Wednesday, June 27, 2012

Penn State case: Reporting & preventing child abuse

The events at Penn State University have certainly raised a new awareness as to the legal and moral obligations we have regarding the reporting of child abuse. Teams may wonder what laws and procedures come into play when an adult suspects or witnesses sexual abuse of a child or any other crime that takes place in or around a ballpark.

Because of many well-publicised cases over the last several years, we've learned that sexual abuse of minors occurs much more often than many of us were aware and often is not discovered until many years later.

This article reviews the obligations for reporting child abuse and the consequences that teams could face if they are not familiar with those obligations. More important, it offers steps you can take to prevent such dangers. We also will look at the possibility of the team's liability arising out of negligence toward a child who is involved in a ballpark activity such as a kids play zone.

Obligations for reporting

Generally, the law does not require a witness to report a crime. However, consider two important factors. First, there may be a fine line between witnessing a crime and becoming an accomplice by allowing a crime to take place. Second, in child abuse situations, State laws place a much greater burden to report a crime or suspicion of a crime on certain individuals who have professional or trust relationships with the victims.

On a day-to-day basis, employees of a ball team will normally not have such a professional duty because the team employees do not have a professional or trust relationship with the child. Persons typically required by State law to report child abuse (and abuse of developmentally disabled persons) include medical personnel, counsellors, day care workers, camp and school personnel, persons who work with developmentally disabled individuals, home care workers and others who deal with and have care and custody of kids or disabled individuals. Most States include a direct reporting requirement. In other words, an adult in any of these professions who witnesses or suspects abuse or neglect must directly report to the agency that employs him or her, or to law enforcement.

Statutes on reporting of crimes vary from State to State. As we saw in the Penn State case, confusion and possible wrongdoing regarding one's obligations can easily occur. Under the Pennsylvania Child Protective Services Law, the person in charge in a school has the legal obligation to make a report; lower-level employees are permitted, but not required, to make reports.

The Pennsylvania law and similar State laws might well prove subject to more than one interpretation, given civil lawsuits and the many turns the criminal cases seem to have taken. The reporting obligation may be fulfilled on some levels by making a superior aware of the incident, but eventually the crime must be reported to law enforcement authorities.

Another issue is the level of knowledge about the abuse. For instance in Ohio, the reporting requirement applies when, in an official or professional capacity, the person 'knows, or has reasonable cause to suspect based on facts that would cause a reasonable person in a similar position to suspect' that the child 'has suffered or faces the threat of suffering any physical or mental wound, injury, disability, or condition of a nature that reasonably indicates abuse or neglect'. This is a fairly low threshold, a reflection of the policy to err on the side of protecting the child.

The law imposes a penalty if the adult fails to report as required. The penalty for a criminal misdemeanor, using Ohio as an example, would be a jail sentence not to exceed six months and/or a fine not to exceed $1,000.

As long as the reporting person acts in good faith, the law will provide immunity from civil and criminal liability. This immunity will apply to any person making a report-whether mandatory or discretionary. The idea is to eliminate the fear that the reporting person may be sued for making the report. Making a false report, of course, would be an exception to the immunity.

In any case, it would be advisable to have a personnel policy, conforming with State law, about reporting not only child abuse but other criminal and anti-social behaviour on the premises. The team's security procedures should also be consistent with the policy and obligations under State law.

Duty of care

Here is an important question to consider, and you may want to discuss it with your liability insurance carrier. What duty of care does the team owe to a child within the ballpark?

Take, for example, a kids play zone. Does the team owe a duty of care to watch for and prohibit suspicious behaviour by an adult who appears near the children in the play zone area? Suppose the adult is taking inappropriate photos or attempting to approach a child. Does the team have a duty of care to the child to stop this activity?

The local State law of negligence would govern the team's liability. Typical State law would find that the team was negligent if it owed a duty of care to the child and its failure to fulfil that duty led to the child being injured. Whether that duty exists depends on the relationship between the parties. In Ohio, for example, because of the special relationship between a business and its customer, especially a customer who is a child, a business may be liable for harm caused to the child by a third person.

Although a business does not ensure the safety of its customers, it has a duty to protect a customer from the criminal act of a third person if it knew or should have known of a danger. The duty exists only if the incident that harms the customer was foreseeable, and whether an incident was foreseeable depends on the totality of the circumstances. Those circumstances would have to be overwhelmingly clear. Circumstances that would put the business on notice of potential dangers might include other recent crimes on the property or a history of high crime in the area.

In the end, the question of whether the team has a duty of care and has met that standard would likely be a question of law for a judge to decide. The question would greatly depend on the facts in the case. A negligence case in the situations above may carry a high burden of proof, but fact-oriented cases nevertheless often survive pre-trial summary judgment motions and go to trial.

Take responsibility

Operationally, there are a few things that you may want to keep in mind:

  • First and foremost, of course, the safety of the children is paramount. We would recommend a consultation with a security official or police unit to review any holes in your safety measures. A professional sees things that you and I don't.
  • If an incident develops, make a written report and file it with the police quickly. You never know how important that information may become.
  • Make sure each child is accompanied by a parent or guardian or other responsible adult at all times. If not, the child should not be permitted in the play zone or to participate in any other activity.
  • Consider assigning a responsible adult employee, and better yet a uniformed security or police officer, to watch for hazardous activity in areas that may give adult strangers some access to children. An 18-year-old intern may not be your best choice in these situations. The employee or officer should have the authority to take defensive action if need be.
  • Check with your insurance carrier and make sure the team has adequate coverage. If the insurance carrier has a liability audit program, you may want to take advantage of it.

Hopefully no incidents will occur and your team will never have to face the question of whether it properly handled a dangerous situation involving a child.

Minor child waiver

A point we have raised a number of times in presentations at Baseball Winter Meetings and in articles is the importance of using minor child waiver forms before children participate in any team-supervised activity. This is not very practical for a play zone situation, but it should always apply for field stunts and certainly for group overnights at the ballpark. You can probably think of many more such circumstances.

The minor child waiver forms should include language that verifies the parent or guardian's own responsibility for the child while participating in the activity. If the parent or guardian is not personally with the child, he or she should sign an acknowledgement that names the adult who is responsible for the child. A team employee should have the job of making sure that each child has submitted a signed form. If not, no admittance. This practice protects the team from any number of potential liability situations.

The goal is to protect children from abuse, sexual and otherwise. This article is intended to give an overview and to make you aware of issues that you can discuss with a lawyer, including details about your specific legal obligations.

L. James Juliano, Jr., Attorney
Nicola, Gudbranson & Cooper, LLC, Cleveland Ohio
juliano@legallyspeakingonline.com

Benjamin J. Cooper, an associate at Nicola, Gudbranson & Cooper LLC, assisted with this article, which was originally published on www.legallyspeakingonline.com.


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