Penn State likely to face civil claims after trial

Marty Dolan, principal at Dolan Law, and his associate Karen Munoz represent victims of wrongful death and personal-injury. His column “Law and Wellness” appears in the Chicago Lawyer and her column appears regularly in the Law Bulletin. This week’s blog is written by Karen Munoz.

Many of us probably followed the trial of Jerry Sandusky recently arising out of the awful child sexual abuse scandal in Penn State University. While the criminal case against former football coach, Sandusky, is now closed, with the jury returning a guilty verdict on 46 of the 48 counts against him, a barrage of civil suits is likely to follow. There are many different avenues that abuse victims could choose to seek recovery, although, obviously and tragically, the law can never compensate the victims of abuse for the unimaginable suffering they have endured. This post will look at some of the different types of civil suits which Penn State is likely to face.

State law claims in ordinary negligence will probably be the most common type of case faced by Penn State. In order to establish negligence against the university, a plaintiff must first show the university owed children in its custody/care a duty of care to protect them from harm caused by adults supervising them. Second, the harm caused to the child must be foreseeable. In cases against Penn State, plaintiffs will most likely point to reports from witnesses Sandusky’s abuse which Penn State officials did not act on, as well as an alleged internal investigation into Sandusky’s behavior that was conducted in 1998 that contained details of his abuse and, again, was not acted upon by university officials.

A second tort cause of action which will is likely to be pursued against Penn State is a case for negligent supervision. In order to establish negligent supervision, a plaintiff must show that the defendant knew or should have known of the dangerous propensities of the individual employed by the defendant such that it was foreseeable that that individual would cause harm to others during the course of his employment, and the defendant failed to adequately supervise that person. Very closely related to this is the tort of negligent retention whereby a plaintiff must show the defendant continued to employ the dangerous individual when it knew or should have known of his dangerous propensities.

Another type of case that might be brought is a Section 1983 claim for deprivation of civil rights. In order to establish a section 1983 claim, a plaintiff must prove that the university maintained a policy of deliberate indifference to the constitutional violations being carried out by its employees and that such policy was the legal cause of the abuse suffered.

One plaintiff, John Doe A, already filed a case against Penn State (plus Sandusky personally and Second Mile, a children’s charity which he founded) last November. That case alleges negligence, negligent supervision, premises liability, negligent and intentional misrepresentation, intentional infliction of emotional distress and civil conspiracy. Since all of the different legal causes of action essentially boil down to the extent of the university’s knowledge and its action (or lack thereof) based on that knowledge, many victims may be awaiting the outcome of the prosecutions against Penn State athletic director Tim Curley and finance official Gary Schultz for perjury and failing to alert authorities, before deciding whether to file suit or not.

While civil suits alleging child sex abuse often return huge verdicts – just last week, a jury in Oakland returned a verdict of $28 million in a child sex abuse case against the Jehovah’s Witnesses – we must recognize that the law must do something more to prevent such abuse from happening in the first place, rather than simply providing monetary compensation to victims of abuse. Perhaps the most we can hope for is that these lawsuits shed some light on what needs to be done to make that happen.

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