Significant Amendments to Pennsylvania’s Political Subdivision Tort Claims Act
On November 26, 2019, Governor Tom Wolf signed into law HB 962, an act of the legislature which may have far-reaching impact upon the tort liability exposures of state and local government agencies and the taxpayers of the Commonwealth. Prompted, no doubt, by years of media coverage of reprehensible sexual abuse of young people in institutional settings, including the Penn State/Jerry Sandusky case and the Roman Catholic Church scandal, the legislature set out to increase the criminal liability of sexual predators and to increase the civil remedies available to victims. It is somewhat surprising, however, that the act has intentionally targeted state and local governments for vastly increased civil liability exposure by amending the Political Subdivision Tort Claims Act (PSTCA), a statute originally conceived and long interpreted as the principle means of protecting the public from high insurance costs resulting from ruinous exposure to civil claims. The impact of the new amendments upon local agencies may be summarized below.
New Immunity Exception
An additional exception to governmental immunity has been created, removing immunity as a defense to any claim of personal injury caused by a negligent act of an employee resulting in sexual abuse of the claimant. The new exception is codified at 42 Pa.C.S. § 8542(b)(9), and waives immunity for claims arising from:
Conduct which constitutes an offense [perpetrated against a minor in the nature of sex trafficking, sexual servitude, rape, statutory sexual assault, involuntary deviate sexual intercourse, sexual assault, institutional sexual assault, aggravated indecent assault, or incest] if the injuries to the plaintiff were caused by actions or omissions of the local agency which constitute negligence.
The amended PSTCA contains no further description of the manner in which negligent actions or omissions may be determined to have caused intentional criminal conduct. The supposition is that the exception will be interpreted to allow for liability of public schools and other institutions serving persons under the age of 18 for failing to protect a minor from a sexual predator. Up to this point, governmental liability for such injuries has existed only through federal theories which have required proof of “deliberate indifference” on the part of government officials. The new state standard of mere negligence sets a significantly lower bar.
No Damage Limitations
Section 8553 of the PSTCA provides vital damage defenses for local agencies, even when they have been held liable. These defenses include a damage cap of $500,000, elimination of general damages except when the plaintiff can prove a permanent bodily injury, and suspension of the collateral source rule for special damages recoverable under first-party coverage. New subsection (e) provides that none of the damage limitations shall apply to damage awards under the new exception for sexual abuse. Removal of the damage cap is especially concerning, leading to the prospect of local taxpayers providing unlimited financial indemnity to victims of sexual criminals.
Statutes of Limitations
HB 962 amends other statutes, beyond the PSTCA, that impact governmental liability. Principle among these are the statutes of limitations contained within the Pennsylvania Judicial Code. 42 Pa.C.S. § 5522 mandates that a local agency be provided with written notice of the claimant’s loss within six months after it occurred as a condition precedent to filing a civil action. Made toothless by court rulings over the years, the notice requirement has been scrapped entirely by the legislature for sexual abuse claims.
Further, 42 Pa.C.S. § 5533 has been amended to vastly increase the limitations period for bringing suit on a claim of sexual abuse. The relevant provision at § 5533 (b)(2)(i) now states:
If an individual entitled to bring a civil action arising from sexual abuse is under 18 years of age at the time the cause of action accrues, the individual shall have a period of 37 years after attaining 18 years of age in which to commence an action for damages regardless of whether the individual files a criminal complaint regarding sexual abuse.
To spare you the calculation, the statute of limitations provides no defense for a government entity sued under the sexual abuse exception until the victim has reached the age of 55. The extension of the statutory period of limitations does not revive claims as to which the statute had expired prior to the date of enactment (November 26, 2019). Nor does HR 962 permit a new cause of action to be raised upon claims which have already been formally settled or taken to judgment.
The public policy that guided the formulation of 2019 HB 962 was very different from the one that gave rise to the PSTCA in 1980. Local agencies in Pennsylvania are now exposed to liability under a state-law theory that the conduct of their employees or officials has caused a person under the age of 18 years to become a victim of a sexual crime. The conduct of the perpetrator must be criminal in nature. A local agency still may not be held liable for intentional or reckless conduct of its own personnel. However, a local agency may be held liable for “causing” sexual abuse of a minor if the conduct of its personnel constituted negligent “actions or omissions.” The negligence standard provides very little protection against jury second-guessing, but it remains to be seen how active the Pennsylvania courts will be in requiring some measurable standard with respect to the causation element. The statute of limitations is virtually eliminated as a defense, and one can imagine the burdens on municipalities and school districts attempting to disprove claims of negligence occurring decades in the past—and of insurance carriers indemnifying such claims under occurrence policies—without benefit of contemporary notice. Finally, removal of the damage cap and other important damage defenses under these circumstances creates potential for exposures of indefinite duration and unlimited amount.
 The bracketed material summarizes provisions obtainable only by reference to another statute.
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