C.V. v. Waterford Twp. Bd. of Educ.
| Decision Date | 13 June 2022 |
| Docket Number | DOCKET NO. A-0626-20 |
| Citation | 277 A.3d 507,472 N.J. Super. 581 |
| Parties | C.V., a minor BY AND THROUGH her parents and guardians ad litem, C.V. and R.V., and C.V. and R.V. individually and in their own rights, Plaintiffs-Appellants, v. WATERFORD TOWNSHIP BOARD OF EDUCATION, Waterford Township School District, T&L Transportation, Inc., Theresa Bredell, and Leslie Bredell, Defendants-Respondents. |
| Court | New Jersey Superior Court — Appellate Division |
Leo B. Dubler, III, Mount Laurel, attorney for appellants.
Connor, Weber & Oberlies, attorneys for respondentsWaterford Township Board of Education and Waterford Township School District(Amelia M. Lolli, Moorestown, and Michael S. Mikulski, II, on the brief).
White and Williams, LLP, attorneys for respondentsT&L Transportation, Inc., Theresa Bredell, and Leslie Bredell(Robert G. Devine, of counsel and on the brief; Kimberly M. Collins, Cherry Hill, on the brief).
Before Judges Sabatino, Rothstadt, and Natali.
The opinion of the court was delivered by
ROTHSTADT, J.A.D.
This appeal gives rise to an issue of first impression.Specifically, we consider whether the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -50, applies to claims arising from a sexual predator's criminal assaults against a young schoolgirl where those crimes were committed on a school bus.Under the circumstances of this case, we conclude the LAD does not apply, especially where, as here, there was no evidence that the predator's compulsive and repetitive behavior was the result of any proven intention to discriminate specifically against young women.
Plaintiff C.V. (Claire)1 was five years old when she was sexually assaulted by a bus aide, A.D. (Alan), while riding on a school bus that transported students for defendantWaterford School District(WSD).At the time, Alan was employed by the bus's owner, defendantT&L Transportation, Inc., whose principals were defendantsTheresa Bredell and Leslie Bredell(collectively, T&L).Thereafter, Claire's parents, plaintiffs C.V. (Coleen) and R.V. (Ralph), filed this action against T&L, defendant Waterford Township, and WSD (collectively, Waterford).In their complaint, plaintiffs asserted a claim for negligence and claims for relief under the LAD based on what they termed Alan's "harassment and sexual" abuse of Claire.
Plaintiffs now appeal from a May 12, 2017 order, denying their motion for partial summary judgment on the LAD claim as to T&L, and granting T&L's motion for partial summary judgment, dismissing the same claim.They also appeal from a June 9, 2017 order, granting Waterford summary judgment as to plaintiffs' LAD claim.2Plaintiffs also challenge a June 9, 2017 order, denying their motion for reconsideration of the order denying plaintiffs' motion for partial summary judgment as to T&L a June 23, 2017 order, denying plaintiffs' motion for leave to amend their complaint to assert a cause of action under the LAD for age discrimination; and an August 4, 2017 order, denying their motion for production of documents relating to Alan's prosecution by the Camden County Prosecutor's Office and Alan's records from the Adult Diagnostic Center at Avenel (Avenel).
On appeal, plaintiffs argue that, contrary to the motion judge's decision, under the circumstances presented, the LAD protects a female child victim from sexual harassment stemming from child sex abuse in places of public accommodation; that the "but for" element of the hostile school environment prong under the LAD is automatically satisfied when the victim is subjected to any sexual touching or penetration; that the sexual abuser's subjective intent is not relevant in demonstrating discrimination under the LAD; that under the principles of agency, Waterford is liable for conduct carried out by T&L's employee; that the motion judge abused her discretion when she denied plaintiffs' motion for leave to amend their complaint to add a claim of age discrimination; and that the motion judge abused her discretion when she denied their motion to compel the production of documents.
We have considered plaintiffs' contentions in light of the record and applicable principles of law.We affirm, as we conclude the evidence on summary judgment could not sustain a claim under the LAD, and plaintiffs' remaining claims, to the extent they did not relate to the LAD, are either moot, not preserved for appeal in the parties' settlement, or without merit.
The facts taken from the record on summary judgment, when viewed in the light most favorable to plaintiffs, are summarized as follows.Prior to Claire being assaulted, Waterford contracted with T&L to transport her and other students to its elementary schools during the 2009-2010 school year.Alan was hired by T&L as a bus aide after a criminal background check and was assigned to the bus that Claire took to and from school.It is undisputed that while working in that capacity, Alan sexually assaulted Claire while she rode on the bus beginning December 1, 2009 until April 12, 2010.3Before doing so, Alan made sure that the video camera installed on the bus was not able to record his actions.He evidently did so with the bus driver's knowledge.
Thereafter, Alan was criminally charged, and on August 20, 2010, he pled guilty to first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1).Alan was evaluated and determined to be a compulsive and repetitive sex offender, so when he was sentenced later to ten years, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, it was to be served at Avenel.4Although not convicted of any charges for sexually abusing any other child,5 during the sentencing hearing on December 3, 2010, the prosecutor stated that for decades, Alan sexually abused several children, including his stepson.
Plaintiffs filed their complaint in this matter on May 21, 2014, asserting negligence and violations of the LAD.During discovery, several depositions were taken of various individuals, including Alan.During his deposition, Alan admitted to sexually assaulting five children in the past, including his stepson.He confirmed that he assaulted children because he could not help it, and it was "like a disease or something."Alan stated that his behavior was the result of
Each of the parties6 moved for partial summary judgment on plaintiffs' LAD claims.On May 12, 2017, after considering the parties' submissions and oral arguments, the motion judge issued an oral opinion in which she denied plaintiffs' motion for partial summary judgment against T&L and granted T&L's motion for partial summary judgment.
In her decision, the judge reasoned that T&L's motion had to be granted because there was no evidence that T&L's employee sexually abused Claire because she was female, and the LAD was not "intended to stretch to situations such as [those] present" in this case.She explained that "the evidence here is that [Alan] acted on compulsions."She also noted that he testified in his deposition that "he couldn't control it" and "unfortunately for [the child], she just happened to be near him."Therefore, she did "not believe that this [case fell] within the LAD."
The judge acknowledged that under our Supreme Court's opinion in L.W. ex rel. L.G. v. Toms River Regional Schools Board of Education, 189 N.J. 381, 915 A.2d 535(2007), an LAD claim for conduct that occurred on a school bus may be permissible "in [a] school setting" but only "under the right circumstances."She explained that those circumstances did not exist in this case as compared to L.W. because in that case the victim was "being harassed in the school, and that transfer[ed onto] the bus he[got] on."She further distinguished L.W. from the present case saying, "The but for element [cannot] be satisfied, ... in this case, where you have a compulsive sexual predator, a pedophile such as [Alan]."The judge concluded that "the LAD was [not] intended to be stretched in this kind of situation" where "[t]here is no discrimination" and Alan "would [have] abuse[d] any child ... on that bus."On the same day, the motion judge entered an order consistent with her decision.
Plaintiffs filed a motion for reconsideration.On June 9, 2017,7 the judge considered the parties' oral arguments before entering an order denying the motion for the reasons she placed on the record that day.The judge found plaintiffs failed to establish that she overlooked evidence or provided any new evidence.She continued to adhere to her original determination for the same reasons expressed in her May 12, 2017 oral decision, adding that, like counsel, she"could not find any case in which there were allegations of child abuse and the LAD was applied."Moreover, she again distinguished the facts in this case from L.W. by explaining the following:
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