January 2012
On November 30, 2011, the first civil lawsuit (of many) was filed against Penn State for its role in the Sandusky sex abuse scandal. See John Doe A v. The Second Mile, Gerald Sandusky, and The Pennsylvania State University, Court of Common Pleas, Philadelphia County, Pennsylvania, Case No. 111102968.
See copy of complaint here: http://www.scribd.com/doc/74283327/Sandusky-Civil-Complaint.
Regardless of how that lawsuit turns out, it raises an interesting question of liability: Can a business be held liable because one of its patrons or employees sexually abuses a minor child on its premises?
The answer in Oregon appears to be “depends”—as in, it depends on whether the defendant was on reasonable notice that sex abuse would occur. This is the implication of a recent court of appeals case, Stewart v. Kids Inc., 245 Or App 267, 261 P3d 1272 (2011), decided just months before the Sandusky scandal broke.
In Stewart, a nonprofit called Kids Inc. sponsored a car wash fundraiser at a local Dairy Queen restaurant. The car wash was open to the public and was staffed by teenagers. Sadly, a patron abducted one of the teenage girls working the car wash and sexually assaulted her in the men’s restroom. Thereafter, the teenager’s guardian ad litem brought negligence and premises liability claims against Kids Inc. and Dairy Queen, alleging that those entities knew or should have known that sexual predators would use the car wash as an opportunity to commit sex crimes during the event.
On these facts, the Oregon Court of Appeals held that plaintiff failed to state a viable action against either defendant. Generally speaking, a business can be held liable for the criminal acts of third parties, provided those criminal acts were reasonably foreseeable. In Stewart, however, the plaintiff failed to allege any credible theory as to why Kids Inc. or Dairy Queen should have known that sexual assault would occur. Plaintiff argued that, in this day and age, the risk of sexual assault is ever present and always foreseeable. The court disagreed. Liability attaches only if defendants were on reasonable notice of possible sexual assault. And, in Stewart, the plaintiff could not point to any specific facts that would have put Kids Inc. or Dairy Queen on such notice. Accordingly, plaintiff’s claims were dismissed.
If a Sandusky-type incident occurred here in Oregon, Stewart would be an important case. Focus would be on what the defendant knew about the perpetrator and whether his criminal acts were reasonably foreseeable. However, if the defendant had no reason to suspect that such abuse would occur, then Stewart provides complete defense. Tort liability cannot attach merely because a criminal uses defendant’s premises as a place to commit sex crimes.
Of course, in the Sandusky civil suit, the John Doe plaintiff alleged that Penn State was on notice of Sandusky’s proclivities and did nothing to prevent the harm. If that happened in Oregon, the recent Stewart decision would be no help to Penn State. As usual, common sense prevails. If you know something, report it. Stewart can be read to stand for that proposition as well.
Thanks to Sam Smith for writing this article.
