Sustainability,Responsibility…

Liability?Tyra W. Hilliard, PhD, JD, CMP

@DrTyrawww.tyrahilliard.com

Our Agenda•Responsibility• Duty of care• Good Samaritan Acts

•Sustainability• Food Donation

•Volunteers• Liability associated with volunteerism

“The expert swimmer, with a boat and a rope at hand, who sees another drowning before his eyes, is not require to do anything at all about it, but may sit on the dock, smoke his cigarette, and watch the man drown.”

- Prosser

Scenario 1 – Attendee Injury

You are an attendee at this meeting. You see a fellow attendee slip, fall, and injure himself. No one else is around.•Do you render aid? Why or why not?•Do you have an obligation to help him?• If you help him, what is your liability risk?

Do you have a duty?

Liability If…

1.A duty exists2.Duty is breached3.Breach is the proximate cause 4.Injury (or aggravation of injury)

Laws

Elements Necessary

• In good faith•Not for compensation•Didn’t cause accident or injury (no gross negligence or willful misconduct)

Scenario 1B

What if we are at a meeting in Stuttgart, Germany instead of here?Do your answers change?

The law sure does!

Laws

Duty to Rescue Laws

•Prevalent in Europe•Failure to act may carry criminal penalties•Law varies in different countries:•Duty to act if you witness an accident •Duty to act if a witness tells you about an

accident•Duty to act if you know about it, whether or

not you witnessed it

Other Laws

•Duty to rescue (U.S.) – Rhode Island & Vermont•Duty to rescue or provide notice to police – Minnesota•Those present at scene of a crime must either report the incident or assist the crime victim – Wisconsin•Texas – no citizen has a duty to assist another against their voluntary will.

Hurricane Sandy

•Staten Island •Mother and two boys, 4 and 2 trying to get to dry land•Car got stuck in water•Mother unbuckled them and they got swept away•Neighbors wouldn’t help

Cheryl Araujo Case

•21-year old woman•Gang raped on a pool table at a bar•Patrons stood by and did nothing

Scenario 1C

What if instead of slipping and falling, our (U.S.) victim goes into sudden cardiac arrest? Same questions:•Do you render aid? Why or why not?• If so, what do you do?• If you help him, what is your liability risk?

SCA Stats

•Survival rate of an out-of-hospital SCA is 3% - 16.3% (varies regionally)•Every minute of delay to defibrillation results in a 7% - 10% decline of survival•Survival rates•CPR alone – 9%•Bystander AED – 38%•EMS-delivered shock – 22%

Cardiac Arrest Survival Act

Provides Good Samaritan protection to both users and acquirers of AEDs for damages occurring as a result of the emergency use of an AED in a public setting.

But…

State AED Laws Vary Widely•Protects only AED users who have been trained by a sanctioned organization (12 states)•New York forbids the use of an AED by any untrained person•Protects all AED users (39 states and D.C.)•Only trained users protected from civil damages but all entities providing the AED are protected from liability (IL)

So Why Aren’t Hotels On Board?

•Hyatt – 20% of properties have AEDs•Choice Hotels – “very few”• InterContinental Hotels – doesn’t require hotels to have AEDs•Starwood – 13% of hotels have “medical assistance available” (may or may not include AEDs)

McCartney, The Wall Street Journal, 2009

Last DanceStuart Cohen collapsed after dancing with his daughter at her wedding in a California hotel. Physician guests called for an AED…but the hotel didn’t have one.Mr. Cohen died.The court said the hotel was under no obligation to have one.

GA SB126 EpiPen Law

EpiPens can be stocked in public establishments (hotels, events) where anaphylaxis may occur. Good Samaritan protection for trained individuals who administer the drug in good faith.

Scenario 2 – Too Much Food

You are a meeting planner. You realize the day before an event that your numbers will be far below what you’ve guaranteed. You ask the caterer to give the food you won’t be using to the local homeless shelter.•How will the caterer likely respond?•How can you make your case?•What should you do for future events?

Do Good—People Are Hungry•40% of food (or more than 20 lbs of food per person, per month) goes uneaten.•1 in 6 Americans lack a secure supply of food•Reducing food loss by 15% could feed more than 25 million Americans a year

Bill Emerson Good Samaritan Food Donation Act

The Law

No civil or criminal liability arising from the donation of “an apparently fit grocery product” donated in good faith to needy individuals.Exception: If injury or death occurs due to gross negligence or intentional misconduct.

Green Meetings Industry Council (GMIC)

•2011 meeting in Portland, OR•Doubletree Hotel Portland•250 people•90 lbs. of leftover food were donated •Fed about 40 hungry people

MeetGreen® Suggested Contract Language

“Donate all leftover food to the degree possible within safety and health regulations, and the Good Samaritan Laws.”“Donate all table scraps to a local farm or compost—if a program is available or arranged for by Group.”

How to Find a Food Partner

www.fooddonate.com

www.usda.gov (search “food donation”)

“Pop-up” Restaurants Serving Food Waste

INSTOCK – Amsterdam

WastED – New York

Scenario 3 – Volunteer InjuryYou are the meeting planner for a charitable organization that builds houses for the homeless. During a homebuilding activity, one volunteer shoots another volunteer through the leg with a nail gun.•Will the “shooter” be liable for his actions?•Will the charitable organization be liable?•How might you protect the organization from

potential liability?

Volunteer Protection Act

Volunteer Protection Act

•Nonprofit § 501(c)(3) organizations•Volunteers acting within the scope of their responsibilities•Ordinary negligence

Exceptions

•Something outside scope of volunteer “job” description•Failure to have license or certificate required•Operation of a motor vehicle•Willful, criminal or reckless misconduct or gross negligence

More Exceptions – the Bad Volunteer

•Violence or terrorism•Hate crime•Sexual offense•Violation of civil rights law•Under the influence of alcohol or drugs

State Requirements

•Risk management procedures, including mandatory training•Respondeat superior – organization is responsible for volunteer actions just like employee actions•Organization needs to be insured for acts by volunteers

How Do the Rest of Us Protect Ourselves?

•Commercial General Liability Insurance•Director & Officer Liability Insurance (protects the director or officer)•Talk to your insurer about coverage for acts of volunteers

Sustainability,Responsibility…

Liability?Tyra W. Hilliard, PhD, JD, CMP

@DrTyrawww.tyrahilliard.com