STATE COLLEGE, PA - NOVEMBER 9: Students and those in the community visit the Joe Paterno statue after football head coach Joe Paterno was fired during the Penn State Board of Trustees Press Conference, at Beaver Field, November 9, 2011 in State College, Pennsylvania. Paterno and Spanier have lost their positions amid allegations that former former Penn State defensive coordinator Jerry Sandusky was involved with child sex abuse. (Photo by Patrick Smith/Getty Images)
The Freeh Report confirmed some of our worst fears about Joe Paterno and Penn State's involvement in covering up Jerry Sandusky's decades of child abuse. Now let's have an actual lawyer look at how the victims will go after Penn State and its highest ranking officers. Follow @SBNationCFB
In my preview of the Freeh Report, I did not have access to Freeh's full findings, but I noted that:
Leaked information from Louis Freeh's commission charged with investigating Penn State indicates that athletic director Tim Curley, former president Graham Spanier and former VP of Finance and Business Gary Schultz were leaning toward reporting Jerry Sandusky to the authorities in 2001, but that after Curley's meeting with Joe Paterno they decided to handle it internally. I'm loath to speculate as to what exactly the Freeh Commission will ultimately say, but Curley's recollection of his conversation with Paterno in 2001 and any subsequent conversations they might have had will be crucial in apportioning blame in the cases.
Now that the report has been released, that is still the case. That preview contains a nice wrap-up of how Penn State, Paterno, Curley, Schultz and Spanier will engage in a circular firing squad in order to avoid blame in civil lawsuits. And with the Commission's full findings, we have a better idea of the charges that the victims can assert against Penn State.
When the Sandusky victim lawsuits start rolling in, they will be tort lawsuits. In brief, a tort lawsuit has four elements:
- Duty: Someone had a duty to act reasonably, like reporting a sex offender.
- Breach: Someone breached his duty to act reasonably, like failing to report a sex offender.
- Causation: The breach caused something bad to happen, like a child being sexually assaulted.
- Damages: The victim of the tort has suffered and should be compensated.
With that in mind, let's look at the theories of recovery that the plaintiffs might put forward.
Negligence: I explained negligence in my Freeh Report preview:
In sexual abuse civil suits, plaintiffs have to show that defendants failed to exercise a reasonable amount of care, which lawyers call "negligence." If Curley is not guilty under Pennsylvania law, he could argue that he exercised a reasonable amount of care because he complied with the failure to report law, which lawyers call a statutory defense to negligence. For example, if you sue me for hitting you with my car, I can use as a defense that I was driving slower than the speed limit. Because I obeyed the law against going above a certain speed my duty to drive safely was met and that I was not negligent. Similarly, Curley could use as a defense in a civil suit that he was obeying the Pennsylvania law, which clearly states that the person in charge is legally responsible
Well, I actually misstated how easy it would be for Curley to avoid a negligence lawsuit, because in Pennsylvania if you report abuse to a superior then you are immune to civil lawsuits under statute. So, for the negligence claims -- or any other tort claims -- individual defendants would just need to argue that the person in charge failed to report. One would assume that Spanier was the person in charge, but as Will Brinson noted, he wasn't the guy who had a statue of himself outside his office.
The issue then becomes whether Sandusky's subsequent victims can allege similar negligence, since their abuse was not run up the ladder like the 2001 claim from the Freeh Report. The answer is "yes." Because folded into the causation requirement is the notion that there must be proximate cause, that a bad act had some sort of causal connection to the damage.
In church abuse lawsuits, knowing that a subordinate priest had predilections toward abuse was found to be proximate cause even if later individual claims were not reported up the ladder. That means Paterno or Spanier (not to mention Penn State) could be held liable for all claims of abuse subsequent to when they knew about Sandusky. Which, according to the Freeh Report, was 1998 at the earliest.
Vicarious Liability for Childhood Sex Abuse and Premises Liability: Under this theory, Penn State is liable because Sandusky was one of its employees. Now, Sandusky had retired after the 1999 season, but he retained emeritus status until his arrest, and he had an office at Penn State until 2006. In fact, he was able to keep his keys to the Penn State facility through his position. A judge would probably roll his eyes and make a hand-wank motion if Penn State tried saying that Sandusky wasn't an employee.
Considering how many of Sandusky's victims were assaulted late at night in the showers, those victims have a decent case that Penn State should be vicariously liable for any damages that they suffered. After all, they were abused when Sandusky was using his employee privileges, like having access to those showers. The general counsel who said Penn State could not take Sandusky's keys away after she was aware of the grand jury investigation probably won't be asked to speak before the Centre County Bar Association any time soon.
Similarly, Penn State could face premises liability for hosting Sandusky. Premises liability is more common in slip and fall cases, where a negligently-maintained facility caused an injury. But that can be expanded to include negligently letting a child abuser take victims into the showers. So not only does premises liability mean that you need to fix that creaky step in your house, but that you probably shouldn't let weird cousin Leroy crash at your place for more than a night.
Intentional Infliction of Emotional Distress (IIED): IIED can be a doozy, but it is difficult to prove. To prove IIED, a plaintiff would have to allege that Penn State, in willfully retaining Jerry Sandusky, acted so outrageously that it shocks the conscience, and this shocking act caused severe emotional distress. These are typically difficult elements to prove, but a child abuse cover-up usually falls in the realm of "shocking." And anyone who has watched Intervention knows just how easily sexual abuse leads to severe emotional distress.
Now, why would a plaintiff sue under this theory when it is easier to show negligence or vicarious liability? Because plaintiffs get greater damages if they can show that you were the victim of an intentional tort, as courts really do not want people to intentionally harm others. Think of it as the difference between punishing someone for stupidity (negligence) and punishing someone for being a jerk (intentional torts). If someone hits you with a car, you get more money from them if they were aiming for you than if they were merely being careless.
Civil Conspiracy to Endanger Children: Going back to my Freeh Report preview, this is the argument that, in violating Pennsylvania law, Penn State per se committed a tort by covering up Sandusky's abuse of children. Now that the Report has proven convincingly that Penn State's directors engaged in conspiracy to conceal Sandusky's behavior, this count should be a slam dunk for any Sandusky victims (assuming they have actual proof of abuse). Oh, and this is an intentional tort as well, so it could be a major source of recovery for victims.
In determining damages, the best analogue to the Penn State abuse scandal is the Catholic Church abuse scandals. Victims of abusive priests tend to receive around $1,000,000 per victim from juries. That amount does not include confidential settlements, which are probably greater than $1,000,000 since the church is more likely to take weaker cases to court and settle the most egregious ones privately. But victims who settle still probably receive something in the seven figures range.
So unless Sandusky was able to abuse hundreds of boys during his time at Penn State, the university's $1.8 billion endowment will get dented, but not significantly. Of note, Penn State's captive insurer Nittany Insurance will probably pay out most of the claims, but Nittany Insurance itself is funded by the Penn State endowment. But nobody is going to pity a Penn State alum whose donation goes to pay an abuse settlement instead of an endowed chair. The important thing is that, for the first time, Jerry Sandusky's victims will finally get a modicum of justice.
Joe Paterno's reputation has been damaged in part because he projected an image of being fundamentally fair and just, but the past eight months have shown just how callow and indifferent he could be in order to protect his program. Thankfully, if you're being treated unjustly in this country, then the courts are there for you. The Sandusky cover-up has shown just how little we can count on powerful institutions to self-police. As they become increasingly premised upon self-preservation, the justice system may become the only venue in which they are forced to reform.
Everyone at Penn State let the Sandusky victims down. And now it's time for the courts to get them what they deserve. Just remember that the next time someone complains about frivolous lawsuits or stupid juries. As it turns out, they can be the last resort for you to get the justice you deserve.
Trust me, I'm a lawyer.
While we’re here, let’s watch some of the many fine college football videos from SB Nation’s Youtube channel: