Client Advisory

Matthew P. Moccia, Christina M. Conkling

In the consolidated matters of Hornor v. Upper Freehold Regional Board of Education and Simpkins v. South Orange-Maplewood School District, the New Jersey Supreme Court interpreted the 2019 amendments to the Child Victims Act, specifically N.J.S.A. 59:2-13(a)(1), to limit school districts’ immunity for the sexual abuse of students by school employees. Under certain circumstances, and upon application of a new test outlined by the Court, school districts can now be held liable for their employees’ sexual abuse of students even when it is found to be outside the scope of employment.

The Child Victims Act or CVA expanded the rights of child sexual abuse under the Tort Claims Act, the Charitable Immunity Act, and Child Sexual Abuse Act. The CVA abrogated immunities provided to public entities provided by the Tort Claims Act that barred claims for sexual abuse caused by the willful, wanton or grossly negligent acts of employees.

In Hornor, the plaintiff alleged he was sexually abused by his teacher and extracurricular advisor in 1979 when he was fifteen years old in the teacher’s apartment. In Simpkins, three students between the ages of fourteen and seventeen alleged they were assaulted by their teacher in her classroom during school and at other locations on and off school grounds.

In both cases, the Appellate Division found that the CVA does not allow for vicarious liability against school districts under the alleged circumstances and dismissed the cases at the pleading stage. The Supreme Court disagreed, concluding that the New Jersey Legislature eliminated the immunities that previously protected public entities such as school districts, for their employees’ sexual misconduct and that such claims are not categorically barred even when the alleged misconduct is beyond the scope of employment of the school districts’ employees.

The Court adopted a new standard for vicarious liability of public schools in actions for damages under the CVA. To hold a school district vicariously liable for an employee’s sexual abuse or misconduct against a student caused by a willful, wanton or grossly negligent act, it must be determined that (1) the school gave the employee authority to control the student’s educational environment; (2) the sexual abuse or misconduct was a result of the employee’s exercise of authority; and (3) the employee’s sexual abuse or misconduct reasonably appeared to be tacitly approved by the school. The Court further acknowledged that factors such as policies, training, preventative measures, enforcement, the circumstances under which the alleged abuse occurred, the location and timing of the alleged abuse, and reporting of said abuse, are to be considered in determining vicarious liability. The Court then provided examples of a school’s “tacit approval” including abuse or misconduct occurring in a classroom over a few days or weeks indicating school officials should have reasonably been aware of the abuse, or a failure to investigate a report of abuse.

Justice Fasciale dissented from the majority opinion on two major points. First, Justice Fasciale argued that N.J.S.A. 59:2-1.3(a) does not make school districts liable for the sexual misconduct or abuse of its employees that is outside the scope of their employment. He interpreted the amendments to remove certain immunities previously granted by the TCA, such as immunity for intentional conduct of employees, but asserted that the amendments do not abrogate the limitation on liability for acts outside the scope of employment.

Justice Fasciale further disagreed with the majority’s “tacit approval” requirement stating that it conflates direct and vicarious liability causes of action. He asserted that the majority’s standard bases a public entity’s vicarious liability on the acts and omissions of the public entity itself rather than the acts and omissions of its employees. Justice Fasciale expressed that the majority’s approach ran the risk of uneven application and the possibility of public entities avoiding accountability by claiming lack of knowledge. He provided an alternative standard to determine whether an employee’s acts fall within the scope of their employment. He suggested that if the employee had an in loco parentis relationship with the victim that was granted by the public entity, and the tortious act was committed during the exercise of said authority in performing duties assigned by the public entity under the control of the public entity, then the act was within the scope of employment and a school district could be held vicariously liable.

The Court also noted that it would consider policies, training, supervision, and enforcement by school districts in its new standards. School districts should consult with CVA knowledgeable defense counsel on how their policies and protocols would be interpreted under this new vicarious liability standard and what, if anything, should be done to  draft or amend policies, training, and enforcement, to ensure alignment with the new standard. However, school districts may have to wait until the “tacit approval” standard is further developed for further clarity on potential exposure to vicariously liability for the sexual abuse and misconduct of its employees even when the conduct is outside the scope of employment.