Professional Liability

Key Points:

• The Political Subdivision and Torts Claim Act still provides immunity to school districts in cases where a student adjudicated of sexual assault continues harassment of a student in the school setting because no additional duty is imposed. 
• The ninth sexual abuse exception to the PSTCA is only intended to apply to the criminal statutes referenced. 
• The PSTCA still provides immunity to school districts for incidents that occur outside of the school setting that are not caused by negligence by the school. 

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Since the addition of the ninth immunity exception for sexual abuse to the Pennsylvania’s Political Subdivision and Tort Claims Act (PSTCA) in 2019, we are beginning to see courts decide when the exception applies. Recently, in Doe by Nied v. Riverside Sch. Dist., 2023 WL 8549035 (M.D. Pa. Dec. 11, 2023), the District Court for the Middle District of Pennsylvania decided that the ninth exception did not apply to conduct that did not occur on school property and found no duty was imposed on a school district after the sexual assault occurred. 

In Riverside School District, the court granted the school district, its superintendent, and its principals’ motion to dismiss with respect to state law tort claims for negligence, negligence per se, intentional infliction of emotional distress, and negligent infliction of emotional distress. 

The plaintiff brought these claims against the school district, alleging they fell within the ninth exception because the injuries suffered were caused by the actions or omissions of the defendants. 

Jane Doe alleged she was sexually assault by another Riverside student while off campus. After the assault, the Riverside student was adjudicated a delinquent of Felony 2 Sexual Assault pursuant to 18 Pa. C.S. § 3124.1. 

While the case was pending against Doe’s assailant, her mother was in direct communication with the school district regarding the proceedings and also made sure the school was aware of the student-assailant’s adjudication. Doe’s mother voiced concerns regarding the contact between Doe and the student-assailant, but the school district informed Doe’s mother that nothing could be done to protect Doe from the other student. 

After the adjudication, assailant continued to attend the same lunch period as Doe, and he attended the same semi-formal dance where he was alleged to have harassed, embarrassed, and threatened Doe. The harassment continued after the dance, with the Doe’s assailant verbally harassing her in school hallways and mockingly shouting at her. Doe’s mother informed the school of the harassment and met with officials.

However, the meeting did not yield any action from the school because Doe’s mother was told there was nothing the school district could do. As a result of the harassment, Doe alleged she suffered from various psychological and physical damages.

The defendants filed a motion to dismiss that raised immunity under the PSTCA. The plaintiffs responded by raising the ninth sexual abuse exception. Under the sexual abuse exception, immunity is waived for conduct that is an offense listed under a referenced criminal statute and the injuries to a plaintiff are caused by the actions or omissions of the local agency which constitute negligence. 42 Pa. C.S. § 8542(b). In this case, Doe’s assailant was found guilty of an applicable criminal statute. 

The court began its analysis by determining whether the ninth sexual abuse exception imposed a duty on the school to prevent the harassment from Doe’s assailant. The court reviewed case law holding that the sexual abuse exception applies where the sexual abuse occurred on school property and the negligent action of the school or its employees were the proximate cause of the plaintiff’s injuries. Riverside Sch. Dist., 2023 WL 8549035, at *9. The court also reviewed case law supporting the position that the sexual abuse exception does not apply in cases where the agency’s duties arose after the abuse. Id.

The court held that the sexual abuse waiver did not apply to the facts of this case because the sexual assault occurred outside the school setting and no duty was imposed on the school district to prevent further contact between the students. The court noted that if the drafters of the PSTCA wanted the exception to apply more broadly than the referenced criminal statutes, they did not say so. Id. The court also found that the individual defendants were entitled to immunity because they did not commit any willful misconduct towards Doe.

In conclusion, this ruling seems to reign in the applicability of the ninth exception by not imposing a duty on a school district for actions that occurred outside of the school setting. While case law is still being developed on the application of this exception, it is important for Pennsylvania school districts to remain vigilant in ensuring its students are equipped to understand sexual assault and what to do if it is occurring to them. Further, school districts should remain vigilant and take all allegations of sexual assault seriously. 

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_{Defense Digest, Vol. 30, No. 1, March 2024, 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. © 2024 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.}