Thursday, December 1, 2011

Understanding the Civil Lawsuit Against Sandusky, Penn State and Second Mile


On November 30, 2011, an unnamed Plaintiff filed a civil lawsuit against Jerry Sandusky alleging sexual abuse. Also named as Defendants in the lawsuit are Penn State and Second Mile. Read the Complaint here.

The lawsuit alleges that Sandusky sexually abused the Plaintiff “over one hundred times” between 1992 and 1996. The abuse is alleged to have commenced when the Plaintiff was 10 years old.

The Plaintiff was introduced to Sandusky when he participated in a Second Mile program. At that point, Sandusky “recruited, groomed and coerced the Plaintiff, showering him with gifts, travel and privileges”.

The alleged sexual abuse occurred 
“on multiple occasions and at multiple locations within Pennsylvania and outside of Pennsylvania; in the facilities of Penn State, and particularly the football coach’s locker room; at times within Philadelphia County; at facilities out of state connected with a Penn State bow game; and at the Sandusky home”.
The Complaint also alleges that “Sandusky threatened the Plaintiff and threatened to harm the Plaintiff’s family if the Plaintiff told anyone” of the abuse. This threat “silenced” the Plaintiff.

Details were not provided as to the specific sexual harm inflicted on the Plaintiff.

Anonymous Plaintiff

On page 4 for of the Complaint at paragraph 1, the Complaint provides that the “identity of this Plaintiff is not pleaded…in order to protect the identity of the Plaintiff because the Plaintiff was a victim of sex crimes when the Plaintiff was a minor” and that the identity will “be made known to the Defendants by separate communication”.

Anonymity is permitted where it is justified to protect the plaintiff from the public disclosure of matters of utmost intimacy.

This is not something, however, that Courts take lightly. A fundamental legal principle is the right of the public to access court documents and proceedings.

Expect the identity to the Plaintiff to remain concealed unless something changes.

Penn State Liability

An employer can be liable for the acts committed by an employee in the course of his employment. This principle is called vicarious liability. 

The Plaintiff would argue that at the time of the incidents (1992 to 1996), Sandusky was an employee, and on this basis, Penn State should be vicariously liable. 

Penn State may argue Sandusky was not discharging his employee obligations at the time or acting in the course of his employment. For that reason, Penn State may argue, it should not be vicariously liable for Sandusky's wrongdoings. The fact that the alleged harm may have occurred on its campus is insufficient to establish vicarious liability.

The abuse is alleged to have occurred between 1992 and 1996. The Complaint does go through a number of the alleged incidents found in the summary of the grand jury testimony. One such incident triggered a police investigation 1998. Presumably, this information has been pled to demonstrate a pattern of abusive conduct on the part of Sandusky. 

There is also the allegation that Penn State was negligent in that it owed a duty of care to the Plaintiff given that it knew or ought to have known of Sandusky's behavior and that it failed to discharge that duty (i.e., take steps to safeguard kids and remove Sandusky). According to the summary of the grand jury testimony, it is alleged that Sandusky engaged in sexual abuse with other victims in 1996 and before: Victim 4 (1996), Victim 5 (1995) and Victim 7 (1994).

Remember up until a couple of months ago, and despite retiring in 1999, Sandusky still had a Penn State office, email, telephone number and faculty listing, while also enjoying the title of assistant professor emeritus of physical education. So not only did Penn State keep him around, it also legitimized Sandusky on and off campus.

Negligence is the big claim here.

In response, Penn State may argue that in 1996 it was not aware of Sandusky's behavior, and simply by virtue of harm being inflicted on campus does not make it liable. Basically, Penn State was not negligent because it didn't know what was going on or there was not a reasonable basis upon which to believe something might be going on.

The Plaintiff also alleges that Sandusky “had been molesting children since at least the 1970s”. If the Plaintiff can substantiate this claim by way of evidence, that will assist its case against Penn State. For now, however, the allegation that Sandusky has been molesting children since the 1970s is just that – an allegation. Sandusky’s lawyer may ask for more details on this allegation.

The same is alleged against Second Mile, of which Sandusky was the founder and principal.

Of the 3 Defendants, Penn State will have the deepest pockets – that is the ability to pay. For this reason, expect Penn State to be named in subsequent civil suits. If Sandusky is found to be chiefly responsible, there would still be the issue of his ability to pay - particularly if he is hit with multiple lawsuits. So a plaintiff's best bet to recover money might be through Penn State.

Possible Federal & State Investigations

The Complaint alleges, in part, that the Plaintiff was sexually abused "outside of Pennsylvania". It's a crime to take a minor across state lines to commit a sex act. That could result in a federal investigation. As well, the state where the acts occurred could also go after Sandusky.


Much will turn on the evidence presented. It's still early. Penn State, I expect, will try and get this settled if it sees some merit in the case. Even it if believes it has an arguable case, it may still look to settlement to dispose of the matter. Sandusky, however, may contest the matter.

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