Professional Liability

Key Points:

• Language of the Pennsylvania local government immunity statute does not appear to evidence an intent to open up schools and other government entities to liability for sex crimes committed by one private individual against another private individual, or student-on-student sexual violence.
• In L.F.V. et al. v. South Phila. High School et al., trial court held that the exception encompasses all sexual abuse and inaction by institutions. 
• L.F.V. is currently on appeal to the Commonwealth Court.

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In 2019, the Pennsylvania State Legislature amended its list of exceptions to local governmental immunity to include conduct that would constitute a criminal sexual offense referenced by the statute. The statute qualifies the exception by stating that the injuries to the victim must be caused by the acts or omissions of the local government entity and that those acts or omissions must constitute negligence. The first hypothetical that comes to mind is a public school teacher who has a sexual relationship with an underage student. Under the amendment, the school district would be liable for the student’s injuries if school officials knew or should have known of the teacher’s propensities and failed to act. 

What is arguably not found in the legislative history of the amendment or in the language of the statute is an intent to open up schools and other government entities to liability for sex crimes committed by one private individual against another private individual, or student-on-student sexual violence. In fact, the statute states: “[t]he following acts by a local agency or any of its employees may result in the imposition of liability on a local agency: … Conduct which constitutes an offense enumerated under section 5551(7)… if the injuries to the plaintiff were caused by actions or omissions of the local agency which constitute negligence.” The plain language of the statute appears to allow for liability against an agency for the intentional and criminal conduct of an employee when the victim can causally relate the injuries to the negligence of the agency. The act by “a local agency or any of its employees” at issue in the exception is the sexual abuse and the “if the injuries to the plaintiff were caused by actions or omissions of the local agency which constitute negligence” is a qualifier.

Exceptions to governmental immunity are to be interpreted narrowly. Unfortunately for school districts in the Commonwealth, that is not the approach trial courts have taken when applying the ninth exception to local government immunity to instances of student-on-student sexual violence. L.F.V. et al. v. South Phila. High School et al. is currently pending on appeal before the Commonwealth Court. The plaintiff, who is mentally disabled, alleges that she was sexually assaulted at age 16 by two male students during her gym class. The school filed preliminary objections, arguing that the immunity exception did not apply because the alleged criminal conduct was not committed by one of its employees. The trial court overruled the objection, citing a Middle District opinion where none of the parties raised the ninth exception, as it had just recently passed. The federal court raised the issue on its own and delved into legislative intent without finding that the statute was ambiguous. The trial court also cited two other state trial court rulings that reached the same conclusion, essentially finding that the statute was intended to address all sexual abuse and inaction by institutions.

Judges are people too. It is understandable that they would be hesitant to deny a victim of childhood sexual abuse any avenues of recovery. The trial court’s opinion in L.F.V. was authored by one of the most well-regarded judges in the City. It made the front page of the leading legal newspaper in Philadelphia due to the potential long-standing implications of permitting liability against schools for acts of student-on-student sexual violence. It remains to be seen whether the trial court will be affirmed.

An undiscussed component of this issue is the fact that the education of minors is compulsory. School districts choose, vet, train, supervise, and evaluate their employees. Schools put teachers in positions of authority over minors, who are compelled attend. So, it makes sense that schools expose themselves to liability if they ignore red flags concerning their personnel. Instances of turning a blind eye and instances of institutional cover-ups to employees’ abuse of minors or young adults were specifically referenced by the legislature. 

If a teacher is discovered to have groped a student or sends them explicit text messages, they will likely be immediately suspended without pay and terminated. Less egregious conduct can still result in progressive discipline and eventual termination. However, a student who engages in the same conduct will be back at school, possibly after a brief suspension. A single incident involving a teacher is an offense that will result in termination, while any significant restriction on the student’s right to a public education—such as isolating them from their peers or assigning them a one-on-one aid—would likely be considered to be improper following a single incident. The school, with its limited resources, must continue to provide an education to the student despite the uncapped liability exposure provided by the statute and the potential threat the student poses to the student body. That is the impractical and underappreciated consequence of a broad interpretation of the ninth exception to local government immunity. It will be interesting to see if any educational organizations seek to interject themselves into the L.F.V. appellate case given the potential implications of the ruling. 

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_{Defense Digest, Vol. 29, No. 3, September 2023, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2023 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}