J.P. v. LAWRENCE TOWNSHIP BOARD OF EDUCATION (L-0273-15, MERCER COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE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-0180-20
J.P., a minor, by his mother, S.A.,
as Guardian Ad Litem for J.P.,
and S.A., individually,
Plaintiffs-Appellants,
v.
LAWRENCE TOWNSHIP BOARD
OF EDUCATION, DR. PHILIP
MEARA, Superintendent Lawrence
Township Public Schools, DR.
CRYSTAL LOVELL,
Superintendent Lawrence Township
Public Schools, DAVID ADAM,
Principal of the Lawrence
Township Intermediate School,
DR. LAURA WATERS,
Assistant Superintendent of the
Lawrence Township Public Schools,
MADELYN MCGUIRE, a Child
Study Team Member at the
Lawrence Township Intermediate
School, "JOHN" MIELCAREK, a
General Education Teacher of the
Lawrence Township Intermediate
School, SUSAN DOUGLAS, a
Teacher at the Lawrence Township
Intermediate School, DONNA M.
LEWIS, a Child Study Team
Member at the Lawrence Township
Intermediate School, ELIZABETH
MAYO, a Child Study Team
Member at the Lawrence Township
Intermediate School, ELLICE
WARNER, a Child Study Team
Member at the Lawrence Township
Intermediate School, HARRIET
HIRSCHFELD, Manager of After
School Programs of the Lawrence
Township School District, WENDY
DONAHUE, Personnel Specialist
Operations Manager of the
Lawrence Township School
District,
Defendants-Respondents,
and
PRINCETON FAMILY YMCA,
their teachers, members, employees,
agents, servants and/or volunteers,
MATT BOYD, individually and as
Youth & Family Assistant, for
Princeton Family YMCA, KEITH
WALSH, individually and as Sr.
Program Director for Princeton
Family YMCA, KATE BECH,
individually and as Chief Executive
Officer for Princeton Family
YMCA, and JOSEPH MILLER,
individually and as a teacher,
member, employee, agent, servant
and/or volunteer of the Lawrence
Township Public Schools and/or
Princeton Family YMCA,
A-0180-20
2
Defendants.
Submitted January 25, 2022 – Decided March 18, 2022
Before Judges Currier, DeAlmeida, and Smith.
On appeal from the Superior Court of New Jersey, Law
Division, Mercer County, Docket No. L-0273-15.
Gregory G. Gianforcaro and Daniel B. Shapiro,
attorneys for appellants.
Anderson & Shah, LLC, attorneys for respondents
(Jessica M. Anderson, on the brief).
PER CURIAM
Plaintiffs appeal from the trial court orders granting the school
defendants1 partial summary judgment and subsequently dismissing the
remaining counts on a motion for reconsideration, and the order denying
plaintiffs' motion for reconsideration. After reviewing the record in light of the
contentions advanced on appeal and the applicable principles of law, we affirm.
I.
S.A. is the mother of J.P., who is autistic. At the time of these events, J.P.
was attending Lawrenceville Intermediate School (LIS) and placed in a self-
1
We refer to respondents Lawrence Township Board of Education and its
employees as the school defendants or BOE.
A-0180-20
3
contained multiple-disabilities classroom pursuant to his individualized
education program. Defendant Joseph Miller was one of the aides in J.P.'s fifth-
grade classroom during the 2009-2010 academic year. He had been employed
by the Lawrence Township Board of Education since 2006. Miller also worked
at defendant Princeton Family YMCA in its after-care program. He was hired
by the YMCA in 2010.
At the conclusion of the 2010-2011 academic year, S.A. contacted the
child study team and requested that J.P. and his brother 2 be placed in a full-day
extended school year services program (ESY) during the summer. In response,
the child study team offered a half-day program. When S.A. renewed her request
for the full-time program because of her work schedule, a child study team
member told her that "Miller was going to be the lead teacher in the extended
school year program" and he "would be willing to watch [her] boys." According
to S.A., a teacher at the school told her that Miller was a "sweetheart."
S.A. enrolled J.P. in the ESY program, where Miller was the lead teacher.
Because of the child study team member's recommendation, S.A. stated she also
hired Miller to babysit her sons in the afternoon after the half-day ESY program
finished. Miller brought the boys in his car to either their house or his own
2
S.A.'s younger son is also autistic.
A-0180-20
4
house after the program and stayed with them for the remainder of the afternoon
until S.A. returned home. S.A. continued this arrangement with Miller, where
he would take the boys after school, until October 2011.
In November 2011, after reading a news article about a sexual abuse
scandal, S.A. asked J.P. and his brother if they had "ever showered with an
adult," to which J.P. responded, "Yes, with Mr. Miller." She then asked J.P. if
Miller was naked in the shower with him, to which J.P. responded, "Yes." J.P.'s
brother confirmed he had seen J.P. and Miller showering together. J.P. was
eleven years old at the time of these events.
S.A. and defendant Ellice Warner, J.P.'s behavioral specialist, contacted
the Lawrence Township Police. J.P. told the police he had been sexually abused
by Miller during the summer and fall of 2011. During his deposition, J.P.
testified that the abuse included showering with Miller, performing oral sex on
him, mutual masturbation, and Miller had digitally penetrated J.P.'s anus. J.P.
said the abuse took place at his house and at Miller's house; none of the abuse
A-0180-20
5
took place at the school. Miller was subsequently arrested and charged with
several counts of sexual assault and endangering the welfare of a child. 3
S.A. testified during her deposition that she did not know if the school
defendants were aware that Miller was a pedophile or had sexual propensities
toward minor children.
II.
In their fifth amended complaint, plaintiffs alleged the following claims
against the school defendants: negligent hiring, supervision, training, and
retention of Miller (the negligent hiring claim); negligence proximately caused
by an act or omission of a public employee within the scope of their
employment; breach of fiduciary duty; and S.A.'s claim for per quod damages.4
In a March 7, 2019 order, the court granted the school defendants partial
summary judgment, dismissing all counts of the complaint except the negligent
hiring claim. Later that month, the school defendants moved for reconsideration
of the denial of summary judgment on plaintiffs' negligent hiring claim. On
3
According to the fifth amended complaint, Miller pleaded guilty to two counts
of second-degree endangering the welfare of a child. He was sentenced to parole
supervision for four years, and his teaching license was revoked.
4
The complaint contained additional claims against the school defendants.
Because plaintiffs did not oppose the dismissal of those claims at the time of the
summary judgment motion, we need not address them.
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October 18, 2019, the court granted reconsideration to the school defendants,
dismissing the remaining count of the complaint.
Thereafter, plaintiffs moved for reconsideration of the dismissal of the
negligent hiring claim. On June 10, 2020, the court denied the motion. 5
III.
Because the appeal concerns the school defendants' hiring of Miller, we
detail those facts derived from the record.
Miller initially applied for a position with the school defendants'
afterschool program, submitting a cover letter, resume, and list of references.
Harriet Hirschfeld, manager of the afterschool program, interviewed Miller in
2006. In reviewing his resume, she noted he was a college graduate. She stated
during her deposition that it "was important that he had a college degree, and
that based on the experience that I saw that he would be a good monitor." She
admitted she did not actually "check to see if [Miller] was a college graduate
because ultimately it wasn't really a criteria for the position."
5
In August 2020, plaintiffs settled their claims with the YMCA and its
employees. Plaintiffs also voluntarily dismissed their claim against Miller.
A-0180-20
7
Hirschfeld did not request or review Miller's college transcript prior to
making her recommendation to the BOE. During discovery, the production of
Miller's college transcript revealed that his name was formerly Joseph Prunetti.
Hirschfeld also did not question Miller about the eight-year gap in his
resume between his college graduation date and his first job. She testified that
even in hindsight she probably would not have asked him about it because she
"didn't think it was significant."
Hirschfeld testified that she did not contact any of Miller's prior
employers. The resume listed Nature's Classroom, a day camp, as Miller's third
most recent employer—he worked there from 2002 to 2004. During discovery,
the parties learned Nature's Classroom had terminated Miller in March 2004 for
making inappropriate comments and sending an inappropriate email to a minor
student.
Hirschfeld did contact three of the four references Miller listed. She
explained that "[t]ypically . . . I use the references and as long as the three
references clear my job is just to say that on paper he looks like he's a good
employee and then . . . I turn it over so that he can get clearance, crime
clearance." She further stated that she only interviews an applicant and makes
a recommendation: "I can only say he looks good on paper and then refer it to
A-0180-20
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the [BOE], and they meet and then they review the documents and decide . . .
after doing the crime clearances, [whether to] approve him or not, it's up to the
[BOE], not me really."
In accordance with her procedure, Hirschfeld referred Miller's
employment application for a criminal background check. He was fingerprinted
and processed through the New Jersey State Police and the Federal Bureau of
Investigation. In November 2006, the Director of the Criminal History Review
Unit of the State of New Jersey Department of Education confirmed that Miller
cleared a criminal background check and was "approved for public school
employment in accordance with [the applicable statutes]." The BOE hired
Miller in December 2006 and approved him for various staff position s within
the school district through 2011, including substitute teacher and classroom aide
for special education students.
During discovery, other employees of the BOE were questioned regarding
their hiring practices. Wendy Donahue, the then-Lawrence Township School
District personnel manager, testified that she also interviewed Miller. In
discussing the background check, she explained it was the BOE's "policy" to
"call the most recent employer and anyone who was presently supervising him
A-0180-20
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at that time and we were to call three references . . . ." She was not aware
whether anyone had contacted Miller's most recent employer or supervisor.
Miller received excellent evaluations throughout his employment with the
BOE. Tonja Brown, Miller's supervisor, evaluated him for his position as a
classroom aide on April 27, 2011. She gave Miller a rating of "Excellent" in all
categories, and, in her comments said:
Mr[.] Miller is kind, caring and has a special gift that
he shares with his students[.] He enhances their self-
esteem and teaches them to believe that they can do
anything[.] This is all above the academic credentials
that he brings. In addition, Mr. Miller works very well
with the classroom teacher[.] He is to be commended
for his contribution to the classroom, students and
school wide community[.]
Miller was also well-liked and respected by his co-workers. Susan
Douglas, a sixth-grade teacher who worked with Miller for three years, told
investigating police she was "shocked" to learn about the allegations of sexual
abuse. She could not "believe it," and said "this could not be the person I have
known for three years." According to Douglas, no one had ever complained
about the way Miller taught or attended to the children in her class, and she had
"never" observed or had it brought to her attention that Miller may have touched
or done anything inappropriate with a student.
A-0180-20
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Similarly, when police questioned Warner about Miller, she said: "He is a
nice guy. He does a good job in [the sixth grade] class. I would have never
thought that something like this could have occurred." Hirschfeld also testified
there were no prior issues with Miller.
Before learning of the sexual assault, S.A. too thought very highly of
Miller. In the fall of 2011, she wrote an article for Autism New Jersey, entitled
"Everyday Autism," wherein she praised Miller, calling him "a fantastic teacher"
for her two boys. She wrote, "[t]he boys are so comfortable with [Miller]
because of his no-nonsense and warm-hearted demeanor. Their eyes light up
when he is around." "To me, he is the definition of a skilled and compassionate
professional."
IV.
On appeal, plaintiffs contend the trial court erred in dismissing their
negligent hiring claim on summary judgment and in denying their subsequent
motion for reconsideration.
We "review the trial court's grant of summary judgment de novo under the
same standard as the trial court." Templo Fuente De Vida Corp. v. Nat'l Union
Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016). Summary judgment should
be granted when, considering the competent evidence presented, viewed in the
A-0180-20
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light most favorable to the non-moving party, there is "no genuine issue as to
any material fact challenged" and "the moving party is entitled to a judgment or
order as a matter of law." R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am.,
142 N.J. 520, 529 (1995).
A.
Plaintiffs contend the school defendants breached the duty of care owed
to J.P. as established in Frugis v. Bracigliano, 177 N.J. 250 (2003). They assert
the school defendants breached their duty of care by failing to properly vet and
hire Miller, who posed a danger to the students in their care. Plaintiffs argue
the school defendants had an obligation to do more than just rely on a criminal
background check. They further contend the school defendants violated their
own policies, which supports their breach of duty and a finding of liability for
their negligence.
In a negligent hiring claim, "before recovery may be had, a duty must exist
in law and a failure in that duty must be proved as a fact." Johnson v. Usdin
Louis Co., 248 N.J. Super. 525, 529 (App. Div. 1991) (internal quotations
omitted) (quoting Mergel v. Colgate-Palmolive-Peet Co., 41 N.J. Super. 372,
379 (App. Div. 1956)). "[W]hether a duty exists is a matter of law properly
decided by the court, not the jury, and is largely a question of fairness or policy."
A-0180-20
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Wang v. Allstate Ins. Co., 125 N.J. 2, 15 (1991); Jerkins v. Anderson, 191 N.J.
285, 294 (2007) (noting that "[w]hether a duty of care exists is a question of law
that must be decided by the court"); Johnson, 248 N.J. Super. at 529 (recognizing
the same).
"Whether a person owes a duty of reasonable care toward another"
depends upon whether imposing "such a duty satisfies an abiding sense of basic
fairness" considering all of the circumstances and public policy. Hopkins v. Fox
& Lazo Realtors, 132 N.J. 426, 439 (1993) (citing Goldberg v. Hous. Auth., 38
N.J. 578, 583 (1962)).
In determining whether a duty exists, courts must weigh
and balance several factors, including the foreseeability
and severity of the risk of harm, the opportunity and
ability to exercise care to prevent the harm, the
comparative interests and relationships between or
among the parties and, ultimately, fairness and public
policy.
[Riley v. Keenan, 406 N.J. Super. 281, 291 (App. Div.
2009) (citing J.S. v. R.T.H., 155 N.J. 330, 337 (1998)).
See also Dunphy v. Gregor, 136 N.J. 99, 108 (1994)
("Ultimately, whether a duty exists is a matter of
fairness.").]
It is well-established that school officials owe a duty to exercise
reasonable care to schoolchildren and their parents to protect the children and
A-0180-20
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prevent endangerment or exploitation of them. Frugis, 177 N.J. at 268. As the
Court stated 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.
[Ibid. (emphasis added).]
Plaintiffs contend Frugis extends the duty owed by a school beyond the
classroom and that school personnel must exercise reasonable care when
interviewing, vetting, and making decisions on the hiring of prospective
employees. Plaintiffs' reliance on Frugis for this proposition is misplaced.
In Frugis, the Court considered the duty of care in the context of negligent
supervision. It established the duty of care for schoolteachers and administrators
supervising children entrusted to their care during school hours. Id. at 258.
Here, plaintiffs have not alleged that the school defendants negligently
supervised J.P. when the abuse occurred, and it is undisputed that the school
defendants were not actually supervising J.P. when the sexual abuse occurred,
since the abuse occurred outside the school. See Jerkins, 191 N.J. at 306 (stating
that "schools are [not] guarantors of students' safety with respect to all activities
during or after dismissal. A school district's responsibility has temporal and
A-0180-20
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physical limits, and its obligation to act reasonably does not diminish the
responsibilities that parents or guardians have to their children."). Instead, as
alleged by plaintiffs in their complaint, this is a negligent hiring case. Therefore,
as the trial court found, Frugis is not the controlling case.
The duty of care and the required elements to prove a negligent hiring
claim were established by the Court in Di Cosala v. Kay, 91 N.J. 159, 170-71
(1982) (holding "[a]n employer whose employees are brought into contact with
members of the public in the course of their employment is responsible for
exercising a duty of reasonable care in the selection or retention of its
employees.").
"[T]he tort of negligent hiring has as its constituent elements two
fundamental requirements." Id. at 173. "The first involves the knowledge of
the employer and foreseeability of harm to third persons." Ibid. Regardless of
whether the employee was acting within the scope of employment, "[a]n
employer will only be held responsible for the torts of its employees . . . where
it 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." Ibid.A-0180-20
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"The second required showing is that, through the negligence of the
employer in hiring the employee, the latter's incompetence, unfitness or
dangerous characteristics proximately caused the injury." Id. at 174. "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."
G.A.-H. v. K.G.G., 238 N.J. 401, 416 (2019).
"[T]he duty owed by [a] negligent employer [is not] limited to situations
within the scope of the employment of [its] employees." Di Cosala, 91 N.J. at
174. Rather, "the duty owed is properly to be determined by whether the risk of
harm from the dangerous employee to . . . the plaintiff was reasonably
foreseeable as a result of the employment." Ibid. "Thus, the issue of duty owed
to a plaintiff is a question of foreseeability." Id. at 175.
Our Supreme Court "has recognized a critical distinction between
foreseeability necessary to create a legal duty and foreseeability necessary to
establish proximate cause." Ibid. See Hill v. Yaskin, 75 N.J. 139, 177 (1977).
With respect to the former, the Court has stated that:
damages for an injury resulting from a negligent act of
the defendant may be recovered if a reasonably prudent
and careful person should have anticipated, under the
same or similar circumstances, that injury to the
plaintiff or to those in a like situation would probably
result. The most common test of negligence, therefore,
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is whether the consequences of the alleged wrongful act
were reasonably to be foreseen as injurious to others
coming within the range of such acts.
[Di Cosala, 91 N.J. at 175 (emphasis omitted) (quoting
Hill, 75 N.J. at 144).]
We turn then to a consideration of the Di Cosala elements, beginning with
knowledge of the employer and foreseeability of the harm to third persons.
Plaintiffs do not argue the school defendants had actual knowledge that Miller
had propensities that might harm children under his care. Instead, they assert
the school defendants breached the reasonable care standard established in
Frugis by failing to properly vet Miller. If they had contacted Miller's prior
employers, specifically Nature's Classroom, the school defendants would have
learned of his "pedophilia."
In finding plaintiffs had not demonstrated a prima facie claim of negligent
hiring, the trial court stated:
[T]he [Di Cosala] analysis begins with an examination
of the employer's hiring and whether it/they had reason
to know of the employee's unfitness or dangerous
attributes.
On this motion record, no such claim can be
sustained. Plaintiffs' attempt to paint a picture of
Miller's hiring as problematic because of the BOE['s]
. . . failure to dive deeper into his credentials; to contact
every one of his prior employers; investigate gaps in his
employment; and the reason behind his apparent name
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change does not alter the fact the hiring of Miller,
and/or the failure to dive into his prior credentials,
although arguably flawed, doesn't establish [a] legal
duty for them to have done this. Moreover, on these
facts, plaintiffs cannot meet the first part of the test
needed to establish a claim of negligent hiring;
demonstrating that defendants knew, or had reason to
know, of Miller's particular dangerous propensity to
commit sexual assault. It is clear that school [b]oards
and entities that care for children have an enhanced
duty to ensure that those they employ are not only
qualified, but safe to be around our children. However,
nothing in this record was known to the BOE . . . that
serve[s] to establish that [it] knew or had reason to
know that Miller would endanger children.
The evidence supports the trial court's conclusions. Not only did plaintiffs
not demonstrate the school defendants knew or had reason to know Miller might
harm children, but the evidence pointed to the contrary result. All of the reviews
and comments from Miller's superiors and colleagues were glowing. In the five
years he worked at the school, there was not one complaint or reported incident
of any issues with the children.
Plaintiffs also contend the school defendants were negligent in failing to
contact Miller's prior employers. However, at the time of Miller's hiring in 2006,
there was no legal duty for the school defendants to pursue those contacts.6 Even
6
Title 18A was amended in June 2018 to require school districts hiring for
positions "involv[ing] regular contact with students" contact applicants' former
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if the school defendants had contacted Miller's prior employers, they might not
have included Nature's Classroom as it was listed as Miller's third most recent
employer.
Plaintiffs also failed to establish that the school defendants had a legal
duty to go beyond the criminal background check in the hiring process. They
did not present this court or the trial court with any authority supporting their
argument. See State v. Hild, 148 N.J. Super. 294, 296 (App. Div. 1977) (stating
"parties to an appeal are required to justify their positions [with] specific
reference to legal authority"); Miller v. Reis, 189 N.J. Super. 437, 441 (App.
Div. 1983) (issue not briefed beyond conclusory statement need not be
addressed).
B.
In considering plaintiffs' assertion that the school defendants may be held
liable because they violated their internal policies, specifically policies #4230,
"Outside Activities," and #3281, "Inappropriate Staff Conduct," we find this
argument unpersuasive. Policy #4230 did not prohibit S.A. from hiring Miller
as a private babysitter for her children nor did it prohibit Miller from accepting
employers that were "schools" or "involved direct contact with children."
N.J.S.A. 18A:6-7.7.
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the employment. It is less clear whether #3281 prevented Miller from driving
J.P. in his private vehicle, under the circumstances present here, where S.A.
hired Miller to care for her children, gave him permission to drive J.P. home ,
and Miller's immediate supervisor approved the arrangement. 7
Nevertheless, even if the school defendants violated policies #4230 and/or
#3281, plaintiffs did not establish that the school defendants breached any duty
owed to them. As the trial court reasoned, the BOE's internal policies do not
establish the applicable standard of care in the present case. See Labega v. Joshi,
__ N.J. Super. __, __ (App. Div. 2022) (slip op. at 26); Cast Art Indus., LLC v.
KPMG LLP, 416 N.J. Super. 76, 106 (App. Div. 2010). Rather, as explained
above, the applicable standard of care owed to plaintiffs is set forth in Di Cosala.
Therefore, any violation of the policies would not have established a prima facie
claim of negligent hiring because plaintiffs could not show that the school
defendants knew or had reason to know of Miller's dangerous attributes, nor
would the alleged violations have allowed the school defendants to reasonably
foresee that Miller would sexually abuse J.P. See Di Cosala, 91 N.J. at 173.
7
Policy #3281 appears to apply only to teaching staff, not support staff. The
record does not reflect whether this policy was applicable to Miller.
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Because plaintiffs cannot show the school defendants knew or had reason
to know of Miller's dangerous attributes, they cannot demonstrate defendants
could have reasonably foreseen that hiring Miller created a risk of harm to other
people. In short, plaintiffs have not established the school defendants breached
any duty owed to them. We, therefore, need not reach the issue of proximate
cause.
C.
Plaintiffs raise a new argument on appeal, asserting S.A. can proceed with
her own lawsuit to seek recovery based on the loss of J.P.'s past or future services
to her. Because the issue was not raised before the trial court, we decline to
consider it here. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
Affirmed.
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