H. Rept. 108-680 - 108th Congress (2003-2004)
September 13, 2004, As Reported by the Judiciary Committee

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House Report 108-680 - GOOD SAMARITAN VOLUNTEER FIREFIGHTER ASSISTANCE ACT OF 2004




[House Report 108-680]
[From the U.S. Government Printing Office]



108th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     108-680

======================================================================
 
      GOOD SAMARITAN VOLUNTEER FIREFIGHTER ASSISTANCE ACT OF 2004

                                _______
                                

 September 13, 2004.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

 Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 1787]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on the Judiciary, to whom was referred the bill 
(H.R. 1787) to remove civil liability barriers that discourage 
the donation of fire equipment to volunteer fire companies, 
having considered the same, report favorably thereon with an 
amendment and recommend that the bill as amended do pass.

                                CONTENTS

                                                                   Page
The Amendment....................................................     2
Purpose and Summary..............................................     2
Background and Need for the Legislation..........................     3
Hearings.........................................................     7
Committee Consideration..........................................     7
Vote of the Committee............................................     7
Committee Oversight Findings.....................................     8
New Budget Authority and Tax Expenditures........................     8
Congressional Budget Office Cost Estimate........................     8
Performance Goals and Objectives.................................     9
Constitutional Authority Statement...............................     9
Section-by-Section Analysis and Discussion.......................     9
Changes in Existing Law Made by the Bill, as Reported............    10
Markup Transcript................................................    10
Dissenting Views.................................................    22

                             The Amendment

    The amendment is as follows:
    Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Good Samaritan Volunteer Firefighter 
Assistance Act of 2004''.

SEC. 2. REMOVAL OF CIVIL LIABILITY BARRIERS THAT DISCOURAGE THE 
                    DONATION OF FIRE EQUIPMENT TO VOLUNTEER FIRE 
                    COMPANIES.

    (a) Liability Protection.--A person who donates fire control or 
fire rescue equipment to a volunteer fire company shall not be liable 
for civil damages under any State or Federal law for personal injuries, 
property damage or loss, or death proximately caused by the equipment 
after the donation.
    (b) Exceptions.--Subsection (a) does not apply to a person if--
            (1) the person's act or omission proximately causing the 
        injury, damage, loss, or death constitutes gross negligence or 
        intentional misconduct; or
            (2) the person is the manufacturer of the fire control or 
        fire rescue equipment.
    (c) Preemption.--This Act preempts the laws of any State to the 
extent that such laws are inconsistent with this Act, except that 
notwithstanding subsection (b) this Act shall not preempt any State law 
that provides additional protection from liability for a person who 
donates fire control or fire rescue equipment to a volunteer fire 
company.
    (d) Definitions.--In this section:
            (1) Person.--The term ``person'' includes any governmental 
        or other entity.
            (2) Fire control or rescue equipment.--The term ``fire 
        control or fire rescue equipment'' includes any fire vehicle, 
        fire fighting tool, communications equipment, protective gear, 
        fire hose, or breathing apparatus.
            (3) State.--The term ``State'' includes the several States, 
        the District of Columbia, the Commonwealth of Puerto Rico, the 
        Commonwealth of the Northern Mariana Islands, American Samoa, 
        Guam, the Virgin Islands, any other territory or possession of 
        the United States, and any political subdivision of any such 
        State, territory, or possession.
            (4) Volunteer fire company.--The term ``volunteer fire 
        company'' means an association of individuals who provide fire 
        protection and other emergency services, where at least 30 
        percent of the individuals receive little or no compensation 
        compared with an entry level full-time paid individual in that 
        association or in the nearest such association with an entry 
        level full-time paid individual.
    (e) Effective Date.--This Act applies only to liability for injury, 
damage, loss, or death caused by equipment that, for purposes of 
subsection (a), is donated on or after the date that is 30 days after 
the date of the enactment of this Act.

SEC. 3. STATE-BY-STATE REVIEW OF DONATION OF FIREFIGHTER EQUIPMENT.

    (a) In General.--The Attorney General of the United States shall 
conduct a State-by-State review of the donation of firefighter 
equipment to volunteer firefighter companies during the 5-year period 
ending on the date of the enactment of this Act.
    (b) Report.--Not later than 6 months after the date of the 
enactment of this Act, the Attorney General of the United States shall 
publish and submit to the Congress a report on the results of the 
review conducted under subsection (a). The report shall include, for 
each State, the most effective way to fund firefighter companies, 
whether first responder funding is sufficient to respond to the 
Nation's needs, and the best method to ensure that the equipment 
donated to volunteer firefighter companies is in usable condition.

                          Purpose and Summary

    H.R. 1787, the ``Good Samaritan Volunteer Firefighter 
Assistance Act of 2004'' is intended to encourage increased 
donation of surplus firefighting equipment to volunteer 
firefighting departments by removing civil liability barriers 
that keep corporations, individuals, and professional 
firefighting entities from donating surplus equipment rather 
than destroying or ``moth balling'' it. The bill is designed to 
accomplish this by exempting a person who donates fire control 
or fire rescue equipment to a volunteer fire company (defined 
as at least 30% of members receiving little or no compensation) 
from liability for civil damages for injuries, damages, or 
losses proximately caused by the donated equipment. The bill 
creates two exceptions from the general protection if the donor 
either manufactures the equipment or engages in gross 
negligence or intentional misconduct.

                Background and Need for the Legislation

             VOLUNTEER ORGANIZATIONS AND THEIR LEGAL STATUS

Volunteerism and the Advent of the ``Lawsuit Culture''
    In the United States, a multitude of organizations exist 
solely for the purpose of helping their communities, both 
locally and nationally. These volunteer and nonprofit 
organizations make use of volunteers who selflessly give of 
their time and resources to benefit others. However, America's 
long tradition of volunteerism and generosity has been 
undermined by what has become a new American tradition: the 
lawsuit culture. In recent decades, actual lawsuits and fears 
of liability (both rational and irrational) have increasingly 
become a deterrent to people who might otherwise have given of 
their time or resources to better their community and country.
Congressional Efforts to Assess and Address Legal Attacks on Volunteer 
        Organizations
    The Judiciary Committee and Congress have previously 
recognized that the simple fear of liability, if left 
unchecked, would cause potential volunteers to stay home. The 
Committee has held hearings \1\ in recent years about various 
aspects of this problem and has advanced several pieces of 
legislation \2\ designed to limit liability for volunteers and 
volunteer, non-profit, or charitable organizations. Some of the 
evidence gathered during these hearings bears repeating. 
According to a report by the Independent Sector, a national 
coalition of 800 organizations, the percentage of Americans 
volunteering dropped from 54% in 1989 to 51% in 1991 and 48% in 
1993.\3\ Gallup polls have shown that 1 in 6 potential 
volunteers reported that they withheld their services due to 
fear of exposure to liability lawsuits.\4\ The Committee's 
hearings also brought to light how the general fear of 
liability is borne out by anecdotal examples of the types of 
lawsuits that have been brought. One Little League organization 
chose to settle out of court rather than face possible 
excessive damage awards when it was sued by a woman who was hit 
by a ball her own daughter failed to catch.\5\ When a youth 
suffered a paralyzing injury in a volunteer supervised Boy 
Scout game of touch football, he filed a multimillion dollar 
lawsuit against the adult supervisors and the Boy Scouts.\6\ In 
California, a volunteer Mountain Rescue member helped 
paramedics aid a climber who had fallen and sustained injuries 
to his spine; his reward was a $12 million lawsuit for 
damages.\7\
---------------------------------------------------------------------------
    \1\ See, e.g., State and Local Implementation of Existing 
Charitable Choice Programs, 107th Cong. 13 (2001), Volunteer Liability 
Legislation, Hearing on H.R. 911 and H.R. 1167 Before the House 
Committee on the Judiciary, 105th Cong. 6 (1997), Health Care Reform 
Issues: Antitrust, Medical Malpractice Liability, and Volunteer 
Liability, Hearing on H.R. 911, H.R. 2925, H.R. 2938 Before the House 
Committee on the Judiciary, 104th Cong. 66 (1995).
    \2\ See, e.g. H.R. 911, 105th Cong. 6 (1997), H.R. 1167, 105th 
Cong. 6 (1997), H.R. 7, 107th Cong. 13 (2001).
    \3\ H. Rep. No. 105-101, Part 1 (1997).
    \4\ Id.
    \5\ Volunteer Liability Legislation: Hearing on H.R. 911 and H.R. 
1167 Before the House Committee on the Judiciary, 105th Cong. 6, at 21 
(1997).
    \6\ Id. at 26.
    \7\ Id. at 23.
---------------------------------------------------------------------------
    In addition to causing potential volunteers to stay at home 
or refrain from certain needed activities, the Committee's 
hearings showed that the liability threat has had very real 
financial consequences. Many nonprofit organizations have 
encountered dramatically rising costs for liability insurance 
due to fears of litigation. The average reported increase for 
insurance premiums for nonprofits over the period of 1985-1988 
was 155%.\8\ The Executive Director of the Girl Scout Council 
of Washington, D.C. said in a February 1995 letter that 
``locally we must sell 87,000 boxes of . . . Girl Scout cookies 
each year to pay for [our] liability insurance.'' \9\ Dr. 
Thomas Jones, Managing Director of the Washington, D.C. office 
of Habitat for Humanity, testified that ``[t]here are Habitat 
affiliate boards for whom the largest single administrative 
cost is the perceived necessity of purchasing liability 
insurance to protect board members. These are funds which 
otherwise would be used to build more houses [for] more persons 
in need.'' \10\ During the same hearing, John Graham, the CEO 
of the American Diabetes Association, added that ``[i]t is no 
coincidence that the issue of protecting volunteers has 
followed massive increases in both the size of litigation 
claims and the cost of liability insurance.'' \11\
---------------------------------------------------------------------------
    \8\ H. Rep. No. 105-101, Part 1 (1997).
    \9\ Id.
    \10\ Volunteer Liability Legislation: Hearing on H.R. 911 and H.R. 
1167, supra, 105th Cong. at 56.
    \11\ Id. at 51.
---------------------------------------------------------------------------
Volunteer Protection Act
    Based on the evidence gathered in such hearings, the 
Committee and Congress took actions to remedy the growing 
problem of liability fears for volunteers. The most notable 
action in recent years was consideration and passage of Federal 
legislation during the 105th Congress that became known as the 
``Volunteer Protection Act'' (``VPA'').\12\ The final 
legislation signed into law by President Clinton on June 18, 
1997 was identical to H.R. 911 as reported by the House 
Committee on the Judiciary earlier that year. The Federal 
legislation setting a uniform national standard for limiting 
the liability of volunteers was preceded by a patchwork of 
State laws with similar purposes, which the VPA largely 
preempted as well as preempting relevant State tort laws. 
However, these earlier State efforts to limit liability for 
volunteers are noteworthy because they reflected a pre-existing 
national consensus that volunteers and volunteer organizations 
ought to be encouraged by reducing the fear of legal liability.
---------------------------------------------------------------------------
    \12\ Pub. L. No. 105-19; codified at 42 U.S.C. Sec. 14503 et. seq. 
(2003).
---------------------------------------------------------------------------
    The common law of all fifty States allows individuals to 
collect monetary damages in tort for personal injury or 
property damage caused by another person's negligence or 
willful conduct. Almost all of these States, however, have 
limited the liability of volunteers and charitable 
organizations to some extent. New Jersey provides that 
charities and their volunteers are immune from liability for 
ordinary negligence.\13\ In Kansas, a volunteer or nonprofit 
organization is immune from liability for negligence if the 
organization carries general liability insurance coverage.\14\ 
Ohio offers broad immunity for volunteers of charitable 
organizations.\15\ Wisconsin State law limits the liability of 
volunteers of non-stock corporations organized under Chapter 
181.\16\ Georgia grants immunity for members, directors, 
officers, and trustees of charities from negligence claims 
asserted by beneficiaries of the charity.\17\ Each of these 
States and others have recognized the need to encourage good 
works and protect volunteers and nonprofit organizations from 
tort liability for accidents that arise in the normal course of 
their dealings.
---------------------------------------------------------------------------
    \13\ N.J. Stat. Ann. Sec. Sec. 2A: 53A-7 to 7.1 (West 1983).
    \14\ Kan. Stat. Ann. Sec. 60-3601 (1987).
    \15\ Ohio. Rev. Code Ann. Sec. 2305.38 (Anderson Supp. 1987).
    \16\ Wis. Stat. Sec. Sec. 181.297, 180.0828.
    \17\ Ga. Code Ann. Sec. 105-114 (Harrison 1984).
---------------------------------------------------------------------------
    The VPA was intended to encourage people to do necessary 
volunteer work for nonprofit and governmental entities by 
offering immunization from liability under State tort law for 
ordinary negligence. The VPA only protects ``volunteers'' \18\ 
for incidents that arise in the scope of their volunteer work, 
and it does not protect willful or criminal conduct and gross 
negligence. The VPA also limits punitive damages and non-
economic damages for those individuals found liable. However, 
the VPA does not protect nonprofit organizations and government 
entities themselves from liability for negligence of their 
volunteers unless State law provides ``charitable immunity'' 
for such organizations. Hence, under the common law doctrine of 
respondeat superior, volunteer organizations and entities are 
still generally vicariously liable for the negligence of their 
employees and volunteers.
---------------------------------------------------------------------------
    \18\ ``Volunteer'' is defined in the VPA as a person who perfoms 
services for a non-profit and who receives no more than $500 per year 
for such services.
---------------------------------------------------------------------------
    The VPA also allows States to declare affirmatively that 
the Act does not apply to suits in which all the parties to the 
action are citizens of the State. The VPA became effective on 
September 16, 1997, and did not apply retroactively to suits 
brought before that date. The VPA represents a great 
improvement by setting a comprehensive and consistent standard 
governing the tort liability of volunteers and thereby 
encouraging their good works. However, the fear of liability 
exposure still affects and hampers volunteer and non-profit 
organizations. Subsequent efforts in Congress since passage of 
the VPA have focused on some of the remaining gaps in liability 
protection for both volunteer organizations themselves and 
their donors. For example, in the 107th Congress H.R. 7, the 
``Charitable Choice Act of 2001'' as passed by the House 
contained provisions limiting liability for persons or entities 
who donated equipment to charitable organizations.

H.R. 1787, THE ``GOOD SAMARITAN VOLUNTEER FIREFIGHTER ASSISTANCE ACT OF 
                                 2004''

    H.R. 1787 is needed to remove the fear of liability 
exposure for potential donors of fire rescue or fire control 
equipment to volunteer fire departments. Donors are typically 
professional fire fighting entities, either those of private 
companies or better funded urban and suburban professional fire 
departments who when upgrading their own equipment are left 
with the replaced equipment as surplus. Donors who are 
manufacturers of the donated equipment are not afforded any 
protection from liability by this legislation. Several States 
have recognized the problem of liability fears preempting 
donations to volunteer fire departments and have enacted 
similar laws to encourage and protect such donations, usually 
with similar exceptions.\19\ Testimony received by the 
Committee on behalf of volunteer firefighters indicates that: 
Alabama, Arizona, Arkansas, California, Florida, Illinois, 
Indiana, Missouri, South Carolina, and Texas have all passed 
versions of liability relief laws for good Samaritan donations 
to volunteer fire departments. Since the Texas law was passed, 
donations in excess of $10 million have been distributed to 
volunteer fire departments. Nearly 75% of the nation's 
firefighters, and half of those killed in the line of duty each 
year are volunteer firefighters according to the National Fire 
Protection Association. These volunteer departments represent a 
cost savings estimated to be as much as $37 billion in taxpayer 
funds annually if the services they provide had to be replaced 
with full time, paid, professional firefighters. Many of these 
volunteer fire departments are in rural areas with fewer 
resources, and face a constant struggle to provide their 
members with adequate equipment to protect their communities. 
Such volunteer fire departments have traditionally benefitted 
from donations of surplus or used equipment when professional 
fire departments or firefighting units of private enterprises 
upgrade or replace their own equipment. Such equipment can 
include hoses, axes, protective clothing, communications 
equipment, breathing apparatus, and fire trucks. However, today 
some of this needed, usable, safe equipment is being destroyed 
by better equipped fire units upgrading their own equipment 
instead of donated to volunteer departments because of the fear 
of legal liability exposure if such equipment were ever to fail 
through no fault of the donating entity. The testimony also 
indicated that Federal legislation is necessary despite the 
advent of State laws in a handful of States because volunteer 
fire organizations do not have the resources to advance State 
level legislation in the 40 remaining States.
---------------------------------------------------------------------------
    \19\ See, e.g., Tex. Educ. Code Ann. Sec. 88.106 (West 1997).
---------------------------------------------------------------------------
    Opponents of the legislation have argued that the need for 
legislation could be obviated by the effective use of waiver 
agreements between prospective donor and donee. The Committee 
rejects this argument. Testimony given on behalf of the 
National Volunteer Fire Council stated that liability waivers 
may sometimes be effective and may occasionally be used today 
to offer some protection to donors, but these waiver agreements 
are often difficult to obtain and result in no donation 
occurring. The difficulty in obtaining waivers is not due to a 
general lack of willingness on the part of volunteer fire 
departments or potential donors to agree to such terms--but 
rather the requirement of legal paperwork and expertise alone 
is a significant deterrent to potential donors and recipient 
volunteer fire departments alike. Volunteer firefighters 
protect America's communities for free on a needed basis in 
addition to having regular paying careers. Those volunteers 
when they are found at a local fire station are usually busy 
either responding to a fire, returning from an emergency call, 
or performing service on their equipment. Seldom found in most 
local volunteer fire stations is a full time legal counsel 
ready at a desk and capable of drafting legal contracts. 
According to the testimony, potential donors (who are mostly 
professional firefighting entities upgrading their own 
equipment) merely wish to provide equipment free of charge to 
volunteer fire departments. The information received by the 
Committee suggests that potential donors typically do not want 
to go through their company's general counsel's office or the 
city attorney every time a donation of any size is made to a 
volunteer firefighting organization in order to draw up waiver 
agreements or assess liability exposure. Requiring volunteer 
fire companies to specifically waive all liability claims 
against donors of fire fighting equipment to enjoy the benefits 
of the legislation, as some opponents have proposed, will 
impose legal costs on volunteer organizations that will 
undermine their willingness to accept badly needed equipment. 
The information received by the Committee indicates that 
volunteer firefighters simply want to receive fire safety 
equipment that they know something about, not execute legal 
paperwork that they are ill-equipped to deal with. H.R. 1787 
will allow both parties to a donation to make it easily.

                                Hearings

    The full Committee on the Judiciary held a hearing on H.R. 
1787 and two related bills, H.R. 3369, and H.R. 1084, on July 
20, 2004. Testimony was received from Chief Philip Stittleburg, 
Chairman of the National Volunteer Fire Council and a local 
volunteer fire chief, who testified in favor of H.R. 1787. 
According to Chief Stittleburg's testimony volunteer fire 
departments have traditionally benefitted from donations of 
surplus equipment but many potential donors destroy or store 
needed equipment instead of donating it because of a fear of 
liability exposure. Chief Stittleburg testified that several 
State laws similar to H.R. 1787 have resulted in increased 
donations and that Federal legislation is needed to help 
volunteer fire departments in all 50 States obtain the 
equipment they need to safely fight fires and respond to 
emergencies by removing the fear of liability from potential 
donors. In his testimony and in response to questioning by 
Members, Chief Stittleburg also noted that: 1) although actual 
lawsuits are rare the potential donor's perceived vulnerability 
to liability becomes the reality and a donation does not occur 
because of this ``chilling effect;'' and 2) fire chiefs who 
receive donated equipment or purchased equipment alike have a 
duty to ensure the equipment is properly inspected and 
maintained before it is used by the volunteer firefighters 
under their command.

                        Committee Consideration

    On September 8, 2004, the full Committee on the Judiciary 
met in open session and ordered favorably reported the bill 
H.R. 1787, with an amendment by a voice vote, a quorum being 
present.

                         Vote of the Committee

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the Committee notes that there 
were no recorded votes during the Committee's consideration of 
H.R. 1787.

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee reports that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives is inapplicable because this legislation does 
not provide new budgetary authority or increased tax 
expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the bill, H.R. 1787, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974:

                                                September 13, 2004.
Hon. F. James Sensenbrenner, Jr.,
Chairman, Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 1787, the Good 
Samaritan Volunteer Firefighter Assistance Act of 2004.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contacts are Lanette J. 
Walker (for federal costs) and Melissa Merrell (for the state 
and local impact).
    Sincerely,
                                       Douglas Holtz-Eakin,
                                                          Director.
    Enclosure.

H.R. 1787--Good Samaritan Volunteer Firefighter Assistance Act of 2004

    H.R. 1787 would provide immunity to persons who donate fire 
control or fire rescue equipment to volunteer fire departments 
from liability in certain civil suits alleging harm from the 
use of the donated equipment.
    CBO estimates that enacting the legislation would result in 
no costs to the federal government. H.R. 1787 would not affect 
direct spending or revenues.
    H.R. 1787 contains an intergovernmental mandate as defined 
in the Unfunded Mandates Reform Act, but CBO estimates that the 
costs, if any, would not be significant and would be well below 
the threshold established in that act ($60 million in 2004, 
adjusted annually for inflation). Specifically, the bill would 
exempt certain individuals who donate fire control or rescue 
equipment from liability under state tort laws for injuries and 
damages that equipment may cause. In addition, some state and 
local fire departments that donate used equipment would benefit 
from this liability exemption. The bill contains no new 
private-sector mandates.
    The CBO staff contacts for this estimate are Lanette J. 
Walker (for federal costs) and Melissa Merrell (for the state 
and local impact). This estimate was approved by Peter H. 
Fontaine, Deputy Assistant Director for Budget Analysis.

                    Performance Goals and Objectives

    The Committee states that pursuant to clause 3(c)(4) of 
rule XIII of the Rules of the House of Representatives, H.R. 
1787 will encourage increased donation of surplus firefighting 
equipment to volunteer firefighting departments by removing 
civil liability barriers that keep corporations, individuals, 
and professional firefighting entities from donating such 
equipment.

                   Constitutional Authority Statement

    Pursuant to clause 3(d)(1) of rule XIII of the Rules of the 
House of Representatives, Congress finds the authority for this 
legislation in article I, Sec. 8 of the Constitution.

               Section-by-Section Analysis and Discussion


Section 1--Short Title

    Section 1 provides that H.R. 1787 may be cited as the 
``Good Samaritan Volunteer Firefighter Assistance Act of 
2004.''

Section 2--Removal of Civil Liability Barriers that Discourage the 
        Donation of Fire Equipment to Volunteer Fire Companies

    (a) Liability Protection.--Subsection 2(a) provides that 
any ``person'' who donates ``fire control or fire rescue 
equipment'' to a ``volunteer fire company'' shall NOT be liable 
for civil damages under any State or Federal law for personal 
injuries, property damage or loss, or death proximately caused 
by the donated equipment after the donation.
    (b) Exceptions.--Subsection 2(b) creates two exceptions to 
the general liability protection for donors established in 
subsection 2(a):

        (1)  If the donating person's act or omission which 
        proximately caused the injury, damage, loss or death 
        constitutes ``gross negligence'' or ``intentional 
        misconduct;'' OR

        (2)  If the donor is the manufacturer of the fire 
        control or fire rescue equipment.

    (c) Preemption.--Subsection 2(c) provides that this Act 
preempts any inconsistent State laws, but NOT a State law that 
provides additional protection from liability for a person who 
donates fire control or fire rescue equipment to a volunteer 
fire company.
    (d) Definitions.--Subsection 2(d) defines the following 
terms used in the bill:

        (1)  ``Person'' includes an individual person and any 
        governmental or other entity.

        (2)  ``Fire Control or Rescue Equipment'' includes any 
        fire vehicle, fire fighting tool, communications 
        equipment, protective gear, fire hose, or breathing 
        apparatus.

        (3)  ``State'' includes the 50 States, the District of 
        Columbia and all other territories or possessions of 
        the United States and any political subdivision of any 
        such State, territory or possession.

        (4)  Volunteer Fire Company--means an association of 
        individuals who provide fire protection and other 
        emergency services, where at least 30 percent of the 
        individuals receive little or no compensation compared 
        with an entry level full-time paid individual in that 
        association or in the nearest such association with an 
        entry level full time paid individual.

    (e) Effective Date.--Subsection 2(e) provides that the Act 
applies only to liability for injury, damage, loss, or death 
caused by equipment that, for purposes of subsection (a) is 
donated on or after the effective date which is 30 days after 
the enactment of this Act.

         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, the Committee notes that H.R. 
1787 makes no changes to existing law.

                           Markup Transcript



                            BUSINESS MEETING

                      WEDNESDAY, SEPTEMBER 8, 2004

                  House of Representatives,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:00 a.m., in 
Room 2141, Rayburn House Office Building, Hon. F. James 
Sensenbrenner, Jr., [Chairman of the Committee] Presiding.
    [Intervening business.]
    Chairman Sensenbrenner. Pursuant to notice, I now call up 
the bill H.R. 1787, the ``Good Samaritan Volunteer Fire 
Assistance Act of 2003'' for purposes of markup and move its 
favorable recommendation to the House.
    Without objection, the bill will be considered as read and 
open for amendment at any point.
    The Chair recognizes himself for 5 minutes to explain the 
bill.
    [The bill, H.R. 1787, follows:]
    <GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
    
    Chairman Sensenbrenner. I urge my colleagues to join me in 
favor of reporting this bill. I would like to thank the sponsor 
of the bill, Mr. Castle of Delaware for bringing attention to 
this important issue.
    This straightforward and narrowly-tailored legislation 
deserves our support, as do the volunteer firefighters who 
stand to benefit from its passage. The purpose of the bill is 
simple and clear to encourage the increased donation of surplus 
fire-fighting units to volunteer units by removing civil 
liability barriers that currently cause some corporations, 
individuals and professional firefighting entities to destroy 
or mothball surplus or used equipment, rather, than to donate 
it.
    The Committee had a hearing on the bill and other 
legislation on July 20, at which Chief Philip Stittleburg of 
the National Volunteer Fire Council testified in favor of the 
bill. His testimony explained that volunteer departments have 
traditionally benefited from donations of surplus used 
equipment when professional departments or private enterprise 
upgrade or replace their own equipment.
    Surplus equipment may range from hoses to oxygen masks to 
protective clothing or even fire trucks. However, today, some 
of this needed usable or safe equipment is being destroyed or 
put into storage by better equipped fire units instead of 
donated to volunteer fire departments. Many times the donations 
never occur because of the fear of legal liability exposure if 
such equipment were to fail, even through no fault of the 
donor. The legislation before us will remove both the fear and 
the reality of such liability for potential donors.
    The bill before us is a good idea but not an entirely 
original one. Ten States have already passed versions of this 
legislation at the State level. What the bill does is simply 
provide that a person or entity who donates fire control or 
rescue equipment through a volunteer department will not be 
liable for civil damage or damage or loss proximately caused by 
the equipment after donation. What the bill does not do is 
protect the manufacturer of such equipment, and it does not 
protect any donor whose act or omission constitutes gross 
negligence or intentional misconduct.
    Furthermore, the bill does not endanger the safety of 
firefighters. As Chief Stittleburg testified at the Committee's 
hearing, fire chiefs are responsible for inspecting donated and 
purchased equipment alike, and no chief would allow their 
firefighters to use equipment that was not properly inspected 
and deemed fit for use. Given a choice between no equipment and 
the donated equipment that they inspect before using, volunteer 
departments are entirely in favor of the latter, and given a 
choice between believing the testimony of trial lawyers versus 
volunteer firefighters, about the need for use and safety of 
donated equipment, I will choose the latter.
    I will be offering a manager's amendment to correct some 
drafting errors one by insuring the communications equipment is 
covered under the type of fire and rescue equipment that may be 
donated to changing 2003 to 2004 in the bill's title and three, 
eliminating two unnecessary and repetitive definitions of gross 
negligence and intentional misconduct, which are well 
established legal consequences that require no unique 
definition in the bill.
    We have an opportunity to provide some limited common sense 
relief to good Samaritan donors of this equipment to your own 
local volunteer fire departments and to the community that rely 
upon volunteer firefighters.
    I urge my colleagues to join me in reporting H.R. 1787 with 
this amendment.
    Who wishes to give the Democratic opening statement?
    I yield back the balance of my time.
    Without objection, all opening statements will appear in 
the record at this time, and the Chair recognizes himself for 
purposes of offering a manager's amendment, which the clerk 
will report.
    The Clerk. Amendment to H.R. 1787 offered by Mr. 
Sensenbrenner of Wisconsin. Page 1, line 5 strike ``2003''----
    [The amendment follows:]
    <GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
    
    Chairman Sensenbrenner. Without objection, the amendment is 
considered as read.
    The Chair recognizes himself for 5 seconds in support of 
the amendment. The amendment simply does what I described in my 
opening statement, so I would urge support for it.
    Mr. Watt. Mr. Chairman.
    Chairman Sensenbrenner. The gentleman from North Carolina, 
Mr. Watt.
    Mr. Watt. I move to strike the last word.
    Chairman Sensenbrenner. The gentleman from North Carolina 
is recognized for 5 minutes.
    Mr. Watt. I won't take the 5 minutes. I am hoping to find 
out the impact of the language dealing with properly licensed 
and individually insured. Would that provide any insurance to 
somebody who was injured?
    Chairman Sensenbrenner. Will the gentleman yield? You are 
looking at the wrong amendment. This is just a technical 
amendment.
    Mr. Watt. No, I am looking at the bill.
    Chairman Sensenbrenner. Oh.
    Mr. Watt. You used the language on lines 18 and 19 and 
again on page 2, lines 9 and 10. That is not the right bill.
    Chairman Sensenbrenner. No, it is not the right bill.
    Mr. Watt. Okay. Thank you.
    Chairman Sensenbrenner. Will the gentleman yield back?
    Mr. Watt. No, not yet, until I figure out----
    Okay. I yield back. Sorry.
    Chairman Sensenbrenner. Without objection, the manager's 
amendment is agreed to.
    Are there further amendments?
    The gentleman from Virginia, Mr. Scott.
    Mr. Scott. Mr. Chairman, I have an amendment at the desk.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    The Clerk. Amendment to H.R. 1787 offered by Mr. Scott. At 
the end of the bill add the following: Section 3. State-by-
State review of donation of firefighter equipment. A, in 
general. The attorney general of the United States shall 
conduct a State----
    [The amendment follows:]
    <GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
    
    Chairman Sensenbrenner. Without objection, the amendment is 
considered as read.
    The gentleman is recognized for 5 minutes.
    Will the gentleman yield to allow me to accept this 
amendment?
    Mr. Scott. Yes.
    Chairman Sensenbrenner. Does the gentleman yield back?
    Mr. Scott. I yield.
    Chairman Sensenbrenner. Question is on the Scott amendment.
    Those in favor say aye. Aye. Opposed no. The ayes appear to 
have it.
    Are there further amendments.
    The gentleman from Virginia, Mr. Scott.
    Mr. Scott. I have another amendment.
    Chairman Sensenbrenner. The clerk will report the 
amendment. This amendment will be somewhat controversial. I 
believe this would be the time to break.
    [The amendment follows:]
    <GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
    
    Chairman Sensenbrenner. The Committee is in recess until 
1:00 p.m. and please be prompt. Because we have an ambitious 
schedule which I hope to conclude. The Committee is in recess 
until 1:00 p.m.
    [Recess.]
    Chairman Sensenbrenner. The Committee will be in order. The 
working quorum is present. Pending the motion to report 
favorably bill H.R. 1787. By unanimous consent the bill was 
considered as read and open for amendment at any point.
    The gentleman from Virginia, Mr. Scott, had offered an 
amendment to the bill which had been read, but the gentleman 
had not been recognized in support of his amendment.
    The Chair now recognizes the gentleman from Virginia for 5 
minutes.
    Mr. Scott. Thank you, Mr. Chairman.
    Mr. Chairman, some of us wonder what the problem is that we 
are addressing. This amendment would simply solve the problem 
that the fire department waives all responsibilities with 
respect to the equipment, they can do that. We shouldn't force 
them to do that as a condition of receiving the donation, which 
this bill does. If they agree to waive their liability, they 
ought to be able to do it, I suppose. But you shouldn't mandate 
that.
    This amendment simply inserts that the waiver of liability 
will apply if the volunteer fire company waives all liability 
with respect to the claims of the donor of that equipment. If 
they don't waive, I suppose the donor may not give it, but that 
is a decision they can make by themselves, I don't see a need 
to waive that claim.
    The definition of volunteer fire company--the definition 
includes one where at least 30 percent of individuals receive 
little or no compensation compared to an entry level full-time 
paid position, which means that 70 percent of the people 
involved could be, in fact, regular paid firefighters who may 
be subjected to dangerous equipment without their knowledge. 
They might not want to waive the liability claims, and they 
shouldn't. I just think if they ought to do it, they ought to. 
If they don't, she shouldn't be forced to waive liability.
    I would hope you would--we would accept the amendment.
    Chairman Sensenbrenner. Would the gentleman yield back?
    Mr. Scott. I yield back.
    Chairman Sensenbrenner. The Chair recognizes himself for 
opposition to the amendment.
    The amendment seeks to impose new legal hurdle to donations 
to volunteer fire departments and a bill designed to reduce 
those hurdles. In fact, the gentleman should know this because 
Chief Stittleburg of the National Volunteer Fire Council 
specifically testified on this point at the Committee's July 20 
hearing at H.R. 1787.
    Chief Stittleburg stated that liability waivers may 
sometimes be effective and may occasionally be used to date to 
offer some protection to donors, but these waiver agreements 
are often difficult to obtain and result in no donation 
occurring.
    The difficulty in obtaining waivers is not due a general 
lack of willingness on the part of volunteer fire departments 
or potential donors to agree to such terms, but rather, the 
requirement of legal paperwork and expertise alone is a 
significant deterrent to potential donors and recipient 
volunteer departments alike.
    Volunteer firefighters protect our small communities for 
free on a needed basis, in addition to having regular full-time 
jobs. When you find them at your local fire stations, they are 
usually either responding to a fire, returning from an 
emergency call or performing service and maintenance on their 
equipment. One thing the gentleman from Virginia won't find in 
most volunteer fire stations is a full-time legal counsel 
sitting at a desk waiting to draft legal contracts.
    These are volunteer fire departments that raise money to 
meet their communities' emergency needs by holding bingo games, 
raffles, chicken dinners and in Wisconsin, brat fries to buy a 
needed pumper truck or to pay for training.
    The gentleman's amendment would now require them to hold 
separate fundraisers in order to pay their attorneys' fees. 
According to Chief Stittleburg, potential donors who are mostly 
professional firefighting entity upgrading their own equipment 
merely wish to provide equipment free of charge to volunteer 
fire departments.
    They don't want to have to go through their company's 
general counsel office or the city attorney every time a 
donation of any size is made to the volunteer fire 
organizations. Requiring volunteer fire companies to 
specifically waive all liability claims against donors of fire 
fighting equipment will impose legal costs on volunteer 
organizations that will undermine their willingness to accept 
the badly-needed equipment.
    Volunteer firefighters simply want to receive free fire 
safety equipment that they know something about, not execute 
legal paperwork that they are ill equipped to deal with. The 
underlying bill will allow both parties to a donation to make 
it easily.
    The gentleman's amendment imposing a mandatory waiver 
agreement requirement in the considerable time and legal 
expense associated with this demand will make the donations 
harder and subvert the purpose this legislation seeks to 
advance. I urge opposition to the amendment judgment.
    The question is on the amendment offered by the gentleman 
from Virginia, Mr. Scott.
    Those in favor will say aye.
    Aye.
    Opposed, no.
    The noes appear to have it. The noes have it. The amendment 
is not agreed to.
    Are there further amendments?
    A reporting quorum is not present. Without objection, the 
previous question is ordered on the motion to report favorably 
the bill H.R. 1787 as amended. The vote will take place when a 
reporting quorum appears.
    [Intervening business.]
    The question now recurs on the unfinished business, which 
is the motion to report favorably the bill H.R. 1787, the 
``Good Samaritan Volunteer Firefighter Assistance Act of 2003'' 
as amended.
    All those in favor will say aye.
    Aye. Opposed, no.
    The ayes appear to have it. The ayes have it. The motion to 
report favorably is agreed to, a reporting quorum being 
present.
    Without objection, the bill will be reported favorably to 
the House in the form of a single amendment in the nature of a 
substitute incorporating the amendments adopted here today. 
Without objection, the Chairman is authorized to go to 
conference pursuant to House rules. Without objection, the 
staff is directed to make any technical and conforming changes, 
and all Members will be given 2 days as provided by the House 
rules in which to submit additional dissenting supplemental or 
minority views.

                            DISSENTING VIEWS

    We strongly oppose H.R. 1787. the ``Good Samaritan 
Volunteer Firefighter Assistance Act of 2003.''
    We oppose this bill for several reasons. First, while it is 
maintained that this legislation would encourage the donation 
of firefighter equipment by eliminating civil liability 
barriers, there have been no reported cases of businesses 
refusing to donate equipment nor cases of volunteer 
firefighting companies suing donors. Second, companies 
receiving the benefits of their donations should not be immune 
from the responsibility of problems with the equipment. Third, 
there are no measures in the bill that require certification of 
the safety of the equipment. Volunteer fire fighters should not 
be expected to preform their duties with equipment that may or 
may not be safe. Fourth, this problem could be solved without 
congressional action. Volunteer fire fighters could simply 
waive the liability of the donors for negligence resulting from 
donating firefighting equipment. For these and the reasons set 
forth herein, we cannot support this legislation.

                       DESCRIPTION OF LEGISLATION

    H.R. 1787 would ensure that an individual or entity that 
donates fire control or fire rescue equipment to a volunteer 
fire company is not liable for State or Federal civil damages 
for personal injuries, property damage or loss, or death caused 
by the equipment after the donation. Such protection is waived 
if the donor's act or omission constitutes gross negligence or 
intentional misconduct; or the donor is the manufacturer of 
such equipment. The Act preempts the laws of any State to the 
extent that the laws are inconsistent with the legislation. 
However, the bill will not preempt any State law that provides 
any additional protection from liability for the donor.
A. H.R. 1787 is a solution in search of a problem
    The need for protection from liability is a non-issue for 
those donating fire fighting equipment. Indeed, there have been 
no reported cases of volunteer firefighting companies suing 
donors over defective equipment nor any record of claims paid 
as a result of donated equipment. In fact, during the hearing 
before the Judiciary Committee on this legislation when 
Representative Scott asked Chief Stittleburg if he was aware of 
any claims paid resulting from suits related to donated 
equipment, Chief Stittleburg replied that he was not aware of 
any paid claims.\1\ Furthermore, there is no record that 
companies have refused to donate used fire equipment to 
volunteer companies. This legislation is trying to correct a 
problem that does not exist.
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    \1\ Legislative Hearing on H.R. 1787, ``The Good Samaritan 
Volunteer Firefighter Assistance Act of 2003'': Hearing before the 
House Comm. On the Judiciary 108th Cong. 49(2004)[hereinafter 
Hearings](testimony of Chief Philip C. Stittleburg, Chairman of the 
National Volunteer Fire Council).
---------------------------------------------------------------------------
    As Professor Andrew Popper observed in his testimony before 
the Committee:

          I am hard pressed to see why a federal bill that 
        preempts state law is needed in this field * * * I am 
        unaware of meaningful case law imposing liability on 
        donors of equipment used in firefighting. I have no 
        information regarding a shift in willingness to make 
        donations and could not identify a single comprehensive 
        study or professionally documented article, or other 
        form of ``evidence'' * * * to justify a federal law 
        that would destroy the right of an injured party to 
        pursue a tort claim.\2\
---------------------------------------------------------------------------
    \2\ Hearing, supra note 1, (written testimony of Andrew Popper, 
Professor of Law, American University, Washington College of Law) at 5.
---------------------------------------------------------------------------

B. Companies should not be granted immunity for unsafe equipment

    While we applaud an efforts of charity and donations, if a 
company donates unsafe equipment they should be held 
responsible for the consequences. Certain equipment, like 
protective gear and breathing apparatuses, can deteriorate with 
use over time and may not be suitable for reuse. And the 
testing of equipment fire fighters done on a periodic basis is 
not enough to ensure the safety of the tools.\3\ Even county 
and city fire departments (paid firefighters) do not donate 
their used equipment due to safety concerns. According to 
Sherman George, Commissioner of the St. Louis Fire Department, 
``If we're to give away used equipment that we say that's not 
proper for our firefighters and something should happen to a 
firefighter that we give it to, then people might want to hold 
the city of St. Louis liable for that equipment failure.'' \4\ 
If paid firefighters believe that they should be held 
responsible for problems with donated equipment, then 
corporations should also absorb the responsibility.
---------------------------------------------------------------------------
    \3\ Hearing, supra note 1, at 15 (testimony of Chief Stittleburg).
    \4\ NPR: All Things Considered (July 11, 2001).
---------------------------------------------------------------------------

C. H.R. contains no safeguards to ensure the safety of the donated 
        equipment

    H.R. 1787 requires no inspection or certification 
procedures before the equipment is donated. Before immunity is 
allowed, adequate safeguards must be in place to protect both 
firefighters and citizens. This is the only way to ensure that 
firefighters are using the safest equipment. In fact, ten 
states already have additional safety protections for 
firefighters, not found in this legislation.\5\ If firefighters 
work to protect and keep citizens safe, certainly they should 
have protective equipment that has been inspected and 
certified.
---------------------------------------------------------------------------
    \5\ The states are as follows: Alabama, California, Indiana, 
Kansas, Missouri, New York, South Carolina, Tennessee, Texas, and West 
Virginia.
---------------------------------------------------------------------------

D. This matter could be resolved without congressional action

    The issue highlighted by H.R. 1787 may be dealt with 
without congressional action. Volunteer fire companies could 
simply sign a contract waiving the liability of the donors for 
negligence resulting from donated firefighting equipment. This 
tactic would ensure that the fire companies are informed and 
have consented to the immunity of the donor. Even Chief 
Stittleburg stated, in a response to a question at the hearing, 
that, ``In my view, sir, it can be effective.'' \6\ If the 
waiver is an effective method, then that should be the manner 
to grant immunity and not this one-way exemption. Informed 
consent is a more prudent approach than blanket immunity.
---------------------------------------------------------------------------
    \6\ Hearing, supra note 1, at 48 (testimony of Chief Stittleburg).
---------------------------------------------------------------------------
    Indeed, Representative Scott proposed such a solution when 
he offered a common sense amendment that would specify that 
immunity would apply to the extent the volunteer firefighter 
company agreed itself to waive liability claims stemming from 
donated equipment. Yet this amendment was rejected by the 
Majority. Another alternative for dealing with this issue would 
be by enhancing federal grants for permit the acquisition of 
the needed equipment. Unfortunately, the rules of germaneness 
did not permit us to pursue this approach.

                               CONCLUSION

    Taking away a harmed individual's right to his or her day 
in court is a serious matter. Before this Committee takes such 
drastic action, and goes so far as to preempt state law, there 
should be some evidence that a problem of frivolous litigation 
actually exists. Here we have not even been presented with a 
single lawsuit that has justified this legislation. In this 
context, we cannot support the approach of denying compensation 
to harmed and innocent victims.

                                   John Conyers, Jr.
                                   Bobby Scott.
                                   Maxine Waters.
                                   Tammy Baldwin.
                                   Howard L. Berman.
                                   Jerrold Nadler.
                                   Sheila Jackson Lee.
                                   Robert Wexler.
                                   Linda T. Sanchez.