Taking Responsibility

By Todd Costa

In the spring of 2011, a shocking scandal broke out at Penn State University, when it was discovered that long-time assistant football coach Jerry Sandusky had molested a number of boys on the school’s campus. Though a Pennsylvania court sentenced Sandusky to a maximum of 60 years in prison in October of 2012, a number of legal questions still linger today, especially regarding the culpability of the university itself.

One of the anonymous victims of Sandusky’s actions who did not settle with the university outside of court and referred to as ‘John Doe 6’, filed a claim against Penn State in the United States District Court For the Eastern District of Pennsylvania. The charges include vicarious liability, intentional infliction of emotional distress, and civil conspiracy. The university then filed a motion to specifically dismiss the former and latter charges.

This brings up the interesting question of responsibility for employee misconduct in the workplace. Vicarious liability is a form of guilt that arises when a third party has the duty to prevent another party from committing an unlawful activity. Furthermore, under the doctrine of respondeat superior, an employer is oftentimes liable for the actions of its employee.[1] Naturally in the case of Penn State, questions have surfaced regarding the university’s responsibility to prevent the Sandusky’s actions.

Therefore, Judge Anita Brody’s decision to uphold the motion to dismiss the charge of vicarious liability, while denying the dismissal of civil conspiracy, is an interesting exercise in understanding the university’s degree of culpability in the eyes of the law. In order to formulate her opinion, Brody examines many different sources of Pennsylvanian law on the matter. For instance, she mainly utilizes the past case of Lunn v. Boyd, in which the court ruled that “[i]f an assault is committed for personal reasons or in an outrageous manner, it is not actuated by an intent of performing the business of the employer and is not done within the scope of employment.”[2] In other words, if the act is not somehow connected to the job of the wrongdoer, then the employer cannot be held liable.

Brody goes on to strike down Doe’s arguments in support of vicarious liability. One such argument was the claim that Sandusky abused his power as a Penn State football coach to take advantage of young men. Brody contests that Doe has not provided enough evidence to suggest that Sandusky’s “outrageous conduct was the kind that PSU employed Sandusky to perform.”[3] It is quite plain from the Pennsylvanian precedent cited in Brody’s opinion that the university was not vicariously liable for Sandusky’s actions.

After understanding the limitations of this form of liability, one of the most pertinent ideas to consider is the responsibility for the university to be informed of the activities that occur on its campus. While it is clear from Brody’s opinion that there is no basis in Pennsylvania law to charge Penn State with vicarious liability, the ruling may demonstrate a problem. Does this interpretation of the law weaken the concept of third party liability and not provide a strong enough incentive for an institution to be extra-vigilant of internal wrongdoing? Though the answer to this question remains open for discussion, it is certainly an interesting idea to keep in mind when reading Brody’s opinion.

That being said, Penn State did not come off scot free from Brody’s final decision, which included denying university’s motion to dismiss the claim of civil conspiracy, handing this charge off to future litigation. More importantly, however, the Jerry Sandusky scandal will forever leave a black mark on the university, which alone should incentivize the administration to make the necessary precautions, regardless of its culpability in this case, to ensure that nothing so heinous ever again befalls any person who sets foot on university grounds.


[1] John Doe 6 v. The Pennsylvania State University, The Second Mile, and Gerald Sandusky, 13-0336, 1, 7
[2] Ibid.
[3] Ibid.


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