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. Elaine,

    Holy cow!

    Okay … if he brought the kid with him, how was the transportation paid … by the school? Where did the kid stay? Who, on the team, knew the kid was there? Who paid for his food? Who took care of him while practice and the game was going on?

    Good lord …

  2. Reading that OroLee it reminded me of a friend of mine who had worries about someone she knew; just a ‘feeling’ that the child was being abused. She felt she could not make a complaint as there was nothing concrete. The woman later killed the child by beating it unmercifully. It is my understainding the mother will soon be released from jail.

  3. If anyone violated their duty to report under Pa. law, then, per Cort v. Ash, is there an implied right of action by the victim against those who breached the duty to report? In the case of pedophilia, which I understand is incurable and uncontrollable, it would appear the future child victims are definitely the intended beneficiaries of the reporting requirement’s protection.

  4. I want to echo carol’s comments. I am shocked that nothing was done to protect children at the hands of a molestor. The way the University and Paterno handled it is reminiscent of the Catholic Church and its bishops and cardinals and their allegedly criminal actions in hiding perps from the authorities and allowind them to continue to abuse children.

  5. The previous comment was posted without mespo’s permission.

  6. 23 Pa. § 6311. Persons required to report suspected child abuse.
    (a) General rule.–A person who, in the course of employment, occupation or practice of a profession, comes into contact with children shall report or cause a report to be made in accordance with section 6313 (relating to reporting procedure) when the person has reasonable cause to suspect, on the basis of medical, professional or other training and experience, that a child under the care, supervision, guidance or training of that person or of an agency, institution, organization or other entity with which that person is affiliated is a victim of child abuse, including child abuse by an individual who is not a perpetrator. . . .
    (c) Staff members of institutions, etc.–Whenever a person is required to report under subsection (b) in the capacity as a member of the staff of a medical or other public or private institution, school, facility or agency, that person shall immediately notify the person in charge of the institution, school, facility or agency or the designated agent of the person in charge. Upon notification, the person in charge or the designated agent, if any, shall assume the responsibility and have the legal obligation to report or cause a report to be made in accordance with section 6313. . . .
    23 Pa. § 6312. Persons permitted to report suspected child abuse.
    In addition to those persons and officials required to report suspected child abuse, any person may make such a report if that person has reasonable cause to suspect that a child is an abused child.

    This is a pretty weak reporting law. For instance, Texas law requires that any person with a reasonable suspicion of child abuse or neglect must immediately report such to an appropriate law enforcement organization. Professionals must do so within 48 hours of learning but cannot delegate nor buck the requirement up the chain of command. Tex. Family Code § 261. Failure to report is a Class A misdemeanor. For example, if grandpa reasonably suspects that his daughter is abusing his grandchild and grandpa fails to report his daughter, he can go to jail.

    The farther the spread between the person with the suspicions and the person actually making the report, the easier it is to institutionalize a cover up — ala PSU.

    Whatever may come of this scandal, it is an opportunity to strengthen reporting requirements. Every State Bar probably has a Family Law Committee. Contact them — make this a legislative hot button issue for that Committee.

  7. http://jonathanturley.org/2011/11/06/not-so-happy-valley/#comment-288471

    mespo727272 1, November 11, 2011 at 10:20 am

    Every great tragedy has a hero and in this sordid one it’s Central Mountain High School Administrator, Steve Turchetta. In 2009, Turchetta allegedly surprised Sandusky while he was lying face to face with Victim No. 1 in a remote weight room area of the school’s gymnasium. According to Turchetta, who then coached football and wrestling, he was returning to the gym one evening when he noticed an unexpected light on in the weight room. Investigating, he encountered Sandusky and the 15-year-old boy. Sandusky jumped up and said ‘Hey coach, we’re just working on wrestling moves.” Unconvinced, Turchetta reported the event to his principal and later to the police. Turchetta believed the event suspicious and was concerned that Sandusky was emotionally “clingy” to the boy. The 15-year-old’s mother also confirmed that inapproproate touching had occurred to school officials. That allegation started the investigation which culminated in the Grand Jury Report.

    Sandusky had insinuated himself on the Central Mountain High football staff in 2002 as a volunteer coach under the premise of helping kids from Second MIle who had made the team. His lascivious intent in lying on the teenager face-to-face was confirmed by Victim No. 1 in his testimony as he described the exact same sexual approach by Sandusky while staying over at Sandusky’s home. Sandusky called the process “cracking his back.”

  8. carol levy1, November 11, 2011 at 12:21 pm
    ….How someone could see it in progress and not do anything, even a deer in the headlights starts to move at some point….
    —————————–
    actually, not quite…deer, possums, and others who become ‘frozen’…..usually it is a physiological response to overwhelming neurologic chemicals that are causing the ‘freezing’…my point being that if a driver is asleep at the wheel, it probably won’t be physiologically possible for the deer to move before getting hit. Likewise possums….they don’t consciously choose to ‘play dead’…tragically they can be ‘disposed of’ while still alive because so many don’t understand this dynamic…not to mention the cretins that think this is such a fun thing to play with.

  9. Blouise,

    I found this information about the statute of limitations on federal crimes:

    Suspension and Extension
    The five year rule may yield to circumstances other than the type of crime to be prosecuted. For example, an otherwise applicable limitation period may be suspended or extended in cases involving child abuse, the concealment of the assets of an estate in bankruptcy, wartime fraud against the government, dismissal of original charges, fugitives, foreign evidence, or DNA evidence.

    http://www.fas.org/sgp/crs/misc/RL31253.pdf

  10. The media are alive with comments that the man who observed the alleged rape should have beat the perpetrator up, preferably with a baseball bat. I don’t think this level of violence would have been needed to stop the rape and get the child out of there. My instinct, had I seen this, would have been to yell, “Hey!” (I’m not very articulate in crisis situations), and run toward the perp with my arms raised in a threatening gesture (I walk with a cane, so I’m always armed). I suspect that that much would have caused the perp to run away, leaving the child in the shower alone. At that point, I would have called the police.

    Does no one else have even this level of protective instinct?

  11. Blouise,

    I heard about this story this morning. I believe Sandusky brought the boy with him from Pennsylvania. Wouldn’t that make it a federal crime? Is there a statute of limitations on federal crimes?

  12. In addition …

    “Prosecutors in Texas say they have opened an investigation into the possibility of also filing charges, following the release of grand jury testimony indicating Sandusky may have sexually assaulted one of his young victims when Penn State was in San Antonio for the 1999 Alamo Bowl.”

    http://www.dailymail.co.uk/news/article-2060385/Penn-State-abuse-victims-mother-infuriated-lack-action-Texas-investigates-possibility-filing-charges-Jerry-Sandusky.html

    The University, Sandusky, and Paterno could be looking at a variety of legal hassles coming from all over the country if Sandusky was “active” while “on the road”. Deja vu for Catholic Bishops and Cardinals.

  13. Joe Paterno, the Penn State Tragedy and Child Molestation
    Linda Kenney Baden
    Former criminal prosecutor, private trial attorney
    http://jonathanturley.org/2011/11/11/can-penn-state-or-paterno-be-sued-for-negligence/

    Excerpt:
    In 1998, Victim 6 (the first victim delineated in terms of time in the recent grand Jury report) shared a shower with Sandusky and a second child. Victim 6 ‘s mother called the police and Sandusky gave what was clearly a confession. Sandusky merely had to agree to no longer shower with children and the investigation was closed. Here is another huge breakdown of the system in this story. According to the grand jury presentment the Pennsylvania agency charged with protecting children — Children and Youth Services — closed the investigation. So did the then prosecutor Ray Gricar whose subsequent mysterious disappearance takes on new implications. Even adding to the concern of system breakdown, are reports that the attorney who represented Penn State in this 1998 investigation is now the attorney for The Second Mile charity started by Jerry Sandusky.

    The University, in order to obtain federal funds, is supposed to report to the government all crimes that occur on campus — not adjudicated crimes but reports of alleged crimes so that students can be warned about dangerous incidents connected to the school. This is much like the theory behind Megan’s Law — sex offenders are identified and tracked to as to reduce the danger that they will commit an assault upon another person — adult and child. This reporting requirement of the CLERY Act is even wider than that for Megan’s law in one aspect — it is for crimes reported on campus — not merely adjudicated in the criminal court system. This federal law enacted after another tragedy at another Pennsylvania college where a young woman named Jeanne Clery was raped and then killed by a second student on campus. Was any criminal act by Jerry Sandusky reported? Unfortunately, the University only has to keep those records for seven years so we may never know the answer to this question. And the delay in finding the answer is directly related to the delay by Penn State and Joe Paterno in properly reporting Jerry Sandusky to the police.

    All in all it sounds as if there are many people who at least morally if not legally aided and abetted Sandusky’s reign of child molestation. Can a criminal case now be made beyond beyond Sandusky and the two Penn State officials accused of lying to the grand jury? Was there a violation of the federal RICO/racketeering act? A cover-up? Who else knew and facilitated this criminal enterprise to continue? And what about Jerry Sandusky’s wife- did she know or suspect?

  14. I do not think the “no duty to rescue” rule should apply to children, and the precedent set is for an adult that endangered himself. Children are not competent to make decisions to endanger themselves; IMO the witnesses should be obligated to report the crimes to the police, not the university, and the police should be required to investigate, including having a trained professional child pyschologist interview the alleged victim. Either that or they should all be charged as accessories to the crimes.

  15. In my med. mal case the court called the doctor’s testimony perjurious. I went to the A.G.’s office and spoke with a staff attorney. He said no they would not bring charges despite the proof offered. 4 weeks after the forced settlement, Gov Ridge noiminated the doctor as Secretary of Health for Pa. The AG was under Ridge’s command as Gov. A few years later,after Ridge was out I went back to A.G.s office and was told they would have brought perjury charges against the doctor but I had just missed the statute of limitations, only by months.
    I believe in this case the AG ruling was similar: there was money and prestige involved and the law and victims be darned.
    The students I think saw this as an excuse to act out (to put it mildly). Hopefully in the light of day they see the reality of this situation.
    I hope Paterno et al can be sued. Firing is still not fully calling them to account (esp McCleary (sp?) How someone could see it in progress and not do anything, even a deer in the headlights starts to move at some point.

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