Senior Drivers as Volunteers: Dealing with Liability Issues
By Matt Gurwell, CEO, Keeping Us Safe
and Yan Ross, Senior Advisor, Keeping Us Safe
© 2011 Keeping Us Safe, LLC – All Rights Reserved
This article is intended to provide general guidance on the subject of potential liabilities assumed by community organizations that use volunteer services of senior drivers, not to offer specific legal advice or opinions. While the issues are real and challenging, it is recommended that counsel be obtained from attorneys admitted to practice in the jurisdiction where the organization operates.
A Growing Threat to Community Organizations
One of the issues appearing more and more often in the management of community and other non-profit organizations is liability that may result from the acts or omissions of volunteers. For this purpose, we’ll refer to them as “sponsoring organizations” in referring to their relationship with the volunteers.
Frequently, consideration of this challenge arises after an incident in which someone has experienced an injury or loss in which a senior driver is at fault.
At that point, it is more and more common for the injured party to look to the sponsoring organization for compensation.
As with other types of liabilities, there are several aspects involved in the process of recognizing, evaluating, minimizing, and otherwise protecting against such a risk.
The purpose of this article is to help identify the threats and some preventive steps that should be considered in insulating the organization from liability. The article is by no means exhaustive in this exercise, and very different results may be experienced in various jurisdictions. In all cases, it’s incumbent on the organization to seek advice from legal and risk management professionals when dealing with senior driver volunteers.
A Case in Point
Let’s take an example that highlights a variety of the factors that may come into play. Although we hope your organization will never face such a situation, after all, that’s what preventive steps and risk management are all about.
A community organization provides transportation services for its clients and their families, perhaps for shopping, or access to medical or other needed services. They may transport people, or perhaps only provide pickup and delivery of needed items, such as medication or other personal requirements.
Volunteers are recruited, and screened for such information as criminal records. They are also interviewed for personality and compatibility traits. If they are expected to be involved in the transportation services, they will of course need to provide proof of a current valid driver license.
The volunteer drivers may drive their own vehicles, or may need to use a larger vehicle, such as a van, to provide the transportation services. To allow use of a private vehicle, the volunteer must also provide proof of insurance, especially liability insurance.
One day, the volunteer senior driver on call uses his or her own vehicle to pick up a member of the client family and drive to a doctor’s appointment. On the way to the medical clinic, there’s a collision with another automobile.
The accident is caused by the volunteer senior driver; it may be any of a number of reasons, but the cause is determined to be the impaired vision or reaction time of the driver. To confirm the at-fault issue, police issue a citation to the senior driver citing “failure to yield the right of way.”
The client is injured and is treated by EMTs at the scene, then taken to the hospital ER by ambulance.
The other vehicle is damaged just short of being declared a total loss, perhaps $15,000. Fortunately, the driver of that vehicle is unaccompanied and sustains no personal injury.
The Role and Responsibilities of the Sponsoring Organization
There are numerous theories of liability that come into play, though this article can hardly be exhaustive in naming them. Some of the prominent ones include treating the volunteer as an agent of the sponsoring organization (“principal-agent” relationship), vicarious liability, negligent supervision, and similar legal foundations.
In general, the role of the sponsoring organization includes a duty to supervise effectively the activities of the volunteers while they are on organization business. But how far does that go? It’s clear that, in accepting the service, the injured client expects the organization to provide safe transportation.
By using his/her own vehicle, the volunteer in this case does provide liability insurance, as would be required by the sponsoring organization. But what if the damage to the injured client exceeds the limits of the volunteer’s insurance?
In most States, the sponsoring organization would incur secondary liability, and have to look to its own insurance carrier or its own resources to respond to such a claim.
Similar treatment would likely be given the loss by the other driver, whose vehicle was severely damaged.
It’s worth noting that some State laws set a higher standard than others for holding non-profit organizations liable for losses in cases like this. However, in most jurisdictions, there is not firm case law on the standards.
Some Contrasting Fact Patterns and Their Possible Results
If the volunteer had been driving a vehicle owned by the sponsoring organization, the liability insurance coverage n that vehicle would be the primary source of payment for damages. However, it would be prudent to review your own insurance coverage to assure that there are no exclusions that might apply, such as an age limit (minimum as well as maximum) for authorized drivers.
If there had been personal injury to the driver of the other vehicle, or perhaps a passenger in that auto, it’s possible that the aggregate limits of liability coverage could be exceeded, resulting in a money claim against the organization itself.
If there had been some factual reason to assess some contributory negligence or other incident of liability against the driver of the other vehicle, a different result would occur.
If the sponsoring organization had instituted a program to maintain current assessments of the volunteer drivers (not necessarily only aging drivers), it’s likely that the accident never would have occurred.
Risk Management and Loss Prevention Steps
Once the organization’s executives and board members accept that there is potential liability and financial loss involved with the acceptance of volunteer services of senior drivers, appropriate risk management steps can be taken.
As in the case of other manageable risks, the three main actions involve loss prevention, insurance coverage, and specific legal advice.
Loss prevention techniques importantly include periodic assessments of the suitability of older volunteer drivers to continue in this role. While long-term relationships are based on loyalty and trust, the aging process is undeniable, and must be addressed. It is incumbent on the sponsoring organization to utilize proven methods of helping senior drivers to understand and accept the circumstances under which their driving for the organization is appropriately curtailed or terminated.
Insurance coverage is appropriately reviewed on a regular basis, both for financial limits and any exclusions or limitations on substantive coverage. This exercise is best accomplished with an insurance professional who is familiar with the practices in the State in which the non-profit community organization operates.
Legal advice should cover a variety of liability issues, including the kinds of documentation necessary to protect the organization while minimizing interference with the services it provides. Examples would be agreements under which volunteers would undertake to maintain their personal and medical capabilities current in order to continue in service, clients and their families would agree that in accepting the services of the organization they would not seek damages against the organization for acts of third partiers, and such other protections appropriate under the laws of the relevant jurisdiction.
Senior drivers who provide transportation services as volunteers for community organizations are a wonderful resource; they have the time and willingness to serve their neighbors and communities.
The responsibilities of the community organization must be met mindfully in accepting and utilizing the services of senior drivers.
Assessments of the capabilities of the senior drivers constitute a fundamental means of preventing accidents and protecting against liability they may incur.
Keeping Us Safe, LLC is the publisher of “Beyond Driving With Dignity,” The Workbook for Families of Older Drivers, and certifying authority for the “Beyond Driving With Dignity (BDD) Professional” training and certification program. Please see the information posted at the company web site: www.keepingussafe.org
Matt Gurwell is the developer of the nationally-recognized “Beyond Driving with Dignity” program. He currently lectures throughout the United States on topics related to the aging process and its adverse affects on driving skills. As developer of this life-saving program, Matt’s mission is to provide strategies and guidance to seniors that will help them to continue driving safely until the decision is made to retire from their driving career. The “Beyond Driving with Dignity” program also provides an excellent array of services and resources for both families and professionals as they deal with this very sensitive issue. Matt retired from a very distinguished and successful 24-year career as an Assistant District Commander with the Ohio State Highway Patrol. After leaving the Patrol, Matt has participated in a tremendous amount of work in the area of older driver research, best practices, current vehicle safety technologies, and adaptive equipment. Matt's creative, innovative and common sense approach, combined with his uncanny ability to bring calm and resolve to stressful situations without ever jeopardizing the dignity of others, has contributed greatly to the success of the “Beyond Driving with Dignity” program. When asked what the ultimate motivation was for starting the program, Matt explains: "There was never one particular event. It was the result of 20-plus years of holding dying people in my arms at terrible car accidents, and delivering dozens and dozens of death notifications to families. I would much rather work with families to bring a peaceful resolve to this sensitive and uncomfortable issue now, rather than have them deal with it when a State Trooper is knocking on their front door". Matt serves as Senior Care Authority’s Program Director for the “Beyond Driving with Dignity” program. Senior Care Authority is now the nation’s exclusive provider of the “Beyond Driving with Dignity” program.