Like everyone else, I have been following the "Happy Valley" Penn State child sexual assault scandal with disgust, awe, shock and dismay. But unlike everyone else, I am also thinking, as I read, who I would sue, for how much, and under what legal theories.
Although I am admitted to practice law in Pennsylvania, I have never handled a case there. My practice is limited to New York personal injury cases, and particularly to cases in Central and Western New York State. So I was surprised to read that some PA lawyers saw obstacles under Pennsylvania law to a lawsuit against Penn State because of the doctrine of "sovereign immunity". Penn State would, of course, be the principle target of my lawsuit because of its deep pockets. The lawsuits brought against the rapist/sexual predator, Sandusky, or any of the individual coaches, such as Joe Paterno, would quickly deplete all their assets, leaving the plaintiffs under-compensated. There are at least eight victims, and probably a lot more will be stepping forward, which in my mind equates to many, many millions of dollars in lawsuit recovery.
In New York, a suit against a State University for something like this would not trigger a viable sovereign or governmental immunity defense. That's because New York law distinguishes between the State's traditional governmental role (such as providing police protection) and non-traditional roles the State has assumed over time, such as owning and running a university. Generally, the State can raise the governmental immunity defense only against tort lawsuits for the former, not the latter.
If what happened at Penn State happened at one of New York's SUNY colleges, the only possible governmental immunity defense in New York would, in my opinion, be against allegations the campus police should have intervened. Since police protection is a traditional governmental function, a governmental immunity defense against that cause of action might prevail. But so many other causes of action abound for holding the State college or university liable here: Negligent hiring, supervision and retention of the football coaches; civil conspiracy; premises liability (knowingly allowing a dangerous condition to exist on their premises). And the government immunity defense would not bar these causes of action at all.
The problem in New York would not be governmental or sovereign immunity. Unlike in Pennsylvania, the problem would be the statute of limitations. I'll be discussing that tomorrow, so stay tuned . . .!
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