SJC: volunteer directors enjoy immunity from suit.

Byline: Christopher A. Lisy and Mara OMalley

In an important decision affecting potentially thousands of volunteer directors across the commonwealth, the Supreme Judicial Court confirmed the protections afforded to and limited the exposure of unpaid directors of charitable or nonprofit organizations.

The decision, authored by Chief Justice Ralph D. Gants, addressed an issue of apparent first impression: whether the federal Volunteer Protection Act, 42 U.S.C. 14503, and the analog Massachusetts state charitable immunity statute, G.L.c. 231, 85W, confer the broad protection of so-called "immunity from suit" or the more limited "immunity from liability."

The SJC concluded that, in many circumstances, volunteer directors are indeed entitled to immunity from suit under those statutes. That is, they (i) need not defend against (at least) non-intentional tort/negligence claims, (ii) should move early in the case on a Rule 12 motion to dismiss such claims based on that immunity, and (iii) should expect to prevail on that motion.

If the dismissal is not granted, the SJC also made clear that volunteer directors can file an interlocutory appeal for appellate review.

'Lynch v. Crawford'

In Lynch, et al. v. Crawford, et al., 483 Mass. 631 (2019), a group of former employees of the now-dissolved nonprofit Roxbury Comprehensive Community Health Center or RoxComp asserted Wage Act claims because RoxComp did not pay them wages for the work they performed in the weeks before RoxComp's closure.

The plaintiffs sued, among others, a longtime volunteer RoxComp board member (Dr. Keith Crawford), alleging that he was among the "employers" who violated the Wage Act by failing to pay the wages due.

Crawford moved in the Superior Court for summary judgment, asserting that, as an unpaid board member, he was immune from suit under the Volunteer Protection Act and 85W.

The Superior Court held that those charitable immunity statutes applied to the plaintiffs' Wage Act claims and that Crawford was entitled to charitable immunity, unless an exception applied.

But it then concluded that an exception might apply; disputed issues of fact existed as to whether Crawford's conduct placed him outside the scope of that qualified immunity under the "willful conduct" exception to the VPA and 85W. Under that exception, a volunteer is not entitled to immunity for any acts or omissions "intentionally designed to harm" or for harm "caused by willful or criminal misconduct." 42 U.S.C....