S.H. v. K&H Transp., Inc.

• Decision Date: 12 November 2020
• Docket Number: DOCKET NO. A-0413-18T4
• Citation: 242 A.3d 278,465 N.J.Super. 201
• Parties: S.H. and L.H., Plaintiffs-Appellants, v. K & H TRANSPORT, INC., K & H Transport, LLC, Orange Board of Education, Sussex County Regional Transportation Cooperative, Defendants-Respondents, and Palisades Learning Center, Inc., a/k/a Palisades Academy, Palisades Regional Academy, Palisades Regional School and/or Palisades Regional, Defendants. City of Orange Township Board of Education, Third-Party Plaintiff, v. Sussex County Regional Transportation Cooperative, Third-Party Defendant.
• Court: New Jersey Superior Court — Appellate Division

465 N.J.Super. 201

242 A.3d 278

S.H. and L.H., Plaintiffs-Appellants,

v.K & H TRANSPORT, INC., K & H Transport, LLC, Orange Board of Education, Sussex County Regional Transportation Cooperative, Defendants-Respondents,andPalisades Learning Center, Inc., a/k/a Palisades Academy, Palisades Regional Academy, Palisades Regional School and/or Palisades Regional, Defendants.

City of Orange Township Board of Education, Third-Party Plaintiff,

v.Sussex County Regional Transportation Cooperative, Third-Party Defendant.

DOCKET NO. A-0413-18T4

Superior Court of New Jersey, Appellate Division.

Argued September 17, 2019

Decided November 12, 2020

Stephanie M. Lockspeiser argued the cause for appellants (Stark & Stark, P.C., attorneys; Stephanie M. Lockspeiser, on the briefs).

Neal A. Thakkar argued the cause for respondents (Sweeney & Sheehan, P.C., attorneys; F. Herbert Owens, III, on the brief).

Before Judges Fisher, Accurso and Gilson.

The opinion of the court was delivered by

ACCURSO, J.A.D.

Plaintiff S.H. (Stephanie), a seventeen-year-old special needs student at the time of these events, and her mother L.H. (Mrs. H.),¹ appeal from a summary judgment dismissing their complaint against defendants Palisades Regional Academy, Orange Board of Education, Sussex County Regional Transportation Cooperative and K&H Transport Inc., the bus company that ferried Stephanie to and from school.² The trial judge determined the bus company owed no duty to plaintiffs "to protect against the alleged injury" — sexual assault — and that no reasonable person could find the bus company's actions caused plaintiff's injury. We disagree, and reverse.

We recite the facts in a light most favorable to plaintiffs, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536, 666 A.2d 146 (1995), giving them "the benefit of the most favorable evidence and most favorable inferences drawn from that evidence," Estate of Narleski v. Gomes, 244 N.J. 199, 205, 237 A.3d 933 (2020) (quoting Gormley v. Wood-El, 218 N.J. 72, 86, 93 A.3d 344 (2014) ). The month before these events, defendant Orange Board of Education conducted a triennial special education re-evaluation and social assessment of Stephanie, then seventeen-years-old and attending the eleventh grade at Palisades Academy, an out-of-district, State-approved school for students with disabilities. Stephanie was deemed eligible for continued special education due to a learning disability and social and communication deficits. Plaintiffs' expert reported that the re-evaluation and assessment scored Stephanie in the low range for general adaptive functioning, as well as communication and socialization skills. The evaluation also noted concerns by Mrs. H. that Stephanie was very trusting, lacked the ability to express her feelings and could be taken advantage of by people. Plaintiffs contend that Stephanie functions like a sixth or seventh grader. Reports in the appendices note Stephanie has been diagnosed with cerebral palsy

and has a full-scale IQ of 77. Transportation to and from Palisades was part of Stephanie's Individualized Education Program (IEP).

On April 2, 2014, Stephanie got into a fight with a boy at school that upset her. When she got in the van that was to take her home, her regular driver claimed Stephanie told her she'd been in a fight and gotten suspended, and she didn't want to go home. Stephanie made a call on a cell phone, and the driver overheard her say to the person she was speaking to, "wait for me, don't go, don't leave." When she got off the phone, Stephanie told the driver she had been speaking to her mother, who said it was okay that the driver drop her off at a cemetery near her apartment.³ The driver testified at her deposition that she knew the children she drove were special needs students and had been warned by the owner of the bus company to be careful "because they look like normal children, but they have problems specific to them." The driver claimed she didn't "exactly know" what Stephanie's challenges were but had been told by the owner when she began driving Stephanie that "she was a special needs girl, that I would have to be very careful with her, very cautious."

Although the driver had Mrs. H.'s phone number, she did not call her to confirm what Stephanie had said, that she could drop Stephanie somewhere other than her home. The driver instead dropped Stephanie at the cemetery at about 2:45 p.m. and sent a text message to Mrs. H. to report she had done so. She asked Mrs. H. to let her know if Stephanie wouldn't be at school the following day.

Stephanie had not called her mother. Instead, she'd borrowed a phone from the other student in the van and called a boy whose number she had written in a notebook, Stefon, to "meet up."⁴ Stefon told her to meet him at Colgate Park, a fifteen-minute walk from her home. Stefon met her in the park, and the two walked to his house. A short while later, they left Stefon's and walked to the home of Stefon's friend, Najee.

When Mrs. H. picked up the bus driver's text shortly before 3:00 p.m., she called the driver. The driver told her about Stephanie using the other student's phone. Mrs. H.'s fiancé called the police to report Stephanie missing, and Mrs. H. dialed the numbers of friends of Stephanie's Mrs. H. found in Stephanie's room. Mrs. H. eventually got the name and number for the boy in the van. Mrs. H. called him to find the number her daughter had dialed when she borrowed his phone. Calling that number, she reached Stefon, whom she did not know. Stefon denied knowing Stephanie to Mrs. H., but afterwards told Stephanie her mother was looking for her, and that she should go home.

Stephanie left, but did not go home. After Stefon told her she should go home, Stephanie borrowed the phone of one of the other boys and called Khalil, a boy she knew from eighth grade but hadn't spoken to in some time, to see if he would come get her, because she "didn't want to walk anywhere I didn't know or [with] people I didn't know." Khalil was at work, however. Explaining later that she "was still mad at the whole school thing" and "wanted to clear [her] mind out and just walk anywhere," she started walking to Montclair. A car of three young men, one of whom she recognized as familiar from a school she used to attend, stopped, and the one she recognized, Abdul, asked where she was going. She said she didn't know, she was just walking. He asked if she wanted to go with them, and she got in their car.

The youths took her to Presley's house, where they went into the basement. Stephanie had consensual sex in a closet with Abdul. She was then sexually assaulted by Presley as well as one of the boys from the car. The youths then took out their cell phones and took pictures of Stephanie naked. She said she was confused, saw the flashes and asked if they were recording her. They told her they weren't recording, they were just trying to see her better. Stephanie said she told them not to do that.

Police by then had responded to Mrs. H.'s home. They followed her and her fiancé to Colgate Park, where friends of one of Stephanie's sisters reported seeing Stephanie with a boy. They found Stefon, and police interviewed him. Mrs. H. and her family canvassed the area, passing out flyers with Stephanie's picture. Police issued an Amber alert.

Stephanie left Presley's house with the boys before dark. The group drove to Steve's house, where Stephanie was serially raped by Abdul, Presley, Steve and Steve's uncle. She stayed the night at Steve's house. The next morning, Steve had her stay in his car at school when he went to class. He came out to the car around noon, and the two drove off. Stephanie claimed Steve showed her a picture "that [she] was being looked for" on his phone, and "[h]e got kinda scared." Steve eventually pulled the car over someplace in a downtown-like area and told Stephanie to get out. Stephanie got out and "just started walking." She didn't know where she was.

Happening on a bus stop, Stephanie got some change from a stranger and got on a bus. She got off in Irvington in front of a thrift store. She told the elderly owner "that I'm being — like I'm not home right now." Stephanie said she didn't think the owner understood what she was saying, and told her he would call his daughter to come over and talk to her. The owner's daughter recognized Stephanie from the Amber alert and called the police. The police and Mrs. H.'s fiancé responded to the thrift store, and Mrs. H. met Stephanie at the police station. Stephanie did not immediately reveal the extent of her assaults, not telling anyone of the events at Steve's house. Although the police investigated, no charges were brought.

Plaintiffs submitted the report of an expert in educating and supervising special education students in opposition to the motion. The expert opined that the bus company was responsible to develop and implement policies and procedures, including the training and supervision of its drivers, to ensure the health and safety of the students it was responsible for transporting to and from school, and that it breached that duty by dropping Stephanie off at a location not assigned or approved by her school district or defendant Sussex County Regional Transportation Cooperative, which hired the bus company to transport Stephanie to school.

The expert also opined that defendant Orange Board of Education, Stephanie's resident school district, which was responsible for her safe transportation to and from school in accordance with the administrative code, breached the standard of care by failing to provide specific information or training, as per its own policies and New Jersey regulations, regarding Stephanie's needs and disabilities, recognizing that she was a vulnerable student with a disability and an IEP, who "required a higher level of care and supervision based upon her disability and deficits in the areas of communication and social skill development." The expert opined that the Board...