Judiciary Interim Committee

necessary so the agency that has previously authorized the revocation or imposed the fine is not reviewing its own decision, he said.

    Rep. Harward questioned whether a less expensive alternative to a central panel would be plausible. Mr. Thorup did not know the expense of a central panel but suggested that the legislature use its resources to study the experiences of other states who have implemented central panels.

    Sen. Hillyard expressed concern with the use of a trial de novo at the district court. Additionally, he said that agencies are limited in hiring legal counsel because state attorneys are provided by the attorneys general's office unless a so-called closet attorney can be hired. Tight budgets and smart administrators produce positions that accomplish multiple assignments, he said. Although good management may not always equal good legal policy, he said.

    Chair Harward closed the discussion by requesting that staff draft language creating a couple of options for the committee to discuss further.

3.    Immunity for Volunteers

    Mr. Kline Strong, Independent Volunteer, distributed a written copy of his comments and expressed frustration that Utah law does not offer immunity for independent volunteers. Mr. Strong explained that Utah has five immunity statutes which protect volunteers working with governmental entities and nonprofit charities but none protect the independent volunteer. Furthermore, he said, the Utah Supreme Court, in Condemarin vs. University Hospital, 775 P.2d 348 (1989) held that the plaintiff's recovery cap established by the legislature is unconstitutional.

    With that decision, Mr. Strong told the committee that any law that intended to abrogate the right of a citizen of the state to sue in open court for any injury done to him or his property would also be unconstitutional. The court, he said, relied on the open courts provision of the Utah Constitution, Article I, Section 11, to make this decision. Mr. Strong suggested that in order to provide any protection for volunteers, the legislature must base any immunity statute on empirical research and statistical analysis to show that the immunity statute is a reasonable mechanism which balances the loss of the injured parties' right to sue with the need to benefit the public by protecting volunteers. In short, he said, any effort to constitutionally provide immunity for volunteers requires that the legislature prove (through an empirical study) that the benefit to the public for volunteer immunity outweighs the benefit to preserve injured parties' rights to sue.

    Mr. Strong continued that the conclusion is inescapable, each of Utah's immunity statutes are unconstitutional because none meet the procedures established by the Utah Supreme Court in Condemarin. When volunteers understand that they are personally liable, that the immunity statutes do not protect them as they purport to do, then volunteers throughout the state are going

to quit. He said that no one in their right mind is going to subject themselves to this level of liability. To support this claim, Mr. Strong testified that he surveyed 1,200 of the 2,200 registered charities in the state and found that many thousands of volunteer hours will be lost when people understand their risk of liability.

    Rep. Harward asked what requirements one has to meet to be found liable in tort.

    Sen. Taylor explained that the one has to have a duty, that the duty must have been breached, and the breach of the duty must be the cause of an injury or harm, he said.
    
    Rep. Harward questioned what the proposed standard of immunity would be: gross negligence or simple negligence.

    After a protracted discussion, the committee decided that the jury decides between simple negligence and gross negligence and the procedures used to make that determination may be contained in the jury instructions.

    Sen. Hillyard noted that it would be unfortunate, and any bill would have to be crafted carefully, so that it would not impact the insurance available to victims by protecting the person who caused the accident.
    
    Ms. Olene Walker, Lt. Governor, explained that she was not there to provide any answers for this difficult issue. But she urged the committee to seriously consider some protection for volunteers because certain government programs need more volunteer hours to survive. Many state programs, she said, would be seriously disadvantaged if people became uncomfortable volunteering.

    Mr. Tom Powell, Utah National Parks Council, Boy Scouts of America, said that his organization depends on almost 25,000 independent volunteers and that without them the organization would cease to exist. Concerning the distinction between gross negligence and simple negligence, Mr. Powell offered two examples. The first he said, was an actual case where an adult volunteer permitted his fourteen-year-old son to drive a vehicle with several boys on skateboards and roller blades hanging onto the doors and bumpers. One of the boys fell underneath the vehicle and was seriously injured. Mr. Powell explained that the Boy Scouts of America viewed the situation as gross negligence. The volunteer was found completely liable.

    The second example, he said, was strictly theoretical. But suppose the scouts perform an activity on an apparatus called the web. An activity he described as having the boys help each other cross a rope suspended three to five feet above the ground in the shape of a spider web. After the activity, let us imagine that the boys snuck away in the night to play on the apparatus and one of the boys was injured. This would be an accident, he said. The volunteer would not

be held liable and Boy Scouts would want its insurance to help with the medical expenses of the injured scout.

    Sen. Taylor said that a skilled attorney could find gross negligence in either case. The determination of liability is found in the facts and a good attorney can create a breach of a reasonable duty on a thin set of facts, he said.

    Mr. Powell said that he understands the dilemma. It is important to protect both parties: the volunteer and the injured.

    Rep. Harward said that may be impossible because the protection of the volunteer comes at the expense of the injured. If the proper balance can be struck, then he suggested that the "perfect balance" should be extended to all torts, car accidents, homeowner policies, and the like. Up to this time he said, a legal solution that protects both parties equally well has not been found, so we handle these cases case by case, turning the decision over to the jury.

    Ms. Rosalind J. McGee, Utah Nonprofit Association Board, distributed a copy of her presentation, a list of the Utah Nonprofit Association Board members, and a copy of "RISK facts" for the committee to review. Ms. McGee reiterated that Utah volunteers may not enjoy the immunity extended to them in the statutes because of Condemarin.

    Ms. McGee also noted that under state law no tort liability immunity exists for a nonprofit or its volunteers unless the nonprofit has insurance at the minimum levels required by law. These minimum levels are expensive and many nonprofits cannot and do not have the requisite policies, she said.

    Mr. Nate Alder, Legal Advisor, Utah Nonprofit Association, said that of the 1.4 million nonprofits in the United States, only a small fraction actually insure for this type of liability. He said that it would be wise for the Utah Nonprofit Association to survey its membership to gather more data and to educate the membership on immunity and liability issues.

    Mr. Richard K. Winters, Community Services Council, said that his organization received more than 75,000 volunteer hours last year. He said that most of these volunteers are not concerned with whether they are insured or not. This is not why they volunteer. It is troubling, however, to understand that society has become so litigious. Many of the projects that require volunteers move along nicely, he said, until the project is reviewed by legal counsel, then a choke-hold sets in and the project dies. There was a simpler time, he said, when volunteers could give of themselves to improve the community. He explained that he sometimes wonders what he is doing because the things that he used to do in good conscience does not make sense in today's legal environment.

    Mr. Leo A. Jardine, Community Services asked the committee to imagine the level of immunity they would want for themselves if they were to volunteer at a community center. In the position of volunteer, he said, it is easy to understand why immunity is an important issue. He suggested that the maximum number of volunteers will never be achieved unless and until maximum protection is afforded to volunteers. He further explained that the legislature is the key to solving this issue.

    Ms. Karmen Sanome, Salt Lake County Aging Services, said that volunteers along the Wasatch Front are reimbursed for gasoline to drive seniors from one location to another. In rural areas the budgets cannot handle the reimbursement because the distances are sometimes substantial. Additionally, if a senior donates gas money to the volunteer, then the volunteer is no longer covered under the Volunteer Immunity Act. When driving several seniors a week 50 to 60 miles to see the doctor it seems unfair to prevent the senior from contributing to the gas bill. She added that legislation has been drafted to fix this problem but it carries a constitutional note so it has not passed.

    Ms. McCarty, Associate General Counsel explained that such legislation would likely violate the open courts provision.

    Ms. Sanome said that people are not volunteering like they used to and it has been very difficult to recruit volunteers.

    Rep. Harward explained how thorny this issue can become. It just is not fair, he said, to grant immunity to volunteers and leave the injured party with no recourse. It seems that if immunity could be granted for simple negligence without neglecting those who become injured, then it would be done in a minute, he said. But the issue is not that simple.
    
4.    Evaluation Criteria for the Selection of Judicial Nominees
    
    Postponed

5.     Alternative Dispute Resolution
    
    Postponed

6.     Adjournment

    MOTION: Rep. Johnson moved to adjourn the meeting at 5:03 p.m. The motion passed unanimously.