Russell Forde Hornor v. Upper Freehold Regional Board of Education ( 2024 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0366-22
RUSSELL FORDE HORNOR,
Plaintiff-Respondent,
v.
UPPER FREEHOLD REGIONAL
BOARD OF EDUCATION, d/b/a
UPPER FREEHOLD REGIONAL
SCHOOL DISTRICT, and
ALLENTOWN HIGH SCHOOL,
Defendants-Appellants,
and
NEW JERSEY FUTURE FARMERS
OF AMERICA,
Defendant-Respondent,
and
ALLENTOWN FUTURE FARMERS
OF AMERICA and CHARLES
HUTLER, III,
Defendants.
_______________________________
Argued March 1, 2023 – Decided October 8, 2024
Before Judges Accurso, Vernoia and Natali.
On appeal from an interlocutory order of the Superior
Court of New Jersey, Law Division, Monmouth
County, Docket No. L-3887-21.
Cherylee O. Melcher argued the cause for appellants
(Hill Wallack, LLP, attorneys; Cherylee O. Melcher,
on the briefs).
Gabriel C. Magee argued the cause for respondent
Russell Forde Hornor (Levy Baldante Finney &
Rubenstein, PC, attorneys; Gabriel C. Magee and
Mark R. Cohen, on the brief).
Zachary J. Styczynski argued the cause for respondent
New Jersey Future Farmers of America (Davison,
Eastman, Muñoz, Paone, PA, attorneys; Zachary J.
Styczynski, on the brief).
The opinion of the court was delivered by
ACCURSO, P.J.A.D.
The Upper Freehold Regional Board of Education appeals on our leave
from the trial court's denial of its motion to dismiss those counts of plaintiff
Russell Forde Hornor's complaint asserting claims for breach of fiduciary duty
and vicarious liability arising out of his alleged sexual abuse at age fifteen by
his former teacher Charles Hutler. We reverse. New Jersey does not
recognize a fiduciary duty in teachers, school administrators and boards of
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education to their students, and the 2019 amendments to the Tort Claims Act,
N.J.S.A. 59:1-1 to 12-3, do not make the Board vicariously liable under
N.J.S.A. 59:2-2(a) for the sexual assault Hornor concedes was outside the
scope of Hutler's employment.
In November 2021, Hornor, then fifty-eight-years-old, filed a seven-
count complaint against the Board, New Jersey Future Farmers of America,
Allentown Future Farmers of America, Hutler's estate and both individual and
institutional fictitious defendants alleging Hutler, Hornor's freshman science
teacher in 1978-79, sexually abused him.
Specifically, Hornor claims Hutler, who was also the chapter adviser and
team coach for the Allentown Chapter of New Jersey Future Farmers of
America, in which Hornor was enrolled by virtue of his participation in his
school's agricultural science program, assisted him with daily transportation to
his after-school job at a local nursery, and further gained his trust and
friendship by taking him to Future Farmers of America basketball games and
events. Hutler would also take Hornor, who describes himself as having had
"a troubled and dysfunctional home life," bowling and to the movies with two
of Hornor's friends. Hornor claims that after those outings, Hutler, who died
in 2011, would buy the boys alcohol and drink with them.
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After a Future Farmers of America plant and landscaping competition at
Rutgers in April 1979, in which Hornor had placed fourth, Hutler took Hornor
and his friends out to celebrate, driving them to a liquor store and purchasing
wine for the group. After taking the other boys home, Hutler drove Hornor to
Hutler's apartment on a ruse, where he sexually assaulted him. Hutler
instructed Hornor not to tell anyone about the assault as no one would believe
him. Hornor believes Hutler sexually abused him in other ways or on other
occasions, and abused other boys as well, but is convinced he has emotionally
suppressed additional details or episodes of abuse.
Hornor's complaint, as to the Board, contained counts alleging
negligence, negligent supervision, negligent hiring and retention, gross
negligence, intentional infliction of emotional distress, breach of fiduciary
duty, a sexually hostile environment under the New Jersey Law Against
Discrimination, N.J.S.A. 10:5-1 to -50, and his entitlement to punitive
damages. The Board promptly moved to dismiss, with prejudice, the counts
for breach of fiduciary duty, punitive damages and any claims asserting
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vicarious liability for Hutler's sexual abuse of plaintiff pursuant to Rule 4:6-
2(e) for failure to state a claim upon which relief can be granted. 1
Hornor opposed the motion, and after extensive briefing and oral
argument, the court denied it and endorsed the parties' agreement to permit
Hornor to file an amended complaint removing the count for punitive damages.
The trial court acknowledged Hornor's claim that Hutler and the Board owed
him a fiduciary duty is not one recognized in New Jersey. It, nevertheless,
found such a duty by extending the Supreme Court's holding in F.G. v.
MacDonell, 150 N.J. 550, 556 (1997), where the Court recognized a fiduciary
duty in a clergyman to a parishioner to whom the clergyman is providing
pastoral counseling, to Hutler's "successful campaign to earn" Hornor's "trust
and confidence," which "extended beyond the [school] bell" and ultimately
resulted in his sexual abuse.2
1
The Board also unsuccessfully moved to dismiss the count for intentional
infliction of emotional distress. It did not, however, move for reconsideration
or leave to appeal that ruling, and thus we do not consider it here.
2
The court held
F.G.'s themes of trust, confidence in another, and
vulnerability apply with equal force to the school
setting such that an extension of F.G.'s holding to an
educator is an appropriate, common sense, and modest
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As to Hornor's claim for vicarious liability, the court held that after the
2019 amendments to the Tort Claims Act, "a public entity, such as the Board,
may be vicariously liable for the sexual abuse inflicted by its employee's
willful, wanton, or grossly negligent act occurring within the scope of his or
her employment." See N.J.S.A. 59:2-1.3(a)(1); E.C. by D.C. v. Inglima-
Donaldson, 470 N.J. Super. 41, 56 (App. Div. 2021).
Hornor acknowledges Hutler's abuse of him was outside the scope of
Hutler's employment. But the trial court relied on Hardwicke v. American
Boychoir School, 188 N.J. 69, 101-02 (2006) — in which the Supreme Court
held a private boarding school could be held liable as a passive abuser under
the Child Sexual Abuse Act, N.J.S.A. 2A:61B-1(a)(1), allowing Hardwicke to
also pursue his related common law claims based on willful, wanton or
negligent conduct falling within the Act's definition of sexual abuse committed
by a school administrator acting outside the scope of his employment under
section 219(2)(d) of the Restatement (Second) of Agency (Am. Law Inst.
1958), when the school had delegated specific authority to the abuser and the
extension of the common law where the educator takes
affirmative steps beyond the classroom, as Hutler did
here, to earn a child's trust and provide counseling
beyond mere reading, writing, and arithmetic.
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delegation aided him in committing the sexual abuse — to find the Board
could be held vicariously liable for Hutler's sexual abuse of Hornor.
The Board moved for reconsideration, which the court granted, in part.
The court struck all claims for punitive damages but for those arising from the
Board's alleged violation of the Law Against Discrimination and denied
reconsideration with respect to its rulings on fiduciary duty and vicarious
liability. We granted the Board's motion for leave to appeal the court's rulings
on those two claims.
We review a trial court's decision on a motion to dismiss a complaint for
failure to state a claim under Rule 4:6-2(e) using the same standard as applied
in that court. Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739,
746 (1989). Our review is de novo, and we owe no deference to legal
conclusions we deem mistaken. Dimitrakopoulos v. Borrus, Goldin, Foley,
Vignuolo, Hyman & Stahl, P.C., 237 N.J. 91, 108 (2019). The same is true of
our review of the trial court's interpretation of statutes. Aronberg v. Tolbert,
207 N.J. 587, 597 (2011). "Because the appeal arises on defendants' motion
for judgment on the pleadings[,] . . . we assume the truth of the allegations of
the complaint, giving plaintiff the benefit of all reasonable factual inferences
that those allegations support." F.G., 150 N.J. at 556.
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Plaintiff's claim of breach of fiduciary duty
The Board claims the trial court ignored controlling Supreme Court
precedent defining the duty owed by public school teachers, administrators and
boards of education to their students and overread and misapplied F.G. in
creating a new fiduciary duty in the Board to students in the district.
Specifically, the Board argues the pastoral counseling relationship between the
priest and his parishioner in F.G. bears no resemblance to Hutler taking Hornor
to basketball games and helping him get to an afterschool job, even if Hornor
regarded Hutler as a mentor. It also notes Hornor failed to plead any similar
allegations of a confidential relationship between Hornor and the Board.
The Board contends Hornor's complaint includes only conclusory
allegations that the Board breached its "fiduciary duties to avoid harming
children and to protect them from harm at the hands of [its] employees" in the
same manner he claims it breached its duties in the negligence counts, all of
which resulted in the same harm, making the fiduciary duty claim simply
duplicative of recognized tort duties already pled. Finally, the Board argues
"[a] fiduciary relationship between [a] K-12 school and its personnel and their
students is contrary to both the duty of undivided loyalty owed by fiduciaries
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to their beneficiaries and the prohibition on conflicts of interest that govern
fiduciaries' conduct."
Hornor counters that he is not contending "all student-teacher
relationships result in a fiduciary duty" only those in which a teacher, like
Hutler, uses a "grooming process" to create a confidential relationship of
dominance over a student like Hornor, which confidential relationship he
claims "establishes a fiduciary duty." Hornor claims the Court "already
recognized [in F.G.] that the creation of the type of 'special relationship'
alleged here creates a fiduciary duty, albeit in a somewhat different, but
analogous, context." Hornor contends Hutler's "'grooming activities' created a
narrowly tailored fiduciary duty" to him, and the 2019 amendments to the Tort
Claims Act allow Hornor to recover for the Board's breach of that duty. We
disagree.
F.G., is a First Amendment case in which the Supreme Court reversed
our decision recognizing a cause of action for clergy malpractice arising out of
a priest's sexual misconduct with a parishioner. F.G. v. MacDonell, 291 N.J.
Super. 262, 265-66 (App. Div. 1996), aff'd in part, rev'd in part, 150 N.J. 550(1997). F.G. had consulted the rector of her parish, MacDonell, for pastoral
counseling. 150 N.J. at 556. "Aware that F.G. was vulnerable, MacDonell
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nonetheless induced her to engage in a sexual relationship with him." Ibid.F.G. subsequently sued MacDonell for clergy malpractice, along with
negligent infliction of emotional distress and breach of fiduciary duty, alleging
he "'engaged in sexual behavior with [her] inappropriate to and in violation of
[the special relationship]' he owed her, and that 'he failed to exercise the
degree of skill, care and diligence which is exercised by the average qualified
pastoral counselor provider.'" Id. at 556-57 (alterations in original).
Although the Court determined F.G. could state a claim against
MacDonell, it declined to find a cause of action for clergy malpractice. Id. at
561. Writing for the Court, Justice Pollock explained that defining the
standard of care in a clergy malpractice case "could embroil courts in
establishing the training, skill, and standards applicable for members of the
clergy in a diversity of religions with widely varying beliefs," and "require
courts to identify the beliefs and practices of the relevant religion and then to
determine whether the clergyman had acted in accordance with them,"
resulting in the very real risk of "restrain[ing] the free exercise of religion."
Id. at 562-63.
The Court determined it could avoid that entanglement with religion by
casting the cause of action as one for breach of fiduciary duty instead. Id. at
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558. It explained a fiduciary relationship, the essence of which "is that one
party places trust and confidence in another who is in a dominant or superior
position[,] . . . arises between two persons when one person is under a duty to
act for or give advice for the benefit of another on matters within the scope of
their relationship." Id. at 563. The Court found that "[t]rust and confidence
are vital to the counseling relationship between parishioner and pastor," and
that "[b]y accepting a parishioner for counseling, a pastor also accepts the
responsibility of a fiduciary." Id. at 564.
Most important for First Amendment purposes, "an action for breach of
fiduciary duty," unlike an action for clergy malpractice, "does not require
establishing a standard of care and its breach. Establishing a fiduciary duty
essentially requires proof that a parishioner trusted and sought counseling from
the pastor. A violation of that trust constitutes a breach of the duty." Id. at
565. By declaring a cleric to have a fiduciary duty to a parishioner he has
accepted into pastoral counseling, the Court provided the parishioner an
avenue to recover monetary damages for the violation of her trust without
"running the risk of entanglement with the free exercise of religion" by
defining the duties of a member of the clergy to a parishioner and adjudicating
their alleged breach in our courts. Id. at 558.
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In our view, F.G. provides no support for recognizing a fiduciary duty
on the part of a board of education to a student in the district. Defining the
duty of a board of education to its students does not entangle the courts in the
free exercise of religion. Moreover, F.G. did not involve a claim against the
church, nor any claim outside the narrow confines of a voluntary pastoral
counseling relationship between a priest and his parishioner. It provides no
guidance as to how such a claim could be brought against an entity defendant,
like the school district with whom plaintiff admittedly did not have a
confidential relationship. In addition, assigning a fiduciary duty running to a
specific student from an entity like the Board, that owes obligations to multiple
stakeholders involved in educating the district's children, often with
conflicting interests, is incompatible with the duty's defining characteristic of
undivided loyalty to a particular person or interest. See Bankers Trust Co. v.
Bacot, 6 N.J. 426, 436 (1951) (noting "undivided loyalty is of the very essence
of a trust relationship"). Cf. McDonough v. Roach, 35 N.J. 153, 159 (1961)
(explaining danger of dual office holding that "invite[s] a clash of the
obligations each unit of government owes to its respective citizens").
Even more troubling to us, however, is the trial court's adoption of
plaintiff's argument that it was Hutler's alleged "grooming" of Hornor that
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created the "special relationship" giving rise to Hutler's fiduciary duty to
Hornor.3 In McKelvey v. Pierce, another clergy case, the Court explained
"[t]he fiduciary's obligations to the dependent party," there a seminarian,
"include a duty of loyalty and a duty to exercise reasonable skill and care " in
acting or giving advice within the scope of the relationship, and that "the
fiduciary is liable for harm resulting from a breach of the duties imposed by
3
Hornor relies on a definition of grooming in an article by Daniel Pollack and
Andrea MacIver, Understanding Sexual Abuse in Child Abuse Cases, Child L.
Prac. Today, Nov. 2015 (citing U.S. Department of Justice, Office of Sex
Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking
(SMART) Program), which describes it as:
a method used by offenders that involves building
trust with a child and the adults around a child in an
effort to gain access to and time alone with her/him.
In extreme cases, offenders may use threats and
physical force to sexually assault or abuse a child.
More common, though, are subtle approaches
designed to build relationships with families.
The offender may assume a caring role, befriend the
child or even exploit their position of trust and
authority to groom the child and/or the child's family.
These individuals intentionally build relationships
with the adults around a child or seek out a child who
is less supervised by adults in her/his life. This
increases the likelihood that the offender's time with
the child is welcomed and encouraged.
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the existence of such a relationship." 173 N.J. 26, 57 (2002), holding modified
by Hyman v. Rosenbaum Yeshiva of N. Jersey, 258 N.J. 208 (2024).
Here, the alleged harm did not arise out of Hutler's breach of the duties
of loyalty and reasonable skill and care in acting or giving advice within the
scope of a defined relationship with Hornor, the harm was in the nature and
scope of the relationship itself. The trial court was clear that, in its view, not
every teacher owes a fiduciary duty to his students, but only those teachers
grooming students for sexual abuse.4 Grooming a student for sexual abuse is
4
Specifically, the court stated
Although it is undisputed that courts across the nation
at various levels have not reached a consensus, this
court concludes that a fiduciary duty exists to protect a
student from sexual abuse where, as here, a
confidential relationship involving the repose of trust
by a student in an educator exists based on the close
relationship between victim and alleged abuser that
extended beyond mere classroom instruction.
The court went on to explain, however, that "[s]uch is not to say that a broader
fiduciary duty exists nor is imposed on all educators in all circumstances to all
students." Thus, the court took "no position" on whether other teachers might
also have fiduciary duties to their students "outside the context of an alleged
sexual abuse."
The duty the trial court adopted is unacceptably vague, being identifiable, it
would appear, only on its breach. The court took pains to note it's not every
teacher who mentors a student outside the classroom who will be held to have
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not remotely akin to the voluntary counseling relationship between pastor and
parishioner in F.G. We cannot imagine the fiduciary duty the Court found to
inhere in a pastoral counseling relationship could appropriately be extended to
"Hutler's successful campaign" to earn Hornor's trust and confidence by "a
pattern of long-term, methodical grooming."5 The concepts are antithetical to
one another.
Most important, there was no need for the trial court to have wrestled
with the question of the Board's duty to Hornor. The Court defined that duty
accepted a fiduciary duty toward that student, but only those found liable for
sexual abuse. The test for the existence of a duty, however, "is not
retrospective but prospective." Mayer v. Hous. Auth. of City of Jersey City,
44 N.J. 567, 573 (1965) (Haneman, J. dissenting). "Fairness ordinarily
requires that a man be able to ascertain in advance of a jury's verdict whether
the duty is his and whether he has performed it." Davis v. Devereux Found.,
209 N.J. 269, 297 (2012) (quoting Goldberg v. Hous. Auth. of City of Newark,
38 N.J. 578, 589 (1962)).
5
We also question the wisdom of stretching "to create a new tort to provide a
remedy for conduct that was already tortious," that is, the sexual abuse of a
student, and for which relief is otherwise provided by the Act. See F.G., 150
N.J. at 570 (O'Hern, J. dissenting). See 1972 Task Force Comment to N.J.S.A.
59:2-1 (recommending "restraint in the acceptance of novel causes of action
against public entities"). See also Rochinsky v. State, Dep't of Transp., 110
N.J. 399, 407 n.4 (1988) ("The Comments following certain sections of the
statute were taken from the Report of the Attorney General's Task Force on
Sovereign Immunity — 1972, and accompanied the Act during its
consideration by the Legislature. They have the precedential weight and value
of legislative history.").
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in the context of the sexual abuse of students over twenty years ago in Frugis
v. Bracigliano, 177 N.J. 250, 257 (2003), a case involving an elementary
school principal who photographed male students in his office in "provocative
poses," for his own sexual gratification.6 The Court held that "[s]chool
personnel owe a duty to exercise reasonable care for the safety of students
entrusted to them," which "extends to supervisory care required for the
student's safety or well-being as well as to the reasonable care for the student
at school-sponsored activities in which the student participates." Id. at 270.
The Court defined the standard of care as "that degree of care which a person
of ordinary prudence, charged with comparable duties, would exercise under
the circumstances," and held "[t]he duty may be violated by not only the
commission of acts but also in the neglect or failure to act." Ibid. That
6
The same duty in school personnel was recognized in other contexts long
before Frugis. See Titus v. Lindberg, 49 N.J. 66, 73 (1967) ("The duty of
school personnel to exercise reasonable supervisory care for the safety of
students entrusted to them, and their accountability for injuries resulting from
failure to discharge that duty, are well-recognized in our State and
elsewhere.").
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standard is reflected in Model Jury Charges (Civil), 5.74, "Duty of Teachers
and School Personnel to Student" (approved Sept. 1980).7
As Justice Albin explained for the Court 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. No greater obligation is placed on
school officials than to protect the children in their
charge from foreseeable dangers, whether those
dangers arise from the careless acts or intentional
transgressions of others. Although the overarching
mission of a board of education is to educate, its first
imperative must be to do no harm to the children in its
care. A board of education must take reasonable
measures to assure that the teachers and administrators
who stand as surrogate parents during the day are
7
The Court in Frugis also detailed the instructions the trial judge is to provide
the jury in apportioning liability between the abuser and the board — after it
has decided all questions of liability and damages — including "the heightened
duty of school boards to ensure students' safety from foreseeable harms,
particularly those presented by the intentional acts of school personnel." 177
N.J. at 282. The Court required that a jury be instructed in a "two-phase
procedure" that its "apportionment of liability should reflect the extent to
which the school board's failure to discharge its duties exposed the students in
its care to intentional misconduct by one of its employees" and that its
apportionment "should not diminish the school board's overriding duty to
protect students from foreseeable intentional torts by school personnel ." Id. at
282-83.
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educating, not endangering, and protecting, not
exploiting, vulnerable children. [8]
[177 N.J. at 268.]
The Court has since reaffirmed its consistent application of "traditional
principles of due care and foreseeability to cases involving in loco parentis
relationships, rather than adopting a 'non-delegable' or absolute duty" in such
cases — which is obviously closely akin to, if not the same as, the fiduciary
duty the trial court adopted here. Davis v. Devereux Found., 209 N.J. 269,
289, 291-92 (2012) (noting "[t]he liability of in loco parentis institutions [is]
determined in accordance with traditional negligence principles; the 'non-
delegable' duty proposed here, amounting to an employer's absolute liability
for an employee's criminal act, has not been accepted by [the Supreme] Court
in any setting similar to that of this case"). Indeed, the Court in Davis noted
that "Frugis . . . confirms that the in loco parentis institution is held to a duty
of due care." Id. at 290. Given the Court's unwavering consistency over
several decades in defining the duty of in loco parentis institutions,
8
The trial court quoted this same passage from Frugis, but drew from it not
that boards of education have a duty to exercise reasonable care for the safety
of students but a heightened, more exacting duty, "something stricter," "the
punctilio of an honor the most sensitive," Justice (then Chief Judge) Cardozo's
oft-quoted definition of fiduciary duty for the New York Court of Appeals in
Meinhard v. Salmon, 164 N.E. 545, 546 (N.Y. 1928).
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specifically including public boards of education, as one of due care, the trial
court erred in recognizing any different duty in the Board to Hornor.
Plaintiff's claim for vicarious liability
The Board asserts the aided-by-agency theory urged by Hornor and
adopted by the trial court does not assist Hornor here because the 2019
amendments to the Tort Claims Act did not alter N.J.S.A. 59:2-2, which
establishes public entity liability for only those injuries "proximately caused
by an act or omission" of the entity's employee acting "within the scope of his
employment in the same manner and to the same extent as a private individual
under like circumstances." The Board asserts N.J.S.A. 59:2-2 is based on the
doctrine of respondeat superior under which "the plaintiff must prove the
existence of an employer-employee relationship and that the employee's
tortious actions 'occurred within the scope of that employment'" for liability to
attach to the employer. G.A.-H. v. K.G.G., 238 N.J. 401, 415 (2019) (quoting
Carter v. Reynolds, 175 N.J. 402, 408-09 (2003)). Because Hornor concedes
Hutler's sexual abuse was outside the scope of his employment, the Board
contends Hornor cannot establish the Board's vicarious liability for the assault.
Hornor argues the Board ignores "the sea change in the law" wrought by
the 2019 amendments to the Tort Claims Act, which he contends allow the
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Board to "be both vicariously liable for the sexual abuse committed by its
employees and directly liable for its own negligent hiring, retention, and
supervision of employees who commit such abuse."9
Specifically, Hornor contends the Legislature "explicitly made a public
entity's liability for the sexual abuse of a child the same as that of a charitable
entity," as demonstrated by the Governor's statement on signing the initial May
2019 version of N.J.S.A. 59:2-1.3(a), in which he explained he was "signing
the bill based on a commitment from the bill's sponsors to introduce and
swiftly pass a bill" to "clarify[] that public entities should be held to the same
standard of liability that is applied to religious and nonprofit organizations. "
Governor's Signing Statement to S. 477 (May 13, 2019).
Hornor contends the final version of N.J.S.A. 59:2-1.3(a)(1) effective
December 1, 2019, disabled the immunities afforded public entities under
9
The Board concedes it can be sued directly for its alleged negligent hiring,
retention and supervision of Hutler based on acts he committed both in and
beyond the scope of his employment. See Di Cosala v. Kay, 91 N.J. 159, 170-
74 (1982) (expressly recognizing "the tort of negligent hiring or retention of an
incompetent, unfit or dangerous employee," and holding "the employee
conduct which may form the basis of the cause of action need not be within the
scope of employment"); N.J.S.A. 59:2-1.3(a)(2). The Board did not move to
dismiss the counts of Hornor's complaint alleging its direct negligence —
beyond its successful motion to strike the claim for punitive damages pursuant
to N.J.S.A. 59:9-2(c).
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N.J.S.A. 59:2-10 for damages resulting from sexual offenses caused by the
willful, wanton or grossly negligent acts of their employees, resulting in the
Board being subject to vicarious liability for Hutler's acts of sexual abuse
outside the scope of his employment to the same extent as the defendant
boarding school in Hardwicke under the aided-by-agency principle of
Restatement (Second) of Agency § 219(2)(d).
Resolution of the parties' dispute requires an understanding of the scope
of a public entity's liability for the acts of its employees under the Tort Claims
Act prior to the 2019 amendments, and the effect of the amendments on
Hornor's claims.
The Tort Claims Act
The New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3, is a
complicated statute. Enacted in 1972 in twelve chapters after extended study
in response to the Court's abrogation of the State's sovereign immunity to tort
claims in Willis v. Department of Conservation and Economic Development,
55 N.J. 534 (1970), it reestablished "sovereign immunity in a manner
consistent with the proposals contained in the 1972 Attorney General's Task
Force Report." Velez v. City of Jersey City, 180 N.J. 284, 289 (2004).
N.J.S.A. 59:1-2 declares it to be
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the public policy of this State that public entities shall
only be liable for their negligence within the
limitations of this act and in accordance with the fair
and uniform principles established herein. All of the
provisions of this act should be construed with a view
to carry out the above legislative declaration.
The essential structure of the statute and its analytic approach to liability
and immunity — the warp and weft of the Act — is set out in N.J.S.A. 59:2-1:
a. Except as otherwise provided by this act, a public
entity is not liable for an injury, whether such injury
arises out of an act or omission of the public entity or
a public employee or any other person.
b. Any liability of a public entity established by this
act is subject to any immunity of the public entity and
is subject to any defenses that would be available to
the public entity if it were a private person.
The Task Force Comment to Subsection (a) explains the choice of a
statute that reimposed sovereign immunity unless liability is specified over a
statute imposing liability with specified exceptions. Quoting the California
Law Revision Commission, which led to the California Tort Claims Act of
1963 on which our Act is modeled, the Task Force explained "[a] statute
imposing liability with specified exceptions . . . would invite actions brought
in hopes of imposing liability on theories not yet tested in the courts and could
result in greatly expanding the amount of litigation and the attendant expense
which public entities would face." N.J.S.A. 59:2-1 Task Force Comment.
A-0366-22
22
Thus, in analyzing a tort claim against a public entity in New Jersey, the
first task is always to locate the predicate for liability in the Act. Troth v.
State, 117 N.J. 258, 277 (1989) (O'Hern J., concurring). If there is no
predicate for liability, the inquiry is at an end. "[P]ublic entities are immune
from liability unless they are declared to be liable" by a provision of the Tort
Claims Act.10 N.J.S.A. 59:2-1 Task Force Comment.
If there is a statutory predicate for liability under the Act, N.J.S.A. 59:2-
1(b) provides it will be subject to any immunity the public entity has under the
Act, and otherwise, and to any defense available to a private person. Thus,
"[e]ven when one of the Act's provisions establishes liability, that liability is
ordinarily negated if the public entity possesses a corresponding immunity. "
Rochinsky v. State, Dep't of Transp., 110 N.J. 399, 408 (1988).
N.J.S.A. 59:2-1(b) "establishes the principle that even common-law and
statutory immunities not contained in the Act can prevail over the Act's
liability provisions." Id. at 409. "The statutory scheme recognizes that
immunity from tort liability is a species of affirmative defense, which can
10
The rule is opposite for public employees. "A public entity is deemed 'not
liable for an injury' except as provided in the Act," N.J.S.A. 59:2-1, whereas "a
public employee 'is liable for injury' except as otherwise provided" in the Act,
N.J.S.A. 59:3-1. Chatman v. Hall, 128 N.J. 394, 402 (1992).
A-0366-22
23
excuse responsibility for tort without negating the existence of fault." Kolitch
v. Lindedahl, 100 N.J. 485, 502 (1985) (Handler J., dissenting). Justice
Handler succinctly explained that a plaintiff bringing a negligence action
against a public entity "must first establish the predicates for liability, and later
avoid application of any provision granting the sovereign immunity." Ibid.Although these basic principles are easy enough to grasp, explaining
their application is not always so straightforward. Part of the problem is we
often don't distinguish between situations in which the public entity is immune
because there is no predicate for liability in the Tort Claims Act and those in
which there is a liability predicate in the Act, but the entity has immunity, that
is "absolution from liability," based on some other provision of the Act, or
some other statute or the common law. Merenoff v. Merenoff, 76 N.J. 535,
547 (1978) (quoting Prosser, Law of Torts 970 (4th ed. 1971)). The best
example is the phrase most often repeated in Tort Claims cases, that is, the
"guiding principle" that governmental "immunity from tort liability is the
general rule and liability is the exception." Polzo v. Cnty. of Essex, (Polzo I)
196 N.J. 569, 578 (2008) (quoting Coyne v. State Dep't of Transp., 182 N.J.
481, 488 (2005) (quoting Garrison v. Twp. of Middletown, 154 N.J. 282, 286
(1998))). Although undoubtedly true, it doesn't train the mind to identify and
A-0366-22
24
differentiate between the liability and immunity provisions of a complicated
statute.11
11
We would not be the first to acknowledge it is not always a simple matter to
distinguish a liability predicate in the Tort Claims Act from an immunity.
Although some provisions, like the plan or design immunity provided by
N.J.S.A. 59:4-6 are unambiguously clear immunities for which the public
entity bears the burden of proof, if not specific pleading, although that is
certainly the better practice, see Rivera v. Gerner, 89 N.J. 526, 535 (1982),
others, like N.J.S.A. 59:9-2(d), the $3,600 medical expense and permanency
thresholds for pain and suffering damages, are harder to characterize.
The difficulty in distinguishing certain provisions of the Act as liability
predicates or immunities is that they can be fairly characterized as defenses
"going to the cause of action," which Judge Pressler described as "a hybrid
species of legal fact which is defensive in that it is ordinarily defendant's
rather than plaintiff's burden to plead, but elemental in that defendant's failure
to do so will not bar his right to raise it and thus to defeat the action at any
time during the litigation." Montag v. Bergen Bluestone Co., 145 N.J. Super.
140, 148 (Law. Div. 1976). See also Pressler & Verniero, Current N.J. Court
Rules, cmt. 1.2.2 on R. 4:5-4 (2024) (noting an affirmative defense need not
"be specially pleaded where the defense appears on the face of the complaint
and clearly goes to the maintainability of the action").
Notwithstanding our analytical commitment to distinguishing between liability
predicates and immunity provisions in the Tort Claims Act, the law being well-
settled that "[w]hen both liability and immunity appear to exist, the latter
trumps the former," Tice v. Cramer, 133 N.J. 347, 356 (1993), it is rare that a
case turns on the distinction as this one does. See Rivera, 89 N.J. at 535(noting the "little profit" to be had "from an extended analysis of the extent of
a public entity's burden to plead and prove its affirmative defense of immunity
[under N.J.S.A. 59:9-2(d)] or whether, as has been suggested in other fields of
limited liability, the plaintiff bears the continuing burden of overcoming each
and every limitation of a cause of action") (citations omitted).
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25
Our Supreme Court has noted "[t]here are three principal liability
sections in the Act": N.J.S.A. 59:2-2, incorporating the doctrine of respondeat
superior; N.J.S.A. 59:2-3, addressing discretionary activities and including
"both immunity and liability provisions"; and N.J.S.A. 59:4-2, providing
liability for dangerous conditions of public property, Rochinsky, 110 N.J. at
409-10 — although there are certainly others tucked throughout the Act, see,
e.g., N.J.S.A. 59:4-4 (establishing liability for failure to provide emergency
signals on a street or highway); N.J.S.A. 59:9-2(a), (b) and (c) (barring pre-
judgment interest, judgments based on strict liability, and punitive damages,
respectively); N.J.S.A. 59:8-3(a) (barring suit against a public entity when a
notice of claim has not been filed in accordance with the Act). See also Jones
v. Morey's Pier, Inc., 230 N.J. 142, 157 (2017) (holding that "excluding
contribution and indemnification claims from the tort claims notice
Of course, the failure to meet the medical expense and permanency thresholds
of N.J.S.A. 59:9-2(d) "in no way affects the maintainability of the action itself.
It only limits the permissible extent of the recovery by eliminating one of the
customary elements of common-law personal injury damages." Beauchamp v.
Amedio, 164 N.J. 111, 119-20 (2000) (quoting Montag, 145 N.J. Super. at
149). It is thus not a "liability" predicate in the same way as N.J.S.A. 59:2-2,
the Act's vicarious liability provision. See also C.W. v. Roselle Bd. of Educ.,
474 N.J. Super. 644, 654 (App. Div.), leave to appeal den., 254 N.J. 172(2023) (holding the Legislature did not eliminate the $3,600 medical expense
threshold in N.J.S.A. 59:9-2(d) in suits against public entities for child sexual
abuse under the 2019 amendments).
A-0366-22
26
requirement would contravene the public policy stated by the Legislature . . .
[that] 'public entities shall only be liable for their negligence within the
limitations of this act'" (quoting N.J.S.A. 59:1-2)).
The scope of the liability predicates differs significantly, with some, like
N.J.S.A. 59:2-2(a), establishing "sweeping vicarious liability" for public
entities for the acts of their employees, Margolis and Novack, Title 59: Claims
against Public Entities, cmt. 1 on N.J.S.A. 59:2-2 (2024), and others, like
N.J.S.A. 59:4-2 "impos[ing] specific conditions" on a public entity's liability
for the dangerous condition of its property, thus tightly circumscribing the
liability the Act concedes, O'Connell v. State, 171 N.J. 484, 501 (2002) (Stein
J., dissenting).
"The primary source of public entity liability" is, of course, contained in
N.J.S.A. 59:2-2(a), providing "[a] public entity is liable for injury proximately
caused by an act or omission of a public employee within the scope of his
employment in the same manner and to the same extent as a private individual
under like circumstances." N.J.S.A. 59:2-2 Task Force Comment. The section
"establishes the principle of vicarious liability for all public entities." Ibid.Thus, "[t]he primary liability imposed on public entities is that of respondeat
superior: when the public employee is liable for acts within the scope of that
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27
employee's employment, so too is the entity; conversely, when the public
employee is not liable, neither is the entity." Tice v. Cramer, 133 N.J. 347,
355 (1993) (citing N.J.S.A. 59:2-2). A public entity has no vicarious liability
for acts of its employees outside the scope of employment. N.J.S.A. 59:2-2(a);
Cosgrove v. Lawrence, 214 N.J. Super. 670, 680 (Law. Div. 1986) (explaining
"once a determination is made that the act is not within the scope of
employment," the focus of the action shifts from vicarious liability to
consideration of whether the employer could be held directly liable for its
negligent hiring and supervision), aff'd, 215 N.J. Super. 561 (App. Div. 1987).
Hornor concedes that Hutler's sexual abuse was outside the scope of his
employment. Because N.J.S.A. 59:2-2 makes a public employer, like the
Board, vicariously liable for the acts of an employee, like Hutler, only when
the employee is acting within the scope of his employment, Hornor cannot
establish a statutory predicate for the Board's vicarious liability for Hutler's
acts. Although the absence of a liability predicate would ordinarily end our
inquiry, Hornor contends the 2019 amendments to the Tort Claims Act provide
him a basis for vicarious liability against the Board. We thus turn to those
amendments.
A-0366-22
28
The 2019 amendments to the Tort Claims Act
The 2019 amendments to the Tort Claims Act were part of the Child
Victims Act, L. 2019, c. 120, L. 2019, c. 239, expansive legislation intended to
greatly extend the statutes of limitations for claims of sexual abuse for both
child and adult victims, create a two-year window for victims to bring claims
time-barred even under the newly extended statutes, and expand the categories
of potential defendants in such actions, "and for some actions permit
retroactive application of standards of liability to past acts of abuse for which
liability did not previously exist." S. Judiciary Comm. Statement to S. 477
(Mar. 7, 2019). In addition to creating new statutes of limitations, Chapter 120
amended the Tort Claims Act, the Child Sexual Abuse Act, N.J.S.A. 2A:61B-
1, and the Charitable Immunity Act, N.J.S.A. 2A:53A-7 to -11.
As to the Tort Claims Act, Chapter 120 extended the statute of
limitations for claims against public entities for sexual assault or abuse in
accord with the newly enacted statute of limitations for sexual abuse claims,
N.J.S.A. 2A:14-2a and -2b, and abrogated the notice and filing requirements in
Chapter 8 for such claims. See W.S. v. Hildreth, 252 N.J. 506, 512-14 (2023)
(explaining the effect of the extended statute of limitations and the abrogation
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29
of procedural requirements for claims of sexual abuse filed against a public
entity on or after December 1, 2019).
The parties' focus, and ours, is on N.J.S.A. 59:2-1.3, a new section
inserted into the Tort Claims Act entitled "Liability for public entity,
employee," adopted by Chapter 120 and amended by L. 2019, c. 239, both
effective December 1, 2019. As presented for the Governor's signature,
Chapter 120, the Senate Committee Substitute for Senate bill 477, section 7
provided:
7. (New section) Notwithstanding any other provision
of law to the contrary, including but not limited to the
"New Jersey Tort Claims Act," N.J.S.59:1-1 et seq., a
public entity is liable in an action at law for an injury
resulting from the commission of sexual assault, any
other crime of a sexual nature, a prohibited sexual act
as defined in section 2 of P.L.1992, c. 7 [N.J.S.A.
2A:30B-2], or sexual abuse as defined in section 1 of
P.L.1992, c. 109 [N.J.S.A. 2A:61B-1].
The Committee Statement explained the purpose of section 7 was to
eliminate public entity immunity for sexual abuse claims.
This section provides that the "New Jersey Tort
Claims Act," N.J.S.59:1-1 et seq., or any other law,
that may provide some form of governmental
immunity from lawsuits based on injuries resulting
from acts of sexual abuse are inapplicable, so that any
public entity, as defined in the "New Jersey Tort
Claims Act," may be held liable in any such suit in the
same manner as a private organization.
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[S. Judiciary Comm. Statement to S. 477.]
Governor Murphy signed the bill into law on May 13, 2019. In his
signing statement, however, he explained he was
signing the bill based on a commitment from the bill's
sponsors to introduce and swiftly pass a bill that will
correct an error in the section of the bill relating to the
liability of public entities. This section inadvertently
fails to establish a standard of proof for cases
involving claims filed against public entities. If
unaddressed, the lack of clarity would create
uncertainty and likely lead to additional litigation. I
have received assurances that the Legislature will
correct this omission by clarifying that public entities
should be held to the same standard of liability that is
applied to religious and nonprofit organizations.
Applying a different standard would be unjustified.
[Governor's Statement to S. Comm. Substitute for S.
477 (May 13, 2019).]
The Legislature, as promised, amended section 7 of Chapter 120, by
passing Chapter 239, as amended by the Assembly Budget Committee, (now
codified as N.J.S.A. 59:2-1.3), providing as follows with new language
underlined and omitted language struck through:
1. Section 7 of P.L.2019, c. 120 [N.J.S.A.59:2-1.3] is
amended to read as follows:
7. a. Notwithstanding any other provision of law to the
contrary, including but not limited to the "New Jersey
Tort Claims Act," N.J.S.59:1-1 et seq., to the contrary:
A-0366-22
31
(1) immunity from civil liability granted by that act to
a public entity is liable in an action at law for an
injury resulting from the commission of or public
employee shall not apply to an action at law for
damages as a result of a sexual assault, any other
crime of a sexual nature, a prohibited sexual act as
defined in section 2 of P.L.1992, c. 7 [N.J.S.A.
2A:30B-2], or sexual abuse as defined in section 1
of P.L.1992, c. 109 [N.J.S.A. 2A:61B-1] being
committed against a person, which was caused by
a willful, wanton or grossly negligent act of the
public entity or public employee; and
(2) immunity from civil liability granted by that act to
a public entity shall not apply to an action at law
for damages as a result of a sexual assault, any
other crime of a sexual nature, a prohibited sexual
act as defined in section 2 of P.L.1992, c. 7
[N.J.S.A. 2A:30B-2], or sexual abuse as defined in
section 1 of P.L.1992, c. 109 [N.J.S.A. 2A:61B-1]
being committed against a minor under the age of
18, which was caused by the negligent hiring,
supervision or retention of any public employee.
b. Every action at law involving a public entity or
public employee as described in subsection a. of this
section shall be subject to the statute of limitations set
forth in section 2 of P.L.2019, c. 120 [N.J.S.A. 2A:14-
2a], and may be brought during the two-year period
set forth in subsection a. of section 9 of P.L.2019, c.
120 [N.J.S.A. 2A:14-2b], notwithstanding that the
action would otherwise be barred through application
of the statute of limitations.
2. This act shall take effect on December 1, 2019, the
same day that P.L.2019, c.120 [N.J.S.A. 2A:14-2a to -
2c] takes effect, and shall apply to any cause of action
A-0366-22
32
filed on or after that date, as well as any cause of
action filed prior to that effective date that has not yet
been finally adjudicated or dismissed by a court as of
that effective date.
The Assembly Budget Committee Statement to Chapter 239 (Assembly
Bill 5392) explained the Legislature's purpose in retooling Chapter 120.
The Assembly Budget Committee reports favorably
Assembly Bill No. 5392, with committee amendments.
This bill, as amended, establishes new liability
standards in sexual abuse lawsuits filed against public
entities and public employees. It would expressly
provide that the statutory immunity from lawsuits
granted to public entities and public employees
pursuant to the "New Jersey Tort Claims Act," N.J.S.
59:1-1 et seq., would not be applicable with respect to
the following types of sexual abuse lawsuits:
— an action at law for damages against a public entity
or public employee as a result of sexual abuse being
committed against a person, which was caused by a
willful, wanton or grossly negligent act of the public
entity or public employee; or
— an action at law for damages against a public entity
as a result of sexual abuse being committed against a
minor under the age of 18, which was caused by the
negligent hiring, supervision or retention of any public
employee.
These types of lawsuits are the same types of lawsuits
for which the general statutory immunity of the
Charitable Immunity Act, P.L.1959, c.90 [N.J.S.A.
2A:53A-7 to -11] does not apply, thereby permitting
such lawsuits to proceed against non-profit
A-0366-22
33
organizations organized exclusively for religious,
charitable, educational, or hospital purposes, and their
trustees, directors, officers, employees, agents,
servants and volunteers.
Based on the amendatory language set forth in the bill,
any available immunity for public entities and public
employees from some source of law other than the
"New Jersey Tort Claims Act" could be raised by
public entities and public employees as a defense to
any of the aforementioned types of sexual abuse
lawsuits.
....
COMMITTEE AMENDMENTS
The committee amendments to the bill:
— expressly provide that only the specific immunity
from lawsuits granted to public entities and public
employees pursuant to the "New Jersey Tort Claims
Act," N.J.S. 59:1-1 et seq., is not applicable with
respect to the types of sexual abuse lawsuits described
in the bill, thus any available immunity from some
other source of law could be raised by public entities
and public employees as a defense to any such
lawsuits; and
— reword the bill's descriptions of the above
described sexual abuse lawsuits for which public
entities and public employees could not claim
statutory immunity under the "New Jersey Tort Claims
Act" to make these descriptions more consistent with
how other causes of action are described under that
act.
FISCAL IMPACT:
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34
The Office of Legislative Services (OLS) expects that
the bill will expose the State, school districts, and
local units of government to civil claims that may
result in added legal defense expenditures and
substantial settlements and judgments against affected
governments. The OLS, however, has no information
on the number of cases that may be brought against
the State, school districts, and local units of
government; the number of cases that may result in a
settlement or court-awarded damages against
governmental entities; and the amount of settlements
and damages awarded.
[Assemb. Budget Comm. Statement to A. 5392 with
committee amendments (June 17, 2019).]
In our view, the Legislature's "amendment" of Chapter 120, section 7 by
Chapter 239 — essentially its wholesale replacement of that section — makes
plain the Legislature responded to Governor Murphy's concern about public
entity liability under Chapter 120, by shifting N.J.S.A. 59:2-1.3 from a liability
predicate ("a public entity is liable in an action at law for an injury resulting
from the commission of sexual assault, any other crime of a sexual nature, a
prohibited sexual act . . . or sexual abuse") to an immunity provision
("immunity from civil liability granted by that act to a public entity or public
employee shall not apply to an action at law for damages as a result of a sexual
assault, any other crime of a sexual nature, a prohibited sexual act . . . or
sexual abuse . . . being committed against a person, which was caused by a
A-0366-22
35
willful, wanton or grossly negligent act of the public entity or public
employee"). See DiProspero v. Penn, 183 N.J. 477, 492 (2005) (noting "the
best indicator of [legislative] intent is the statutory language").
If we had any doubt about the plain meaning of the text, which we don't,
it would be put to rest by the Assembly Budget Committee's Statement that the
amendments it made to Chapter 129, passed by both houses and signed by the
Governor,
expressly provide that only the specific immunity
from lawsuits granted to public entities and public
employees pursuant to the "New Jersey Tort Claims
Act," N.J.S. 59:1-1 et seq., is not applicable with
respect to the types of sexual abuse lawsuits described
in the bill, thus any available immunity from some
other source of law could be raised by public entities
and public employees as a defense to any such
lawsuits.
The statutory text along with the Assembly Budget Committee Statement
establish unequivocally that Chapter 239 was intended to disable any
immunity provided by the Tort Claims Act to a public entity or to a public
employee for their willful, wanton or grossly negligent acts in sexual abuse
cases.12 See Roberts v. State, Div. of State Police, 191 N.J. 516, 521 (2007)
12
The text also disables any Tort Claims Act immunity a public entity has for
sexual assault or abuse committed against a minor under eighteen caused by
A-0366-22
36
the entity's negligent hiring, supervision or retention of any public employee,
N.J.S.A. 59:2-1.3(a)(2), mirroring N.J.S.A. 2A:53A-7.4. The Court held many
years ago that the Tort Claims Act provides no immunity to a public entity for
negligent, hiring, supervision or retention. See Frugis, 177 N.J. at 268-70(affirming directed verdict for Frugis on negligent supervision claim against
the school board).
As to the provision of N.J.S.A. 59:2-1.3(a)(1) disabling any immunity the Act
provides a public employee for claims arising out of sexual assault or abuse
caused by a willful, wanton or grossly negligent act — mirroring the limited
immunity provided the employees of charitable organizations in N.J.S.A.
2A:53A-7(c) — the Tort Claims Act provides no immunity to public
employees for such conduct. N.J.S.A. 59:3-1(a) makes public employees
liable for injury caused by their acts or omissions to the same extent as private
persons, except as otherwise provided by the Act. N.J.S.A. 59:3-1 Task Force
Comment. Further, N.J.S.A. 59:3-14(a) expressly provides that "[n]othing in
this act shall exonerate a public employee from liability if it is established that
his conduct was outside the scope of his employment or constituted a crime,
actual fraud, actual malice or willful misconduct." But see N.J.S.A. 59:3-1(c)
providing "[a] public employee is not liable for an injury where a public entity
is immune from liability for that injury."
Subsection (c) was added by amendment to 59:3-1 in response to the Court's
holding in in Chatman v. Hall, 128 N.J. 394 (1992) that public employees
could be held liable for dangerous conditions of public property in cases where
the entity was immune. See Velez, 180 N.J. at 290-91 (explaining the
amendment was intended "to create a parallel liability scheme for public
employees and public entities").
In the event a public employee is found liable for an act of sexual assault or
abuse outside the scope of his employment — thus leaving his public employer
without liability under 59:2-2(a) — N.J.S.A. 59:2-1.3(a)(1) would presumably
deprive the employee of the immunity provided him in 59:3-1(c), consonant
with 59:3-14(a).
A-0366-22
37
(noting usefulness of "legislative history, sponsors' statements, committee
reports, and other extrinsic evidence" in ascertaining legislative intent). As
both the statutory language and the legislative history make clear, N.J.S.A.
59:2-1.3, as amended by Chapter 239, strips public entities of those Tort
Claims Act immunities that might otherwise absolve them of liability in sexual
abuse cases; it does not provide a statutory predicate for the vicarious liability
of public entities for sexual assault or abuse committed outside a public
employee's scope of employment. See N.J.S.A. 59:2-1(a), 2-2(a).
Even having resolved, however, that N.J.S.A. 59:2-1.3, as amended, has
not effected any change in the Act's liability predicates, we are still left with
the same problem we confronted in E.C. — that "N.J.S.A. 59:2-1.3(a) does not
specify what provisions of the Tort Claims Act it intended to disable." 470
N.J. Super. at 53. As Margolis and Novack put it: "[s]ubsection (a)(1)
purports only to eliminate pre-existing immunities for the entity or its
employee when either . . . has acted 'willfully, wantonly or with gross
negligence' in causing damages resulting from crimes and other acts
constituting sexual assault or abuse," without identifying "what those
immunities might have been." Cmt. on N.J.S.A. 59:2-1.3, at 42. In E.C. we
held that N.J.S.A. 59:2-10, which states that "[a] public entity is not liable for
A-0366-22
38
the acts or omissions of a public employee constituting a crime, actual fraud,
actual malice, or willful misconduct," is an immunity "that is disabled" in
sexual abuse cases by N.J.S.A. 59:2-1.3.13 470 N.J. Super. at 53-54, 56.
E.C. however, is not helpful to Hornor here. Hornor concedes the sexual
abuse committed by Hutler was committed outside the scope of his
employment. See Cosgrove, 215 N.J. Super. at 562-63 (holding social worker-
therapist's sexual relationship with his patient was outside his scope of
employment under Restatement (Second) of Agency § 228 (1958) adopted in
New Jersey). See also Davis, 209 N.J. at 303 ("[o]nly rarely will intentional
torts fall within the scope of employment").
N.J.S.A. 59:2-10 provides immunity to a public entity from vicarious
liability for crimes, actual fraud, actual malice, or willful misconduct
committed by an employee within the employee's scope of employment, for
13
We agree with the holding in E.C. that N.J.S.A. 59:2-10 is a public entity
immunity disabled under N.J.S.A. 59:2-1.3, at least as to willful, wanton or
grossly negligent conduct in cases of sexual assault or abuse. 470 N.J. Super.
at 54. We also agree that N.J.S.A. 59:9-2(d) is not an immunity and thus not
disabled under N.J.S.A. 59:2-1.3. Ibid. We reject E.C.'s referring to the Act's
statutory predicates for liability as "limitations on liability," however, as it
suggests to us "[a] statute imposing liability with specified exceptions," that is
"limitations on liability," instead of the form chosen for the Tort Claims Act,
one providing "that public entities are immune from liability unless they are
declared to be liable by an enactment." N.J.S.A. 59:2-1 Task Force Comment.
A-0366-22
39
which the entity would otherwise be liable by virtue of N.J.S.A. 59:2-2(a), the
Act's vicarious liability predicate. See Fielder v. Stonack, 141 N.J. 101, 130
(1995) (denying summary judgment to officer involved in a police chase based
on material issue of disputed fact as to officer's willful misconduct occurring
in the scope of his employment but granting summary judgment to his
Township employer, because if the officer's "conduct is found to constitute
willful misconduct, the Township is not liable for his actions. N.J.S.A. 59:2-
10. If, however, his conduct does not rise to the level of willful misconduct,
both he and the Township are granted immunity under [N.J.S.A. 59:]5-
2(b)(2)"). See also N.J.S.A. 59:3-14(a) ("Nothing in this act shall exonerate a
public employee from liability if it is established that his conduct was outside
the scope of his employment or constituted a crime, actual fraud, actual malice
or willful misconduct") (emphasis added); Cosgrove, 215 N.J. Super. at 563(noting in the absence of a basis for vicarious liability under 59:2-2 of the Tort
Claims Act, the public entity's immunity under 59:2-10 is irrelevant).
Disabling the Board's immunity under N.J.S.A. 59:2-10 from liability for
acts committed within the scope of Hutler's employment under N.J.S.A. 59:2-
1.3, still leaves Hornor without a statutory predicate for the Board's vicarious
liability for acts Hornor concedes were committed outside the scope of Hutler's
A-0366-22
40
employment. "[P]laintiffs alleging negligence must first establish the
predicates for liability, and later avoid application of any provision granting
the sovereign immunity." Kolitch, 100 N.J. at 502 (Handler J., dissenting). It
doesn't benefit a plaintiff to avoid a statutory provision granting the public
entity immunity, like 59:2-10, unless he has managed to establish a predicate
for liability first. See Cosgrove, 215 N.J. Super. at 563
Relying on Governor Murphy's Statement on signing Chapter 120, that
"public entities should be held to the same standard of liability that is applied
to religious and nonprofit organizations," Hornor contends that Chapter 239
"expressly and intentionally makes the liability of a public entity equal to that
of a charitable entity," and thus the Board "may now also be held vicariously
liable for Hutler's acts of sexual abuse," although outside the scope of his
employment, under the aided-by-agency theory recognized by the Court in
Hardwicke. We thus turn to consider Hardwicke and the 2019 amendments to
the Charitable Immunity Act and their effect, if any, on Hornor's effort to hold
the Board vicariously liable for the sexual assault committed by Hutler outside
the scope of his employment.
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The Charitable Immunity Act, Hardwicke and the 2019 amendments
Our Supreme Court abolished charitable immunity in 1958 in three
decisions issued on the same day, Collopy v. Newark Eye and Ear Infirmary,
27 N.J. 29, 47-48 (1958), Dalton v. St. Luke's Catholic Church, 27 N.J. 22, 27-
28 (1958) and Benton v. YMCA, 27 N.J. 67, 71-72 (1958). "Within a week,
the Legislature acted to restore the doctrine by introduction of an act to
provide immunity for all nonprofit corporations organized for religious,
charitable, educational, or hospital purposes from negligence suits brought by
any person who was a beneficiary, to whatever degree, of the organization's
works."14 Schultz v. Roman Cath. Archdiocese of Newark, 95 N.J. 530, 536-
37 (1984). As the Court has since noted, "the effect of this statute was to
reinstate the common law doctrine as it existed prior to its demise at the hands
of the 1958 trilogy of Benton, Collopy and Dalton." Tonelli v. Bd. of Educ. of
Twp. of Wyckoff, 185 N.J. 438, 444 (2005) (quoting Parker v. St. Stephen's
Urban Dev. Corp., Inc., 243 N.J. Super. 317, 323 (App. Div. 1990)).
In 1984, the Supreme Court in Schultz, a case involving the suicide of a
child after he was sexually abused by a Franciscan employed by the Roman
14
Justice Hoens provides a detailed history of the Charitable Immunity Act in
her dissent in P.V. ex rel. T.V. v. Camp Jaycee, 197 N.J. 132, 163-71 (2008).
A-0366-22
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Catholic Archdiocese of Newark, held the charity was not liable to the boy's
parents for its alleged "reckless, careless, and negligent" hiring of the boy's
abuser and "in failing to supervise him." 95 N.J. at 532. Justice Handler,
joined by Justices Schreiber and Pollock, dissented, asserting "[a]n unstrained
reading of the statutory language conveys the clear meaning that the wrongful
conduct that is the focus of the statute consists of 'negligence.' There is not the
slightest linguistic hint that . . . 'negligence' . . . denotes anything other than
ordinary negligence." Id. at 542 (Handler J., dissenting). Justice Handler
maintained "the [charitable] immunity statute has no application to the victim
of an intentional tort committed by a dangerous employee of a charity." Id. at
552 (Handler J., dissenting).
In 1995, the Legislature amended the Act, extending immunity to a
charity's trustees, directors, officers, employees, agents and volunteers,
but specifically denying those individuals immunity for any "willful, wanton
or grossly negligent act of commission or omission, including sexual assault
and other crimes of a sexual nature." L. 1995, c. 183, § 1 (codified at N.J.S.A.
2A:53A-7(a) and -7(c)). "That amendment did not make the charity itself
liable to a victim of sexual abuse; it did, however, strip immunity from
employees, officers, and volunteers, who otherwise would be within the broad
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43
scope of the Act's historically protective sweep." P.V. ex rel. T.V. v. Camp
Jaycee, 197 N.J. 132, 170 (2008) (Hoens, J., dissenting).
In 2005, the Legislature again amended the Act, this time declaring that
the immunity provided to the charity "shall not apply to a claim in any civil
action that the negligent hiring, supervision or retention of any employee,
agent or servant resulted in a sexual offense being committed against a person
under the age of 18 who was a beneficiary of the nonprofit organization." L.
2005, c. 264 § 1 (codified at N.J.S.A. 2A:53A-7.4). See P.V. ex rel. T.V. v.
Camp Jaycee, 393 N.J. Super. 19, 27 n.3 (App. Div. 2007) (noting as the
plaintiff was a twenty-year-old, the "case would not fall within [N.J.S.A.
2A:53A-7.4's] exception to the Charitable Immunity Act even if plaintiffs'
complaint could be read to assert a claim for Camp Jaycee's alleged negligent
hiring, supervision or retention of employees"), aff'd, 197 N.J. 132 (2008).
Further, the Legislature made the law applicable to pending actions and
to any action for which the statute of limitations had yet to expire. L. 2005, c.
264, § 2 (codified at N.J.S.A. 2A:53A-7.5). The Senate Judiciary Committee's
Statement to the bill specifically referenced the Court's holding in Schultz, and
that the bill would make the Charitable Immunity Act inapplicable in such
cases. S. Judiciary Comm. Statement to S. 540 (March 1, 2004).
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The following year, in Hardwicke, the Court adopted the position of the
dissenters in Schultz, holding the Charitable Immunity Act "immunizes
charitable entities for negligence only," "and not 'other forms of aggravated
wrongful conduct, such as malice or fraud, or intentional, reckless and wanton,
or even grossly negligent behavior.'" 188 N.J. at 97, 99 (quoting Schultz, 95
N.J. at 542) (Handler, J., dissenting). The Court found the Legislature's 2005
amendment eliminating immunity for negligent hiring resulting in the sexual
abuse of a minor, "strongly" suggested it intended to eliminate the only
immunity the Charitable Immunity Act "provided — the immunity for
negligence." Id. at 99.
The Court in Hardwicke also found the Boychoir School was "a 'person'
standing 'in loco parentis' within a 'household'" to its boarding students, thus
establishing it could be held liable as a "passive abuser" under the Child
Sexual Abuse Act, N.J.S.A. 2A:61B-1. Id. at 86-94. Along with rejecting the
School's argument that the Charitable Immunity Act immunized it from
liability for Hardwicke's statutory claims, the Court likewise held the Act did
not shield the School from Hardwicke's related common-law claims, rejecting
its argument that it could not be held vicariously liable for the intentional torts
of its employees occurring outside the scope of employment. Id. at 99-102.
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45
The Court held the same considerations that informed its analysis in Lehmann
v. Toys 'R' Us, Inc., 132 N.J. 587, 619-20 (1993), applied to common law
claims for child abuse that were based on a statutory violation of the Child
Sexual Abuse Act. Id. at 102. Given the important public policy to protect
children from sexual abuse articulated in that Act, the Court held the Boychoir
School could be held vicariously liable for common law claims based on
conduct falling within the Act's definition of sexual abuse committed by its
employees acting outside the scope of their employment under Restatement
(Second) of Agency § 219(2)(d)15 "if an employer [had] delegate[d] the
15
Section 219 of the Restatement (Second) of Agency provides:
(1) A master is subject to liability for the torts of his
servants committed while acting in the scope of
their employment.
(2) A master is not subject to liability for the torts of
his servants acting outside the scope of their
employment, unless:
(a) the master intended the conduct or the
consequences, or
(b) the master was negligent or reckless, or
(c) the conduct violated a non-delegable duty of the
master, or
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authority to control the work environment to a supervisor and [the] supervisor
abuse[d] [the] delegated authority" or "the authority delegated by the employer
to the supervisor aided the supervisor in injuring the plaintiff. "16 Hardwicke,
188 N.J. at 100-02 (quoting Lehmann, 132 N.J. at 620) (alterations in
original).
Thus, to summarize the state of the law before the 2019 amendments,
charitable entities were immunized under the Charitable Immunity Act for only
simple negligence following the Court's 2006 decision in Hardwicke and were
without even that immunity for claims of negligent hiring, supervision or
retention resulting in the sexual abuse of a child under the age of eighteen
(d) the servant purported to act or to speak on behalf
of the principal and there was reliance upon
apparent authority, or he was aided in
accomplishing the tort by the existence of the
agency relation.
16
The Court also referenced its extension of the holding in Lehmann to claims
brought under the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to
-9 in Abbamont v. Piscataway Township Board of Education, 138 N.J. 405,
415-18 (1994). Hardwicke, 188 N.J. at 101-02. The discussion of vicarious
liability in Abbamont, however, was focused on the employer's liability for a
supervisor's acts within the scope of employment consistent with the statute's
definition of "'retaliatory action' as 'the discharge, suspension or demotion of
an employee, or other adverse employment action taken against an employee
in the terms and conditions of employment.'" Abbamont, 138 N.J. at 414(quoting N.J.S.A. 34:19-2(e)).
A-0366-22
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following the enactment of N.J.S.A. 2A:53-7.4 in 2005. After Hardwicke,
employers qualifying as passive abusers under the Child Sexual Abuse Act
could also be held vicariously liable for common law claims based on conduct
falling within the Act's definition of sexual abuse committed by their
employees acting outside the scope of their employment in accord with section
219(2)(d) of the Restatement (Second) of Agency. A nonprofit entity's
trustees, directors, officers, employees, agents and volunteers enjoyed
charitable immunity for tort claims alleging negligence but were without
immunity for any "willful, wanton or grossly negligent act of commission or
omission, including sexual assault and other crimes of a sexual nature"
pursuant to N.J.S.A. 2A:53A-7(a) and -7(c).
Against that backdrop, we consider the 2019 amendments to the
Charitable Immunity Act. Chapter 120 amended two provisions of the Act —
N.J.S.A. 2A:53A-7(c) and N.J.S.A. 2A:53A-7.5.
N.J.S.A. 2A:53A-7(c) was amended to provide:
c. Nothing in this section shall be deemed to grant
immunity to: (1) any nonprofit corporation,
society or association organized exclusively for
religious, charitable, educational or hospital
purposes, or its trustee, director, officer,
employee, agent, servant or volunteer, causing
damage by a willful, wanton or grossly negligent
act of commission or omission, including sexual
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assault and, any other crimes crime of a sexual
nature, a prohibited sexual act as defined in
section 2 of P.L.1992, c. 7 [N.J.S.A. 2A:30B-2], or
sexual abuse as defined in section 1 of P.L.1992,
c. 109 [N.J.S.A. 2A:61B-1]; (2) any trustee,
director, officer, employee, agent, servant or
volunteer causing damage as the result of the
negligent operation of a motor vehicle; or (3) an
independent contractor of a nonprofit corporation,
society or association organized exclusively for
religious, charitable, educational or hospital
purposes.
N.J.S.A. 2A:53A-7.5 was amended to provide:
a. The provisions of this supplementary act,
P.L.2005, c. 264 [N.J.S.A. 2A:53A-7.4 et seq.],
shall apply prospectively and also shall be
applicable to all civil actions for which the statute
of limitations has not expired as of the effective
date of this act, and subsequently, not expired as
of the effective date of P.L.2019, c. 120 [N.J.S.A.
2A:14-2a et seq.], including the statutes of
limitation statute of limitations set forth in
N.J.S.A. 2A:14-2, section 2 of P.L.2019, c. 120
[N.J.S.A. 2A:14-2a], section 1 of P.L.1964, c. 214
[N.J.S.A. 2A:14-2.1], section 1of P.L.1992, c. 109
[N.J.S.A. 2A:61B-1] or any other statute. These
applicable actions include but are not limited to
matters filed with a court that have not yet been
dismissed or finally adjudicated as of the effective
date of this act or P.L.2019, c. 120 [N.J.S.A.
2A:14-2a et seq.].
b. Notwithstanding the provisions of subsection a. of
this section, the provisions of P.L.2005, c. 264
[N.J.S.A. 2A:53A-7.4] shall apply to all civil
actions for an injury resulting from an act that
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49
occurred prior to the effective date of P.L.2019, c.
120 [N.J.S.A. 2A:14-2a et seq.], and these actions
shall be subject to the statute of limitations set
forth in section 2 of P.L.2019, c. 120 [N.J.S.A.
2A:14-2a].
The effect of these amendments, as explained in the Statement of the
Senate Judiciary Committee, (besides adding to the list of sexual offenses
included in the willful, wanton and grossly negligent acts for which there is
no immunity) was to codify the holding in Hardwicke "that organizational
charitable immunity only applies to protect organizations from lawsuits
claiming injury based on merely negligent acts, not more aggravated forms of
wrongful conduct, such as willful, wanton or grossly negligent acts ,"
including sexual assault or abuse. S. Jud. Comm. Statement to S. 477;
N.J.S.A. 2A:53A-7(a). The Committee noted that prior to Hardwicke, "the
Supreme Court and lower courts found that the act did shield organizations
from liability for gross negligence and even intentional conduct committed by
its trustees, directors, officers, employees, agents, servants, or volunteers ,"
citing Schultz, 95 N.J. at 535-536 and Monaghan v. Holy Trinity Church, 275
N.J. Super. 594, 604 (App. Div. 1994) (holding the immunity under the
Charitable Immunity Act extends to allegations of gross negligence). Ibid.A-0366-22
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Further, the Legislature made that more limited organizational
immunity, as well as the exception in N.J.S.A. 2A:53A-7.4 making charitable
"organizations liable for acts of mere negligence in the hiring, supervision, or
retention of an employee . . . resulting in sexual abuse committed against a
minor under the age of 18," applicable to any suit filed "under the new,
extended statute[s] of limitations [N.J.S.A. 2A:14-2a] . . . or . . . during the
. . . two-year filing window for otherwise time-barred claims," N.J.S.A.
2A:14-2b. Ibid.For a child victim, the limitations period is thirty-seven years after the
child turns eighteen, that is, age fifty-five, or within seven years of discovery,
whichever is later. N.J.S.A. 2A:14-2a(a)(1). For persons abused as adults,
the limitations period is seven years after discovery. N.J.S.A. 2A:14-
2a(b)(1). As noted in the Statement of the Judiciary Committee, "[t]he
retroactive expansion of organizational liability under [N.J.S.A. 2A:53A-7(c)]
does not create any additional retroactive liability for trustees, directors,
officers, employees, agents, servants, or volunteers, as they were always
generally liable for their own willful, wanton or grossly negligent acts ,"
N.J.S.A. 2A:53A-7(c). S. Jud. Comm. Statement to S. 477. The same is true
of the retroactive expansion of the Act's exception for organizational liability
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for negligent hiring resulting in the sexual abuse of a minor, N.J.S.A.
2A:53A-7.4, as "[t]he standard immunity for negligent acts provided to such
persons by the Charitable Immunity Act, as amended in 1995 . . . is not
pierced by the exception established in P.L.2005, c.264 [N.J.S.A. 2A:53A-
7.4]." Ibid.Thus, far from signaling a "sea change in the law," as Hornor's counsel
asserts, the 2019 amendments to the Charitable Immunity Act largely
codified the limits of the law of charitable immunity as it has existed for
nearly the last twenty years. The change is its applicability to cases like this
one in which the events took place almost forty-five years ago when Hornor
was a freshman in high school in 1978 and 1979. Stated differently, the 2019
amendments to the Charitable Immunity Act didn't broaden liability for non -
profit entities, it lengthened it — significantly. 17
17
That is not true of all the changes included in the 2019 Crime Victims Act.
Besides disabling immunities provided to public entities in N.J.S.A. 59:2-10,
the amendment to the Child Sexual Abuse Act, N.J.S.A. 2A:61B-1, by Chapter
120 broadened the category of passive abusers who could be liable under the
statute to include persons standing in loco parentis "who knowingly permit[] or
acquiesce[] in sexual abuse," removing the requirement that those persons be
"within the household," although that change was made prospective only. L.
2019, c. 120 §§ 4, 2, 9 (May 13, 2019) (codified at N.J.S.A. 2A:61B-1(a)(1),
61B-1(b), 14-2a(a)(1), 14-2b(a)); S. Jud. Comm. Statement to S. 477 § 4. See
also Doe ex rel. Doe v. Small, 654 F. Supp. 3d 376, 401-02 (D.N.J. 2023)
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The effect of the 2019 amendments on plaintiff's vicarious liability
claims
Although we have no hesitation in agreeing with Hornor's counsel that in
enacting Chapter 239, the Legislature expressly disabled, retroactively, any
immunity afforded a public entity by the Tort Claims Act for willful, wanton
or grossly negligent acts resulting in sexual assault or abuse, as well as any
immunity for negligent hiring, supervision and retention resulting in the sexual
abuse of a minor, mirroring provisions of the Charitable Immunity Act,
including those changes made in the 2019 amendments,18 we do not agree the
(dismissing claim against school district relying on the Senate Judiciary's
Statement "that the removal of 'in the household' from the [Child Sexual Abuse
Act] is 'intended to only apply prospectively'").
18
Owing to the complicated structure of the Tort Claims Act, however,
achieving symmetry between it and the Charitable Immunity Act in the two
types of actions contemplated in the 2019 amendments is challenging. And it
would appear that even after the 2019 amendments, the immunity provided
charitable entities by the Charitable Immunity Act remains broader than that
provided public entities under the Tort Claims Act.
For example, N.J.S.A. 2A:53A-7(c) of the Charitable Immunity Act, as
amended, immunizes charitable entities from claims of negligence, including
for acts or omissions resulting in sexual assault or abuse, while the Tort
Claims Act has long been held not to provide a public entity any immunity for
such claims in its in loco parentis role. See Jerkins ex rel. Jerkins v. Anderson,
191 N.J. 285, 289, 295 (2007) (holding in recognition of the many "foreseeable
dangers" children face during the school day, "a school's duty to exercise
reasonable care for the children in its custody is integral to our public
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education system"); Frugis, 177 N.J. at 270 ("School personnel owe a duty to
exercise reasonable care for the safety of students entrusted to them.").
We, thus, disagree with the example in E.C. that N.J.S.A. 59:2-1.3(a)(1)
"would apply when a public entity is an occupier of real property — like a
school — and provides woefully inadequate security, thereby allowing a
predator to enter the school and commit a sexual crime against a student." 470
N.J. Super. at 50. We are of the opinion "the acts or omissions of the public
entity" in that instance would be assessed based on the duty of reasonable care,
as in Jerkins and Frugis, not "through application of the willful, wanton or
grossly negligent standard" of 59:2-1.3(a)(1). Ibid. Applying N.J.S.A. 59:2-
1.3(a)(1) in that example would immunize a public entity for its negligence,
contrary to cases, like Jerkins and Frugis, that have not found any immunity
available in the Tort Claims Act for those entities under the circumstances.
The duty of the public entity would be different if it did not stand in loco
parentis to the claimant. See Foster v. Newark Hous. Auth., 389 N.J. Super.
60, 66 (App. Div. 2006) (claimant alleging injury based on inoperable lock
must establish housing authority failed to prevent dangerous condition of
public property under N.J.S.A. 59:4-2 (citing Bligen v. Jersey City Hous.
Auth., 131 N.J. 124, 136-37 (1993))). But a claimant would be obligated to
demonstrate the entity had been palpably unreasonable, notwithstanding the
dangerous condition of the entity's property, as it constitutes a predicate for
liability. N.J.S.A. 59:4-2 ("Nothing in this section shall be construed to
impose liability upon a public entity for a dangerous condition of its public
property if the action the entity took to protect against the condition or the
failure to take such action was not palpably unreasonable."); Kolitch, 100 N.J.
at 492-93.
Likewise, a public entity, even without in loco parentis responsibilities, is not
immunized by the Tort Claims Act for claims of negligent hiring, supervision
and retention regardless of the age of the claimant or the nature of the injury.
See Hoag v. Brown, 397 N.J. Super. 34, 54-55 (App. Div. 2007) (holding the
vicarious liability immunity provided public entities in N.J.S.A. 59:2 -10 does
not bar a direct claim against the entity for negligent hiring, retention and
supervision). Thus, adding 59:2-1.3(a)(2) to the Act, to mirror N.J.S.A.
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Board "may now also be held vicariously liable for Hutler's acts of sexual
abuse," although outside the scope of his employment, under the aided-by-
agency theory recognized by the Court in Hardwicke.
Hornor's counsel fundamentally misapprehends the effect of the 2019
amendments on the Charitable Immunity Act and, ultimately, on the viability
of Hornor's vicarious liability claims against the Board under the Tort Claims
Act. In our view, the 2019 amendments to those two statutes have not had, nor
were intended to have had, any effect on the law of agency as applied to either
nonprofit organizations or public entities.
There is absolutely no indication in either the text of N.J.S.A. 2A:53A-
7(c) of the Charitable Immunity Act or its legislative history to indicate the
Legislature intended anything other than to codify the central holding in
Hardwicke that the Charitable Immunity Act "immunizes simple negligence
only, and not 'other forms of aggravated wrongful conduct, such as malice or
fraud, or intentional, reckless and wanton, or even grossly negligent
behavior.'" 188 N.J. at 97 (quoting Schultz, 95 N.J. at 542 (Handler, J.,
2A:53A-7.4, the 2005 statute excepting claims of negligent hiring, supervision
or retention resulting in the sexual abuse of a youth under eighteen from the
immunity otherwise provided charitable organizations, did not alter the already
existing broader duty of public entities because 59:2-1.3, by its terms, only
disables immunities "granted by that act."
A-0366-22
55
dissenting)). To state the obvious, the Charitable Immunity Act is a statute
addressing the immunity of charitable entities for tort claims, not a statute
addressing the common law doctrine of respondeat superior.
The 2019 amendments to the Charitable Immunity Act codified, and
made retroactive, the holding in Hardwicke that charitable entities have no
immunity for willful, wanton or grossly negligent acts and also made
retroactive the exception in N.J.S.A. 2A:53A-7.4, providing charitable entities
have no immunity whatsoever for claims of negligent hiring, supervision or
retention resulting in a sexual offense being committed against a beneficiary
under the age of eighteen. The 2019 amendments likewise disabled any
immunities the Tort Claims Act provided public entities that might otherwise
absolve them of liability in sexual abuse cases for willful, wanton or grossly
negligent acts, identified in E.C. as N.J.S.A. 59:2-10, which immunizes a
public entity "for the acts or omissions of a public employee constituting a
crime, actual fraud, actual malice, or willful misconduct." 470 N.J. Super. at
53-55. As already noted, however, that statute immunizes a public entity from
acts or omissions committed by an employee within the employee's scope of
employment, for which the entity would otherwise be liable by virtue of
N.J.S.A. 59:2-2(a). It does not provide a liability predicate for Hornor's claim
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that the Board is vicariously liable for Hutler's sexual assault, which Hornor
admits was committed outside the scope of Hutler's employment.
As the Supreme Court noted in Davis, "[t]he primary focus of
[Hardwicke]," beyond its landmark holding reinterpreting the scope of
immunity provided by the Charitable Immunity Act, "was the impact of the
[Child Sexual Abuse Act], in which the Legislature provided for a private right
of action against a 'passive abuser' who knowingly permits or acquiesces in the
sexual abuse of a child." 209 N.J. at 290. Having decided that Hardwicke had
"stated a statutory cause of action against the School for sexual abuse" under
the Child Sexual Abuse Act and was not barred from pursuing claims for
"willful, wanton or grossly negligent conduct" under the Charitable Immunity
Act, the Court held Hardwicke could "pursue his statutory cause of action and
any common-law claims he may have that are based on willful, wanton or
grossly negligent conduct, and/or negligent hiring, supervision and retention "
against the Boychoir School. Hardwicke, 188 N.J. at 99.
Recalling the "important public policies" the Legislature sought to
vindicate in the Law Against Discrimination and the Conscientious Employee
Protection Act that had impelled the Court to adopt section 219(d) of the
Restatement (Second) of Agency as the appropriate framework for evaluating
A-0366-22
57
employer liability in employment discrimination and retaliation cases, the
Court held:
The considerations that informed our analyses in
Lehmann and Abbamont apply equally to claims
predicated on facts indicating child abuse. . . . [T]he
[Child Sexual Abuse Act] recognizes the vulnerability
of children and demonstrates a legislative intent to
protect them from victimization. In our view,
common-law claims based on child abuse are
supported by the same compelling rationale. The
[Child Sexual Abuse Act] imposes responsibility on
those in the best position to know of the abuse and
stop it; application of section 219 of the Restatement
to plaintiff's common-law claims advances those
goals.
[Id. at 102.]
Hornor's counsel's argument that "after Hardwicke, the only thing that
prevented a public school from being held vicariously liable for an employee 's
sexual abuse of a child was section 59:2-10 of the [Tort Claims Act]" is
incorrect. The reason public schools weren't liable for the sexual abuse of
their students after Hardwicke is that they didn't qualify as "passive abusers"
under the Child Sexual Abuse Act because they did not stand in loco parentis
"within the household." See J.P. v. Smith, 444 N.J. Super. 507, 522-24 (App.
Div. 2016); D.M. v. River Dell Reg'l High Sch., 373 N.J. Super. 639, 649
(App. Div. 2004). That, of course, changed after the 2019 amendment to the
A-0366-22
58
Act deleting the "within the household" requirement. Going forward, public
schools and private schools, just as any "other person standing in loco parentis
who knowingly permits or acquiesces in sexual abuse" of a child, can be held
directly liable as a passive abuser under the Child Sexual Abuse Act. N.J.S.A.
2A:61B-1; J.H. v. Mercer Cnty. Youth Det. Ctr., 396 N.J. Super. 1, 11 (App.
Div. 2007) (relying on Hardwicke to hold county youth detention center
qualified as a "person" under the Act).19
The 2019 amendments to the Child Sexual Abuse Act, while providing
for the direct liability of an organizational entity as a passive abuser, do not
address the entity's vicarious liability for sexual assault or abuse committed by
19
In Davis, both our court and the Supreme Court noted our error in J.H. in
finding the Court in Hardwicke had held the Boychoir School owed a "non-
delegable duty" to Hardwicke under Restatement (Second) of Agency §
219(2)(c), on which we relied to hold that "under modern principles of agency
law liability of an employer for the torts of an employee acting outside the
scope of his employment is permitted when the conduct violates a non-
delegable duty of the employer," 396 N.J. Super. at 17. See Davis v. Devereux
Found., 414 N.J. Super. 1, 10 (App. Div. 2010) (finding "no basis for reading
the Court's opinion [in Hardwicke] as introducing what would clearly be a
major doctrinal change respecting the law governing institutions that care for
children and the disabled" by finding they owed the individuals in their care a
non-delegable duty based on the Child Sexual Abuse Act), aff'd in part, and
rev'd in part on other grounds, 209 N.J. at 291 n.5 (noting "to the extent that
the panel deciding J.H. invoked a 'non-delegable' common-law duty,
purportedly created by this Court in Hardwicke and Frugis, it misconstrued
this Court's decisions in those cases").
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an active abuser-employee. Whether or not a private day school qualifying as
a passive abuser under the Child Sexual Abuse Act may be held vicariously
liable for the sexual assault or abuse of a student occurring on or after the
effective date of the 2019 amendments pursuant to the aided-by-agency clause
of Restatement (Second) of Agency § 219(2)(d) under the Charitable Immunity
Act — an issue not addressed in those amendments — a public school cannot
be held vicariously liable for such under the Tort Claims Act. 20
20
The plaintiff in Davis did not argue that Devereux was vicariously liable for
its employee's criminal act in severely scalding her developmentally disabled
son, although outside the scope of employment, under the aided-by-agency
theory of section 219(d)(2) of the Restatement (Second) of Agency, and the
Court did not address the theory in its lengthy discussion of the doctrine of
respondeat superior and section 219 in that case. We have elsewhere noted
that the aided-by-agency clause in section 219(d)(2) has proved controversial,
largely because "a broad reading of its language would result in an employer's
strict liability" for its employee's intentional torts committed outside the scope
of employment, E.S. for G.S. v. Brunswick Inv. Ltd. P'ship, 469 N.J. Super.
279, 299 (App. Div. 2021), the same reason the Court rejected imposing a non-
delegable duty on in loco parentis institutions in Davis, 209 N.J. at 291-92
("The liability of in loco parentis institutions has [previously] been determined
in accordance with traditional negligence principles; the 'non-delegable' duty
proposed here, amounting to an employer's absolute liability for an employee's
criminal act, has not been accepted by this Court in any setting similar to that
of this case."). See also Aguas v. State, 220 N.J. 494, 511 (2015) (explaining
the Court had "declined to hold employers strictly liable for hostile work
environment sexual harassment by supervisors" in Lehmann because it had
concluded that "in some cases strict liability would be unjust — for example,
'where a supervisor rapes one of his subordinates in the workplace'") (quoting
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N.J.S.A. 59:2-2(a) allows for liability of a public entity "for injury
proximately caused by an act or omission of a public employee" only "within
the scope of his employment."21 As section 219(2)(d) addresses an employer's
Lehmann, 132 N.J. at 623-24 (quoting T.L. v. Toys 'R' Us, 255 N.J. Super.
616, 661 (App. Div. 1992) (Skillman, J.A.D., dissenting))).
Although the Davis majority noted it did "not reach the issue of whether the
'non-delegable' or absolute duty at issue, were such a duty to be recognized,
would be barred by the [Charitable Immunity Act]," the dissenters countered
that "[a]ny analysis of the implications of [N.J.S.A. 2A:53A-7] would also be
subject to this Court's holding in Hardwicke," 188 N.J. at 97, 100-02. Davis,
209 N.J. at 302 n.10, 319. We note the Legislature has not waived the State's
sovereign immunity for strict liability claims. Strict liability claims against
public entities are expressly barred by N.J.S.A. 59:9-2(b). The American Law
Institute abandoned the aided-by-agency theory of vicarious liability in its
Restatement (Third). Restatement (Third) of Agency § 7.08 cmt. b. (2006);
E.S., 469 N.J. Super. at 295-96.
21
Hornor's contention that 59:2-2(a) is no impediment to establishing the
Board's vicarious liability for Hutler's sexual assault because that subsection
provides for a public entity's vicarious liability for injury caused by a public
employee "within the scope of his employment in the same manner and to the
same extent as a private individual under like circumstances," and "our
Supreme Court has already determined that a private entity may be held
vicariously liable for the sexual abuse of a student committed by its employee
in Hardwicke" is without sufficient merit to warrant extended discussion here.
See R. 2:11-3(e)(1)(E).
The Court in Hardwicke held the Boychoir School, against which Hardwicke
had stated a statutory claim as a passive abuser under the Child Sexual Abuse
Act, could be held vicariously liable for the intentional torts of its employees
committed outside the scope of employment under Restatement (Second) of
Agency § 219(2)(d). See E.S., 469 N.J. Super. at 301. A public entity is not
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liability for conduct occurring outside the scope of employment, it does not
provide a basis for holding a public entity, like the Board, liable under the Tort
Claims Act. Hornor's failure to identify a liability predicate in the Act for the
Board's vicarious liability for Hutler's sexual assault is fatal to Hornor's
vicarious liability claim against the Board. See Tice, 133 N.J. at 355(reiterating "[t]he liability of the public entity must be found in the Act");
liable for the intentional torts of its employees outside the scope of
employment in the same manner a private entity is liable because the
Legislature has deemed a public entity is only vicariously liable for the acts or
omissions of its employees occurring within the scope of employment, 59:2-
2(a); and 59:2-1.3(a)(1) only disabled a public entity's immunity for sexual
assaults or abuse under 59:2-10, E.C., 470 N.J. Super. at 53-54, which
absolves a public entity of liability "for the acts or omissions of a public
employee constituting a crime, actual fraud, actual malice, or willful
misconduct" occurring within the scope of employment for which it would
otherwise be liable under 59:2-2(a), Fielder, 141 N.J. at 123, 130.
Thus, N.J.S.A. 59:2-2(a) is an absolute barrier to Hornor's vicarious liability
claims because the Board can only be held liable for the acts of its employees
occurring within the scope of employment. Hornor concedes Hutler's assault
did not occur within the scope of his employment, and Restatement (Second)
of Agency § 219(2)(d) ("A master is not subject to liability for the torts of his
servants acting outside the scope of their employment, unless: . . . (d) the
servant purported to act or to speak on behalf of the principal and there was
reliance upon apparent authority, or he was aided in accomplishing the tort by
the existence of the agency relation") and the vicarious liability holding in
Hardwicke address an employer's liability only for acts of its employees
outside the scope of employment. There is simply no provision in the Tort
Claims Act making a public entity liable for injury proximately caused by an
act or omission of a public employee acting outside the scope of employment
even after the 2019 amendments and the enactment of 59:2-1.3.
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Kolitch, 100 N.J. at 502 (Handler J., dissenting) (explaining a plaintiff
bringing a negligence action against a public entity "must first establish the
predicates for liability, and later avoid application of any provision granting
the sovereign immunity"); Troth, 117 N.J. at 276-77 (O'Hern J., concurring)
(same).
We reverse the trial court's denial of the Board's motion to dismiss those
counts of Hornor's complaint asserting claims for breach of fiduciary duty and
vicarious liability and remand for the dismissal of those counts with prejudice.
Our holding does not impair Hornor's ability to proceed on his direct claim
against the Board for negligent hiring, supervision and retention, which is, of
course, not limited to acts Hutler committed within the scope of his
employment. See Schultz, 95 N.J. at 534-35 ("Under respondeat superior, an
employer is liable only for those acts of his employee committed within the
scope of employment, while negligent hiring reaches further to cover acts
outside the scope of employment."); G.A.-H., 238 N.J. at 415 ("Unlike
respondeat superior, negligent hiring, supervision, and training are not forms
of vicarious liability and are based on the direct fault of an employer.").
Reversed and remanded for further proceedings not inconsistent with our
opinion. We do not retain jurisdiction.
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