Top Ten Parties Potentially Subject to Civil Liability in the Penn State Sexual Abuse Scandal
With the Penn State scandal going on, it appears that the media is focused on Penn State and Jerry Sandusky as the liable parties. Liability and accountability are huge issues in this case:
1. Jerry Sandusky – Obviously, this entire situation would not have occurred but for the alleged heinous acts of Jerry Sandusky. His pattern of alleged abuse constitutes assault and battery as well as intentional and negligent infliction of emotional distress, among other recoverable torts. There is no doubt that a jury would award punitive damages for his alleged heinous acts and resulting psychological harm to the victims.
2. The Second Mile Foundation – Although set up as a charity “for children who need additional support and would benefit from positive human contact,” according to the Grand Jury report, the victims’ experience with the foundation was anything but positive. Second Mile may be liable for its negligent supervision of Jerry Sandusky, in allowing him to take boys on trips and to his house where the alleged sexual abuse occurred, especially if it knew or should have known that abuse was occurring. Second Mile could certainly face liability if it can be proven that 1) it was informed of Mike McQueary’s claim that he witnessed Sandusky raping a young boy in the Penn State showers, 2) it allowed Sandusky to continue work with the foundation and have contact with young boys, and 3) further abuse occurred.
3. Penn State University – Penn State may be liable even though Commonwealth institutions and employees are immune from simple negligence cases. Penn State could be liable pursuant to a theory known as “state created danger”. Under the Civil Rights Act, 42 U.S.C. Section 1983, Commonwealth institutions and employees may be liable if they know of a foreseeable risk of harm and commit an act which enhances the likelihood of that harm occurring or causes that harm to occur. It is also known as the “snake pit” theory of liability, which is likened to throwing someone in a snake pit. Penn State, as well as the individual employees listed below, could be liable pursuant to the theory of a “state created danger”.
4. Mike McQueary – McQueary testified that he witnessed Sandusky raping a boy in the shower. He testified he reported it to Paterno and school authorities. More importantly, McQueary may be liable if proven that he saw and knew that Sandusky was continuing to come into contact with young boys through the Second Mile and was even bringing boys onto campus and to Penn State events.
5. Joe Paterno – Much has been talked about JoePa and his legal responsibility vs. his moral responsibility. Neither determines whether he could be liable in a civil action. McQueary testified that he told Paterno what he had witnessed in the shower. Paterno then reported this to his superiors at Penn State. However, Paterno may be liable, if he allowed Sandusky to continue to have interaction with young boys after he knew about Sandusky’s abuse on campus.
6. Tim Curley – Curley was Paterno’s immediate superior. According to the Grand Jury report, Curley testified that he reported what he learned about Sandusky to the Second Mile and told Sandusky that he was prohibited from bringing youth onto the Penn State campus. However, Curley chose not to report the abuse to child protective services. This failure may amount to violating the duty to report “reasonably suspected” child abuse pursuant to the Pennsylvania Child Protective Services Act. Certainly, his defense in the criminal and civil case will be that the child was not under the care of Penn State and therefore he was not required to report the abuse. Curley also testified that he was never informed by McQueary that McQueary witnessed any sexual abuse, which the Grand Jury did not believe. Curley was subsequently charged with perjury as a result. However, again, if he knew that Sandusky had abused a child and allowed Sandusky, a Penn State employee, to continue to have contact with young boys, either on or off campus, thereby subjecting them to further risk of abuse, he and Penn State could be liable in a civil action.
7. Gary Schultz – Schultz was an administrator at Penn State who testified that he met with McQueary, Paterno and Curley, and was informed about Sandusky’s abuse. Like Curley, Schultz did not report the abuse. In fact, Schultz testified that he was aware of the 1998 police investigation of allegations that Sandusky showered with and hugged a young boy while naked. Schultz’s potential liability is similar to that of Curley’s and he will certainly raise the same defenses as Curley in the civil and criminal cases.
8. Graham Spanier – Spanier is not only subject to potential liability for failing to report what McQueary had witnessed, but there may enough evidence to support a theory that Spanier concealed suspected or known child sex abusers at Penn State. NYDailyNews.com recently reported that Paul McLaughlin was abused during 1977-1981 by Jack Neisworth, a noted professor at Penn State and that Spanier became aware of this in 2001. McLaughlin claims that he elicited a confession from Neisworth in 2001 and informed Spanier about the abuse and confession numerous times in 2001 and 2002, but was told the University would take no action. 2002 is the same year that Spanier allegedly became aware that McQueary witnessed Sandusky raping a boy in the showers yet failed to report the abuse. The disturbing trend, if proven, shows a pattern of practice at Penn State–that they turned a blind eye to suspected or known child abusers at their school. If this proves true, Spanier may be the most culpable of all the Penn State administrators and punitive damages are a virtual certainty.
9. Jim Calhoun – Although now suffering from dementia, Calhoun was a janitor employed by Penn State in 2000. Calhoun allegedly witnessed Sandusky committing a sexual act on a young boy in a Penn State gym shower. Calhoun, a mandated reporter under the Pennsylvania Child Protective Services Act, did not report the abuse. He and Penn State may be subject to liability for his failures since multiple victims were allegedly abused by Sandusky afterwards, including the alleged rape in 2002.
10. Clinton County High School – According to the Grand Jury report, Sandusky routinely had contact with Victim 1 during school hours at Clinton High School, where the administration would often call Victim 1 out of activities and allowed Sandusky to meet Victim 1 in a private conference room with no supervision. Additionally, a wrestling coach witnessed Sandusky and Victim 1 in a weight room at the school at night, and even saw Sandusky lying on top of Victim 1 face to face. The wrestling coach thought it was odd, but did not report it to anyone. The failure to report the “reasonably suspected” child abuse may subject the school to liability.