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Pennsylvania Court Jumps into the Cyberbullying Arena

Scott HeadshotJulie Headshot On December 11, 2018, the Eastern District of Pennsylvania weighed in on whether insurance carriers are obligated to defend insureds allegedly responsible for cyberbullying. While those acts appear on their face to be intentional acts, the court felt otherwise and ordered an insurer to defend a high school student accused of cyberbullying a classmate that resulted in her committing suicide.

The case, State Farm Fire and Casualty Company v Stephanie Motta, et al., arose out of a liability litigation filed by the parents of Julia Morath, for negligence, wrongful death, and survival action against a classmate and his parents following their daughter’s death by suicide. The parents claimed that the classmate’s negligence in harassing, bullying, and/or cyberbullying Julia caused her to commit suicide. Specifically, the classmate sent text messages to Julia that ridiculed Julia’s physical appearance, physical and mental health, and family in the days preceding her suicide. The classmate and his mother sought defense and indemnification from State Farm, their homeowner’s insurer. State Farm responded by filing a declaratory judgment action in which it argued that the classmate’s actions in sending the text messages to Julia were not accidental and, therefore, not an “occurrence” under the policy.

Ultimately, the Court concluded that State Farm owed a duty to defend the classmate, ruling that the underlying Complaint successfully alleged an “occurrence” that was covered by the policy. In support of this conclusion, the court reasoned that Pennsylvania considers “the foreseeability of the resulting injury, even in cases in which bodily injury is indisputably caused by an intentional act.” Stated differently, while the classmate intentionally sent the text messages to Julia, her suicide was fortuitous from the perspective of the classmate because he did not inflict the actual bodily harm with the intention of causing her death.

Cyberbullying is not new, but is an unfortunate problem that continues to rise.  Back in 2011, one federal appellate court provided the following statistics to illustrate the prevalence of cyberbullying at that time:

In a 2010 study, 20.8 percent of students ages 10 to 18 years old stated that they had been “cyberbullied” in their lifetime, and 7.5 percent stated that they were “cyberbullied” within the previous 30 days, where “cyberbullying” was defined as “when someone repeatedly harasses, mistreats, or makes fun of another person online or while using cell phones or other electronic devices.”

J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 650 F.3d 915, 947 (3d Cir. 2011) (internal citations omitted). These figures have only increased since 2011.

Given the rise of cyberbullying litigation and the shifting law regarding same, the critical question becomes how can carriers (and their counsel) defend insureds against such claims. As these claims have only recently begun proceeding through the courts, there is no “tried and true” defenses to same. Nonetheless, the following are avenues that should be explored:

  1. No Duty— Most (but certainly not all) cyberbullying cases involve two types of defendant: (1) a student or young person (and their parents) that engages in the bullying and (2) a school district or county (and its employees) for failure to protect the alleged victim. Generally, as with the classmate above, the first hurdle concerns what, if any, duty is owed to the victim. This may depend on the electronic medium actually used and where the messages are sent from or received. Whether courts treat Text-to-text messages differently from more general social media postings or postings to groups that do not include the victim remains to be seen.
  2. Governmental Immunity— Even in situations where schools or local governments may face tough arguments as to the duty requirement to the victim, these entities are often protected from liability under governmental immunity statutes. The Pennsylvania Political Subdivision Tort Claims Act, 42 Pa. Cons.Stat. §§ 8541–42, is one such statute.
  3. Heightened Standard for Liability— State law greatly varies on the level of culpability necessary to hold a school (and its employees) liable for a student’s bullying activities. Some jurisdictions require only that the school is negligent in supervising the activities of its students.[1] However, other jurisdictions require that the employee engage in “willful and wanton misconduct.”[2]
  4. Free Speech Under the First Amendment— This one of the most common defenses where the alleged cyberbully posts onto a social media site, as opposed to directly sending a message to a victim. However, the First Amendment’s protection of speech and expression does not extend to threats of physical violence. Perez v. Fla., 137 S. Ct. 853, 854, reh’g denied, 137 S. Ct. 2111 (U.S. 2017).
  5. Spoliation of Evidence– Since these cases will be won or lost based on the electronic communications, quickly identifying and preserving that evidence will be key. This is not limited to the offending messages. The social footprint of both the victim and the defendant will provide valuable insight into their lives that is necessary for appropriately assess the potential liability and exposure.
  6. Expert Selection will be Critical – The role of appropriately qualified psychiatrics, psychologists or other mental health experts is arguably as important as the social media footprints.

[1] See, e.g., Smith v. Poughkeepsie City Sch. Dist., 41 A.D.3d 579, 580–81 (N.Y. App. Div. 2007) (negligent supervision claim based on district’s alleged knowledge of student’s history of bullying); see also Ward v. Barnes, 545 F. Supp. 2d 400, 416 (D.N.J. 2008) (teacher not immune for negligent supervision when he allegedly directed or witnessed assault of student by fellow students).

[2] See, e.g., 745 Ill. Comp. Stat. 10/3-108(b) (2017) (no liability for failure to supervise unless public entity or employee has a duty to provide supervision under common law or statute and is guilty of willful and wanton conduct).


[1] See, e.g., Smith v. Poughkeepsie City Sch. Dist., 41 A.D.3d 579, 580–81 (N.Y. App. Div. 2007) (negligent supervision claim based on district’s alleged knowledge of student’s history of bullying); see also Ward v. Barnes, 545 F. Supp. 2d 400, 416 (D.N.J. 2008) (teacher not immune for negligent supervision when he allegedly directed or witnessed assault of student by fellow students).

[1] See, e.g., 745 Ill. Comp. Stat. 10/3-108(b) (2017) (no liability for failure to supervise unless public entity or employee has a duty to provide supervision under common law or statute and is guilty of willful and wanton conduct).

C. Scott Rybny
Partner

Julie Buonocore
Associate