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S.B. 195
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5 AN ACT RELATING TO VOLUNTEER IMMUNITY; GRANTING IMMUNITY FROM SUIT
6 TO CERTAIN VOLUNTEERS; DECLARING UTAH'S INTENT TO NOT APPLY AN
7 OPTIONAL FEDERAL LAW; AND PROVIDING AN EFFECTIVE DATE.
8 This act affects sections of Utah Code Annotated 1953 as follows:
9 ENACTS:
10 78-19-101, Utah Code Annotated 1953
11 78-19-102, Utah Code Annotated 1953
12 78-19-201, Utah Code Annotated 1953
13 78-19-202, Utah Code Annotated 1953
14 78-19-301, Utah Code Annotated 1953
15 78-19-401, Utah Code Annotated 1953
16 REPEALS:
17 78-19-1, as enacted by Chapter 4, Laws of Utah 1990
18 78-19-2, as enacted by Chapter 4, Laws of Utah 1990
19 78-19-3, as enacted by Chapter 4, Laws of Utah 1990
20 Be it enacted by the Legislature of the state of Utah:
21 Section 1. Section 78-19-101 is enacted to read:
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24 78-19-101. Title.
25 This chapter is known as the "Utah Volunteer Protection Act."
26 Section 2. Section 78-19-102 is enacted to read:
27 78-19-102. Definitions.
28 As used in this chapter:
29 (1) "Damage" means physical injury to real or personal property.
30 (2) "Good faith" means that the purpose of the volunteer is to provide service directly as
31 an independent volunteer, or directly or indirectly through an organization and that the volunteer's
32 actions are not for the benefit of another person or entity except the person or entity being served.
33 (3) "Governmental entity" means:
34 (a) the state;
35 (b) any department, agency, institution, instrumentality, office, college, university,
36 authority, division, board, bureau, commission, council, or other agency of the state;
37 (c) any Olympic Winter Games organizing committee or instrumentality thereof, as
38 approved by the Utah Sports Authority;
39 (d) any county, city, town, school district, or special district; or
40 (e) any other political subdivision.
41 (4) "Gratuitous" or "gratuitously" means without actual or expected compensation or
42 payment for services in money or any other thing of value, whether per diem or otherwise, except
43 where the payment is solely for the purpose of reimbursing subsistence, travel, or other expense
44 reasonably incurred by the person performing those services.
45 (5) "Gross negligence" or "grossly negligent" means:
46 (a) the failure to observe even slight care; or
47 (b) recklessness to a degree that shows utter indifference to the consequences that may
48 result.
49 (6) "Injury" means any kind of harm to a person other than property damage.
50 (7) "Nonprofit organization" means:
51 (a) any organization that is described in Section 501(c) (3) of the Internal Revenue Code
52 of 1986 and is exempt from tax under Section 501 of the Internal Revenue Code; or
53 (b) any not-for-profit organization that is formed and conducted for public benefit and
54 operated primarily for humanitarian, charitable, civic, educational, religious, benevolent, welfare,
55 or health purposes, and that does not distribute its income or assets to its members, directors,
56 officers, or other participants, except as provided in this chapter.
57 (8) "Organization" means a firm, partnership, association, agency, entity, corporation,
58 company, or group of individuals acting together for a common purpose, whether public or private.
59 (9) (a) "Volunteer" means an individual who gratuitously performs services for an
60 individual, a nonprofit organization, or a governmental entity.
61 (b) "Volunteer" includes a director, officer, or trustee of a nonprofit organization or
62 governmental entity who receives a stipend of not more than $500 per year from the organization
63 or entity.
64 (c) "Volunteer" includes an employee of any organization that provides the employee's
65 services as a volunteer even though the volunteer continues to receive wages or salary from the
66 organization while the services are being performed.
67 Section 3. Section 78-19-201 is enacted to read:
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69 78-19-201. Liability protection for volunteers.
70 Except as provided in Section 78-19-202 , a volunteer is not liable for damage or injury
71 caused by an act or omission of the volunteer while providing volunteer services if:
72 (1) the volunteer was acting in good faith; and
73 (2) the damage or injury was not the result of the volunteer's gross negligence, intention,
74 or purpose.
75 Section 4. Section 78-19-202 is enacted to read:
76 78-19-202. Exceptions to immunity.
77 The protection against liability in this chapter does not apply if, at the time the damage or
78 injury occurred, the volunteer causing the damage or injury:
79 (1) was engaged in misconduct that constitutes a crime under state or federal law;
80 (2) was under the influence of a controlled substance; or
81 (3) was under the influence of alcohol in accordance with the standard set forth in Section
82 41-6-44 .
83 Section 5. Section 78-19-301 is enacted to read:
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85 78-19-301. Applicability.
86 This chapter applies to any claim for damage or injury caused by an act or omission of a
87 volunteer occurring after July 1, 2000.
88 Section 6. Section 78-19-401 is enacted to read:
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90 78-19-401. Election of nonapplicability required by federal law.
91 In accordance with Section 3(b) of Public Law 105-19, Utah declares its election that
92 Public Law 105-19 does not apply in any civil action in a state court against a volunteer in which
93 all parties are citizens of this state.
94 Section 7. Repealer.
95 This act repeals:
96 Section 78-19-1, Definitions.
97 Section 78-19-2, Liability protection for volunteers -- Exceptions.
98 Section 78-19-3, Liability protection for organizations.
99 Section 8. Effective date.
100 This act takes effect on July 1, 2000.
Legislative Review Note
as of 1-5-00 9:49 AM
This legislation raises the following constitutional or statutory concerns:
Article I, Section 11 of the Utah Constitution, Utah's "open courts" provision, provides that all
courts shall be open and every person shall have a remedy available for an injury. In interpreting
this constitutional provision, the Utah Supreme Court has held that when the Legislature removes
a remedy at law, it must either provide an effective and reasonable alternative by due course of law
or the Legislature must establish that there is a clear social or economic evil to be eliminated and
that the elimination of the remedy at law is not an arbitrary or unreasonable means for achieving
that objective. Berry v. Beech Aircraft Corp. 717 P. 2d 670, 676 (Utah 1985). This legislation,
by providing blanket immunity for volunteers, removes a remedy at law but does not provide any
alternative remedy. Unless the Legislature affirmatively establishes the existence of a clear social
and economic ill to be eliminated, and affirmatively establishes that this grant of immunity to
volunteers is not an arbitrary or unreasonable means of removing that ill, this legislation will
probably be declared unconstitutional.