Association Liability Under Pennsylvania’s Megan’s Law
A Massachusetts trial court recently refused to dismiss a wrongful death lawsuit brought against a condominium association by the estate of a man who fell victim to the brutal attack of a Level 3 sex offender. The case known as The Estate of Richard Steele et al vs. Kings Way Condominium Trust et al is thus proceeding to trial to determine the extent to which the association had a duty to warn residents that a Level 3 sex offender was living among them. While associations typically do not perform functions of law enforcement, this case could change the way sex offender information is handled.
Dacey Looney, who reportedly suffers from paranoid schizophrenia, was required to register as Level 3 sex offender based on a 1992 attempted rape and stabbing. At the time of the 2012 murder, he was a tenant in a condominium unit owned by his brother. The association initially notified owners and residents of Mr. Looney’s sex offender status in 2005, the year Mr. Looney moved into the complex. However, it later not only discontinued such notifications, it actively hid and prevented information about Mr. Looney’s record from reaching association residents (refusing to send letters and tearing down notices and photos of Mr. Looney) – all in an effort to preclude information about Mr. Looney’s presence from negatively impacting property values. Although Mr. Looney apparently interacted with the victim (who moved into the complex in 2009) for some time prior to the murder, the extent and closeness of their relationship is in dispute. Regardless of what the victim may or may not have known about Mr. Looney’s past, information about Mr. Looney’s Level 3 sex offender status did not come from the association.
In its motion for summary judgment, counsel for the association argued that Kings Way had no duty to warn its residents under the Massachusetts version of Megan’s Law. The motion was denied without formal opinion: “After hearing, a genuine issue of fact exists for the reasons stated in the plaintiff’s opposition.” It thus appears that a duty to warn may indeed have arisen under the circumstances.
The law does not generally impose a duty to prevent criminal actions of third parties. However, once a duty is undertaken voluntarily, it cannot be performed in a negligent or wrongful manner. Perhaps the association’s 2005 active notification of Mr. Looney’s status created an expectation that such disclosure would continue. Did residents expect that regular notices would periodically be sent and thus create a sense of security and the basis for a reliance argument? Does the association’s conduct of actively preventing the information from being posted and disseminated (in an effort to preserve property values) constitute an actionable breach of duty?
As this case proceeds through the courts and appeals follow (trial appears to be scheduled for August of 2019), questions concerning an association’s obligations vis-à-vis Megan’s Law will continue to arise. Although sex offenders are not a protected class, individuals with a mental illness are afforded protection under both state and federal discrimination laws. Caution is thus advised. Pennsylvania’s Megan’s Law, also known as SORNA (Sexual Offender Registration and Notification Act), requires community notification by law enforcement – indeed even before access to the website is granted, the following warning appears:
Welcome to the Pennsylvania State Police Megan’s Law Website
Any person who uses the information contained herein to threaten, intimidate, or harass the registrant or their family, or who otherwise misuses this information, may be subject to criminal prosecution or civil liability.
The Megan’s Law website provides for community notification (by law enforcement) only for certain types of offenders:
Active Community Notification-As applied to offenders registered under SORNA
Active Community Notification can ONLY take place for a sexual offender who has been given one of the following designations:
1. Sexually Violent Predator – An individual convicted of a Tier I sexual offense, a Tier II sexual offense, or a Tier III sexual offense who is determined to be a Sexually Violent Predator by the Court. The term also includes an individual determined to be a Sexually Violent Predator or a similar designation where the determination occurred in another jurisdiction, a foreign country or by court martial following a judicial or administrative determination pursuant to a process similar to that of the Commonwealth’s.
2. Sexually Violent Delinquent Child – A child who has been found to be delinquent for an act of sexual violence which if committed by an adult would be a violation of 18 Pa.C.S. § 3121 (relating to rape), 3123 (relating to involuntary deviate sexual intercourse), 3124.1 (relating to sexual assault), 3125 (relating to aggravated indecent assault), 3126 (relating to indecent assault) or 4302 (relating to incest)and who has been determined by the Court to be in need of commitment for involuntary treatment.
While owners and residents should be reminded to visit the Megan’s Law website in newsletters and on websites, associations ordinarily leave active community notification of offenders to law enforcement. Not only may such notification create a duty where no such duty exists (leading to potential liability for breach of that duty), the penalties for false information may be severe. In one known case, a South Carolina association was ordered to pay $890,000 in damages for posting sexual predator notices about the wrong individual.
What should a board do? There is, unfortunately, no simple answer. We recommend that boards meet with local law enforcement and legal counsel to evaluate whether, and to what extent, certain sex offender information can or should be disseminated. Preferably, this discussion should take place before the issue arises. Such inquiry will not only help clarify the association’s role under Megan’s Law, it will help boards minimize liability and exposure.