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2005 Virginia Attorney General Reports and Opinions 1 (2005)

handle is hein.sag/sagva0028 and id is 1 raw text is: OP. NO. 04-083 MILITARY AND EMERGENCY LAWS: EMERGENCY SERVICES AND DISASTER LAW. CIVIL REMEDIES AND PROCEDURES: ACTIONS - MISCELLANEOUS PROVISIONS. Formal declaration of emergency under Virginia Emergency Services Disaster Law of 2000 affords Medical Reserve Corps volunteers immunity for acts of negligence; no immunity for acts of willful misconduct. Common law Good Samaritan doctrine may provide limited immunity to Corps volunteers acting within confines of law. Federal Volunteer Protection Act of 1997 provides broad immunity, both before and during declared emergency, for volunteers' negligent acts provided they act within scope of their responsibilities; no immunity for claims of noneconomic damages, acts involving gross negligence or reckless misconduct, or awards of punitive damage. Whether Corps volunteers are agents of Commonwealth for purposes of sovereign immunity and workers' compensation protection is factual determination. The Honorable Mitchell Van Yahres Member, House of Delegates January 13, 2005 Issues Presented You inquire concerning liability issues related to the activities of volunteers responding to emergency or disaster situations. Specifically, you inquire about the Medical Reserve Corps, which is a community-based organization with volunteers trained to respond to such situations. You ask whether state law protects volunteers from liability in the performance of their duties as part of an organized response to disaster situations. Additionally, you ask under what circumstances state law would protect such volunteers. Next, you ask whether volunteers working with state agencies in an exercise or response scenario are considered agents of the Commonwealth, and whether that designation would entitle the volunteers to sovereign immunity protection and worker's compensation benefits. Finally, you ask whether the volunteer members of the Medical Reserve Corps are protected when they respond pursuant to a local Incident Command System1 prior to a gubernatorial declaration of emergency. Response It is my opinion that volunteer members of the Medical Reserve Corps are afforded immunity for their services upon a formal declaration2 of emergency pursuant to the Commonwealth of Virginia Emergency Services and Disaster Law of 2000. The liability protections afforded by this act protect volunteers from liability for acts of negligence, but not for acts of willful misconduct. In the absence of a formal declaration, this broad immunity does not apply. The volunteer members of the Medical Reserve Corps may have limited immunity prior to the declaration of an emergency or disaster if they are acting within the narrow circumstances of the Good Samaritan law. The federal Volunteer Protection Act of 1997, however, provides broad immunity to volunteer members of the Medical Reserve Corps for their negligent acts when acting within the scope of their responsibilities both before and during a formal declaration of emergency. Such immunity does not extend to claims for noneconomic damages or for acts involving gross negligence or reckless misconduct, nor for awards of punitive damages. I am unable to offer an opinion whether the members of the volunteer Medical Reserve Corps would be agents of the Commonwealth for purposes of sovereign immunity and worker's compensation protection. Ultimately, such a determination is fact dependant and must be made on a case-by-case basis. Finally, it is my opinion that the protection from the Virginia Emergency Services and Disaster Law of 2000 is applicable only upon a formal declaration of emergency.

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