Who’s at Fault? The Penn State Scandal

As a society, we have become conscientious about determining where fault lies and who is responsible for wrongs committed, as well as the warranting of compensation for those actions. With this in mind, each month this column will address liability issues involving current news and events.

In this inaugural piece, our thoughts on liability are focused on the dark and tragic news of Jerry Sandusky and the Penn State University abuse allegations, for in this scandal lies a deep concern about who is responsible for these alleged occurrences and the damages that resulted.

In order to assess liability, we must examine the duties owed by each of the parties, determine the breach of the duties owed, and determine if the damaged parties contributed in any manner to their damages.

Some of the acts of wrongdoing are said to have occurred in the Penn State locker room, with allegations that several university employees witnessed or had knowledge of some of the occurrences. This raises several questions:

What duty did the university owe to those invitees who may have been harmed on their premises? What duty did the university owe if they had knowledge of the alleged occurrences and took no action to prevent future occurrences? What duty did The Second Mile, a charity founded by Sandusky to support troubled youth, owe to protect the young people they were trying to help? What other parties may bear some of the liability for damages?

Penn State University may be liable. Under the Civil Rights Act, 42 U.S.C. Section 1983, commonwealth institutions like Penn State and their employees may be liable if they know of a foreseeable risk or harm and commit an act that enhances the likelihood of that harm occurring or causes that harm to occur.

If Penn State or its employees were aware of any acts or occurrences of harm to others, they could be liable under the “state-created danger” theory and would not be able to invoke sovereign immunity. Penn State had the duty to create a safe environment and protect the rights of invitees, and to exercise the degree of care that the law requires to protect others from unreasonable harm or risk.

This would also bring into determination those Penn State employees deemed liable. That includes former football coach Joe Paterno, athletic director Tim Curley, assistant coach Mike McQueary, retired school vice president Gary Schultz, former school president Graham Spanier, and former school janitor Jim Calhoun, who were employees of Penn State at the time and are said to have had knowledge of the alleged negligent acts.

We must also keep in mind that these named parties may have their own negligence imputed back to their employer. This vicarious liability does not relieve the responsible parties of their own negligent acts (see sidebar, “A Victim’s Attorney Speaks,” page 18).

Jerry Sandusky is the accused wrongdoer, or tort feasor, and would be liable if he did indeed commit the acts for which he is accused. He could potentially be guilty of negligence by itself or negligence as a matter of law.

When we examine the duties owed by Sandusky, we look to his conduct. Did his conduct fall below the standard of care required by law that protects the rights of individuals? If the allegations are true, Sandusky was negligent and breached the duties owed, and that breach of duty was the proximate cause of the damages that the accusers have incurred. 

The Second Mile is potentially liable if it was made aware of the abuse accusations and allowed Sandusky to continue to work there while abuse continued. It owed the duty to protect the rights of those in its care. The resulting damages would certainly be a proximate cause of their breach of duties owed.

There is an additional party that may be liable: Clinton County High School, where one of the victims was allegedly abused. Sandusky was allowed to continue contact with students after inappropriate behavior was allegedly witnessed by school employees. Again, we look to the duties owed by those involved and the duties breached that led to the damages from the proximate cause of that breach.

There may be other liable parties that come to light as this scandal continues to unfold in public and in the courts. When determining liability, we must ask a few questions: Was a legally protected right or legal duty owed? Was there a wrongful invasion of that right or duty? Were the damages a proximate result of that breach?

Most often, it is not only one party that is liable, but more than one that bears some responsibility.

A Victim's Attorney Speaks

“Penn State and The Second Mile organization are liable for crimes against children and institutional failure to protect those children entrusted in their care,” says Jeff Anderson, who represents one of the alleged victims and has filed suit against The Second Mile, Gerald Sandusky, and Pennsylvania State University. “Penn State and The Second Mile repeatedly ignored warning signs and made choices to protect their own organizations above protecting the rights of children. Both Penn State and The Second Mile bear the responsibility of causing grievous harm to the individuals involved.”

As alleged in his complaint, Anderson asserts allegations of vicarious liability. Liability is imputed or transferred back to other parties with which the wrongdoer bears such a relationship that his own negligence is transferred to his employer or those who he is acting on behalf of or while in the scope and course of his employment, he said.

Anderson also alleges in his complaint that both Penn State and The Second Mile breached the duty of care owed to the minor plaintiff and other minors who were “entrusted in their care by failing to protect them from foreseeable harm of the sexual misconduct of its employees or personnel.” He is seeking joint and several liability for compensatory and punitive damages. Punitive damages are often referred to as damages designed to punish or deter bad conduct. 

Mary Anne Medina is an instructor and course developer for Vale Training Solutions. She has extensive experience in claims process redesign and claims handling training, with an emphasis on liability loss adjusting. She has been a CLM fellow since 2010 and can be reached at MMedina@vale-ts.com.