The evil allegedly perpetrated by ex-coach Jerry Sandusky has done more than tarnish a sterling football program’s reputation and brought down its iconic coach. What will most assuredly follow is a score of lawsuits, not unlike those involving the Catholic Church and pedophile priests. Sandusky will be the central target of these lawsuits, and the history of the legion of successful cases targeting the Catholic Church, demonstrates that the financial fall out will be substantial.
While Sandusky is the initial target, plaintiffs’ lawyers will be looking to the deeper, institutional pockets for compensation for these victims. Again, the Church cases provide the roadmap. Sexual abuse is a civil wrong (or tort ,as the law describes it) as well as a crime. For civil liability purposes it is referred to as an intentional tort. The victim is entitled to a panoply of potential damages, including in many instances, punitive damages. The dilemma for victims of intentional torts is how to collect those damages.
There is a significant difference for insurance indemnity purposes between intentional torts and negligent torts. One can insure against the possibility of a claim for negligence and be indemnified by an applicable insurance policy. In most instances insurance will not indemnify someone who is sued for an intentional act. In the instance of sexual abuse lawsuits there is generally no insurance policy to cover the verdicts or effectuate a settlement. For that reason if Sandusky acted alone, without any tolerance of his actions by the University, the victims would be left with a limited fund to pursue consisting of whatever Sandusky assets could be marshaled. In most instances the victories would be hollow and the victims would go uncompensated.
In the Church cases lawyers argued that the institutional defendant–the Church– knew of the predilections of its deviate priests and tacitly condoned those actions by failing to remove them from parishes or warn potential victims of the past wrongs. Generally, an employer is not responsible for the intentional wrongs of its agents, servants or employees unless the employer has past knowledge of those tendencies and has condoned such conduct in the past. If that is established the doctrine of Respondeat Superior, otherwise known as vicarious liability, applies; that is, the employer is now held responsible for the victim’s damages.
Thus, in the Penn State cases the University was put on notice of Sandusky’s alleged tortious conduct when Michael McQueary reported the alleged locker room rape of a ten year old. Once the report was made known the University became obliged to investigate the allegation, and if proven to have substance, then it triggered the further responsibility to eliminate the risk to other victims. Instead, it has been reported that Sandusky received mild sanctions and was permitted continued access to the campus’ sports facilities to run his youth programs. If all of this is proven true the University and its administrators may become responsible to indemnify the victims of any proven sexual abuse. The Church cases demonstrate that the settlements and verdicts will amount to millions of dollars.
Two other issues face the victims in pursuit of civil justice. The first is the statute of limitations. Prior to 2002 (ironic that it is the year of the first discovered Sandusky assault) Pennsylvania only provided minor victims of sex assault with an additional two years beyond their 18th birthday to bring suit. In that year, however, the statute was expanded until the young victim turned 30 (in Connecticut a victim has until age 35).
The additional issue is the doctrine of sovereign immunity. This doctrine finds its roots in the old English common law– “the King can do no wrong.” Under this concept state governments were generally exempt from being sued unless special legislation permitted it. For example, in Connecticut there are certain statutes that permit certain types of claims, such as injuries on public highways. In the absence of such statutes a citizen here must petition the State Claims Commissioner for permission to sue the state and its agents. That petition must be filed within One year of the wrong or the right to sue is forever lost.
PSU is a state university, and as such may be exempt from suit without some special provision in Pennsylvania law that would remove the bar of sovereign immunity. Whatever the eventual outcome, it is clear that the fallout from the Sandusky mess will effect more that PSU’s won/loss record on the gridiron.
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