Pennsylvania Civil Remedies for Sexual Misconduct and the Lack of Civil Pursuit
Published by Philadelphia Lawyer Magazine, Philadelphia Bar Association
Quarterly Magazine, Spring of 2003

Introduction

Did you know that one in four women in North America were molested in childhood?

Across America there exists a judicial trend that favors victims of domestic and sexual violence. Courts and juries alike, across the country and in Pennsylvania, are awarding substantial civil damages to these victims based in negligence. This analysis will focus largely on Pennsylvania case law. We consider the theory, exception, damage requirements, and legal outcomes under insurance liability claims for sexual misconduct in Pennsylvania.

The Theory

Most General Liability Insurance policies provide coverage for “personal injury” or “bodily injury” arising out of an “occurrence”. The term “occurrence” is defined as “an accident, happening or event . . . (including) repeated exposure to conditions which . . . results in personal injury . . . during the policy period.”

A homeowner’s insurance policy covers emotional distress injuries sustained by a victim sexually or physically abused under the widely overlooked theory, “negligent Infliction of emotional distress.” Under this theory, there is a threshold requirement for each victim to produce substantial evidence of a physical manifestation of the emotional distress. Review of Pennsylvania law makes it clear that a plaintiff must allege physical harm to sustain an action for negligent infliction of emotional distress. The rule can be found in Section 436A of the Restatement (second) of Torts:

The Exceptions

Most General Liability Insurance policies intrinsically exclude coverage for intentional harm and for claims between named insureds under the same policy. The exception for claims for intentional harm is customarily accomplished by definition whereby an “occurrence” is stated to be an accident, happening or event that is “unexpected or unintended” by the insured, or by specific exclusion for intentional acts.

Case law in Pennsylvania supports the exception for intentional harm, including the leading case of Aetna Casualty and Surety Company v. Roe, 650 A.2d 94 (Pa. Super 1994). In Aetna v. Roe, the Court found that there is no negligence, and therefore no coverage, in a child molestation situation because the molester is committing a crime and an intentional tort is presumed, which falls within the exclusion in every homeowner's insurance policy.

The Damage

Current high profile news events like the Catholic Priest sexual abuse scandals and the corresponding personal injury lawsuits have reinforced the well known fact amongst health care professionals: sexual abuse causes severe emotional injury. The multi-million dollar settlements and verdicts highlight the irony that while personal injury attorneys scramble to attract the dearth of lower back injuries, there has been a wealth of the often overlooked and ignored emotional injury claims stemming from sexual misconduct.

The emotional injury cause of action, negligent or intentional infliction of emotional distress is a personal injury cause of action widely neglected by the legal community although it has been gaining gradual increased recognition. Rachel Zoll of the Associated Press reported that at least 300 civil lawsuits alleging clerical sexual abuse have been filed in 16 states since January of 2002, when the case of a pedophilic priest in Boston spurred claims against Roman Catholic dioceses across the United States.

While the Catholic Priest child molestation scandal demonstrates the paradigm of an emotional injury lawsuit – a relatively obvious injury with a clear theory of liability against a wealthy defendant – there exists a plethora of less obvious lawsuits with severe emotional injury and an insurable defendant.
Sexual misconduct has devastating consequences that result in severe damage to the victims and the intimate, emotional relationships that they develop throughout their lives. Sadly, the victim often does not seek desperately needed therapy and treatment because of financial hardship and the lack of health insurance resulting in an untreated serious health condition and years of suffering. Fortunately, although it has not been widely explored, the law has a window of opportunity to compensate the victim for the pain, suffering, and humiliation caused by such misconduct.

Pennsylvania Law

In fact-specific circumstances, the law in Pennsylvania permits victims of sexual misconduct to obtain significant monetary compensation from the homeowner's insurance policy of the guardian of the plaintiff. Unfortunately, an abuse victim cannot recover insurance benefits from a lawsuit directly against the molester because all homeowner's insurance liability policies contain an exclusion for intentional and criminal acts.
Moreover, a lawsuit directly against the molester is financially unfeasible due to the unlikelihood of financial recovery and the lack of available insurance. However, when sexual misconduct occurs in the custody of a guardian who is responsible for the safe keeping of the child, and the guardian knows or should know of the potential for abuse by the molester for whatever reason, then the victim can often recover insurance benefits up to the limits of the guardian's homeowner's insurance liability policy under the "negligent infliction of emotional distress" theory. General Accident Insurance Company of America v. Allen, et al, 708 A.2d 828 (Pa. Super 1998).

In many cases, the damaging effect of sexual abuse is so crippling to a child that the reports of a capable mental health provider along with a family physician should meet the physical manifestation of the injury as set forth in Section 436A of the Restatement (second) of Torts. Logically, if a mental health care professional opines that a victim needs therapy as a result of a sexual assault or other domestic abuse, then the "compensable damage" requirement has been met with the bills for the medical treatment, counseling, and/or psychotherapy.
Although the Commonwealth of Pennsylvania is primitive regarding protecting its victims from sexual misconduct, (whereas New Jersey is amongst the most victim-friendly), other Pennsylvania cases have been issued which have wide reaching implications.

In Aetna v. Barthelemy, 33 F.3d 189 (3rd Cir. 1994), the third Circuit predicted that Pennsylvania Courts would obligate a college student's parents' home owners' insurance policy to defend him against a negligence claim filed against him by another student as a result of sexual relations with her while both were intoxicated and in his dormitory.

In Aetna v. Barthelemy, a male Penn State University student, Michael Barthelemy, promised a virgin female student, Ms. McSparran, that he would give her a compact disc if she drank several shots of rum. He told her that rum was no more intoxicating than beer and served her several shots until she became intoxicated and got sick. The two students then had sexual intercourse.

In McSparran’s Complaint, she alleged battery, negligent or reckless conduct and negligent or reckless infliction of emotional distress. In his Answer, Barthelemy alleged that the sex was consensual. McSparran did not allege that Barthelemy used force of violence, except for the battery count implications. Moreover, McSparran asserted in each count that Barthelemy did not "expect or intend that his conduct would cause the specific injuries that were suffered by the Plaintiff as a result of his conduct." The Court determined that the inferred intent rule to harm under an insurance policy did not apply, which the Court previously held applicable to an “exceptional case of sexual child abuse by an insured adult,” Wiley v. State Farm Fire & Cas. Co., 995 F.3d 457 (3d Cir. 1993).

In finding against the insurance company, the Court stressed that there was no allegation that a crime was committed. “Just a tort, not a crime.” The Court distinguished Wiley v. State Farm, where the insurance company escaped coverage in the child molestation case based upon the "transferred intent" doctrine.

The implications of Aetna v. Barthelemy are extensive because the number of ways that male carelessness results in non-consensual sexual relations is immeasurable. In addition to Pennsylvania Court’s willingness to entertain sexual conduct as “negligent infliction of emotional distress, the Courts also seem to be willing to expand the circumstances under which an abuse victim is owed a duty. In Kramer v. Allen, 669 A.2d 360 (Pa.Super 1995), the Court dismissed a negligence claim against the wife of a grandfather who molested his own grandchildren while babysitting for them. The claim was dismissed merely because the Court held that the wife, who was unrelated to the children, did not have a special relationship to the children and therefore did not owe a special duty to the children, but the Court discussed this principal at length. First, the Court cited Section 315 of the Restatement (second) of Torts:

Kramer, 669 A.2d at 362. Because the wife was unrelated, the Court only considered her duty as a property owner. However, this case legally implicates any relative who has a special relationship with the child for negligent supervision, so long as it can be established that the custodial parent knows or should have known of the risk of harm.

The opinions of the dissenting and concurring judges also provide encouragement to those pursuing claims under the negligent infliction of emotional distress theory. The concurring opinion would remand the matter for a new trial on the issue of the step-grandmother’s duty to warn, noting the contempt that society has for a bystander who does not help an imperiled stranger at little risk to his or her self. The concurring opinion anticipates that sooner or later, extreme cases of morally outrageous and indefensible conduct will change the old law, and this case's fact pattern is an example. The Court states in its concurring opinion:

Kramer at 367. The dissent provides even more encouragement for future claims such as these, and would impose a duty of care against a property owner based upon the attractive nuisance theory. The dissent reasoned that since the law imposes an obligation on a landlord in relation to children irrespective of the trespasser-licensee-invitee classification in relation to dangerous artificial conditions of the land, so it should also extend to known dangers of third persons with vicious propensities. Pamela L. v. Farmer, 112 Cal. App. 3d 206, 169 Cal. Rptr. 282 (1980). The dissent concluded:

In addition to the words of empathy in the concurring and dissenting opinions in Kramer, the Pennsylvania legislature gave victims advocates something to cheer about last summer. Section 5533(b) of Title 42 of the Pennsylvania Consolidated Statutes were amended to provide a statute of limitations of 12 years from the date a sexual abuse victim reaches his or her age of majority (18). SB 212 P.N. 2153 (2002). The new SOL is effective 60 days from the date of signing which was June 28, 2002

The Conclusion

The civil law in Pennsylvania with respect to sexual misconduct claims is evolving. The line of authority outlined here demonstrates that there are civil remedies for sexual misconduct victims under negligence theories that are widely overlooked. Society continues to become more aware of the unpleasant reality of domestic and sexual misconduct and the Courts seem to be moving in the right direction.

However, based upon the paucity of authority related to negligent infliction of emotional distress, the law is primitive in relation to the prevalence of domestic and sexual misconduct in our society and the severe damage that the abuse victims suffer.

Personal injury attorneys can participate in the fight against domestic abuse by remembering the emotional injury causes of action: negligent infliction of emotional distress in the relation to the availability of homeowners' insurance. In recognizing and bringing infliction of emotional distress claims, personal injury attorneys will assist and protect the most vulnerable members of society —children and victims of domestic and sexual misconduct.

G. Lawrence DeMarco