Does Honoring Paterno Leave Penn State Liable?

Since more horrifying details of the events that occurred at Penn State under Joe Paterno’s watch have come out, it seems baffling that the university would go on with honoring him in this weekend’s game.

This past March, a judge ruled that any allegations that occurred between 1992-1999 were not covered by the insurance policies that Penn State had purchased. On Page 2 of the opinion, the judge stated, “in 1976, a child allegedly reported to P.S.U.’s Head Football Coach Joseph Paterno, that he (the child) was sexually molested by Sandusky”. This is the first time that any material fact was presented to show that Paterno knew about the assaults prior to 1998-2001, as he claimed. Previously, Penn State had claimed that the $60 million dollar settlement would not be paid by anything other than insurers, but this ruling changes that.

In January 2015, before it was proven that Paterno had been aware about any sexual assault claims, Penn State and the NCAA agreed to a settlement to restore Paterno’s 112 wins and return him atop of the rankings of all-time most winningest coach and is scheduled to be honored on September 17th, 2016. However, now that new information regarding Paterno’s knowledge in of the assaults has been brought to light, is Penn State making a mistake by honoring him?

Honoring Paterno for his football accomplishments is one thing, but did anyone ever consider the negative impact this “honorable mention” could have on the victims who were sexually molested by Sandusky? Victims of sexual assault cases have lived with the mental anguish of being molested for years. According to ptsd.va.gov, some child sexual abuse survivors may show symptoms of PTSD. They may behave in a nervous, upset way. Survivors may have bad dreams. They may act out aspects of the abuse in their play. They even might show other fears and worries. PTSD may be triggered by a number of occurrences, one of which can be re-experiencing past events. Re-experiencing symptoms include: Flashbacks—reliving the trauma over and over, including physical symptoms like a racing heart or sweating; Bad dreams; and Frightening thoughts. Re-experiencing symptoms may cause problems in a person’s everyday routine. The symptoms can start from the person’s own thoughts and feelings. Words, objects, or situations that are reminders of the event can also trigger re-experiencing symptoms.

It is obvious that rehashing past events could be very traumatic and painful for these victims. Since this is the case, why is Penn State not ready to move on from this heinous crime? Honoring the man who let these acts take place under his nose may be extremely painful for these victims. Essentially, the University is praising a man who turned a blind eye to years of molestation by his closest employee. The victims may not be able to prevent the University from honoring Paterno, but they may have an alternative form of relief.

The victims could hypothetically file a lawsuit against the University for the negligent infliction of emotional distress, or NIED. A party has committed the tort of NEID when the following elements have been met:

  • Negligence
  • Causation of severe mental distress
  • Proof of genuiness
  • Proof that the plaintiff(s) was the primary victim or a bystander who is entitled to recovery

Negligence is defined a failure to behave with the level of care that someone of ordinary prudence would have exercised under the same circumstances. The behavior usually consists of actions, but can also consist of omissions when there is some duty to act. In the present case, it can be argued that the University, who was essentially responsible for letting this molestation ring occur, owes a duty of care to the victims of Paterno and Sandusky. The University may be breaching the duty of care to these poor victims by rehashing, or praising, the man who allowed the molestation to occur. Clearly, that is not Penn State’s intention, but they are walking a fine line of being negligent of their actions.

Second, the victims must suffer severe mental distress caused by the University’s event. As described above, there are many serious and horrible side effects a victim of sexual molestation can suffer. PTSD is certainly a severe mental distress that can be caused by the event.

Next, there is the hurdle of proving genuineness as to the causation of the mental distress. A plaintiff must show that the underlying conduct was merely unreasonable, and does not have to prove intent. This can be shown in various ways such as a physical impact from one party to another; the physical consequences that arise from conduct; the invasion of a legally protected interest; if caused by compelling facts; of if caused by other evidence. It is apparent here that this distress would be caused by the new evidence released in March, that proved that Paterno knew of the molestation by Sandusky.

Lastly, the plaintiff(s) would have to prove that they were the primary victim or a bystander who is entitled to recover. It seems obvious that in order to avoid such distress, the victims would not attend the event; however, they can still be considered to be the primary victim of the harm. In any event, one wonders if others, who maybe suffer from PTSD from similar acts could recover as they could bystanders.

There are several views on whether a bystander can recover under this tort. At common law, courts declined to award damages for mental injuries that were not accompanied by physical injuries because they were “wary of opening the floodgates to fraudulent, frivolous and perhaps even marginal lawsuits”. The modern approach breaks it down into two views: The “Zone of Danger” and “Foreseeability”. Numerous claims have been brought by bystanders who suffered emotional distress based on witnessing or hearing about injury to another person. In general, the resolution of these cases falls into the two categories.

The “Zone of Danger” (known as the traditional view), was said to allow recovery to a bystander if he/she was within the physical zone of harm; feared for their own safety; and suffered physically manifested mental or physical injuries as a result of their fear.

The other category came from the case Dillion v. Legg, and is known as the foreseeability view. In this view, the defendant should have foreseen that the plaintiff would suffer serious emotional distress. This view takes into account the proximity of the accident; the contemporaneous observation of the harm; and the relationship of the victim (usually only recovery if the bystander was related to the victim).

Hypotheticals aside, Penn State believes they are doing the right thing in honoring their long time football coach at this weekend’s game. Perhaps they haven’t thought about the negative ramifications for the poor victims (cough…cough…negligence), or perhaps the previous settlement has been enough to deter the victims from bringing any other legal action. Needless to say, it will be an emotional day at Penn State University.

 

Mario Errico and James Landry are third-year law students at the Florida State University College of Law. 

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