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 Scandal: Mother Of Victim Speaks About Sexual Abuse By Jerry Sandusky (VIDEO)

    With coverage of the Penn State sexual abuse scandal being dominated by the fate of football coach Joe Paterno, perhaps not enough attention has been paid to either the alleged perpetrator of the heinous crimes outlined in the 23-page grand jury report, former Penn State defensive coordinator Jerry Sandusky, or to the young boys who the report indicates were his victims.

    On Friday morning, ABC turned the attention back toward those who have been allegedly been terrorized by the longtime assistant coach at Penn State. The mother of one of the victims appeared on “Good Morning America” for an interview with George Stephanopoulos and addressed the abuse sufferd by her son. The victim’s mother first suspected the abuse when her son began acting out. Her fears grew when he queried her about researching “sex weirdos” on the Internet.

  2. As many of the regulars know, I’ve taken a keen interest in this story because it offends me on so many levels. I’ll be writing tomorrow on something a source told me about the whole sordid affair. On a process note, anyone is free to quote me whenever they please. Color me flattered.

  3. Victim number 1 was 12 years old in 2006. If Pennsylvania law is anything like NY Law, there would be a tolling of the statute of limitations due to Infancy until the plaintiff reached the age of 18. So victim 1, it would appear, still has time to file suit.

    Per the other victims having a case against Penn State et. al., they might be able to wedge their way into the court using continual fraud and continual tort to toll the statute of limitations.

    I don’t think the ‘discovery’ doctrine is a strong argument on its own; it would be much more persuasive when combined with a fraudulent concealment argument.

  4. There are essentially two broad questions in this story that need to be examined separately:

    1. What does one think of the actions of all the parties to this story?
    2. What punishments are available to be meted out to those culpable?

    1. I feel disgusted with the actions of all who had knowledge of these outrageous crimes and did not do their very best to see the perpetrator stopped and punished. In a perfect world they should all suffer grievous harm commensurate with their involvement, or abstention from involvement. Sandusky should be imprisoned for life. McCreery should suffer disgrace for his inactivity and liability for his cowardly inaction. From the University’s end the right people have been fired, however, if their misdeeds are punishable under criminal and/or tort law they should have the harshest judgments possible given to them.

    While it is true that the legend of Joe Paterno has been unalterably badly tarnished, if feasible he should also suffer further punishment. He has lived the last quarter century as an American icon, who represented the integrity and decency we so look for in our heroes. If you bask in and nurture your own glorification, then you damn well better live up to your press clippings.
    By even the mildest reading “Joe Pa’s” vaunted integrity was lacking when it came to his protecting his own glorification and so even in his life’s twilight he does not deserve special handling.

    2. This question cannot be answered from the viewpoint of our righteous anger, but from the practicality of the covering laws and precedents. Sandusky will get his. McCreery does not seem legally or tortiously liable liable, but I suspect that he will no longer have football as an area of employment and might in fact have difficulty getting any other job. The school administration may have in fact engaged in a conspiracy to cover up this problem and Sandusky’s retirement seems non-coincidental. The fact that he was still given access to the campus sports facilities and the lack of prosecution, despite much evidence, speaks to the power of Penn State’s
    football glory and the “sainthood” of Joe Pa, giving him and those acting for him great sway. I believe that given the Clery Act, there is liability to be had. However, we at this point have no means of judging the prosecutorial and/or
    tortious zeal in play. If I were a lawyer, or if I was advising the victims I’d say go get the bastards. The prosecutor Gricar’s disappearance is certainly made more suspicious given his failure to prosecute and may in the end make this whole case more bizarre, if that’s possible. In a situation like this I’m suspicious of coincidences and certainly in light of human experience foul play by those with something to protect, is a distinct possibility.

    Sometimes you have to know when to “fold em” and “Joe Pa” liked basking
    in his glory too much to realize he should have retired in the 90’s.

  5. Erykah: “This is why it is so hard for victims of sexual assault to come forward.”
    Just look what is happening to Cain’s accusers simultaneous to the Penn State case. They are being demonized. There is an long-standing bias against the people reporting sexual abuse or harassment. It is important to keep making that point.

    JT sympathises with Paterno et al? No, just analyzing the legal possibilities as appropriate for a law blawg.

    Puzzling, where do pedo’s go? They go where the children are. They hide in plain sight. Based on the article you posted maybe a thorough look-see is in order. I think you could make that argument for any male/child organization.

  6. Mike S.,
    I would agree with your take on this article. Prof. Turley is merely initiating a torts discussion and not backing Joe Pa.

  7. Erykah,

    I think you are missing JT’s intent here. This is a Law blog anf the question of tort liability is a fair question in that context. It seems to me that JT is merely presenting this as a question regarding tort law and not defending

  8. not just can be, but should be. I feel that those responsible including the school, Paterno, and the rest including the witness should be sued into oblivion. They should be left destitute. There is no punishment of any sort that would be too severe in my mind for these animals.

    They did far more than fail to properly report the rape of children. They actively covered it up to ensure millions of dollars would continue to flow.

    Those who support Paterno are disgusting and vile. He may be able to coach football but that is not enough in my view to overlook his and the others willingness to overlook what was done.

  9. I am disturbed by the cautionary language and the viewpoint of this article. My sense JT is that your sympathies lie with Paterno. Why would you be concerned about whether or not he and the school are “safe” from tort. Do not get me wrong. I do not think you support child sexual assault or rape. But I have certainly seen you more impassioned about far less. What gives? A heinous crime was committed here. If anything this article should also explore the legal options for the victims. It is they not Paterno and all the other cowards and all of the other cowards who were involved in this cover up who are the real victims. This is why it is so hard for victims of sexual assault to come forward. Why didn’t those students turn the campus upside down at the news that university officials covered up a child sex scandal? What a hellish mess!

  10. Perhaps it is time for some new law in Pennsylvania, assuming there are some blockages now in their existing negligence law.

    This comes on the heals of Pennsylvania judges who were taking bribes from for-profit private-prison officials if those judges would sentence certain teens to prison.

    Frame the pleadings such that the appellate courts can be reached sooner than later to rule on new law, then upon a favorable decision on new law, do a massive trial presentation.

    I think the jury will do the deed.

    On appeal the higher courts should uphold a jury verdict in these premises.

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