Y.G. v. BOARD OF EDUCATION FOR THE TOWNSHIP OF TEANECK

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5146-09T2

Y.G. using fictitious initials

for a minor girl,

Plaintiff-Appellant,

vs.

BOARD OF EDUCATION FOR THE

TOWNSHIP OF TEANECK, JAMES DARDEN,

LENNOX SMALL and CHARLES CLARK,

Defendants-Respondents.

__________________________________

April 19, 2011

Submitted: March 23, 2011 - Decided:

Before Judges Cuff, Sapp-Peterson and Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-2124-08.

D. Gayle Loftis, attorney for appellant.

Schenck, Price, Smith & King, LLP, attorneys for respondent Board of Education for the Township of Teaneck (Roy J. Evans, of counsel; James Eric Andrews, on the brief).

Krovatin Klingeman LLC, attorneys for respondent Lennox Small (Helen A. Nau, on the brief).

Hack, Piro, O'Day, Merklinger, Wallace & McKenna, attorneys for respondent Charles Clark (Robert G. Alencewicz and Jonathan Testa, on the brief).

PER CURIAM

Plaintiff Y.G., filed a complaint seeking damages pursuant to the Child Sexual Abuse Act (CSAA), N.J.S.A. 2A:61B-1, against a former middle school teacher who sexually abused her, another teacher, a school administrator, and the local board of education. She appeals from the orders granting summary judgment in favor of defendants Board of Education for the Township of Teaneck (Board), Lennox Small, and Charles Clark. Because we are not persuaded the CSAA includes public day schools within its ambit, we affirm.

The underlying facts of this appeal are largely undisputed. In 2000, Y.G. was a student at a middle school under the control of the Board. Under the guise of tutoring and detention, defendant James Darden, an English teacher, engaged in an improper sexual relationship with Y.G. She was thirteen years old at the commencement of the relationship. Y.G. alleged approximately 300 acts of sexual intercourse, along with other acts of a sexual nature, until the end of her sophomore year in high school. Y.G. contends Small, another teacher at the school, walked in on them after one such sexual encounter, saw evidence of the encounter on Darden's clothing, and warned Darden "to be careful." Plaintiff alleges Clark, the Dean of Discipline at the school, Small, and the Board allowed this abuse to occur and continue.

Several years after the relationship ended, Y.G. encountered Darden who, upon noticing plaintiff's two-year-old daughter, commented that she "did good." As a result of this encounter, plaintiff began to worry incessantly about the safety of her child. She also experienced headaches and other physical symptoms that she came to realize stemmed from the inappropriate relationship she had with Darden while she was only a teenager. Y.G. contacted the Bergen County Prosecutor's Office and Darden eventually pled guilty to official misconduct and aggravated sexual assault. Darden is currently incarcerated. Plaintiff is in therapy and on medication.

Plaintiff filed a one-count complaint on July 11, 2008, alleging defendants are liable under the CSAA for active and passive sexual abuse. Judge Hansbury entered a default judgment against Darden, but granted summary judgment to the Board, Small, and Clark because he concluded they did not fit the CSAA's definition of "within the household."

On appeal, we are called upon to determine whether the CSAA applies to sexual abuse that takes place at a public day school. We review de novo the interpretation of a statute on a motion for summary judgment. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995); Wells Reit II-80 Park Plaza, LLC v. Dir., Div. of Taxation, 414 N.J. Super. 453, 462 (App. Div. 2010).

The CSAA defines sexual abuse as

an act of sexual contact or sexual penetration between a child under the age of 18 years and an adult. A parent, resource family parent, guardian or other person standing in loco parentis within the household who knowingly permits or acquiesces in sexual abuse by any other person also commits sexual abuse . . . .

[N.J.S.A. 2A:61B-1a(1).]

Thus, the statute imposes liability on both "active" and "passive" sexual abusers. Hardwicke v. Am. Boychoir Sch., 188 N.J. 69, 86 (2006).

In Hardwicke, the Supreme Court held that a private boarding school could be liable as a passive abuser under the CSAA. Id. at 94. There, the plaintiff alleged the Musical Director of the school abused him over the course of two years, and the school itself knew or should have known of the abuse. Id. at 74. The Court noted that in order to hold a passive sexual abuser liable under the statute, a plaintiff must demonstrate the defendant is: "(1) a person (2) standing in loco parentis (3) within the household." Id. at 86. The Court first found the boarding school was a "person" under the statute. Id. at 91. It next determined the school satisfied the role of "in loco parentis" because it

regulated the students' personal hygiene, monitored the cleanliness of their rooms, dictated the amount of money each student could have on campus, required students to write two weekly letters to friends or family, expected students to attend religious services when on campus during the weekend, provided transportation for recreational activities off school grounds, and disciplined students who violated those policies.

[Id. at 91-92.]

Finally, the Court considered whether the boarding school was a "household" under the statute. Id. at 93. The Court stated:

[T]he School provides food, shelter, educational instruction, recreational activities and emotional support to its full-time boarders in other words, housing with the amenities characteristic of both a school and a home.

[Id. at 94.]

The Court thus concluded "the School is a 'person' standing 'in loco parentis' within a 'household.'" Ibid.

In D.M. v. River Dell Regional High School, 373 N.J. Super. 639, 649 (App. Div. 2004), certif. denied, 188 N.J. 356 (2006), we affirmed the grant of summary judgment to a public high school because it was not subject to the CSAA. We held the school "did not stand in a relationship to plaintiffs of 'in loco parentis within the household' [because of] a peculiar requirement of the statute that can be traced back to the case causing its enactment, Jones v. Jones[, 242 N.J. Super. 195 (App. Div.), certif. denied, 122 N.J. 418 (1990)]." Ibid.

In Jones, the plaintiff alleged her father, "with the connivance of her mother," sexually abused her for several years. Jones, supra, 242 N.J. Super. at 197. We reversed the trial court's order granting the defendants summary judgment, and held that this pattern of incestuous sexual abuse could serve to toll the statute of limitations on both insanity and duress grounds. Id. at 205, 209. The Legislature subsequently enacted the CSAA to "codif[y] and amplif[y] the holding in Jones by tailoring the context within which tolling is permitted to the special circumstances of the sexual abuse victim." Hardwicke, supra, 188 N.J. at 86.

Plaintiff contends the motion judge erred when he held that a public day school and its teachers cannot be subject to liability for passive abuse under the CSAA because they are not within the "household." Plaintiff urges us not to adopt a "mechanistic" formulation of the word, and argues there need not be a "residential" component of the term for the CSAA to apply.

We are not persuaded. We are satisfied that the term "within the household" includes some aspect of "residential" custody not present in this case. The Court in Hardwicke was clearly concerned not only with the role of the school as a parental substitute, but also with its role as the provider of amenities normally associated with a home environment for its students who lived there full time. Id. at 94; see also J.H. v. Mercer Cnty. Youth Det. Ctr., 396 N.J. Super. 1, 14-15 (App. Div. 2007) (finding a youth detention center a household for the purposes of the CSAA).

We reject plaintiff's invitation to consider the Hardwicke Court's reliance on Frugis v. Bracigliano, 177 N.J. 250, 268 (2003), as evidence that a public day school falls within the CSAA's definition of a "household." Frugis was a common law negligent supervision case, id. at 257, and the Hardwicke Court relied on it to support the proposition that educators play a unique role in the care of their students, Hardwicke, supra, 188 N.J. at 92. The Court's discussion of Frugis was limited to its analysis of the in loco parentis prong of the CSAA. Ibid.; accord J.H., supra, 396 N.J. Super. at 12-13. It does not demand the conclusion that a public day school can be considered a household for purposes of the CSAA.

We concur with the motion judge that the Board was in loco parentis within the meaning of the CSAA. However, more is required to impose passive abuser liability under the CSAA. As such, we hold that a public day school is not a household for purposes of the CSAA.

Furthermore, although a denial of certification is not of precedential value, we cannot ignore the fact that the Court denied certification in River Dell only six weeks after it filed Hardwicke. If there were any question that the decision in Hardwicke would have changed the result in River Dell, we have no doubt the Court would have at the very least remanded the case for further proceedings consistent with that decision. Compare River Dell, supra, 188 N.J. at 356 (certification denied) with Starzynski v. Seton Hall Univ., 188 N.J. 344 (2006) (summarily remanded to the trial court for further proceedings in light of Hardwicke).

At its core, plaintiff's argument is a policy argument: that the CSAA should apply to boards of education and teachers who may have knowledge of sexual abuse committed against our State's many public school children. See, e.g., N.J.S.A. 9:6-8.10 ("Any person having reasonable cause to believe that a child has been subjected to child abuse or acts of child abuse shall report the same immediately to the Division of Youth and Family Services by telephone or otherwise."). However, we decline to ascribe such an interpretation to the statute in the face of the limiting language it contains. Plaintiff's policy argument is best suited for the Legislature.

We, therefore, affirm the orders granting summary judgment to defendants Small, Clark, and the Board and dismissing the complaint.

A