We have been following the unfolding scandal at Penn State. There is widespread agreement that the coaches on the team, as well as the university, acted reprehensibly in their response to the alleged sexual abuse of young boys by Jerry Sandusky (at least outside of the rioting students who appear to believe Coach Joe Paterno should not be blamed for doing little after learning of an alleged rape of a minor in a shower). The question is whether Paterno or Penn State could face credible complaints seeking civil liability for negligence.
Before turning to tort liability, all of those who were interviewed by police or questioned in the grand jury, including Paterno, could face obstruction or perjury charges if they withheld or falsified information. There is also the danger of charges of suborning perjury and witness tampering. There is no evidence of such crimes in published reports but those risks always exist in such cases.
There is also the question of violations under the Clery Act, which requires colleges and universities to publish and distribute information about criminal offenses reported to school authorities. It is unclear of the role of the school’s general counsel in the earlier reports.
Now on to torts. Many of us are shocked by the failure of coaches, including Paterno to do more than simply notify the university. In the United States, there is a “no duty to rescue” rule that relieves citizens of liability for failing to come to the aid of other citizens. The no duty rule was the basis for the famous ruling in Yania v. Bigan, 397 Pa. 316, 155 A.2d 343 (1959) where a man watched another man drowned without taking any efforts to assist him. Even though Bigan dared Yania to jump into the hole full of water, the court found that this made no difference since these taunts were “directed to an adult in full possession of all his mental faculties constitutes actionable negligence is not only without precedent but completely without merit.”
However, courts have imposed liability on university officials or doctors who do not take sufficient action to prevent crimes. The most analogous is the famous 1976 ruling in Tarasoff v. Regents of the University of California. and the imposition of liability on a university. See Tarasoff opinion. In that case, Prosinjit Podder, a graduate student at Berkeley, fell in love with Tatiana Tarasoff. When she stated that she wanted to date other men, Podder went to counseling at the University Health Service and is treated by psychologist, Dr. Lawrence Moore. When he told Moore that he wanted to get a gun and kill Tarasoff, Moore sent a letter to campus police who interviewed Podder and decided that he was not a risk. Podder then went ahead and murdered Tarasoff. Notably, like Paterno, Moore informed the university but it did not bar liability. In this case, the grand jury report detailed alleged sexual assaults of eight boys by Sandusky over 15 years – including attacks after his retirement in 1999.
Helping both Paterno and the university in this case is the fact that the prosecutor declined to bring charges six years ago. (This may also help in defending off a charge for failure to report child abuse). In 1998, prosecutor Ray Gricar was informed of the allegations but found insufficient grounds to proceed. Making this case even more weird, Gricar disappeared in 2005 and was declared legally dead in July. They are also helped by Pennsylvania’s statute of limitations and the failure to bring charges. The declination of the prosecutor could interfere with efforts to toll the statute with regard to some of parties given the 10 year delay.
Yet, the school still stands accused of a cover-up of years of abuse of boys by Sandusky. It is a case quite similar to that of the Catholic Church and, judging from the rioting students, football and religion share some obvious similarities.
There may be some challenge in terms of causation with reluctant witnesses, a problem often encountered in the medical area. This is a standard problem in the medical field where there is often multiple actors and sketchy records. Indeed, the court in Ybarra v. Spangard faced such a problem in terms of causation when no doctor or nurse came forward to identify the responsible party or parties in a case of malpractice. The court allowed the case to continue on the basis of the staff as a whole — a response to what is sometimes called the “conspiracy of silence” in the profession. The court noted that doctors share an intense bond and background — an analogy to a team that is trained to work as one.
Notably, despite the past allegations, Penn State allowed Sandusky in addition to the alleged failure to act more directly while he was employed by the team.
The statute of limitations in Pennsylvania is two years — a standard period. However, the state recognizes a discovery rule for injuries to the person so that the statute does not begin to run until the injured party discovers or reasonably should discover that he has been injured by another’s conduct. Fine v. Checcio, 870 A.2d 850 (Pa. 2005). Moreover, it does not run for ongoing torts, which could be alleged here.
In all, Paterno is probably in fairly good shape to fend off a torts claim but it is conceivable. The university is more at risk, but has some solid defenses. One of the more interesting elements will be the review of the past accounts given by both Paterno and the university to see if they shaped the facts. If so, it will take more than painting out Sandusky’s picture to protect the school.
Source: Daily Mail