Joe Paterno, Penn State, and Negligent Retention

On November 9, 2011, Penn State University fired its long-time football coach Joe Paterno and university president Graham Spanier.  The University’s Board of Trustees made the decision to terminate Paterno and Spanier based on allegations that Paterno and other top school officials were told that a graduate assistant saw assistant coach Jerry Sandusky assault a boy in a school shower in 2002, but did not report the matter to police.  To the extent the allegations are true, the failure of Paterno and other Penn State officials to report the incident to police or take corrective action could arguably expose the University to a negligent retention claim.

Under Minnesota law, liability for negligent retention is “predicated on the negligence of an employer in placing a person with known propensities, or propensities which should have been discovered by reasonable investigation, in an employment position in which, because of the circumstances of the employment, it should have been foreseeable that the hired individual posed a threat of injury to others.”  See Bruchas v. Preventive Care, Inc., 553 N.W.2d 440 (Minn. Ct. App. 1996).  This theory of recovery imposes liability on an employer for an employee’s intentional torts if the employer knew or should have known that an employee was violent or aggressive and might engage in injurious conduct.  The threat of injury or actual injury caused by the employee must be physical in nature for negligent retention to apply.

Takeaway for Employers:  It is important for employers to take seriously any incident in which an employee threatens to cause injury or actually causes injury to another person.  What corrective action is necessary, if any, will depend on the particular circumstances of the case.