G.A.-H. v. K.G.G.(081545)(Ocean County and Statewide)

SYLLABUS
This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.
G.A.-H. v. K.G.G. (A-25/26-18) (081545)
Argued April 23, 2019 -- Decided June 26, 2019
FERNANDEZ-VINA, J., writing for the Court.
In this case, the Court considers whether defendant, “Arthur,” was obligated to
report that his co-worker “Kenneth” was engaged in a sexual relationship with a minor;
whether their employer, GEM Ambulance, LLC (GEM), is vicariously liable for Arthur’s
failure to report; and whether GEM negligently retained, trained, or supervised Arthur or
Kenneth.
Kenneth groomed plaintiff to trust him and began having sexual intercourse with
her in September 2010, when she was fifteen and he was forty-four. When this illegal
relationship was ongoing, Kenneth worked for GEM as an emergency medical technician
(EMT). While Kenneth was working, he would sometimes park a GEM ambulance near
plaintiff’s bus stop and, from there, he would walk her to her bus stop. No other GEM
EMT interacted with plaintiff on these occasions, and plaintiff’s bus stop could not be
seen from the GEM vehicle.
Kenneth often bragged to co-workers that he was in a “relationship,” but he never
identified plaintiff by her real name or age. Kenneth often stated various ages when
telling his co-workers how old his “girlfriend” was, but he never mentioned an age below
the age of consent. Kenneth and Arthur worked together on several shifts, during which
Kenneth would show Arthur the pictures and videos of a naked female that Kenneth had
on his phone. Arthur would quickly look away from Kenneth’s phone, which was a “flip
phone” with a small screen.
Kenneth’s abuse of plaintiff ended in February 2011, when she informed her
mother about her relationship with Kenneth. Plaintiff’s mother notified the police of
Kenneth’s actions. Kenneth thereafter pled guilty to various criminal offenses.
Plaintiff filed suit against Kenneth, Arthur, and GEM, among others, in February
2015. Plaintiff claimed that Arthur should have reported Kenneth to supervisors at GEM
and that GEM was vicariously liable for Arthur’s failure to report Kenneth’s conduct and
also negligent in retaining, training, and supervising Arthur and Kenneth. The trial court
entered default judgment against Kenneth. The trial court granted Arthur and GEM
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summary judgment, holding that Arthur had no duty to report Kenneth and, moreover,
that no facts created a reasonable basis for Arthur to believe Kenneth was engaged in a
sexual relationship with a minor. The trial court further held that there was no basis for
liability to attach to GEM.
The Appellate Division, however, vacated the trial court’s grants of summary
judgment and remanded for further development of the record because, in its view, “the
common law does not necessarily preclude the imposition of” a duty to report that a co-
worker is engaged in a sexual relationship with a minor and the record here was not
sufficiently developed to determine whether Arthur knew of Kenneth’s illicit sexual
relationship with plaintiff. 455 N.J. Super. 294, 297-304 (App. Div. 2018).
The Court granted Arthur’s and GEM’s petitions for certification. 236 N.J. 103(2018); 236 N.J. 101 (2018).
HELD: No reasonable trier of fact could find that Arthur knew or had special reason to
know that Kenneth was engaged in a sexual relationship with a minor. Accordingly,
Arthur had no duty to report Kenneth. The record similarly fails to provide a basis for
liability to attach to GEM. Because the record here is determinative of Arthur’s and
GEM’s liability, the Court need not decide whether a co-worker or employer with
knowledge or a special reason to know that a co-worker or employee is engaged in a
sexual relationship with a minor has a legal duty to report that co-worker or employee.
1. The fundamental elements of a negligence claim are a duty of care owed by the
defendant to the plaintiff, a breach of that duty by the defendant, injury to the plaintiff
proximately caused by the breach, and damages. Courts consider several factors when
determining whether a duty of care is owed: fairness and public policy; foreseeability;
the relationship between the parties; the nature of the conduct at issue; and the ability to
alter behavior to avoid injury to another. When the duty at issue relates to the risk of
harm created by a third party, the plaintiff must prove that the defendant knew or had
reason to know of the risk of harm in question. (pp. 11-13)
2. Although tort law requires the creation of a risk of harm before a duty of care is
imposed, tort law imposes vicarious liability, without personal fault, upon employers for
certain acts of an employee under the doctrine of respondeat superior. For liability to
attach to an employer under the doctrine of respondeat superior, 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. Unlike respondeat superior,
negligent hiring, supervision, and training are not forms of vicarious liability and are
based on the direct fault of an employer. (pp. 13-15)
3. The regulations relied on by plaintiff do not impose on Arthur a duty to report under
the circumstances of this case. N.J.A.C. 8:40-3.7(a)(4) requires EMTs and others to
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report “[a]ny instance where a crewmember acts outside of his or her approved scope of
practice,” but no such conduct was alleged here. And N.J.A.C. 8:40-3.7(a)(5)’s
requirement that EMTs and others report, among other things, “any instances of child
abuse or neglect” depends on the definition of child abuse set forth in Title 9, which is
limited to conduct by the child’s “parent, guardian, or other person having . . . custody
and control” of the child. See N.J.S.A. 9:6-8.9. (pp. 15-16)
4. In J.S. v. R.T.H., the Court held that a spouse owes children sexually abused by her
husband a duty of care “to take reasonable steps to prevent or warn of the harm” when
she has “actual knowledge or special reason to know that her husband is abusing or is
likely to abuse an identifiable victim.” 155 N.J. 330, 342-43, 352 (1998). The plaintiff
has pointed to the following facts to establish a duty of care for Arthur to report Kenneth:
(1) Kenneth walked plaintiff to her bus stop; (2) Kenneth gave inconsistent accounts of
the age of his “girlfriend” to co-workers; and (3) Kenneth showed Arthur pictures or
videos of a naked female on his flip-phone. However, those facts do not establish that
Arthur knew Kenneth was engaged in a sexual relationship with a minor -- nor do those
facts establish a special reason for Arthur to know that Kenneth was engaged in a sexual
relationship with a minor. Nothing in the record suggests that Arthur viewed any pictures
or videos of plaintiff. (pp. 16-17)
5. Arthur does not owe a duty of care in this case. Because Arthur did not commit a tort,
GEM cannot be held vicariously liable for his conduct. And the record does not
adequately support plaintiff’s claim for negligent retention, training, or supervision.
Although plaintiff has pointed to various actions by Kenneth that occurred at work, the
only tort in this case is Kenneth’s off-duty abuse of plaintiff. (pp. 17-18)
The judgment of the Appellate Division is REVERSED.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON,
SOLOMON, and TIMPONE join in JUSTICE FERNANDEZ-VINA’S opinion.
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SUPREME COURT OF NEW JERSEY
A-25/26 September Term 2018
081545
G.A.-H.,
Plaintiff-Respondent,
v.
K.G.G.,
Defendant,
and
A.M.,
Defendant-Appellant,
and
GEM Ambulance, LLC,
Defendant-Appellant,
and
Lakewood S.C. United,
Defendant,
and
Monmouth Ocean Soccer Association a/k/a MOSA,
Jersey Shore Boca, and Jersey Shore Boca JR FC League,
Defendants.
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On certification to the Superior Court,
Appellate Division, whose opinion is reported at
455 N.J. Super. 294 (App. Div. 2018).
Argued Decided
April 23, 2019 June 26, 2019
Frances Wang Deveney argued the cause for appellant
A.M. (Marks, O’Neill, O’Brien, Doherty & Kelly,
attorneys; Frances Wang Deveney, of counsel and on the
briefs, and Shannon B. Adamson, on the briefs).
George R. Hardin argued the cause for appellant GEM
Ambulance, LLC (Hardin, Kundla, McKeon & Poletto,
attorneys; George R. Hardin, of counsel and on the briefs,
and Arthur A. Povelones, Jr., on the briefs).
Ramon M. Gonzalez argued the cause for respondent,
(Ramon M. Gonzalez, on the brief).
JUSTICE FERNANDEZ-VINA delivered the opinion of the Court.
In this case, we consider whether defendant A.M. (Arthur) was obligated
to report that his co-worker K.G.G. (Kenneth) was engaged in a sexual
relationship with a minor; whether their employer, GEM Ambulance, LLC
(GEM), is vicariously liable for Arthur’s failure to report; and whether GEM
negligently retained, trained, or supervised Arthur or Kenneth.
Plaintiff was fifteen years old in September 2010 when Kenneth, who
was then forty-four years old, began an illicit sexual relationship with her.
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While that illegal relationship was ongoing, Kenneth and Arthur worked
together for GEM as emergency medical technicians (EMTs). In her
complaint, plaintiff alleged that Arthur should have reported Kenneth to
supervisors at GEM and that GEM was both vicariously liable for Arthur’s
failure to report Kenneth’s conduct and negligent in retaining, training, and
supervising Arthur and Kenneth.
The trial court granted Arthur and GEM summary judgment, holding that
Arthur had no duty to report Kenneth and, moreover, that no facts created a
reasonable basis for Arthur to believe Kenneth was engaged in a sexual
relationship with a minor. The Appellate Division, however, vacated the trial
court’s grants of summary judgment and remanded for further development of
the record because, in its view, “the common law does not necessarily preclude
the imposition of” a duty to report that a co-worker is engaged in a sexual
relationship with a minor and the record here was not sufficiently developed to
determine whether Arthur knew of Kenneth’s illicit sexual relationship with
plaintiff. G.A.-H. v. K.G.G., 455 N.J. Super. 294, 297-304 (App. Div. 2018).
We reverse the Appellate Division’s judgment and reinstate the trial
court’s grants of summary judgment. The Appellate Division erred by failing
to determine the issue of duty under the facts presented. Here, no reasonable
trier of fact could find that Arthur knew or had special reason to know that
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Kenneth was engaged in a sexual relationship with a minor. Accordingly,
Arthur had no duty to report Kenneth. The record similarly fails to provide a
basis for liability to attach to GEM. Because the record here is determinative
of Arthur’s and GEM’s liability, we need not decide whether a co-worker or
employer with knowledge or a special reason to know that a co-worker or
employee is engaged in a sexual relationship with a minor has a legal duty to
report that co-worker or employee.
I.
A.
The following facts were derived from the summary judgment record
and from plaintiff’s and Arthur’s deposition testimony.
Kenneth and plaintiff first met through a mutual friend. Kenneth would
take plaintiff and the friend to the movies. Plaintiff and Kenneth were also
both involved with a traveling soccer team, which plaintiff managed and
Kenneth served as an assistant coach. Kenneth began sexually abusing
plaintiff by grooming her to “trust” him and threatening to end their
relationship if she objected when he touched her sexually.
Kenneth began having sexual intercourse with plaintiff in September
2010, when she was fifteen and he was forty-four. Kenneth would pick up
plaintiff from her house before school, drive to isolated areas, and have sex
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with her in his car. Those excursions occurred on Kenneth’s days off. When
this illegal relationship was ongoing, Kenneth worked for GEM, a medical
transportation provider, as an emergency medical technician.
While Kenneth was working, he would sometimes park a GEM
ambulance near plaintiff’s bus stop and, from there, he would walk her to her
bus stop. No other GEM emergency medical technician interacted with
plaintiff on these occasions, and plaintiff’s bus stop could not be seen from the
GEM vehicle. Plaintiff does not know whether Arthur, who was also an
emergency medical technician for GEM, was ever in the GEM vehicle when
Kenneth walked her to her bus stop. On one occasion, Kenneth drove plaintiff
to her school in a GEM ambulance while other technicians were in the vehicle,
but Kenneth did not touch plaintiff inappropriately or identify her as his
“girlfriend.” Plaintiff did not know whether Arthur was one of the technicians
in the vehicle on that occasion.
Kenneth often bragged to co-workers that he was in a “relationship,” but
he never identified plaintiff by her real name or age. Kenneth often stated
various ages when telling his co-workers how old his “girlfriend” was, but he
never mentioned an age below the age of consent. For instance, he once told
his co-workers that his “girlfriend” was twenty-two years old. Kenneth would
also show pictures and videos of a naked female to Arthur.
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Kenneth bought plaintiff a cell phone and demanded that she send him
pictures and videos of herself. In addition, Kenneth would often record his
sexual encounters with plaintiff.
Kenneth and Arthur worked together on several Tuesday shifts from
December 2010 to February 2011. During those shifts, Kenneth would show
Arthur the pictures and videos of a naked female that Kenneth had on his
phone. Arthur would quickly look away from Kenneth’s phone when shown
the pictures and videos. Kenneth’s phone was a “flip phone” with a small
screen. Arthur also tried to shut down any discussion of the pictures and
videos.
Kenneth’s abuse of plaintiff ended in February 2011, when she informed
her mother about her relationship with Kenneth. Plaintiff’s mother notified the
police of Kenneth’s actions. Kenneth thereafter pled guilty to various criminal
offenses.
B.
Plaintiff filed suit against Kenneth, Arthur, and GEM, among others, in
February 2015. Plaintiff claimed that Arthur should have reported Kenneth to
supervisors at GEM and that GEM was vicariously liable for Arthur’s failure
to report Kenneth’s conduct and also negligent in retaining, training, and
supervising Arthur and Kenneth. The trial court entered default judgment
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against Kenneth. Plaintiff filed motions to obtain copies of the pictures and
videos from Kenneth’s phone, but the trial court declined to order that relief.
Thereafter Arthur and GEM moved for summary judgment.
In a written decision, the trial court found no evidence indicating “that
[Arthur] should have suspected any instances of child abuse . . . by
[Kenneth].” In the trial court’s view, there was no basis for Arthur to have a
“reasonable belief” that Kenneth was engaged in a sexual relationship with a
minor. The trial court held, moreover, that N.J.S.A. 9:6-8.10, which requires
the reporting of child abuse in certain situations, did not require Arthur to
report Kenneth because the statute does not cover the abuse at issue in this
case. Specifically, in the trial court’s view, N.J.S.A. 9:6-8.10 is limited by
N.J.S.A. 9:6-8.9 and therefore creates a duty to report only abuse committed or
allowed by a “parent, guardian, or other person having . . . custody or control”
over the victim.
Accordingly, the trial court held that Arthur did not have a duty to report
Kenneth. The trial court further held that there was no basis for liability to
attach to GEM. Plaintiff appealed.
C.
The Appellate Division vacated the trial court’s grants of summary
judgment and remanded the case to the trial court. G.A.-H., 455 N.J. Super. at
7
306. The Appellate Division agreed that N.J.S.A. 9:6-8.10 did not impose a
duty to report based on the facts of this case. Id. at 300-01. The court
considered, however, whether a duty of care can exist under the common law
“when one remains silent and fails to warn a victim or alert authorities despite
knowledge or a reason to suspect that a co-worker has engaged in the sexual
abuse of a minor.” Id. at 297. The Appellate Division concluded that “the
common law does not necessarily preclude the imposition of such a duty.”
Ibid.
When analyzing the question of Arthur’s duty to report, the Appellate
Division analogized this case to J.S. v. R.T.H., 155 N.J. 330, 334, 342 (1998),
in which this Court held that a spouse with “knowledge or special reason to
know” that her spouse was sexually abusing children had a duty to prevent or
report that abuse. See G.A.-H., 455 N.J. Super. at 301-04. The Appellate
Division also looked to the factors set forth by this Court in J.S. as to the
question whether a duty of care should be imposed:
the nature of the underlying risk of harm, that is, its
foreseeability and severity, the opportunity and ability
to exercise care to prevent the harm, the comparative
interests of, and the relationships between or among,
the parties, and, ultimately, based on considerations of
public policy and fairness, the societal interest in the
proposed solution.
[Id. at 302 (quoting J.S., 155 N.J. at 337).]
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While recognizing that the relationship in J.S. -- spouses -- was different from
the relationship in this case -- co-workers -- the Appellate Division did not
allow that difference to “end [its] inquiry” because the common law can adapt
to the public policy of the times. Id. at 301.
The Appellate Division declined to determine whether it should impose a
duty to report in this case because it was not clear to the court, as the record
was presented to it, “what [Arthur] knew and when he knew it.” Id. at 304. In
the Appellate Division’s view, the lack of clarity was caused by the trial
court’s denial of plaintiff’s request to view the pictures and videos on
Kenneth’s phone. Ibid. Accordingly, the Appellate Division vacated the trial
court’s decisions and remanded for further proceedings. Ibid.
We granted Arthur’s and GEM’s petitions for certification. 236 N.J. 103(2018); 236 N.J. 101 (2018).
II.
A.
Arthur argues that the Appellate Division’s opinion creates a vague, ill-
defined duty that could lead to liability in many unanticipated situations and
for individuals in many different occupations, thus leaving the public without
adequate notice as to when a duty may be imposed for failure to report sexual
abuse. It would be inappropriate to impose a duty upon him, Arthur states,
9
because he had no relationship or connection to plaintiff. In any event, Arthur
asserts that he had no reason to suspect that Kenneth was engaged in a sexual
relationship with a minor.
GEM also argues that there is no basis for liability to be imposed upon it
because Kenneth’s relationship with plaintiff was outside the scope of his
employment with GEM and neither Arthur nor GEM should have a duty of
care under the record as presented.
B.
Plaintiff argues that there was a reasonable basis for Arthur to believe
Kenneth was engaged in a sexual relationship with a minor and that Arthur
should therefore have a duty to report that relationship. Echoing the Appellate
Division’s holding, plaintiff claims that viewing the pictures and videos on
Kenneth’s phone will provide further evidence that Arthur had a reasonable
basis to believe Kenneth was engaged in a sexual relationship with a minor.
Plaintiff further argues that this reasonable basis is objective and apparent.
According to plaintiff, the Appellate Division did not err by analogizing
this case to J.S. because Arthur’s training as an emergency medical technician
should have enabled him to recognize that plaintiff was a minor. Plaintiff adds
that regulations that specifically require EMTs to report certain conduct under
10
certain circumstances imposed a reporting duty on Arthur here, and reveal that
he should be “held to a higher standard than the spouse in J.S.”
Plaintiff also argues that there are numerous facts upon which liability
could attach to GEM, such as Kenneth’s bragging at work and showing the
pictures and videos to Arthur.
III.
A.
This Court reviews a trial court’s grant of summary judgment de novo.
Harz v. Borough of Spring Lake, 234 N.J. 317, 329 (2018). The crucial
question when determining whether summary judgment should be granted is
“whether the competent evidential materials presented, when viewed in the
light most favorable to the non-moving party, are sufficient to permit a rational
factfinder to resolve the alleged disputed issue in favor of the non-moving
party.” Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
Stated differently, Rule 4:46-2(c) specifies that summary judgment should be
granted when “there is no genuine issue as to any material fact challenged
and . . . the moving party is entitled to a judgment . . . as a matter of law.”
B.
“The fundamental elements of a negligence claim are a duty of care
owed by the defendant to the plaintiff, a breach of that duty by the defendant,
11
injury to the plaintiff proximately caused by the breach, and damages.”
Robinson v. Vivirito, 217 N.J. 199, 208 (2014). Ultimately, while the factual
record is viewed under the summary judgment standard, “whether a defendant
owes a legal duty to another and the scope of that duty are generally questions
of law for the court to decide.” Ibid.; accord Jerkins v. Anderson, 191 N.J.
285, 294 (2007) (“Whether a duty of care exists is a question of law that must
be decided by the court.”); Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439
(1993) (“Determining the scope of tort liability has traditionally been the
responsibility of the courts.”).
Courts consider several factors when determining whether a duty of care
is owed: fairness and public policy; foreseeability; the relationship between
the parties; the nature of the conduct at issue; “and the ability to alter behavior
to avoid injury to another.” Robinson, 217 N.J. at 208; see also J.S., 155 N.J.
at 337; Hopkins, 132 N.J. at 439.
Courts should balance those factors in a “principled” fashion, leading to
a decision that both resolves the current case and allows the public to
anticipate when liability will attach to certain conduct. Hopkins, 132 N.J. at
439. “Foreseeability of the risk of harm is the foundational element in the
determination of whether a duty exists,” but “the determination of the
existence of a duty is [ultimately] a question of fairness and public policy.”
12
J.S., 155 N.J. at 337, 339; see also Dunphy v. Gregor, 136 N.J. 99, 109 (1994)
(“Ultimately, whether a duty exists is a matter of fairness.”); Hopkins, 132 N.J.
at 439 (“Whether a person owes a duty of reasonable care toward another turns
on whether the imposition of such a duty satisfies an abiding sense of basi c
fairness under all of the circumstances in light of considerations of public
policy.”).
Because “[p]ublic policy must be determined in the context of
contemporary circumstances and considerations,” duty of care “is a malleable
concept that ‘must of necessity adjust to the changing social relations and
exigencies and man’s relation to his fellows.’” J.S., 155 N.J. at 339 (quoting
Wytupeck v. Camden, 25 N.J. 450, 462 (1957)). However, as a background
principle, the law of torts declines to impose a duty of care upon “[a]n actor
whose conduct has not created a risk of physical or emotional harm to
another.” Restatement (Third) of Torts § 37 (Am. Law Inst. 2012).
Accordingly, when the duty at issue relates to the risk of harm created by a
third party, the plaintiff must prove that the defendant knew or had reason to
know of the risk of harm in question. J.S., 155 N.J. at 338.
C.
Although tort law requires the creation of a risk of harm before a duty of
care is imposed, tort law imposes vicarious liability, without “personal fault,”
13
upon employers for certain acts of an employee. Carter v. Reynolds, 175 N.J.
402, 408 (2003). The imposition of vicarious liability upon employers for the
acts of an employee, also known as the doctrine of respondeat superior, is
based upon the idea that the employee is the agent or, “arm” of the employer.
Davis v. Devereux Found., 209 N.J. 269, 287 (2012); see also Schultz v.
Roman Catholic Archdiocese, 95 N.J. 530, 538 (1984) (“[A] corporation can
act only through its agents or servants.”); Meir Dan-Cohen, Responsibility and
the Boundaries of the Self, 105 Harv. L. Rev. 959, 981-82 (1992) (likening
vicarious liability for the acts of an employee to “the model of responsibility
for [one’s] body”). Respondeat superior dates back to “the seventeenth -
century common law of England” and “has long been part of New Jersey law.”
Davis, 209 N.J. at 287. For liability to attach to an employer under the
doctrine of respondeat superior, 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.” Carter, 175 N.J. at 409.
Unlike respondeat superior, negligent hiring, supervision, and training
are not forms of vicarious liability and are based on the direct fault of an
employer. See Schultz, 95 N.J. at 534-35; Hoag v. Brown, 397 N.J. Super. 34,
54 (App. Div. 2007) (“[A] claim based on negligent hiring or negligent
supervision is separate from a claim based on respondeat superior.”). To be
14
found liable for negligent hiring, the plaintiff must show: (1) that the
employer “knew or had reason to know of the particular unfitness,
incompetence or dangerous attributes of the employee and could reasonably
have foreseen that such qualities created a risk of harm to other persons” and
(2) “that, through the negligence of the employer in hiring the employee, the
latter’s incompetence, unfitness or dangerous characteristics proximately
caused the injury.” DiCosala v. Kay, 91 N.J. 159, 173 (1982). To be found
liable for negligent supervision or training, the plaintiff must satisfy what is
essentially the same standard, but framed in terms of supervision or training.
See ibid. That is to say, the plaintiff must prove that (1) an employer knew or
had reason to know that the failure to supervise or train an employee in a
certain way would create a risk of harm and (2) that risk of harm materializes
and causes the plaintiff’s damages. See ibid.IV.
A.
Applying those principles to the facts of this case, we first note that the
regulations relied on by plaintiff do not impose on Arthur a duty to report
under the circumstances of this case. N.J.A.C. 8:40-3.7(a)(4) requires EMTs
and others to report “[a]ny instance where a crewmember acts outside of his or
her approved scope of practice,” but no such conduct was alleged here. And
15
N.J.A.C. 8:40-3.7(a)(5)’s requirement that EMTs and others report, among
other things, “any instances of child abuse or neglect” depends on the
definition of child abuse set forth in Title 9, which both the trial court and the
Appellate Division correctly found to be limited to conduct by the child’s
“parent, guardian, or other person having . . . custody and control” of the child.
See N.J.S.A. 9:6-8.9.
In J.S., this Court held that a spouse owes children sexually abused by
her husband a duty of care “to take reasonable steps to prevent or warn of the
harm” when she has “actual knowledge or special reason to know that her
husband is abusing or is likely to abuse an identifiable victim.” 155 N.J. at
342-43, 352. We need not decide whether that duty should apply to co-
workers because no reasonable trier of fact could find that Arthur knew or had
special reason to know that Kenneth was engaged in an illegal sexual
relationship with a minor. See ibid.The plaintiff has pointed to the following facts to establish a duty of care
for Arthur to report Kenneth: (1) Kenneth walked plaintiff to her bus stop
while she carried a backpack; (2) Kenneth gave inconsistent accounts of the
age of his “girlfriend” when bragging to co-workers about his “girlfriend”; and
(3) Kenneth showed Arthur pictures or videos of a naked female on his flip-
phone. However, those facts do not establish that Arthur knew Kenneth was
16
engaged in a sexual relationship with a minor -- nor do those facts establish a
“special reason [for Arthur] to know” that Kenneth was engaged in a sexual
relationship with a minor. See ibid.It is often difficult to know someone’s age based upon appearance alone.
Plaintiff claims Arthur should have known she was below the age of consent
because Kenneth showed him the pictures and videos of plaintiff on Kenneth’s
phone. Nothing in the record suggests that Arthur viewed any pictures or
videos of plaintiff. But, even assuming he did, in order for Arthur to know
that plaintiff was below the age of consent, he would have had to perceive the
difference between someone who is above or below the age of consent based
upon appearance alone and from a small cellphone image. A small cellphone
image of a naked female does not give rise to a “special reason to know” that
Kenneth was engaged in a sexual relationship with a minor. See id. at 338(emphasis added).
Accordingly, the record here does not require further development for us
to determine what is clear: Arthur does not owe a duty of care in this case.
We further hold that there are no facts presented upon which liability could
attach to GEM. See generally Carter, 175 N.J. at 409 (“To establish a master’s
liability for the acts of his servant, a plaintiff must prove (1) that a master-
servant relationship existed and (2) that the tortious act of the servant occurred
17
within the scope of that employment.”). Because Arthur did not commit a tort,
GEM cannot be held vicariously liable for his conduct. And the record does
not adequately support plaintiff’s claim for negligent retention, training, or
supervision. Although plaintiff has pointed to various actions by Kenneth that
occurred at work, the only tort in this case is Kenneth’s off-duty abuse of
plaintiff. That Kenneth bragged about having a younger “girlfriend” at work
and also drove a GEM ambulance to plaintiff’s bus stop does not make GEM
negligent in retaining, training, or supervising Kenneth or Arthur.
V.
For the reasons stated, the judgment of the Appellate Division is
reversed and the trial court’s grants of summary judgment are reinstated.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
PATTERSON, SOLOMON, and TIMPONE join in JUSTICE FERNANDEZ-
VINA’S opinion.
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