OT: PSU Civil liability

Submitted by phjhu89 on November 7th, 2011 at 11:18 PM

OK, for the MGoLawyers out there, something I have not seen addressed on the interwebs is the question of PSU's civil liability surrounding the Sandusky case.  How badly exposed are they?  I realize that i am asking a bunch of lawyers to speculate, but humor me!

thanks

Comments

phil

November 7th, 2011 at 11:21 PM ^

with respect to the wording of the law about how this should be reported, i've gotta imagine they have enormous liability that will have them paying about a hefty sum in civil court.

 

disclaimer:  i'm not a lawyer, nor did i stay at a holiday inn express last night

Indiana Blue

November 8th, 2011 at 8:58 AM ^

this is Michigan fergodsake.

Can we just let this horrendous story just play out.  Having threads on this this is akin to being "ambulance chasers".  For those interested in this story ... a) get a life and 2) there will be another TV trial on soon enough that you can wrap your life around.

This is simply disgusting on every single level ... and for this blog to entertain the "legal" aspects of a case that has absolutely nothing to do with football is also disgusting.

There's plenty of Michigan topics worth discussing ...

Go Blue! 

EGD

November 7th, 2011 at 11:30 PM ^

I'd say this is a pretty complicated case in which to figure that out.  I am not a Pennsylvania attorney but here are some general rules.

Ordinarily, an employer will be liable for tortious actions committed by an employee if the employee committed the tort in the scope of his employment.  Of course, Sandusky does not appear to have been a PSU employee at the time of the rapes.  McQueary and the school administrators who failed to alert law enforcement of Sandusky's actions appear to have been employees, but then you get into questions of "proximate cause" (i.e., did their failure to report actually result in the specific child-plaintiff being molested, or had the crime already taken place?).

The other complicating factor is that Penn State is a state institution, meaning it has sovereign immunity and its officials have "qualified immunity."  Sovereign immunity can be waived, often by statute, but a Pennsylvania lawyer will have to let us know whether PA has a statute that waives sovereign immunity for this type of thing.  Alternatively, a child plaintiff might be able to overcome qualified immunity by showing that Penn State had a "policy or custom," such as allowing a known child molester to bring kids into the locker room without supervision, that led to the injuries.   "Qualified immunity" could protect McQueary and the administrators if they acted in good faith, but not if they had a clear legal duty to report the crime and their failure to do so led directly to the injury.

EGD

November 7th, 2011 at 11:48 PM ^

Yes.  That's probably the only way to hold the school liable--or, like you said, to go after the individual employees and hope the University has a duty to indemnify a judgment against them.

Also, 1983 claims may be filed in state court.  It does enable the defense to remove the case to federal court if they wish, but then the federal court has supplemental jurisidiction over your state law claims.

The FannMan

November 7th, 2011 at 11:55 PM ^

If I'm Penn State, I would love the chance to remove this to Federal Court (subjet to who the judge is in state court I guess.)  Tough choice for the Plaintiff - another theory of recovery or federal court.  It all depends on state law.      

justingoblue

November 7th, 2011 at 11:49 PM ^

Disclaimer: I'm not a lawyer of any kind. However, I do know that PSU is less "public" (legally) to the Commonwealth of Pennsylvania than UM or UofI are to Michigan or Illinois. The "state related" distinction is a big one from what I've seen. Could that affect sovereign immunity?

The FannMan

November 7th, 2011 at 11:38 PM ^

Ok.  First, I am only licensed in Michigan.  i have not idea what PA law says.  I also have done zero research on this.  So, as far as a wild ass guess - here goes:

1) PSU as a legal entity may have governmental immunity meaning the entity that is Penn State may have zero liability.

2) The individuals may not be covered by governmental immunity.  However,you have to establish a duty on the part of these individuals to protect the victims (who the officials did not know) from Sandusky's alleged actions.  The top official who was supposed to report may have problems here.  If there is an indemnity agreement between PSU and the officials (or insurance that names the officials), the plaintiffs may be able to get at PSU's wallet through the officials.

3) If Sandusky has money (and it seems probable that he does) he is going to get his ass sued off.  It appears obvious that he has some real problems here.  The statute of limitations may be his best defense, subject to the age of the victims and PA law.  He can, of course, claim he didn't do it.  However, the grand jury (which only hears one side) believed them.  They also have McQueary as a wintesses apparently.

That's it off the top of head.  This is nothing I would put my name to professionally.  But you asked for a wild ass guess.  That's mine.

bluebyyou

November 8th, 2011 at 5:05 AM ^

Assuming that a statute of limitations doesn't bar an action against Sandusky, in a civil matter, as all attorneys here know, Sandusky cannot avoid answering questions as part of discovery/trial which won't be the situation in the criminal case, should he choose not to testify.  My inital thought was that he subjects himself to perjury charges should he not answer truthfully, but if convicted in the criminal case that is being brought by the State of Pennsylvania, that may not matter in that he will be incarcerated for the rest of his life. Depending upon how his assets are structured, much of what he has may not be subject to attack.

My guess is that this subject, which PSU would like to go away as quickly as possible, will linger for years.

Steve in PA

November 8th, 2011 at 12:45 PM ^

A few governors ago the administration had tied state funding to tuition increases.  If a school kept their annual tuition increases to less than 5%(!) they would be able to get the full allotment of public money.  PSU made a very, very big issue of this and proclaimed to anyone that they would listen that they were NOT a state school.

There was also some stuff at the time with research money that amounted to PSU saying, "Any money generated by research at our school is NOT state money".  Again, they got their way and are not considered a public or private school.

It would be really great if that backfired on them and they lose immunity because of that.  I've always had a problem with them soaking up funds that could be going to the state system in PA while claiming they aren't a state school.

 

4godkingandwol…

November 8th, 2011 at 12:12 AM ^

... but know a great deal about PR.  If there is even a smidgen of chance that a case goes to trial, PSU will settle and settle fast.  There is nothing worse than defending yourself on legal nuance while tacitly admitting that such heinous acts occurred on your campus with the knowledge of two very senior officials.  Settle, put a hush order on the terms of the settlement, never admit wrongdoing, and move on. 

Morally destitute, but it's what they will do, if put in the position. 

Subrosa

November 8th, 2011 at 1:01 AM ^

And this is why, as a Plaintiffs' attorney, I'd love this case in State Court, Federal Court or any other Court that would hear it. I mean, let's say I represented someone who was allegedly molested post 2002. Do you really want to go to a jury when I have this indictment and an argument that but for [insert defendant here]'s failure to call the police, I wouldn't have been sexually assaulted? And that you not only failed to call the police, but also didn't change Sandusky's access to program facilities until literally ever.

Good luck with that fact pattern, Mr. Defense Attorney. Just get me past summary judgment (not a high hurdle if the statute of limitations is in our favor) and I'll try this case in any jursdiction you'd like.

I'd also name, as individual defendants, literally everyone possible. So, so not worried about sovereign immunity. I'm gonna bet that JoePa and all the relevant players have insurance. 

 

 

America

November 8th, 2011 at 1:16 AM ^

I'm only in law school but we are currently studying negligence, specifically duty,  and my torts professor went off today on how Penn State would have a duty because of a "special relationship" with the kids.  He said he would put his money on them being liable and seemed to have a good argument for it.  That being said, he practiced as a plaintiff's attorney and is generally biased for things of this nature.  He seemed pretty convinced though.  I agree with the coments above though that if they can get a court to hear the case, it will be settled as soon as possible for a large number.

Hal_Victor

November 8th, 2011 at 1:30 AM ^

Not a PA lawyer either but I would explore apparent agency or agency by estoppel theories to get around the fact that Sandusky was no longer an employee.  He maintained an office in the facilities and apparently had free reign over them.  That, coupled with the prominent position he once held at PSU, may be enough to put the university back on the hook, assuming no sovereign immunity.

Wave83

November 8th, 2011 at 6:41 AM ^

I would bet that PSU as an institution would enjoy governmental immunity.  The individuals, not so much.  I am only making an educated guess (as an attorney).  This has already been mentioned by many other above, so I am only putting in my two cents.

Nevertheless, how much immunity PSU gets is a matter of state law.  I'm sure there are many claims that can legitimately be lodged against PSU.  Whether tort claims for vicarious liability for criminal acts by employees and, especially, former employees has been carved out from sovereign immunity seems unlikely to me, but it is possible.  One highly likely aspect to this would be that any claim, if it survives immunity, would have to be brought in special claims courts states set up for suits against the state.  I have no idea whether Pennsylvania has such a system; Ohio does.

Ohio state schools (I am licensed in Ohio) are actually a part of the State of Ohio.  If you sue Ohio State, you are suing the State of Ohio.  That isn't true in Michigan.  UM and MSU are separate legal entities provided for by the Michigan constitution.  They are public in the sense that the regents (UM) and the trustees (MSU) are elected by the public, but they are not a division, branch, or arm of the State of Michigan.  Would that affect their immunity?  Maybe.  I don't know whether Pennsylvania's state schools are organized more like Ohio or Michigan in this regard.

Sckon

November 8th, 2011 at 7:11 AM ^

As mentioned, it probably has to be within the scope of his employment. PSU is probably not civilly liable, and even if they are, I think that should be the least of their concerns.

papabear16

November 8th, 2011 at 7:47 AM ^

Different states have different reporting requirements, different rules for qualified immunity, and different Good Samaritan laws (some flavors of which could apply here).  Regardless, I am 95% certain I could find a way to get this to a jury and win it.  A judge would be very, very reluctant to dispose of this case before trial.  

One question that is very relevant and to which I do not yet know the answer is whether PA has mandatory reporting requirements for child abuse (most likely) and whether these college employees are mandated reporters under that law (less certain).  If JoePa & co. were mandated reporters, that might really up the ante on them.

For those who don't know, mandated reporters (in MI) are people who, by nature of their jobs, are required to report evidence of child abuse to the police.  Teachers are mandated reporters, and it's sad how many fail to do this.  (Instead, they tell their principal, which doesn't count, or they make a decision for themselves about whether or not they believe abuse actually occurred.)  The law says that mandated reporters must report any allegations or suspicions to certain authorities, and let the authorities investigate.

In many cases where child abusers are convicted, earlier victims went to a mandated reporter who failed to do their duty.  Instead, situations and processes like what seems to have occurred at PSU occur often in schools and churches throughout the country.  It's understandable to a certain extent - no one wants to believe anyone is this monstrous - but it happens.  There are lots of JoePas out there.

papabear16

November 8th, 2011 at 8:53 AM ^

This doesn't really clear things up, but at least provides some information regarding the laws at issue.

http://online.wsj.com/article/SB10001424052970203733504577024501911173344.html

I still think that if you've got three school officials, JoePa and the two men he went to because of their positions within the school, are sitting around an office deciding not to do anything, I could get to a jury on the question of whether they were acting in their capacities as PSU employees.  I'll bet PSU pays out here, or at least tries to settle.

Erik_in_Dayton

November 8th, 2011 at 9:21 AM ^

I would need to do a lot more research on this, but here is where I would start if I wanted to sue Paterno and the PSU athletic dept.:  They had very good reason by1998 to believe that Sandusky was a pedophile.  They seemingly pushed him out b/c of this.  Yet they still let him have access to PSU facilities with children until 2002.  They even let him be alone with children in PSU facilities until that time.  Does this let get you to negligence or even some sort of civil conspiracy in Pennsylvania?  I don't know. 

ijohnb

November 8th, 2011 at 11:19 AM ^

but I have no idea what any of the above conversation means.  I can get you a kickass spousal support settlement, but when I hear things such as "sovereign immunity " i ussually cover my ears, run into a different room and look for the first Chapter 7 no asset bankruptcy I can file.

What I can tell you in this, I agree with a lot of the posters above that at this point, further commentary on the topic in blog form is not productive.  I have to say, however, that how this is being handled by Penn State offiicials, and Joe Paterno, is sickening.  For him to say he is "only discussing football today" is insulting, and it confirms my belief that Paterno does not believe he is subject to the same rules, and the same moral code, as everybody else.

Until this is addressed by the University in the way that it should be, I will not watch another Penn State football game again. 

I think the scene at State college could get ugly this weekend.

triangle_M

November 8th, 2011 at 11:44 AM ^

I wonder why?  Joe said he was, "disappointed."  So PSU is just circling the wagons.  We may not always love MSC but she definately knows how to handle scandal PR and contrition.

 

Cancelling the presser should have been a foregone conclusion.  The amazing thing is that it took them so long to figure out what a goat rodeo it was going to be.  Now they are running and hiding.  #epicfail

ixcuincle

November 8th, 2011 at 11:53 AM ^

PSU HAS to hold that press conference. PSU cancelled their weekly press conference with Joe Pa because no reporters would actually be there to talk football. Joe Pa also isn't teleconferencing today. 

They basically are going to hide him, just like they've been hiding the allegations the last decade. The time for hiding needs to end now. These allegations have to be addressed.