PENNSYLVANIA RECORD

A federal judge in Philadelphia has agreed to dismiss a vicarious liability

claim against Penn State in a case brought by an alleged victim of serial child molester Jerry Sandusky, but the jurist refused to dismiss a civil conspiracy claim against the central Pennsylvania university.

U.S. District Judge Anita Brody, who sits in the Eastern District of Pennsylvania, granted Penn State’s motion to dismiss a vicarious liability count in a lawsuit initiated by a man identified only as John Doe 6, who claims he was sexually abused by Sandusky, the former Penn State assistant football coach doing 30 to 60 years in state prison for molesting young boys.

Sandusky, who for years worked as the defensive coordinator for the Nittany Lions football team, was convicted in the summer of 2012.

A state judge sentenced him to prison the following fall.

An appeals court subsequently upheld Sandusky’s conviction and sentence, although an attorney representing the defendant reportedly filed a petition for review recently with the Pennsylvania Supreme Court seeking to have the high court look over the case.

The plaintiff in the lawsuit, who says he met Sandusky in the spring of 1998 when the boy was then 11, claims Sandusky went on to sexually abuse him in showers on the Penn State campus.

In addition to suing Penn State, the plaintiff also named as defendants in the litigation Sandusky and the charity for underprivileged youth he had founded in the 1970s, The Second Mile.

In his lawsuit, John Doe 6 alleges that Penn State and The Second Mile engaged in a variety of tortious conduct in connection with the sexual abuse.

In all, the complaint accuses the defendants of vicarious liability, negligence, negligent supervision, premises liability, intentional infliction of emotional distress and civil conspiracy.

In its motion to dismiss, Penn State lawyers argued that the vicarious liability claim could not succeed as a matter of law because Sandusky’s acts of molestation are “outrageous and unlawful” actions that fell outside of the scope of his employment with the university.

In her judicial memorandum, Brody wrote that while a determination of whether an employee’s act is within his or her scope of employment is typically a question for a jury decide, certain types of outrageous actions fall outside the scope of employment as a matter of law.

Pennsylvania courts, Brody wrote, have held that when an employee “commits an act encompassing the use of force so excessive and dangerous, as to be totally without responsibility or reason …, the employer is not liable as a matter of law.”

The plaintiff had argued that it is too early in the litigation to decide whether Sandusky’s actions were within the scope of his employment, while Penn State asserted that the vicarious liability claim should be dismissed because it falls within the category of “outrageous” assaults for which an employer is not vicariously liable.

Brody noted that Pennsylvania appellate courts have consistently held that sexual abuse of minors falls outside an employee’s scope of employment because such acts are not of the “kind and nature he/she was employed to perform and not for the employer’s benefit.”

Brody ended up determining that based upon the allegations in Doe’s complaint, Sandusky’s sexual abuse of the plaintiff falls outside the scope of his employment under Pennsylvania law.

“Although the Complaint recites that Sandusky’s conduct ‘was committed during the course and scope of his employment with Defendant Penn State,’ it fails both to explain how molestation was the kind of act that PSU employed Sandusky to perform or how Sandusky was actuated by intent to serve PSU,” Brody wrote.

Brody, however, denied Penn State’s motion to dismiss the civil conspiracy claim, writing that the plaintiff has alleged sufficient factual content to state such a claim at this stage of the litigation.