Can Penn State Or Paterno Be Sued For Negligence?

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

52 thoughts on “Can Penn State Or Paterno Be Sued For Negligence?

  1. Penn State Cover-Up of Child Rape, Coach Paterno Fired in “Greatest Fall from Grace in U.S. Sports”
    Democracy Now
    11/11/11
    http://www.democracynow.org/seo/2011/11/11/penn_state_coverup_fired_paterno

    Summary:
    Penn State football coach Joe Paterno, one of the most legendary coaches in U.S. sports history, was fired on Wednesday for his role in allegedly covering up the child sexual abuse of the football team’s former assistant coach, Jerry Sandusky. Penn State president Graham Spanier was also fired. In 2002, Paterno reportedly received an eyewitness account from someone who saw Sandusky raping a young boy in a Penn State locker room. While Paterno told his boss, he did not call the police. Others at Penn State knew about a string of other sexual assaults allegedly committed by Sandusky, but the police were never notified. Last week, Sandusky was charged with sexually abusing eight boys over a 15-year period. During the entire time, Sandusky was running a foundation for troubled kids. The student response to the child rape scandal has surprised many. On Wednesday, students rioted in outrage — not over the school’s role in covering up child rape, but for Paterno’s firing. We speak with political sportswriter Dave Zirin. “What the Penn State students did the other night — rioting, hitting ESPN reporters in the head with rocks, setting fires — and by the way, zero arrests at the end of the night after all the carnage — it stands in stark contrast to the courage of the students occupying their campuses around the country,” Zirin says. “It’s really a tale of two generations that we’re seeing playing itself out on these different campuses.”

    Excerpt:
    DAVE ZIRIN: Yeah. Yeah, I’m glad you asked that, because that’s a very important part of the story. It’s 2002, and a young graduate assistant who used to be a quarterback at Penn State named Mike McQueary—he’s six foot six, he weighs well in excess of 240 pounds—he walks into the shower room, according to his testimony, and he sees Jerry Sandusky sodomizing a 10-year-old child—60-year-old Jerry Sandusky—in the showers where the Penn State football players clean off after practice.

    Now, what does Mike McQueary do at that point? Does he take Jerry Sandusky and throw him to the ground, or does he call the police? No, he makes a beeline to his father’s house, who’s a local coach in state college, and his father instructs him not to go to the police, but to go to Joe Paterno’s house. So Mike McQueary goes to Joe Paterno’s house, tells him what he saw, and Joe Paterno then, first of all—this is what we know Joe Paterno did—he kicks it up. He says, “OK, well, I’ll report this to the president. I’ll report this to the head of finance and campus police,” which legally was all he was required to do.

    And now Mike McQueary is the receivers’ assistant coach at Penn State, which really smells awfully like a kind of quid pro quo, where Mike McQueary was silent about what he saw, and then Joe Paterno was silent about what he saw. This happened in 2002. Jerry Sandusky, his “punishment,” quote-unquote, by the athletic director was then saying, “You are not allowed any longer to bring children into the facilities of the Penn State athletic department.” That was it. No report to the police, which is a violation of state law.

    And then Joe Paterno—and this is Joe Paterno’s great moral failing and why it makes me physically sick, the sight of students rallying outside his home—Joe Paterno, St. Joe, was silent throughout the decade as Jerry Sandusky would visit the campus, visit the football team, and bring young children with him when doing this. Jerry Sandusky held a sleepaway camp for small children on the campus as recently as 2008. As recently as a month ago, Jerry Sandusky is working out in the Penn State athletic department, right there in the gym with all the players. And Joe Paterno still said nothing.

    AMY GOODMAN: He ran the Second Mile Foundation, Sandusky, where he dealt with little—

    DAVE ZIRIN: A foundation for economically disadvantaged children, yes.

    AMY GOODMAN: And he—what they did was they took away his key to the locker room. At this point, the issue of the big business that NCAA college football represents, and particularly at Penn State?

    DAVE ZIRIN: Yeah, that’s, to me, the story that’s not being told about this, because what this, to me—you can’t talk about this story without also talking about the entire bankrupt economic moral system around which college football exists. This is a multi-billion-dollar business built on the basis of unpaid work. And so, what you have is a constant cycle of amorality that’s dependent upon protecting the system itself. So you have situations where players are handed easy access to women, oftentimes prostitutes. At the University of Colorado a couple years back, it was found that there was a slush fund at a local escort service that was used for the purposes of players. Anything goes.

  2. Legendary status requires legendary responsibility. These boys got neither. If ever there were a reason to bring back the stockades for a one-time only appearance, it’s for the coward McCleary. Save the “deer in the headlights” physchobabble. He has had since that episode to call the police, and we’re STILL waiting. He was a grown adult as a witness, and remains a most miserable example of homo sapiens. Listening to Joe Pa, the old coot is clearly past it.

    From the sounds of it, the legal engine is in but gear 1. McCleary, Paterno and others are still on the plank. Discovery is going to be just heart-wrenching.

  3. Thanks for the Scalzi link, lottakatz. The ffollowing link was found in the comments section of his posting.

    http://alia-gee.blogspot.com/2011/11/heroes.html

    Excerpt:

    Now… I am still Penn State, moreso than I realized until this horrific story came out. I still hope that there will somewhere in the tale be a moment of grace, a heroic stand, a person determined and true.

    As of now, though, the only comfort I have is remembering that I am not just a “Little Lion” staring up in awe at a parade float majestically passing by. I am also a member of the 99%, working determinedly for a more just society, where anyone can be a hero, but no other person is sacrificed.

    May no act of mine bring shame.

  4. “Duty to rescue” isn’t an issue here. At a minimum, the kids are on Penn State’s property, so it’s negligence in permitting and/or failing to stop the assault, the same type of claim when someone is assaulted at a business. Then comes negligent employment/supervision/retention: you can’t authorize someone you know to be a danger to act as your actual or ostensible agent. Then there’s negligent per se for failing to report.

    Statute of limitations in PA for child abuse is different from normal negligence. All the current victims are plainly within it, but prior ones might not be.

    All these issues and more discussed in detail, with citations to PA cases and statutes, at my blog: http://www.litigationandtrial.com/penn-state-sexual-abuse-lawsuit/

  5. eniobob –“If life was the sentence in this case, what should Sandusky be sentenced to?”

    The S. Ct. got it wrong; for serial pedophiles, the maximum penalty should be death!

  6. Nice to see we all have our morality-based reasons to go after everyone and everything involved in this to “protect the children.”

    It’s too bad that we’re all such hypocrites – because it happens every day here in America – and none of us have the time or show any effort to stop any of it from Guantanemo to child abuse; gay-bashing to elder-abuse; fraud at the highest levels to tasting a grape at the supermarket; and especially with respect to all of us driving our cars everywhere and global warming (“i don’t believe it so i can keep doing what i’m doing”). Yeah, Paterno SHOULD have gone to the police; McCleary SHOULD have gone to the police FIRST; the school administration SHOULD have done their jobs and gone to the police when it was reported to them by Paterno and others. Too late now for the victims.

    Now they’re all culpable – just like Congress and Wall Street in the criminal destruction of the middle class over CDS and other financial instruments of wealth creation and the whole mortgage meltdown. But you won’t see any prosecutions in that will you? Oh, no – that’s different. Yeah, a hell of a lot more victims, the complete ruin of millions of lives – but we’ll concentrate on ruining just a few lives here with THE LAW and feel good about ourselves until we can pontificate about the next injustice by which we’re distracted.

  7. Another disturbing report from State College about Paterno’s complete control over the University’s judicial process as it related to football players. It’s a story of megalomania and fund-raising might making right. It also bolsters my supposition that had one female been in the decision making loop –and been listened to — this would never have happened:

    http://online.wsj.com/article/SB10001424052970204443404577052073672561402.html?mod=us_news_newsreel

    According to the article: “Mr. Secor [former University Provost] says that Mr. Paterno told him that he didn’t think other people should be able to decide whether a football player should be able to play or not. “And we agreed with that,” he says.

    On Oct. 1, 2007, Mr. Spanier accepted the committee’s recommended changes. Under the new rules, the judicial-review process would have only a limited ability to end a student’s participation in activities—including football.”

    And for the topper:

    “The incident [discipline of a Penn State FB player accused of making harassing calls to a retired assistant coach] prompted [University President] Spanier to visit Dr. Triponey [then in charge of enforcing University discipline] at her home. Dr. Triponey confirms he told her that Mr. Paterno had given him an ultimatum: Fire her, or Mr. Paterno would stop fund-raising for the school. She says Mr. Spanier told her that if forced to choose, he would choose her over the coach—but that he did not want to have to make that choice.”

    Positively Orwellian in scope and obsequiousness.

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