S 0120 General Bill, By S.S. Martschink and Wilson
 A Bill to amend Section 15-78-30, as amended, Code of Laws of South Carolina,
 1976, relating to definitions in the Tort Claims Act, so as to include
 volunteer in the definition of employee; and Section 33-55-210, relating to
 the recovery for torts against charitable organizations and licensed health
 care providers, so as to include nonprofit as well as charitable
 organizations.

   09/17/90  Senate Prefiled
   09/17/90  Senate Referred to Committee on Judiciary
   01/08/91  Senate Introduced and read first time SJ-56
   01/08/91  Senate Referred to Committee on Judiciary SJ-56
   01/16/91  Senate Committee report: Favorable with amendment
                     Judiciary SJ-12
   01/23/91  Senate  Committee amendment tabled SJ-18
   01/23/91  Senate Read second time SJ-20
   01/23/91  Senate Ordered to third reading with notice of
                     amendments SJ-20
   01/29/91  Senate Amended SJ-29
   01/29/91  Senate Read third time and sent to House SJ-31
   01/30/91  House  Introduced and read first time HJ-17
   01/30/91  House  Referred to Committee on Judiciary HJ-17

AS PASSED BY THE SENATE

January 29, 1991

S. 120

S. Printed 1/29/91--S.

Read the first time January 8, 1991.

A BILL

TO AMEND SECTION 15-78-30, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO DEFINITIONS IN THE TORT CLAIMS ACT, SO AS TO INCLUDE VOLUNTEER IN THE DEFINITION OF EMPLOYEE; AND SECTION 33-55-210, RELATING TO THE RECOVERY FOR TORTS AGAINST CHARITABLE ORGANIZATIONS AND LICENSED HEALTH CARE PROVIDERS, SO AS TO INCLUDE NONPROFIT AS WELL AS CHARITABLE ORGANIZATIONS.

Amend Title To Conform

Be it enacted by the General Assembly of the State of South Carolina:

Whereas, within South Carolina, the willingness of volunteers to offer their services increasingly has been deterred by the perception that they put personal assets at risk if there are liability actions against the organization they serve; and

Whereas, as a result of this perception, many nonprofit public and private organizations and governmental entities, including voluntary associations, social service agencies, educational institutions, local governments, foundations, and other civic programs, have been affected adversely through the withdrawal of volunteers from boards of directors and service in other capacities; and

Whereas, the contribution of these programs to their communities is diminished resulting in fewer and higher cost programs than would be obtainable if volunteers were participating; and

Whereas, protection of voluntarism through clarification and limitation of the personal liability risks assumed by the volunteer in connection with his participation is an appropriate subject for state reform; and

Whereas, the interests of social service program beneficiaries and taxpayers must be promoted and the availability of programs and nonprofit organizations and governmental entities which depend on volunteer contributions must be sustained by providing for reform to provide protection from personal financial liability to volunteers serving with actions undertaken in good faith on behalf of the organizations.

Be it enacted by the General Assembly of the State of South Carolina:

SECTION 1. Section 15-78-30(c) of the 1976 Code, as last amended by Act 352 of 1988, is further amended to read:

"(c) Prior to Before January 1, 1989, 'Employee' means any an officer, an employee, a volunteer, or an agent of the State or its political subdivisions, including elected or appointed officials, law enforcement officers, and persons acting on behalf or in service of a governmental entity in the scope of official duty, whether with or without compensation, but the term. It does not include an independent contractor doing business with the State or any its political subdivision thereof subdivisions. Custody of prisoners by the State or any of its political subdivisions does not in and of itself create an employer and employee relationship between the State and the prisoner. Provided However, the provisions of this section shall in no way do not limit or modify the liability of a licensed physician or dentist, acting within the scope of his profession.

On or after January 1, 1989 After December 31, 1988, 'Employee' means any an officer, an employee, a volunteer, or an agent of the State or its political subdivisions, including elected or appointed officials, law enforcement officers, and persons acting on behalf or in service of a governmental entity in the scope of official duty, whether with or without compensation, but the term. It does not include an independent contractor doing business with the State or any its political subdivision thereof subdivisions. Custody of prisoners by the State or any of its political subdivisions does not in and of itself create an employer and employee relationship between the State and the prisoner. Provided However, the provisions of this section shall in no way do not limit or modify the liability of a licensed physician or dentist, acting within the scope of his profession, with respect to any an action or a claim brought hereunder which involved services for which the physician or dentist was paid, should have been paid, or expected to be paid at the time of the rendering of the services from any a source other than the salary appropriated by the governmental entity."

SECTION 2. Section 33-55-210(A) of the 1976 Code is amended to read:

"(A) Any A person sustaining damages or an injury or dying by reason of the tortious act of commission or omission of an employee or volunteer of a charitable organization or nonprofit organization, as defined in Section 27-45-10(B), when the employee or volunteer is acting within the scope of his employment or volunteer responsibilities, may only recover in any an action brought against the charitable organization for or nonprofit organization, may recover only the actual damages he may sustain in an amount not exceeding two hundred thousand dollars. An action against the charitable organization or nonprofit organization under Sections 33-55-210 through 33-55-230 constitutes a complete bar to any a recovery by the claimant, by reason of the same subject matter, against the employee or volunteer of the charitable organization whose act or omission gave rise to the claim unless it is alleged and proved in the action that the employee or volunteer acted in a reckless, wilful, or grossly negligent manner, and, in such that case, the employee or volunteer must be properly joined properly as a party defendant. No judgment against an employee or volunteer of a charitable organization or nonprofit organization may be returned unless a specific finding is made that the employee or volunteer acted in a reckless, wilful, or grossly negligent manner. If the charitable organization or nonprofit organization for which the employee or volunteer was acting cannot be determined at the time when the action is instituted, the plaintiff may name as a party defendant the employee or volunteer, and the entity for which the employee or volunteer was acting must be added or substituted as party defendant when it can may be so reasonably determined."

SECTION 3. This act takes effect upon approval by the Governor.