Sovereign Immunity
The issue of Sovereign governmental immunity is a complex one and far beyond the scope of a single blog post. At its core, sovereign immunity states that the state or agencies of the state cannot be sued for damages to citizens of the state. The state can and has waived its immunity in limited circumstances. There are multiple issues with any case against Penn State or its officials relative to immunity. Penn State is a public University and it will likely be argued that as an instrumentality of the Commonwealth it is completely immune from suit by these victims. It should be noted however that this debate is far from simple and other public universities in Pennsylvania have failed to make similar arguments based on their independent operations apart from the government and lack of a truly public or governmental function.
With regard to the University officials themselves, such as Joe Paterno, Tim Curley, Gary Schultz and Graham Spanier, the issue appears to fit squarely within the rubric of Pennsylvania?s Tort Claims Act. Specifically section 8550 which states in relevant part:
?In any action against a local agency or employee thereof for damages on account of an injury caused by the act of the employee in which it is judicially determined that the act of the employee caused the injury and that such act constituted a crime, actual fraud, actual malice or willful misconduct, the provisions of sections 8545 (relating to official liability generally), 8546 (relating to defense of official immunity), 8548 (relating to indemnity) and 8549 (relating to limitation on damages) shall not apply.?
Obviously, the debate in this provision will be whether or not the silence and inaction of the University officials ?caused the injury,? but I think a cogent argument can certainly be made for that proposition. Certainly, this case will test our collective souls. It will also put on display, as it has already, the interplay between justice and power. While the State of Pennsylvania has the power to create laws to protect itself, its institutions and officials, in a democratic society that power can be easily threatened by a public rightfully demanding justice for those who were truly powerless in this situation.
