Client Advisory

Matthew P. Moccia, Felicia D. Brodock

In a recent unpublished opinion from the New Jersey Appellate Division, the Court reiterated that particularized foreseeability is required to hold a defendant liable when an agent or third party injures a plaintiff. In C.L. v. Big Brothers Big Sisters of America, C.L. alleged that in 1979, he was sexually assaulted by Barry Rhudy, his mentor and “big brother” from Big Brothers and Big Sisters of Somerset County (“BBBSSC”), an affiliate of Big Brothers Big Sisters of America (“BBBSA”)

In 2021, C.L. sued BBBSC and BBBSA for negligence, recklessness, willful and wonton acts/omissions, and negligent supervision, hiring, and retention. At the time the complaint was filed, BBBSC was a dissolved entity and Plaintiff could not effectuate service upon it. Thus, the case was litigated exclusively against BBBSA.

BBBSA moved for summary judgment, which the trial court granted, holding that, “[t]here is no evidence that BBBSA had knowledge of any propensities of… Rhudy that made the sexual abuse of [C.L.] particularly foreseeable.” The trial court additionally noted that BBBSA was not involved in the hiring, training, or supervision of Rhudy, nor was there any evidence that BBBSA had any contact with Rhudy. The trial court also denied C.L.’s request for punitive damages against BBBSA.

On appeal, C.L. argued that the trial court erred in granting summary judgment to BBBSA because the organization owed him a duty of care, and it negligently hired, retained, and supervised Rhudy. C.L. also argued that the trial court erred in denying his request for punitive damages.

The Appellate Division first considered whether B America owed a duty of care to C.L. The Court noted that to hold a defendant liable for harm caused by a third party, it must have been in a position to know or have reason to know the conduct of the third party was likely to cause injury to plaintiff; in other words, the danger must have been foreseeable. Notably, the Court highlighted that when Rhudy joined BBBSSC, he had no criminal record, and there was nothing in his background that should have raised concerns. The Court reiterated that under New Jersey precedent, the risk must be particularly, rather than generally, foreseeable, and found that while BBBSA could inspect and offer training and guidance to its affiliates, including BBBSSC, it had no direct contact with any of the volunteers, nor did it supervise or participate in the screening of the volunteers. The Court also noted that the document that governed the relationship between BBBSSC and BBBSA established that the affiliates, were responsible for the supervision of the mentor-mentee relationship. Additionally, while BBBSA set minimum standards, its affiliates set their own programs and policies.

C.L. also argued BBBSA should have known Rhudy was likely to harm him because in 1977, two years before the alleged abuse, it initiated a study about child sexual abuse allegations in its organization. However, the Court noted that the study, “largely involved fact gathering as it pertained to a nascent issue… [and] could not undermine the already existing contractual nature of the relationship between BBBSA and its affiliates.” Concluding there was no evidence to suggest BBBSA knew or should have known Rudy was a danger to C.L., the Appellate Division agreed with the trial court that BBBSA did not owe a duty of care to C.L.

The Court next considered whether BBBSA could be held liable for the negligent training and supervision of Rhudy. The Court held that because BBBSA had no role in training or supervising Rhudy, nor did it even know Rhudy was a volunteer in the organization, it could not have known or had reason to know the failure to train/supervise Rudy would create a risk of harm to C.L.

C.L. also contended BBBSA could be held liable under a theory of vicarious liability. Vicarious liability permits an employer to be held liable for an employee’s actions if the employee acted within the apparent authority of the employer. The Court relied on precedent establishing that, “to hold [a] defendant vicariously liable for [an agent’s] heinous criminal conduct, plaintiff was required to demonstrate that defendant provided [the agent] with more than ‘merely the opportunity’ to commit the crime.” The Court reasoned that assuming Rhudy was an agent of BBBSA, he was only granted authority to provide mentorship to C.L. which was insufficient to establish that BBBSA provided Rhudy with more than “merely the opportunity” to commit the crime.

Lastly, the Appellate Division affirmed the trial court’s order denying C.L.’s request for punitive damages, holding that punitive damages require plaintiff to establish more than mere negligence or gross negligence, which was not found here.

While the decision was not selected for publication and is not binding, the reasoning and holdings may be relied upon by defendants in future litigation.