CHILD M. v. JASON FENNES

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

CHILD M., a Minor by her

Guardian ad Litem, and R.M.

and Z.P., Individually,

Plaintiffs-Appellants,

v.

JASON FENNES,

Defendant,

and

CEDAR HILL PREP SCHOOL,

Defendant/Third-Party

Plaintiff-Appellant,

and

WILLIAM MASON ELEMENTARY SCHOOL,

MONTVILLE TOWNSHIP PUBLIC SCHOOLS

AND MONTVILLE BOARD OF EDUCATION,1

Defendants/Third-Party

Defendants-Respondents.

__________________________________

August 25, 2016

Argued February 8, 2016 Decided

Before Judges Messano, Simonelli and Carroll.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-6011-12.

John M. Vlasac, Jr. argued the cause for appellant Child M., a Minor by her Guardian ad Litem, and R.M. and Z.P., Individually, (Vlasac & Shmaruk, LLC, attorneys; Mr. Vlasac, on the briefs).

Anthony P. Pasquarelli argued the cause for appellant Cedar Hill Prep School (Sweet Pasquarelli, PC, attorneys; Mr. Pasquarelli, on the briefs).

Stephen J. Edelstein argued the cause for respondent Montville Board of Education (Schwartz Simon Edelstein & Celso, LLC, attorneys; Mr. Edelstein, of counsel and on the brief; Jody T. Walker, on the brief).

PER CURIAM

This matter involves a child who alleges she was sexually abused by her male teacher as a result of the negligence of the teacher's former employer, defendant Montville Township Board of Education (Montville). By leave granted, Child M., her parents,2 and defendant Cedar Hill Prep School (Cedar Hill), appeal from the September 18, 2015 Law Division order, which granted summary judgment to Montville and dismissed all claims against it with prejudice. For the following reasons, we affirm in part and reverse in part.3

The facts of this case are troubling. From September 1, 1998 to June 30, 2010, defendant Jason Fennes was employed by Montville as a tenured first-grade teacher at William Mason Elementary School (William Mason) and as a track coach. Viewed in a light most favorable to plaintiffs and Cedar Hill, the record reveals that as of 2005, Montville knew that Fennes was engaged in inappropriate physical contact with female students. Among other things, Fennes had female students sit on his lap; allowed them to touch his legs, thighs and buttocks; kissed them and allowed them to kiss him; threatened them not to tell anyone; and told them they would get into trouble or he would not like them anymore or hold their hands if they told anyone. Fennes received several warnings from his supervisors that his conduct was inappropriate and must be corrected, but Fennes responded that he was an "affectionate person and [cannot] change" and "was not going to stop cold turkey."

Fennes' inappropriate conduct continued despite his supervisors' warnings and three reports to the New Jersey Department of Children and Families, Division of Youth and Family Services (Division) about his inappropriate conduct made prior to his suspension in March 2010. The first report was on June 20, 2008 by an anonymous caller. Although the Division determined the allegation of child abuse was unfounded and closed the case, the principal of Williams Mason, Stephanie Adams, met with Fennes in September 2008, and warned him that his conduct was "inappropriate and unacceptable" and that "under no conditions was it appropriate" to have physical contact with students.

Fennes did not heed Adams' warning because eight months later, on June 5, 2009, she entered his classroom and saw three female students sitting on his lap. Adams also received a message from a staff member reporting a similar encounter with Fennes, and a letter from a parent reporting that Fennes had inappropriately touched her daughter. On July 14, 2009, Adams contacted the Division. She reported what she saw on June 5, 2009, and what the staff member said, but did not mention the parent's letter. Adams also indicated that "[t]he children didn't disclose any sexual abuse." The Division concluded that no action was required and closed the case.

On July 15, 2009, Adams issued a letter of reprimand to Fennes and advised him she was recommending the withholding of his salary increment for the 2009-2010 school year. On August 20, 2009, Montville notified Fennes that his salary increment for the 2009-2010 school year was being withheld because of his "inappropriate interactions with students in [his] classroom."

The salary increment withholding did not deter Fennes because on March 1, 2010, a parent reported to Montville that she and other parents had observed and were concerned about his inappropriate physical contact with female students. The parent "implored [Montville] to have this situation investigated immediately for the safety of our children." Thereafter, on March 11, 2010, a third report about Fennes was made to the Division by an anonymous parent. The Division concluded the allegations were "unfounded" and closed the case.

On March 12, 2010, Montville suspended Fennes from his teaching position with pay and began an investigation.4 During the investigation, Montville received new reports about Fennes' inappropriate physical contact with female students. For example, a parent reported that Fennes constantly held his daughter's hand, picked her up to hug her, and sent her text messages even after he asked Fennes to stop sending them. Another parent reported that a student saw Fennes holding a female student's hand, patting her on the buttocks, and hugging her. A third parent reported that many parents were very concerned about the welfare of a female student after observing Fennes' inappropriate behavior with her. The parent also warned Montville that "God forbid [Fennes] hurts a child in the future, the entire school system will have charges pressed against them for not taking the appropriate actions in seeing [Fennes] removed from the classroom and as a track coach." A grandparent reported Fennes' inappropriate conduct with her granddaughter and stated, "I beg [Montville] to really look into this thoroughly before something very serious happens."

Montville also received a letter from a teenaged student who was coached by Fennes reporting his inappropriate conduct with "[her] little sister." The student said that her sister went to Fennes' home, where he had a room upstairs that "had all children decorations in it" and "a shelf filled with toys" and the sister "acted like it was her room[.]" Montville also received statements from numerous William Mason staff members about their interactions with Fennes and their observations of his inappropriate physical contact with female students.

Montville never reported this new information to the Division and never filed tenure charges against Fennes. Instead, on May 14, 2010, Montville and Fennes entered into an Agreement and Release, wherein the parties agreed that Fennes would resign, effective June 30, 2010, and never seek employment with Montville "in perpetuity" (the Agreement). Regarding references to future employers, Montville agreed to the following

Upon direct inquiry by any future employers, [Montville] or its agents will provide the dates of [] Fennes['] employment with [Montville], the position he held in the District, including coaching positions, and that his last day of employment . . . was June 30, 2010. No further information will be provided. All calls from prospective employers will be directed to the Superintendent or his/her designee.

[(Emphasis added.)]

The Agreement also provided that "[t]he parties acknowledge that because tenure charges were not filed against [] Fennes, his resignation does not fall within the reporting requirements of N.J.A.C. 6A:9-17.4."5

On May 14, 2010, Fennes resigned, effective June 30, 2010. On August 13, 2010, he applied for employment with Cedar Hill as a first-grade teacher. Nandini Menon, the owner/director of Cedar Hill, interviewed Fennes and later obtained his list of references, which did not include anyone employed by Montville. Menon admitted that she contacted Montville to verify his dates of employment and only asked for and received those dates. Menon also admitted that she never asked Montville for any documentation about Fennes; never asked Montville any questions beyond verifying Fennes' dates of employment; did not recall the name or title of the person to whom she spoke or verified this person had the authority to provide information about Fennes; never questioned the fact that Fennes did not provide references from persons employed by Montville; and never asked Fennes for references from Montville colleagues or supervisors.

Fennes began teaching at Cedar Hill in September 2010. On October 19, 2010, Cedar Hill received information that: Fennes was the subject of many parental complaints while employed with Montville; Fennes had been investigated by the Division; and Fennes resigned in anticipation of being terminated for inappropriate behavior around children. Cedar Hill did not contact Montville about this information and permitted Fennes to continue working there.

In February 2012, Fennes allegedly sexually abused Child M. He was subsequently indicted for sexually abusing and endangering the welfare of Child M. and several female students from Montville,6 and his teaching certificate was suspended.

In August 2012, plaintiffs filed a complaint against Fennes and Cedar Hill. Plaintiffs later added Montville as a defendant, alleging that Montville negligently: (1) failed to report Fennes' conduct to the Division in violation of N.J.S.A. 9:6-8.10;7 (2) entered into an agreement not to disclose Fennes' inappropriate conduct to potential employers; and (3) failed to warn potential employers of Fennes' conduct. Plaintiffs also asserted a claim for intentional infliction of emotional distress on Child M., and Child M.'s parents asserted a per quod claim for loss of their child's services and society.

Montville filed a motion for summary judgment. The court granted the motion and dismissed all claims against Montville with prejudice. The court found that N.J.S.A. 9:6-8.10 did not create a private cause of action and even if it did, Montville reported Fennes to the Division and plaintiffs failed to show a causal link between Montville's failure make to additional reports and Child M.'s purported injury. The court rejected the parties' claim that the Agreement harmed them, and found the undisputed facts demonstrated that Cedar Hill never sought from Montville any information that the Agreement would have barred Montville from disclosing. The court determined that Montville had no affirmative duty to warn Cedar Hill or potential employers about Fennes' conduct; the intentional infliction of emotional distress claim was barred by Torts Claim Act, N.J.S.A. 59:1-1 to 59:12-3;8 and the per quod claim failed as a matter of law.

On appeal, plaintiffs argue that Montville had a duty to Child M. to report the new information it obtained after Fennes' suspension to the Division pursuant to N.J.S.A. 9:6-8.10, and report Fennes to the State Board of Examiners pursuant to N.J.A.C. 6A:9-17.4. Plaintiffs and Cedar Hill argue that Montville had a duty to warn potential employers about Fennes' conduct, and even if no duty existed, Montville made intentional or negligent misrepresentations to Cedar Hill.

"[W]e review the trial court's grant of summary judgment de novo under the same standard as the trial court and accord no deference to the trial judge's legal conclusions." Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, P.A., 224 N.J. 189, 199 (2016) (citation omitted). "That standard mandates that summary judgment be granted 'if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law.'" Ibid. (quoting R. 4:46-2(c)).

If there is no genuine issue of material fact, we must then "decide whether the trial court correctly interpreted the law." DepoLink Court Reporting & Litig. Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013) (citation omitted). We review issues of law de novo and accord no deference to the trial judge's legal conclusions. Nicholas v. Mynster, 213 N.J. 463, 478 (2013).

We first address the threshold issue of whether Montville owed a duty of care to Child M. "To sustain a cause of action for negligence, a plaintiff must establish four elements: '(1) a duty of care, (2) a breach of that duty, (3) proximate cause, and (4) actual damages.'" Townsend v. Pierre, 221 N.J. 36, 51 (2015) (quoting Polzo v. Cty. of Essex, 196 N.J. 569, 584 (2008)). Whether a duty exists is a matter of law, Kernan v. One Washington Park Urban Renewal Assocs., 154 N.J. 437, 445 (1998), that poses "'a question of fairness'" involving "'a weighing of the relationship of the parties, the nature of the risk, and the public interest in the proposed solution[,]'" Kelly v. Gwinnell, 96 N.J. 538, 544 (1984) (quoting Goldberg v. Hous. Auth. of Newark, 38 N.J. 578, 583 (1962)). In reviewing a trial court's determination that a duty does or does not arise in a particular situation, we are not bound by the court's interpretation of the law or the court's view of the legal consequences of the alleged facts. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

The duty analysis is "rather complex[.]" J.S. v. R.T.H., 155 N.J. 330, 337 (1998). "[I]n its determination whether to impose a duty, [a court] must also consider the scope or boundaries of that duty." Id. at 339. Moreover, the court must recognize "the more fundamental question whether plaintiff's interests are entitled to protection against defendant's conduct." Id. at 338 (citation omitted). That assessment must include the relationship between the parties, the defendant's "responsibility for conditions creating the risk of harm[,]" and whether the "defendant had sufficient control, opportunity, and ability to have avoided the risk of harm." Id. at 339 (citations omitted).

With respect to the nature of the risk, the court must consider both the "foreseeability and severity" of the "underlying risk of harm" and "the opportunity and ability to exercise care to prevent the harm." Id. at 337. To that end, "[t]he ability to foresee injury to a potential plaintiff is crucial in determining whether a duty should be imposed." Id. at 338 (citation omitted). The defendant must have actual knowledge or awareness of the risk of injury or constructive knowledge or awareness, which may be imputed when the defendant is "in a position to discover the risk of harm." Ibid. (citation omitted).

The severity of the harm in this case cannot be overstated. Child M. was allegedly sexually abused by a teacher who was known to have engaged in inappropriate physical contact with female students. The clear public policy favoring protection of children from such abuse, and the Legislature's action to effectuate it, was addressed at length in J.S., id. at 343-49, and incorporated here. However, even a severe harm and a clear public policy to prevent child abuse is not a sufficient basis for imposing a duty unless the harm is foreseeable. For instance, in recognizing a duty on the part of a spouse "to take reasonable steps to prevent or warn of the harm" posed by his or her spouse's risk of sexually abusing children, id. at 350, the Court limited the duty to cases in which a heightened standard of foreseeability is met cases where the defendant had "particular knowledge or special reason to know that a particular plaintiff or identifiable class of plaintiffs would suffer a particular type of injury." Id. at 342 (citations omitted).

Measured against J.S.'s standard of particularized foreseeability, the evidence in this case is more than adequate to warrant imposition of a duty on Montville. Montville knew for many years that Fennes engaged in inappropriate physical contact with female students and that his conduct continued despite repeated warnings from his supervisors, reports to the Division, and a salary increment withholding. Montville also knew it had not reported Fennes to the Division or Board of Examiners following his suspension and resignation and that Fennes retained his teaching license and would not receive a negative reference from Montville. Thus, Montville knew or should have known there was nothing to prevent or deter Fennes from obtaining another job teaching female children. Montville, therefore, had "particularized knowledge" or "special reason to know" that an identifiable class of future female students of Fennes would be subjected to his inappropriate contact. At the very least, on this record, a favorable inference available to plaintiffs is that Montville should have known that Fennes would continue his inappropriate conduct with future female students. In any event, based on Montville's actual knowledge, it should have perceived the risk of harm to any female student. For these reasons, we find that Montville had a duty to take active steps to lessen the risk of harm to the female children by reporting Fennes to the Division and the Board of Examiners.

Montville had a duty to report Fennes pursuant to N.J.S.A. 9:6-8.10. Although prior reports were made to the Division, this did not absolve Montville of its duty to report the new information it received following Fennes' suspension. This new information went beyond what Adams had reported to the Division prior to Fennes' suspension and included statements from numerous William Mason staff members, a parent, a grandparent, and a teenaged student, all of which were not unknown to the Division. When Montville became aware of this new information, it was duty-bound to report it to the Division.

Montville also had a duty to notify the Board of Examiners. N.J.A.C. 6A:9-17.4 provides, in pertinent part, that "[t]he chief school administrator shall notify the Board of Examiners when: [t]enured teaching staff members who are accused of criminal offenses or unbecoming conduct resign or retire from their positions[.]" The duty to report does not depend on whether or not tenure charges were filed against the teacher; rather the duty to report is mandatory where a teacher who was "accused" of criminal conduct or unbecoming conduct resigns from his or her teaching position.

Fennes was "accused" of unbecoming conduct. Unbecoming conduct is broadly defined as "any conduct which adversely affects the morale or efficiency of the [public entity] or which has a tendency to destroy public respect for municipal employees and confidence in the operation of municipal services." Karins v. City of Atlantic City, 152 N.J. 532, 554 (1998) (citations omitted). The conduct need not be "predicated upon the violation of any particular rule or regulation, but may be based merely upon the violation of the implicit standard of good behavior which devolves upon one who stands in the public eye[.]" In re Emmons, 63 N.J. Super. 136, 140 (App. Div. 1960). Clearly, Fennes' inappropriate physical contact with female students was unbecoming conduct, and he was disciplined and resigned for this very reason. Accordingly, Montville was duty-bound to report Fennes to the Board of Examiners.

Although Montville's breach of its duties under N.J.S.A. 9:6-8.10 and N.J.A.C. 6A:9-17.4 does not constitute negligence per se or create a private cause of action, it may constitute evidence of negligence under the circumstances presented here. J.S., supra, 155 N.J. at 349. However, the issue of proximate causation "must also be considered in determining whether any liability may be allowed for the breach of such a duty." Id. at 351. To prove causation, a plaintiff must

introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.

[Townsend, supra, 221 N.J. at 60-61 (quoting Davidson v. Slater, 189 N.J. 166, 185 (2007)).]

Ordinarily, the issue of causation is left to the factfinder. Id. at 59. "That rule, however, is not absolute." Id. at 60. "[T]he issue of proximate cause 'may be removed from the factfinder in the highly extraordinary case in which reasonable minds could not differ on whether that issue has been established.'" Id. at 60 (quoting Fleuhr v. City of Cape May, 159 N.J. 532, 543 (1999)). "Thus, in the unusual setting in which no reasonable factfinder could find that the plaintiff has proven causation by a preponderance of the evidence, summary judgment may be granted dismissing the plaintiff's claim." Ibid.

This case is not the highly extraordinary case where no reasonable factfinder could find that plaintiffs have proven causation by a preponderance of the evidence. A reasonable jury could conclude that Montville negligently failed to take steps that would have deterred or prevented Fennes from obtaining employment at another elementary school and negligently shielded him from the disclosure of his deviant conduct with female students. The facts of this case afford a reasonable basis for a jury to conclude that it is more likely than not that Montville's conduct was a cause of Child M.'s injury.

Lastly, we do not find that Montville had a duty to report Fennes' conduct to potential employers, and affirm the grant of summary judgment on that issue. New Jersey courts have not determined whether a school district has an affirmative duty to report a former employee's conduct to prospective employers. However, we have held that an employer may be held liable for the negligent misrepresentation of a former employee's work history if

(1) the inquiring party clearly identifies the nature of the inquiry;

(2) the employer voluntarily decides to respond to the inquiry, and thereafter unreasonably provides false or inaccurate information;

(3) the person providing the inaccurate information is acting within the scope of his/her employment;

(4) the recipient of the incorrect information relies on its accuracy to support an adverse employment action against the plaintiff; and

(5) plaintiff suffers quantifiable damages proximately caused by the negligent misrepresentation.

[Singer v. Beach Trading Co., Inc., 379 N.J. Super. 63, 69 (App. Div. 2005).]

Singer defines negligent misrepresentation as a "false," "inaccurate," "misleading," or "incomplete" statement. Id. at 73-75, 78.

Although plaintiffs did not plead a cause of action for negligent or intentional misrepresentation, we address this issue for the sake of completeness and conclude there was no misrepresentation here. Menon never requested information about Fennes' nature or character. See id. at 75. She only requested, and Montville accurately provided, Fennes' dates of employment. Montville's response was neither false, incomplete, nor inaccurate. Even though Fennes was suspended with pay in March 2010, he was still an employee of Montville until June 30, 2010.

Affirmed in part and reversed in part.

1 Also improperly pled as William Mason Elementary School and Montville Township Public Schools.

2 We shall sometimes refer to Child M. and her parents collectively as plaintiffs.

3 On August 9, 2016, this court received a letter from plaintiffs' attorney attempting to supplement the record. The letter is improper under Rule 2:6-11(d), contains irrelevant information, and has not been considered by the court.

4 On April 16, 2010, Montville rescinded Fennes' appointment as head coach of the boy's track team for the spring season of 2010.

5 Recodified as N.J.A.C. 6A:9B-4.3.

6 The record does not reveal the outcome of the criminal charges.

7 Incorrectly cited in the complaint as N.J.S.A. 9:6-8.14.

8 Plaintiffs do not challenge the dismissal of the intentional infliction of emotional distress claim.