J.P., v. LAWRENCE TOWNSHIP BOARD OF EDUCATION

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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0180-20

J.P., a minor, by his mother, S.A.,
as Guardian Ad Litem for J.P.,
and S.A., individually,

Plaintiffs-Appellants,

LAWRENCE TOWNSHIP BOARD
OF EDUCATION, DR. PHILIP
MEARA, Superintendent Lawrence
Township Public Schools, DR.
CRYSTAL LOVELL,
Superintendent Lawrence Township
Public Schools, DAVID ADAM,
Principal of the Lawrence
Township Intermediate School,
DR. LAURA WATERS,
Assistant Superintendent of the
Lawrence Township Public Schools,
MADELYN MCGUIRE, a Child
Study Team Member at the
Lawrence Township Intermediate
School, "JOHN" MIELCAREK, a
General Education Teacher of the
Lawrence Township Intermediate
School, SUSAN DOUGLAS, a
Teacher at the Lawrence Township
Intermediate School, DONNA M.
LEWIS, a Child Study Team
Member at the Lawrence Township
Intermediate School, ELIZABETH
MAYO, a Child Study Team
Member at the Lawrence Township
Intermediate School, ELLICE
WARNER, a Child Study Team
Member at the Lawrence Township
Intermediate School, HARRIET
HIRSCHFELD, Manager of After
School Programs of the Lawrence
Township School District, WENDY
DONAHUE, Personnel Specialist
Operations Manager of the
Lawrence Township School
District,

Defendants-Respondents,

and

PRINCETON FAMILY YMCA,
their teachers, members, employees,
agents, servants and/or volunteers,
MATT BOYD, individually and as
Youth & Family Assistant, for
Princeton Family YMCA, KEITH
WALSH, individually and as Sr.
Program Director for Princeton
Family YMCA, KATE BECH,
individually and as Chief Executive
Officer for Princeton Family
YMCA, and JOSEPH MILLER,
individually and as a teacher,
member, employee, agent, servant
and/or volunteer of the Lawrence
Township Public Schools and/or
Princeton Family YMCA,

A-0180-20
2
Defendants.

Submitted January 25, 2022 – Decided March 18, 2022

Before Judges Currier, DeAlmeida, and Smith.

On appeal from the Superior Court of New Jersey, Law
Division, Mercer County, Docket No. L-0273-15.

Gregory G. Gianforcaro and Daniel B. Shapiro,
attorneys for appellants.

Anderson & Shah, LLC, attorneys for respondents
(Jessica M. Anderson, on the brief).

PER CURIAM

Plaintiffs appeal from the trial court orders granting the school

defendants1 partial summary judgment and subsequently dismissing the

remaining counts on a motion for reconsideration, and the order denying

plaintiffs' motion for reconsideration. After reviewing the record in light of the

contentions advanced on appeal and the applicable principles of law, we affirm.

S.A. is the mother of J.P., who is autistic. At the time of these events, J.P.

was attending Lawrenceville Intermediate School (LIS) and placed in a self-

1
We refer to respondents Lawrence Township Board of Education and its
employees as the school defendants or BOE.
A-0180-20
3
contained multiple-disabilities classroom pursuant to his individualized

education program. Defendant Joseph Miller was one of the aides in J.P.'s fifth-

grade classroom during the 2009-2010 academic year. He had been employed

by the Lawrence Township Board of Education since 2006. Miller also worked

at defendant Princeton Family YMCA in its after-care program. He was hired

by the YMCA in 2010.

At the conclusion of the 2010-2011 academic year, S.A. contacted the

child study team and requested that J.P. and his brother 2 be placed in a full-day

extended school year services program (ESY) during the summer. In response,

the child study team offered a half-day program. When S.A. renewed her request

for the full-time program because of her work schedule, a child study team

member told her that "Miller was going to be the lead teacher in the extended

school year program" and he "would be willing to watch [her] boys." According

to S.A., a teacher at the school told her that Miller was a "sweetheart."

S.A. enrolled J.P. in the ESY program, where Miller was the lead teacher.

Because of the child study team member's recommendation, S.A. stated she also

hired Miller to babysit her sons in the afternoon after the half-day ESY program

finished. Miller brought the boys in his car to either their house or his own

2
S.A.'s younger son is also autistic.
A-0180-20
4
house after the program and stayed with them for the remainder of the afternoon

until S.A. returned home. S.A. continued this arrangement with Miller, where

he would take the boys after school, until October 2011.

In November 2011, after reading a news article about a sexual abuse

scandal, S.A. asked J.P. and his brother if they had "ever showered with an

adult," to which J.P. responded, "Yes, with Mr. Miller." She then asked J.P. if

Miller was naked in the shower with him, to which J.P. responded, "Yes." J.P.'s

brother confirmed he had seen J.P. and Miller showering together. J.P. was

eleven years old at the time of these events.

S.A. and defendant Ellice Warner, J.P.'s behavioral specialist, contacted

the Lawrence Township Police. J.P. told the police he had been sexually abused

by Miller during the summer and fall of 2011. During his deposition, J.P.

testified that the abuse included showering with Miller, performing oral sex on

him, mutual masturbation, and Miller had digitally penetrated J.P.'s anus. J.P.

said the abuse took place at his house and at Miller's house; none of the abuse

A-0180-20
5
took place at the school. Miller was subsequently arrested and charged with

several counts of sexual assault and endangering the welfare of a child. 3

S.A. testified during her deposition that she did not know if the school

defendants were aware that Miller was a pedophile or had sexual propensities

toward minor children.

II.

In their fifth amended complaint, plaintiffs alleged the following claims

against the school defendants: negligent hiring, supervision, training, and

retention of Miller (the negligent hiring claim); negligence proximately caused

by an act or omission of a public employee within the scope of their

employment; breach of fiduciary duty; and S.A.'s claim for per quod damages.4

In a March 7, 2019 order, the court granted the school defendants partial

summary judgment, dismissing all counts of the complaint except the negligent

hiring claim. Later that month, the school defendants moved for reconsideration

of the denial of summary judgment on plaintiffs' negligent hiring claim. On

3
According to the fifth amended complaint, Miller pleaded guilty to two counts
of second-degree endangering the welfare of a child. He was sentenced to parole
supervision for four years, and his teaching license was revoked.
4
The complaint contained additional claims against the school defendants.
Because plaintiffs did not oppose the dismissal of those claims at the time of the
summary judgment motion, we need not address them.
A-0180-20
6 October 18, 2019, the court granted reconsideration to the school defendants,

dismissing the remaining count of the complaint.

Thereafter, plaintiffs moved for reconsideration of the dismissal of the

negligent hiring claim. On June 10, 2020, the court denied the motion. 5

III.

Because the appeal concerns the school defendants' hiring of Miller, we

detail those facts derived from the record.

Miller initially applied for a position with the school defendants'

afterschool program, submitting a cover letter, resume, and list of references.

Harriet Hirschfeld, manager of the afterschool program, interviewed Miller in

2006. In reviewing his resume, she noted he was a college graduate. She stated

during her deposition that it "was important that he had a college degree, and

that based on the experience that I saw that he would be a good monitor." She

admitted she did not actually "check to see if [Miller] was a college graduate

because ultimately it wasn't really a criteria for the position."

5 In August 2020, plaintiffs settled their claims with the YMCA and its
employees. Plaintiffs also voluntarily dismissed their claim against Miller.
A-0180-20
7
Hirschfeld did not request or review Miller's college transcript prior to

making her recommendation to the BOE. During discovery, the production of

Miller's college transcript revealed that his name was formerly Joseph Prunetti.

Hirschfeld also did not question Miller about the eight-year gap in his

resume between his college graduation date and his first job. She testified that

even in hindsight she probably would not have asked him about it because she

"didn't think it was significant."

Hirschfeld testified that she did not contact any of Miller's prior

employers. The resume listed Nature's Classroom, a day camp, as Miller's third

most recent employer—he worked there from 2002 to 2004. During discovery,

the parties learned Nature's Classroom had terminated Miller in March 2004 for

making inappropriate comments and sending an inappropriate email to a minor

student.

Hirschfeld did contact three of the four references Miller listed. She

explained that "[t]ypically . . . I use the references and as long as the three

references clear my job is just to say that on paper he looks like he's a good

employee and then . . . I turn it over so that he can get clearance, crime

clearance." She further stated that she only interviews an applicant and makes

a recommendation: "I can only say he looks good on paper and then refer it to

A-0180-20
8
the [BOE], and they meet and then they review the documents and decide . . .

after doing the crime clearances, [whether to] approve him or not, it's up to the

[BOE], not me really."

In accordance with her procedure, Hirschfeld referred Miller's

employment application for a criminal background check. He was fingerprinted

and processed through the New Jersey State Police and the Federal Bureau of

Investigation. In November 2006, the Director of the Criminal History Review

Unit of the State of New Jersey Department of Education confirmed that Miller

cleared a criminal background check and was "approved for public school

employment in accordance with [the applicable statutes]." The BOE hired

Miller in December 2006 and approved him for various staff position s within

the school district through 2011, including substitute teacher and classroom aide

for special education students.

During discovery, other employees of the BOE were questioned regarding

their hiring practices. Wendy Donahue, the then-Lawrence Township School

District personnel manager, testified that she also interviewed Miller. In

discussing the background check, she explained it was the BOE's "policy" to

"call the most recent employer and anyone who was presently supervising him

A-0180-20
9
at that time and we were to call three references . . . ." She was not aware

whether anyone had contacted Miller's most recent employer or supervisor.

Miller received excellent evaluations throughout his employment with the

BOE. Tonja Brown, Miller's supervisor, evaluated him for his position as a

classroom aide on April 27, 2011. She gave Miller a rating of "Excellent" in all

categories, and, in her comments said:

Mr[.] Miller is kind, caring and has a special gift that
he shares with his students[.] He enhances their self-
esteem and teaches them to believe that they can do
anything[.] This is all above the academic credentials
that he brings. In addition, Mr. Miller works very well
with the classroom teacher[.] He is to be commended
for his contribution to the classroom, students and
school wide community[.]

Miller was also well-liked and respected by his co-workers. Susan

Douglas, a sixth-grade teacher who worked with Miller for three years, told

investigating police she was "shocked" to learn about the allegations of sexual

abuse. She could not "believe it," and said "this could not be the person I have

known for three years." According to Douglas, no one had ever complained

about the way Miller taught or attended to the children in her class, and she had

"never" observed or had it brought to her attention that Miller may have touched

or done anything inappropriate with a student.

A-0180-20
10
Similarly, when police questioned Warner about Miller, she said: "He is a

nice guy. He does a good job in [the sixth grade] class. I would have never

thought that something like this could have occurred." Hirschfeld also testified

there were no prior issues with Miller.

Before learning of the sexual assault, S.A. too thought very highly of

Miller. In the fall of 2011, she wrote an article for Autism New Jersey, entitled

"Everyday Autism," wherein she praised Miller, calling him "a fantastic teacher"

for her two boys. She wrote, "[t]he boys are so comfortable with [Miller]

because of his no-nonsense and warm-hearted demeanor. Their eyes light up

when he is around." "To me, he is the definition of a skilled and compassionate

professional."

IV.

On appeal, plaintiffs contend the trial court erred in dismissing their

negligent hiring claim on summary judgment and in denying their subsequent

motion for reconsideration.

We "review the trial court's grant of summary judgment de novo under the

same standard as the trial court." Templo Fuente De Vida Corp. v. Nat'l Union

Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016). Summary judgment should

be granted when, considering the competent evidence presented, viewed in the

A-0180-20
11
light most favorable to the non-moving party, there is "no genuine issue as to

any material fact challenged" and "the moving party is entitled to a judgment or

order as a matter of law." R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am.,

142 N.J. 520, 529 (1995).

Plaintiffs contend the school defendants breached the duty of care owed

to J.P. as established in Frugis v. Bracigliano, 177 N.J. 250 (2003). They assert

the school defendants breached their duty of care by failing to properly vet and

hire Miller, who posed a danger to the students in their care. Plaintiffs argue

the school defendants had an obligation to do more than just rely on a criminal

background check. They further contend the school defendants violated their

own policies, which supports their breach of duty and a finding of liability for

their negligence.

In a negligent hiring claim, "before recovery may be had, a duty must exist

in law and a failure in that duty must be proved as a fact." Johnson v. Usdin

Louis Co., 248 N.J. Super. 525, 529 (App. Div. 1991) (internal quotations

omitted) (quoting Mergel v. Colgate-Palmolive-Peet Co., 41 N.J. Super. 372,

379 (App. Div. 1956)). "[W]hether a duty exists is a matter of law properly

decided by the court, not the jury, and is largely a question of fairness or policy."

A-0180-20
12
Wang v. Allstate Ins. Co., 125 N.J. 2, 15 (1991); Jerkins v. Anderson, 191 N.J.
285, 294 (2007) (noting that "[w]hether a duty of care exists is a question of law

that must be decided by the court"); Johnson, 248 N.J. Super. at 529 (recognizing

the same).

"Whether a person owes a duty of reasonable care toward another"

depends upon whether imposing "such a duty satisfies an abiding sense of basic

fairness" considering all of the circumstances and public policy. Hopkins v. Fox

& Lazo Realtors, 132 N.J. 426, 439 (1993) (citing Goldberg v. Hous. Auth., 38 N.J. 578, 583 (1962)).

In determining whether a duty exists, courts must weigh
and balance several factors, including the foreseeability
and severity of the risk of harm, the opportunity and
ability to exercise care to prevent the harm, the
comparative interests and relationships between or
among the parties and, ultimately, fairness and public
policy.

[Riley v. Keenan, 406 N.J. Super. 281, 291 (App. Div.
2009) (citing J.S. v. R.T.H., 155 N.J. 330, 337 (1998)).
See also Dunphy v. Gregor, 136 N.J. 99, 108 (1994)
("Ultimately, whether a duty exists is a matter of
fairness.").]

It is well-established that school officials owe a duty to exercise

reasonable care to schoolchildren and their parents to protect the children and

A-0180-20
13
prevent endangerment or exploitation of them. Frugis, 177 N.J. at 268. As the

Court stated in Frugis,

The law imposes a duty on children to attend school and
on parents to relinquish their supervisory role over their
children to teachers and administrators during school
hours. While their children are educated during the
day, parents transfer to school officials the power to act
as the guardians of those young wards.

[Ibid. (emphasis added).]

Plaintiffs contend Frugis extends the duty owed by a school beyond the

classroom and that school personnel must exercise reasonable care when

interviewing, vetting, and making decisions on the hiring of prospective

employees. Plaintiffs' reliance on Frugis for this proposition is misplaced.

In Frugis, the Court considered the duty of care in the context of negligent

supervision. It established the duty of care for schoolteachers and administrators

supervising children entrusted to their care during school hours. Id. at 258.

Here, plaintiffs have not alleged that the school defendants negligently

supervised J.P. when the abuse occurred, and it is undisputed that the school

defendants were not actually supervising J.P. when the sexual abuse occurred,

since the abuse occurred outside the school. See Jerkins, 191 N.J. at 306 (stating

that "schools are [not] guarantors of students' safety with respect to all activities

during or after dismissal. A school district's responsibility has temporal and

A-0180-20
14
physical limits, and its obligation to act reasonably does not diminish the

responsibilities that parents or guardians have to their children."). Instead, as

alleged by plaintiffs in their complaint, this is a negligent hiring case. Therefore,

as the trial court found, Frugis is not the controlling case.

The duty of care and the required elements to prove a negligent hiring

claim were established by the Court in Di Cosala v. Kay, 91 N.J. 159, 170-71

(1982) (holding "[a]n employer whose employees are brought into contact with

members of the public in the course of their employment is responsible for

exercising a duty of reasonable care in the selection or retention of its

employees.").

"[T]he tort of negligent hiring has as its constituent elements two

fundamental requirements." Id. at 173. "The first involves the knowledge of

the employer and foreseeability of harm to third persons." Ibid. Regardless of

whether the employee was acting within the scope of employment, "[a]n

employer will only be held responsible for the torts of its employees . . . where

it knew or had reason to know of the particular unfitness, incompetence or

dangerous attributes of the employee and could reasonably have foreseen that

such qualities created a risk of harm to other persons." Ibid.

A-0180-20
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"The second required showing is that, through the negligence of the

employer in hiring the employee, the latter's incompetence, unfitness or

dangerous characteristics proximately caused the injury." Id. at 174. "To be

found liable for negligent supervision or training, the plaintiff must satisfy what

is essentially the same standard, but framed in terms of supervision or training."

G.A.-H. v. K.G.G., 238 N.J. 401, 416 (2019).

"[T]he duty owed by [a] negligent employer [is not] limited to situations

within the scope of the employment of [its] employees." Di Cosala, 91 N.J. at
174. Rather, "the duty owed is properly to be determined by whether the risk of

harm from the dangerous employee to . . . the plaintiff was reasonably

foreseeable as a result of the employment." Ibid. "Thus, the issue of duty owed

to a plaintiff is a question of foreseeability." Id. at 175.

Our Supreme Court "has recognized a critical distinction between

foreseeability necessary to create a legal duty and foreseeability necessary to

establish proximate cause." Ibid. See Hill v. Yaskin, 75 N.J. 139, 177 (1977).

With respect to the former, the Court has stated that:

damages for an injury resulting from a negligent act of
the defendant may be recovered if a reasonably prudent
and careful person should have anticipated, under the
same or similar circumstances, that injury to the
plaintiff or to those in a like situation would probably
result. The most common test of negligence, therefore,

A-0180-20
16
is whether the consequences of the alleged wrongful act
were reasonably to be foreseen as injurious to others
coming within the range of such acts.

[Di Cosala, 91 N.J. at 175 (emphasis omitted) (quoting
Hill, 75 N.J. at 144).]

We turn then to a consideration of the Di Cosala elements, beginning with

knowledge of the employer and foreseeability of the harm to third persons.

Plaintiffs do not argue the school defendants had actual knowledge that Miller

had propensities that might harm children under his care. Instead, they assert

the school defendants breached the reasonable care standard established in

Frugis by failing to properly vet Miller. If they had contacted Miller's prior

employers, specifically Nature's Classroom, the school defendants would have

learned of his "pedophilia."

In finding plaintiffs had not demonstrated a prima facie claim of negligent

hiring, the trial court stated:

[T]he [Di Cosala] analysis begins with an examination
of the employer's hiring and whether it/they had reason
to know of the employee's unfitness or dangerous
attributes.

On this motion record, no such claim can be
sustained. Plaintiffs' attempt to paint a picture of
Miller's hiring as problematic because of the BOE['s]
. . . failure to dive deeper into his credentials; to contact
every one of his prior employers; investigate gaps in his
employment; and the reason behind his apparent name

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17
change does not alter the fact the hiring of Miller,
and/or the failure to dive into his prior credentials,
although arguably flawed, doesn't establish [a] legal
duty for them to have done this. Moreover, on these
facts, plaintiffs cannot meet the first part of the test
needed to establish a claim of negligent hiring;
demonstrating that defendants knew, or had reason to
know, of Miller's particular dangerous propensity to
commit sexual assault. It is clear that school [b]oards
and entities that care for children have an enhanced
duty to ensure that those they employ are not only
qualified, but safe to be around our children. However,
nothing in this record was known to the BOE . . . that
serve[s] to establish that [it] knew or had reason to
know that Miller would endanger children.

The evidence supports the trial court's conclusions. Not only did plaintiffs

not demonstrate the school defendants knew or had reason to know Miller might

harm children, but the evidence pointed to the contrary result. All of the reviews

and comments from Miller's superiors and colleagues were glowing. In the five

years he worked at the school, there was not one complaint or reported incident

of any issues with the children.

Plaintiffs also contend the school defendants were negligent in failing to

contact Miller's prior employers. However, at the time of Miller's hiring in 2006,

there was no legal duty for the school defendants to pursue those contacts. 6 Even

6
Title 18A was amended in June 2018 to require school districts hiring for
positions "involv[ing] regular contact with students" contact applicants' former

A-0180-20
18
if the school defendants had contacted Miller's prior employers, they might not

have included Nature's Classroom as it was listed as Miller's third most recent

employer.

Plaintiffs also failed to establish that the school defendants had a legal

duty to go beyond the criminal background check in the hiring process. They

did not present this court or the trial court with any authority supporting their

argument. See State v. Hild, 148 N.J. Super. 294, 296 (App. Div. 1977) (stating

"parties to an appeal are required to justify their positions [with] specific

reference to legal authority"); Miller v. Reis, 189 N.J. Super. 437, 441 (App.

Div. 1983) (issue not briefed beyond conclusory statement need not be

addressed).

In considering plaintiffs' assertion that the school defendants may be held

liable because they violated their internal policies, specifically policies #4230,

"Outside Activities," and #3281, "Inappropriate Staff Conduct," we find this

argument unpersuasive. Policy #4230 did not prohibit S.A. from hiring Miller

as a private babysitter for her children nor did it prohibit Miller from accepting

employers that were "schools" or "involved direct contact with children."
N.J.S.A. 18A:6-7.7.

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19
the employment. It is less clear whether #3281 prevented Miller from driving

J.P. in his private vehicle, under the circumstances present here, where S.A.

hired Miller to care for her children, gave him permission to drive J.P. home ,

and Miller's immediate supervisor approved the arrangement. 7

Nevertheless, even if the school defendants violated policies #4230 and/or

#3281, plaintiffs did not establish that the school defendants breached any duty

owed to them. As the trial court reasoned, the BOE's internal policies do not

establish the applicable standard of care in the present case. See Labega v. Joshi,

__ N.J. Super. __, __ (App. Div. 2022) (slip op. at 26); Cast Art Indus., LLC v.

KPMG LLP, 416 N.J. Super. 76, 106 (App. Div. 2010). Rather, as explained

above, the applicable standard of care owed to plaintiffs is set forth in Di Cosala.

Therefore, any violation of the policies would not have established a prima facie

claim of negligent hiring because plaintiffs could not show that the school

defendants knew or had reason to know of Miller's dangerous attributes, nor

would the alleged violations have allowed the school defendants to reasonably

foresee that Miller would sexually abuse J.P. See Di Cosala, 91 N.J. at 173.

7
Policy #3281 appears to apply only to teaching staff, not support staff. The
record does not reflect whether this policy was applicable to Miller.
A-0180-20
20
Because plaintiffs cannot show the school defendants knew or had reason

to know of Miller's dangerous attributes, they cannot demonstrate defendants

could have reasonably foreseen that hiring Miller created a risk of harm to other

people. In short, plaintiffs have not established the school defendants breached

any duty owed to them. We, therefore, need not reach the issue of proximate

cause.

Plaintiffs raise a new argument on appeal, asserting S.A. can proceed with

her own lawsuit to seek recovery based on the loss of J.P.'s past or future services

to her. Because the issue was not raised before the trial court, we decline to

consider it here. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

Affirmed.

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