Monday, November 14, 2011

Comments on the Penn State's sex scandal - UPDATED

Originally posted Nov 12, 2011; the update appears below:

Because I was so busy getting ready for my trip to Switzerland (see my previous post), I missed most of the build up regarding the Penn State sexual abuse scandal.  I did try to catch up a little bit before I left, but I am not sure I got all the details.  So I will let others do the blogging on this one and provide you with some links instead.

The New York Times claims Penn State and Joe Paterno could face civil liability.

Professor Jonathan Turley has a detailed explanation of the issues here.

The PopTort reports on an article in the Philadelphia Inquirer here about Penn State's potential liability.

Eric Turkewitz has a comment here.

The only thing I would like to add to the discussion is the possible relationship between mandatory reporting statutes and negligence per se.  The Prosser Torts Casebook which I use in my class has a very interesting case right on point called Perry v. SN.  In that case, the parents of abused children sued the employees of a day care center arguing that they had a duty to disclose suspected abuse to the authorities under a specific statute and that the violation of the statute constituted negligence per se.  In other words, the plaintiffs argued that the text of the statute was an expression of the duty in tort law and the violation was evidence of breach.  The court declined to apply the negligence per se analysis, however, because it did not want to create a duty to help when the Common Law has already rejected such a duty.

UPDATE (11/13/11):

In case you don't get the comments to this blog, let me highlight the comment (below) and article by Max Kennerly of the Litigation and Trial blog (available here) in which he points out that there are cases in Pennsylvania that take the position rejected by the court in Perry v SN.  Thank very much for the comment!  The article itself if well worth reading.  It covers this and several other issues very well.  I have not read the cases, but will add a comment on the issue in general at the end of this update.

The TortsProf blog reports that Donald Gilliland of the (Harrisburg) Patriot-News wrote a column about the school's potential legal troubles.

The question of whether a court should allow the plaintiff to use a statute as an expression of a duty and its violation as evidence of breach is interesting given that there are so many statutes out there can be argued to express a duty.  If a violation of such a statute causes an injury, should courts recognize a remedy in tort?  Courts have been inconsistent on this question.  I can see the logic in saying that given that the common law has closed the door to imposing liability to for failure to help, a plaintiff should not be allowed the right to go through a "back door" by using negligence per se.  On the other hand, I don't see any problem in saying that a legislature has, by adopting a statute, decided to express what the legislature would want to be considered a duty to act under certain circumstances.  Of course, judges who prefer the first view, would say that if the legislature had really wanted to create a new duty in tort, it would have recognized a cause of action for the violation of the statute in the statute itself. Also, the court in Perry expressed a concern in not exposing a defendant to civil liability which would be disproportionate to the level of liability expressed in the statute itself. I will take a look at the cases in Pennsylvania to see how they deal with the issue.

Having said all that, assuming the evidence is there to show the defendants had enough knowledge and that the circumstances where such that they could be liable under the reporting statute, I would vote to hold them liable.

UPDATE 11/14/11: 

WSJ law blog has more on the possibility of civil claims here.  It cites an ABC News available here.


Max Kennerly said...

My post cites two federal District Courts in PA permitting the negligence per se claim (based on mandatory reporting) in clergy abuse cases, Valesky v. Roman Archdiocese of Greensburg, 2010 U.S. Dist. LEXIS 43857 (W.D. Pa. 2010)(citing Doe v. Liberatore, 478 F. Supp. 2d 742 (M.D. Pa. 2007)).

For more:

Max Kennerly said...

Thanks for the update! I'm a plaintiff's lawyer so I suppose I'm biased, but I don't see any reason not to impose liability for violation of statutes so plainly made for the protection of exactly this class of persons.

It's not like this is some sort of bricks & mortar regulation not really meant to improve safety that a plaintiff is grasping for to create liability. The statute exists for the precise purpose of compelling potential witnesses to act to prevent child abuse and they squarely failed to do that.