It is a terrible occurrence when sexual assault occurs to a child. Terrible as it is, School Districts routinely argue that schools should not be liable for negligence in failing to protect students from horrific sexual abuse.
In October of 2021, Plaintiff L.F.V. was physically pulled into a bathroom and sexually assaulted by two male students during a physical education class. The supervising District employees allegedly did not witness the incident. Kimberly and Joseph Varano sued the Philadelphia School District on behalf of L.F.V. and in their individual capacity, raising two counts of negligence. Firstly, they allege that the district owed a duty of protection to L.F.V. while at school during class, the breach of which caused various harms. Secondly, they allege that the District negligently inflicted emotional distress on Kimberly and Joseph Varano.
The Political Subdivision Tort Claims Act (Act) potentially opens the District to liability relating to this sexual assault. The District filed preliminary objections arguing that the immunity exception did not apply because a District employee did not commit the sexual assault. The trial court disagreed; relying on various state and federal decisions coupled with legislative history of the Act. The District appealed the objections’ denial, and the Commonwealth Court agreed to review the denial on appeal.
The question on appeal was whether the District is immune under the Act because a third party, rather than the District or its employees, committed the sexual assault.
O’Donnell Law Offices filed an amicus brief on behalf of former Representative and Speaker of the House Mark Rozzi in favor of the Plaintiffs on appeal. Rep. Rozzi was the lead sponsor and advocate for the 2019 amendment to the Act, which established the sexual abuse exception at issue. Rep. Rozzi was adamant that the principle purpose of the Act was to create “absolute parity” in the handling of sexual abuse claims between public and private institutions. Therefore, traditional negligence principles would apply in L.F.V.’s case, under which the court may recognize the District’s liability for its employee’s failure to act during the incident. If the District retained governmental immunity in this instance, there would not be “absolute parity” between public and private institutions.
The Court first looked to whether the plain text of the statute may resolve the parties’ dispute. The District argued that the prefatory clause of the Act, § 8542(b), should be strictly read in conjunction with the sexual abuse clause in § 8542(b)(9). The prefatory clause reads, in part, “The following acts by a local agency...” which, when read together with the sexual abuse section, infers that “conduct” by the District, or employee thereof, is conditional for liability to apply. Plaintiffs interpret the Act to read that any conduct, i.e., including by those not employed by the District, which constitutes sexual abuse may open a local agency to liability, so long as Plaintiffs’ injuries were caused by actions or omissions of the local agency.
The Commonwealth Court applied rules of statutory construction. Thus, the Court looked toward the consequences of any parties’ interpretation, and the legislative history of the Act. The legislature was presumed to have recognized its duty of protecting public fisc from potential monetary harm stemming from large tort recoveries. Nevertheless, the legislature enacted an exception to government, removed damage caps, and extended the statute of limitations.
The Court also looked to the legislative history. In that legislative history, Rep. Rozzi repeatedly signaled that the Act’s intent was to hold municipalities accountable for negligently enabling sexual abuse. Succinctly put, “absolute parity.”
After disregarding the District’s concerns about the consequences of Plaintiffs’ statutory interpretation, and favoring Plaintiffs’ view of the legislative history, the Commonwealth Court affirmed the trial court’s order. The matter is now before the Pennsylvania Supreme Court, and O’Donnell Law Offices will again proudly file an amicus brief on behalf of Representative Mark Rozzi.
What Is an Amicus Brief?
An amicus curiae brief—often called an amicus brief—is a legal filing submitted by an individual or organization that is not a party to a case, but has a strong interest in the outcome. These briefs are intended to assist the court by providing additional context, expertise, or perspective on important legal or policy issues that may affect the broader public.