C.O. VS. PINE HILL SCHOOL DISTRICT BOARD OF EDUCATION VS. D.C.M.(L-4862-13, CAMDEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-2617-15T1
C.O., R.O., and G.M.O.,
Plaintiffs-Appellants,
v.
PINE HILL SCHOOL DISTRICT BOARD
OF EDUCATION, DOUG ENDEE, and
PATRICIA ISRAEL,
Defendants-Respondents,
and
C.M., and A.M.,
Defendants,
and
PINE HILL SCHOOL DISTRICT BOARD
OF EDUCATION, DOUG ENDEE and
PATRICIA ISRAEL,
Third-Party Plaintiffs,
v.
D.C.M.,
Third-Party Defendant.
____________________________________________________
Argued September 19, 2017 – Decided October 26, 2017
Before Judges Fisher and Fasciale.
On appeal from the Superior Court of New
Jersey, Law Division, Camden County, Docket
No. L-4862-13.
Brian D. Kent argued the cause for appellants
(Laffey, Bucci & Kent, LLP, attorneys; Mr.
Kent and Samuel I. Reich (Laffey, Bucci &
Kent, LLP) of the Pennsylvania bar, admitted
pro hac vice, on the briefs).
Cherylee O. Melcher argued the cause for
respondents (Hill Wallack LLP, attorneys; Ms.
Melcher, on the brief).
PER CURIAM
Sometime in or about April through August 2008, when plaintiff
C.O. (Carolyn, a fictitious name) was thirteen years old, she was
sexually abused by D.C.M. (Donald, a fictitious name), the father
of her friend A.M. (Arlene, a fictitious name). Carolyn came
forward in January 2009 and Donald was arrested. During the months
that followed, while out on bail, Donald repeatedly drove up and
down Carolyn's street, causing the judge presiding in the pending
criminal matter to issue a restraining order. Donald later pleaded
guilty to and was sentenced on offenses relating to his abuse of
Carolyn and other girls.
In the Fall of 2009, Carolyn began her high school freshman
year in the Pine Hill School District. Because Arlene attended the
same school, school administrators met with Carolyn's mother to
address concerns naturally arising from the circumstances,
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including the potential for Donald's appearance on the premises.
Carolyn and her parents allege in their complaint in this civil
action that, despite these recognized concerns, Carolyn and Arlene
were placed in the same homeroom, Arlene would appear at times in
or near some of Carolyn's classes, and they were assigned nearby
lockers. In short, rather than attempt to insulate Carolyn from
the sequelae of her abuser's conduct, plaintiffs' allegations –
if true – suggested the school district went out of its way to
permit an already troublesome situation to fester and devolve.
Plaintiffs allege Carolyn was repeatedly bullied by Arlene and
other students, and that the situation even boiled over into a
physical altercation between the two girls that prompted criminal
proceedings and both girls' suspension. Even then, according to
plaintiffs, the school district took no action to alleviate the
volatile circumstances, and the harassment continued. The school
district also, according to plaintiffs, occasionally allowed
Donald onto school property despite the existing restraining
order. Plaintiffs allege that these and other acts and omissions
caused Carolyn great stress and interfered with her ability to
attend the school.
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In 2013, Carolyn, no longer a minor, commenced this action1
against the school district and two of its representatives
(collectively referred to in this opinion as "the school-district
defendants").2 Carolyn and her parents asserted that the school-
district defendants were negligent, grossly negligent, careless
and reckless in failing to, among other things, "promulgate a safe
educational environment meant to prevent and cope with harassment,
bullying or intimidation."
In 2015, after nearly two years of discovery, Carolyn moved
to amend her complaint to include a claim based on the Law Against
Discrimination (LAD), N.J.S.A. 10:5-1 to -49. The motion was
denied, as was a subsequent motion for reconsideration.
The school-district defendants thereafter moved for summary
judgment. The judge granted the motion by concluding the evidence
did not support Carolyn's claim of a permanent injury as required
by N.J.S.A. 59:9-2, and by determining that Carolyn had not
1
Her parents are also plaintiffs.
2
Any pending claims asserted against Donald, his wife, and Arlene,
are not implicated by this appeal. We were advised by way of a
response to earlier inquiries by the Clerk's office, and again at
oral argument, that default was entered against these parties. It
is not clear to us whether judgment has been entered against any
of them, posing a procedural question whether finality has been
achieved in the trial court so as to permit an appeal as of right
of the orders in question. We, however, need not inquire further,
since, even if the orders were not final orders, we grant leave
to appeal out of time.
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alleged, nor provided sufficient evidence to demonstrate, that the
individual defendants Doug Endee and Patricia Israel engaged in
willful misconduct as the means of avoiding application of N.J.S.A.
59:9-2.
Plaintiffs appeal the October 9, 2015 order denying their
motion to amend to include an LAD claim and the February 5, 2016
order granting summary judgment in favor of the school-district
defendants. We conclude the judge was mistaken in both respects
and, therefore, reverse and remand for further proceedings.
I
The motion to amend need not long detain us. Absent a
demonstration that the amendment would be "futile" because it
would, if permitted, "fail" on its merits "and, hence, allowing
the amendment would be a useless endeavor[,]" Notte v. Merchants
Mut. Ins. Co., 185 N.J. 490, 501 (2006), motions to amend pleadings
are to be liberally granted "even if the ultimate merits of the
amendment are uncertain," Prime Accounting Dep't v. Twp. of
Carney's Point, 212 N.J. 493, 511 (2013). See also Rosario v.
Marco Constr. & Mgmt., Inc., 443 N.J. Super. 345, 352 (App. Div.
2016); Bustamante v. Bor. of Paramus, 413 N.J. Super. 276, 298
(App. Div. 2010).
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The judge did not find that the assertion of the nascent LAD
claim would be futile; that is, we do not discern that his oral
decision was driven by a belief that the LAD claim could not
withstand a motion to dismiss.3 Instead, the judge concluded that
it was too late in the game to permit an amendment. The record
reveals, however, and the judge so observed, that the assertion
of this new claim would not require further discovery or the
joinder of additional defendants. Plaintiffs sought only to add
an additional theory of recovery to those already asserted against
these defendants. Because the school-district defendants would not
have been unduly prejudiced by the amendment, and because the
assertion of an LAD claim would not have delayed the proceedings,
we reverse the October 9, 2015 order and turn to the order granting
summary judgment.
II
In seeking summary judgment, the school-district defendants,
which consist of a public entity (the school district) and two
3
In referring to the deposition testimony of the school principal
to which plaintiffs alluded in seeking leave to amend, the judge
suggested only that the principal's conclusory statements were not
evidential. Even if the judge is correct about that, it does not
demonstrate why the available evidence would not support an LAD
claim. In other words, the principal's deposition testimony was
the impetus for the motion; we do not understand plaintiffs'
position as suggesting that the principal's deposition testimony
is all that may be amassed to show an LAD violation.
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public employees (Endee and Israel), relied on N.J.S.A. 59:9-2(d),
which bars an award of damages for pain and suffering against them
absent proof of a permanent and substantial injury.4 The problem
with applying this verbal threshold is that Carolyn – if we accept,
as we must, the truth of her allegations – was subjected to a
series of separate but arguably overlapping traumatic
circumstances generated by different parties.5 Certainly, the acts
or omissions of the school-district defendants did not cause or
factor into the sexual abuse suffered by Carolyn. Nor did the
school-district defendants participate in the traumatic events
that immediately followed, i.e., Donald's stalking of her in the
months preceding the commencement of her freshman year in high
school. The experts upon whom Carolyn relies to prove her claims
4
The entire provision states: "No damages shall be awarded against
a public entity or public employee for pain and suffering resulting
from any injury; provided, however, that this limitation on the
recovery of damages for pain and suffering shall not apply in
cases of permanent loss of a bodily function, permanent
disfigurement or dismemberment where the medical treatment
expenses are in excess of $3,600." In Brooks v. Odom, 150 N.J.
395, 406 (1997), the Court held that, to meet this statute's
requirements, the alleged loss must be "substantial."
5
Carolyn also argues that Endee and Israel, as public employees,
may not take advantage of the verbal threshold because they acted
willfully, citing N.J.S.A. 59:3-14. In response, the school-
district defendants argue that Carolyn did not allege in her
complaint that the public employees acted "willfully." In light
of our disposition of this appeal, we need not reach these issues.
7 A-2617-15T1
acknowledge that those pre-school events had already caused
psychiatric injuries. Carolyn had, for example, thoughts of
suicide in June 2009 before the start of the school year. But,
because we accept Carolyn's allegations as true, we assume she
arrived for her freshman year in a fragile state, as the school-
district defendants recognized when they held a meeting to discuss
the situation with Carolyn's mother.
We further assume, as the Brill6 standard requires, that the
school-district defendants' response to these circumstances fell
short of what might arguably be expected from such professionals
and, consequently, Carolyn was subjected to bullying and
harassment from Arlene, the daughter of her abuser, as well as
others. And, when this problem repeatedly manifested, it has been
alleged the school-district defendants continued to fail her.
In responding to the school-district defendants' invocation
of the verbal threshold, Carolyn argues that because she was
sexually molested she must be deemed to have vaulted the obstacles
imposed by N.J.S.A. 59:9-2(d). For this proposition, she relies
on the reported trial court opinion in A.C.R. v. Vara, 264 N.J.
Super. 565, 571-72 (Law Div. 1992), where the verbal-threshold
requirements were met – indeed the A.C.R. judge found that a
6
Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
8 A-2617-15T1
presumption arises – upon proof of a child's sexual molestation
even though "the injury only manifests itself in psychological
symptoms." The Supreme Court approved of this concept in Collins
v. Union County Jail, 150 N.J. 407, 420-21 (1997), when it
recognized that a claim of "alleged permanent psychological harm
in the form of post-traumatic stress disorder [PTSD] resulting
from the rape by [a] corrections officer[] constitutes a 'permanent
loss of a bodily function' within the meaning of N.J.S.A. 59:9-
2(d)."
Carolyn's urging of a presumption of compliance with the
verbal threshold because she was sexually molested, however,
represents an oversimplification of the issues before us. But so
too is the school-district defendants' argument that Carolyn
cannot vault the verbal threshold because her experts acknowledged
she suffered PTSD at Donald's hands and the symptoms in question
manifested prior to her attendance at their school. The issue is
more nuanced than either of those positions.
To be sure, the school-district defendants correctly argue
they may be held responsible only for injuries they caused and are
not liable for injuries Donald inflicted. They argue that to the
extent psychiatric injuries occurred, they occurred prior to their
involvement with Carolyn – and those preexisting injuries cannot
be considered in determining whether whatever injuries they
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allegedly caused are sufficient to vault the statutory verbal
threshold. In short, the record may suggest no more than that the
school-district defendants' involvement with Carolyn – if wrongful
– only aggravated her preexisting PTSD. But that doesn't
necessarily mean that the verbal threshold cannot be vaulted here.
In many ways, the present circumstances, and the trial judge's
disposition of the motion, are reminiscent of the difficulties our
courts encountered in automobile litigation governed by the verbal
threshold contained in automobile no-fault legislation, where a
preexisting injury was aggravated by a subsequent auto accident.
In Polk v. Daconceicao, 268 N.J. Super. 568, 575 (App. Div. 1993),
we held that when a plaintiff claims an auto accident alleged in
a complaint aggravated a preexisting injury, to avoid summary
judgment the plaintiff is required to provide a comparative-
medical analysis so that the plaintiff's residuals prior to the
accident might be correlated with the injuries suffered in the
accident in question. Polk formulated a rule that, "[w]ithout a
comparative analysis, the conclusion that the pre-accident
condition has been aggravated must be deemed insufficient to
overcome" the no-fault verbal threshold. Ibid. In Davidson v.
Slater, 189 N.J. 166, 186-87 (2007), however, our Supreme Court
rejected Polk; the Court found nothing in the then-existing no-
fault verbal threshold statute to impose on a plaintiff an
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obligation to present a comparative analysis to fend off a summary-
judgment motion.
Although we deal here with a different statutory threshold,
the automobile no-fault statute's purposes and policies – the
reduction of bodily injury claims for non-economic damages in
insubstantial claims – are similar. See Collins, supra, 150 N.J.
at 413 (recognizing that N.J.S.A. 59:9-2(d) was intended to
"preclude recovery for pain and suffering based on subjective
evidence or minor incidents"). Our approach in applying N.J.S.A.
59:9-2 – the Tort Claims Act's verbal threshold – should be
consistent with the automobile no-fault verbal threshold.
For these reasons, we conclude that Carolyn was not required
– at the summary-judgment stage – to delineate between those
psychiatric injuries Donald caused and those caused or aggravated
by the school-district defendants. Carolyn's allegations that her
PTSD was caused or further aggravated by the school-related events
suffices to defeat summary judgment. It will be for the jury to
ascertain the extent to which the injuries inflicted by Donald
were aggravated by the acts or omissions of the school-district
defendants and if that aggravation was sufficient to vault the
threshold contained in N.J.S.A. 59:9-2(d).
In short, as recognized in Davidson, supra, 189 N.J. at 186,
a plaintiff injured by separate torts must ultimately "produce
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comparative-analysis evidence to establish a prima facie
aggravation of pre-existing injuries" at trial, but, at the
summary-judgment stage, a plaintiff "need only raise a genuine
issue of material fact in respect of causation sufficient to permit
a rational fact-finder to resolve the alleged dispute in her
favor." There was a sufficient assertion of a substantial
aggravation of Carolyn's preexisting conditions contained in her
experts' reports to militate against the entry of summary judgment;
indeed, the expert opinions provided in opposition to the school-
district defendants' summary-judgment motion broadly blame all
defendants for the PTSD from which Carolyn suffered between 2008
and 2013. For example, Dr. Joel B. Glass opined, "with[in]
reasonable medical psychiatric certainty," that between 2008 (when
molested by Donald) and 2013 (years encompassing Carolyn's school
attendance), Carolyn experienced PTSD "characterized by anxiety,
depression, crying spells hypersomnia, social withdrawal, suicidal
thoughts, apathy, poor concentration hyperphagia, anxiety attacks,
nightmares and intrusive thoughts." Dr. Glass asserted that the
PTSD was "the direct result of her sexual abuse at the hands of
[Donald] and the bullying and harassment she endured as well as
feeling unsafe at school and unsupported by school officials"
(emphasis added).
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The limited question before us is whether this and the other
similar expert report represented sufficient evidence of a
permanent injury – at the summary judgment stage – to vault the
statutory verbal threshold. Carolyn's experts professed that she
suffered permanent and substantial psychiatric injuries that
conform with the Brooks requirement of a substantial injury. 150
N.J. at 406. In adhering to the principles expressed in Davidson,
which we view as providing the proper framework for applying
N.J.S.A. 59:9-2(d) in similar circumstances, we conclude that the
summary-judgment motion should have been denied.
Both orders under review are reversed and the matter remanded
for trial.
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