not,” he says. “Make sure the professional is qualified to do the services they will provide.”

Although a professional volunteering services has some immunity, the statues apply to them for simple negligence but not overt acts or intentional or gross neglectful conduct.

Sally R. Wagenmaker specializes in not-for-profit law with Mosher & Associates in Chicago, and points out that the federal Volunteer Protection Act focuses on the limited liability available to volunteers but not organizations.

“Generally, liability can exist for the organization as well as the volunteer, depending on the circumstances,” she says. “The liability could be for a volunteer’s wrongful acts, if egregious, against another person or against the organization for harm to the volunteer.”

A graduate of the University of Mississippi, Wagenmaker previously lived in Tupelo and as a law student worked at the law firm of Mitchell, McNutt, Bush, LaGrone & Sams.

In all volunteer settings, she recommends: that the relationship be clearly spelled out to avoid any possibility of the volunteer being treated as an employee; the organization screen volunteers and train them to ensure they are able to handle the assigned tasks; and, the organization consider having the volunteer sign a disclaimer or release, depending on the nature of the work since workers’ compensation will not apply.

Simpkins makes the same recommendations. “The difference is in the steps the organization needs to take, depending on who can harm them. There are all kinds of scenarios just like with all types of organizations,” he said. “Volunteers can sue organizations and so can those they serve.”

Both attorneys say the question of liability often comes up with physicians volunteering in medical clinics run by non-profit organizations. “There is a statue that applies to physicians, the Good Samaritan Doctrine, and one that applies to volunteers in general,” Simpkins says. “If a retired doctor provides medical services through an organization, should liability be obtained? Yes, most likely.”

He speaks from experience as a former board member of a non-profit organization in Jackson that had a medical clinic. “They had malpractice insurance, and they were sued. The doctor was immune, but not the organization,” he said.

To volunteers, Simpkins says, “Make sure whatever you do for an organization is done just like you’re being paid for your services.”

For organizations, he says, “It’s a good idea to have an attorney look over the way you will carry out your activities to make sure you’re covered.”

Contact MBJ contributing writer Lynn Lofton at llofton656@aol.com.

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