Condo Media - August 2017 - 44

The Region

MASSACHUSETTS

Volunteer Liability
What is My Risk?
[by Jennifer L. Barnett, Esq.]

Under the Volunteer Protection Action Act (42 U.S.C. §14501) (hereinafter the "Act"), volunteers of a non-profit
organization or a governmental agency
have immunity, meaning they are generally protected, from negligence claims, if
they are acting within the scope of their
responsibilities in the organization/
agency and they are properly licensed and/
or certified (to the extent required) and
authorized to act.
Under the Act, volunteers are not
protected if the harm and/or injury occurred through the operation of a motor
vehicle. Further, the Act will not cover
crimes of violence, international terrorism
for which the person has been convicted,
hate crimes, sexual offenses which result
in a conviction, misconduct for which the
person has been found to have violated a
federal or state civil rights law, or where
the person was under the influence of
intoxicating alcohol or drugs at the time
of the misconduct. The Act will also not
protect volunteers for reckless misconduct
or gross negligence.
ARE YOU PROTECTED OR NOT?
It is not entirely clear, however, whether
the Act applies to community associations.
In the (unpublished) case of Kashani
v. Rochman, the plaintiffs argued that
homeowners associations are not covered
by the Act because they are "not organized
and conducted for public benefit or operated primarily for charitable purposes, and
there is nothing in the Act or its legislative
history to suggest it was intended to benefit
homeowner associations." See Kashani v.
Rochman, 2013 WL 635962 at * 7 (Cal. Ct.
App. Feb. 21, 2013) (observing that the Act
defines "nonprofit organization" as a taxexempt organization described in 26 U.S.C.
§ 501(c)(3) or "any not-for-profit organization which is organized and conducted

CONDOMEDIA

for public benefit and
operated primarily
for charitable, civic,
educational, religious,
welfare, or health
purposes and which
does not practice any
action which constitutes a hate crime").
Unfortunately, the Court of Appeal did
not reconsider the trial court's finding that
the homeowner association satisfied the
definition of a civic league, and therefore
was entitled to immunity under the Act,
and the Court of Appeal, declined to rule
conclusively on whether the Act applies to
community associations, disposing of the
case on other grounds.
Massachusetts, like many states, has
Good Samaritan laws which protect
physicians, nurses, physician assistants,
and respiratory therapists from liability
when they give emergency care or treatment other than in the ordinary care of
practice, when done in good faith and
without charging a fee. Also, people can be
protected from liability when they attempt
to render emergency care including but
not limited to cardiopulmonary resuscitation (hereinafter "CPR") or defibrillation,
which is relevant for those associations
with onsite defibrillation machines, when
performed again, in good faith, and without compensation. However, persons are
not protected from acts or omissions that
are grossly negligent.
Ordinarily, board members of a community association will not be individually
liable for simple mistakes of judgment or
negligence (excluding gross negligence),
unless he or she engages in willful misconduct and/or bad faith. However, the
specific indemnification language contained within the association's governing
documents must be considered. The term

indemnification refers generally to an
agreement of one party to protect another
from responsibility for loss or damage.
GOVERNING DOCUMENTS
AND D&O INSURANCE
Board members must fully understand
their duties and responsibilities set forth
in the association's governing documents.
To that end, in the case of O'Brien v. Christensen, 422 Mass. 281 (1996), two men
were injured when a railing on a third-floor
porch of a building gave way and they fell
more than 25 feet onto a neighbor's porch.
The plaintiffs brought suit against the
condominium trustee, the carpenter who
had repaired the railing that failed and the
middleman who had hired the contractor
on behalf of the trustee. The Supreme Judicial Court found that the condominium
trustee's liability was determined by the
express obligations contained within the
condominium's declaration of trust which
required the trustee to "make repairs,
additions, improvements to, or alterations
of the common elements and to be responsible for the proper maintenance and
repair of the common elements," and that
the condominium trustee was therefore
liable for the negligence of the contractor.
While some claims brought against
community association boards and their
members are covered by a directors and
officers insurance policy (hereinafter
"D&O policy"), there are of course situations where a judgment could enter for an
amount which far exceeds any insurance

Condo Media - August 2017

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