Frugis v. Bracigliano

• Decision Date: 22 March 2002
• Citation: 798 A.2d 614,351 N.J. Super. 328
• Parties: Brian FRUGIS and Susan Frugis, Individually, and as guardians for their minor child, B.F., Plaintiffs-Respondents/Cross-Appellants, v. Samuel BRACIGLIANO, Defendant, and The Elmwood Park Board of Education, Defendant-Appellant/Cross-Respondent. Robert Hutzel and Jeane Hutzel, Individually, and as guardians for their minor child, R.H., Plaintiffs-Respondents/Cross-Appellants, v. Samuel Bracigliano, Defendant, and The Elmwood Park Board of Education, Defendant-Appellant/Cross-Respondent.
• Court: New Jersey Superior Court

798 A.2d 614

351 N.J. Super. 328

Brian FRUGIS and Susan Frugis, Individually, and as guardians for their minor child, B.F., Plaintiffs-Respondents/Cross-Appellants, v. Samuel BRACIGLIANO, Defendant, and The Elmwood Park Board of Education, Defendant-Appellant/Cross-Respondent.

Robert Hutzel and Jeane Hutzel, Individually, and as guardians for their minor child, R.H., Plaintiffs-Respondents/Cross-Appellants, v. Samuel Bracigliano, Defendant, and The Elmwood Park Board of Education, Defendant-Appellant/Cross-Respondent.

Superior Court of New Jersey, Appellate Division.

Argued January 28, 2002.

Decided March 22, 2002.

Reconsideration Granted May 1, 2002.

Christopher R. Carroll argued the cause for appellant/cross-respondent (Carroll, McNulty & Kull, attorneys; Mr. Carroll, of counsel and on the brief; James W. Gunson, Gladstone, on the briefs).

Herbert C. Klein, Roseland, argued the cause for respondents/cross-appellants (Nowell Amoroso Klein Bierman, attorneys; Mr. Klein, of counsel and on the brief; Sean M. Lipsky, on the briefs).

Before Judges PETRELLA, STEINBERG, and ALLEY. The opinion of the court was delivered by STEINBERG, J.A.D

This appeal and cross-appeal arise from a lawsuit filed by two students, B.F. and R.H., and their parents against a former elementary school principal and a board of education, based on theories of intentional tort, negligence, and civil rights violations. In essence, plaintiffs B.F. and R.H. claimed they suffered severe and permanent psychological injuries as a result of being sexually abused by their elementary school principal, defendant Samuel Bracigliano, during 1988 and 1989. Brian and Susan Frugis, B.F.'s parents, and Robert and Jeane Hutzel, R.H.'s parents, claimed they suffered economic losses due to the medical expense and private school education costs that they incurred as a result of what happened to their sons. Plaintiffs asserted claims against the Elmwood Park Board of Education (Board) under theories of vicarious liability, negligent hiring, negligent supervision, and violation of civil rights, pursuant to 42 U.S.C. § 1983 (1994).¹ The two complaints were consolidated. Bracigliano did not file an answer or otherwise move as to the complaint. Consequently, a default was entered against him.

Bracigliano was the principal of Gilbert Avenue Elementary School in Elmwood Park from 1982 until his arrest on November 30, 1990. During that time, Bracigliano would call a number of students, mostly boys, to his office each day.

At trial, with the consent of the parties, the deposition of Patricia Showers, Bracigliano's secretary, was read to the jury. She said the window in his office door was covered with paper so that no one could see inside. In addition, the windows to the outside were obscured with hedges and brush. Again, no one could see inside. From her desk near the locked door, Showers could hear the clicking of a camera and the pop of flashbulbs going off.

In November 1990, the Bergen County Prosecutor's Office received reports of young boys being photographed by Bracigliano. A search warrant was issued. In executing the warrant, investigators discovered pornographic photographs, magazines, books, and videotapes in a locked room in Bracigliano's home. The investigators also found a small, black, metal index box located in a desk drawer in an office in Bracigliano's home. It contained 176 photographs of young boys in a "spread-legged pose." In other words, the boys were seated with their legs spread open and hanging over the arms of the chair. It was determined that the photographs had been taken in Bracigliano's school office and that the photographs were of past and present students at the school.²

One of the photographs found at Bracigliano's home was of eight-year-old B.F. After Bracigliano was arrested, B.F.'s parents asked him about any involvement he might have had with Bracigliano. Reluctantly, B.F. advised his parents that he had been brought into Bracigliano's office on many occasions and had been photographed by him. He demonstrated to his parents how he had been photographed. He related that he had been asked to sit on Bracigliano's lap many times and, on one occasion, Bracigliano touched him on his penis. He also told his father that when he left the office, Bracigliano would give him a "swat" on his buttocks.

Jeane Hutzel testified that when she told her son, R.H., that Bracigliano had been arrested, he became hysterical but said Bracigliano had not done anything to him. However, she noticed that during the next few days, R.H.'s behavior was "totally off the wall." Ultimately, he related to her that Bracigliano used to call him to his office, lock the door, and pull down the shades. Once, Bracigliano unzipped R.H.'s pants to expose his underwear and took a photograph of him. On occasion, Bracigliano had R.H. remove his shirt and show his muscles for the camera. On these occasions, Bracigliano also took his shirt off. In addition, Bracigliano often called R.H. to the office and posed him in different positions in a chair. Bracigliano showed R.H. airline tickets to California and said that if he told anyone about the photographs, he would send him there and no one would ever find him. He also threatened to suspend R.H. from school if he told his parents what happened.

In the years that Bracigliano was principal, several staff members at the school noticed unusual incidents involving him and young male students. Joan E. Gerard, an ESL (English as a second language) teacher, testified that Bracigliano always preferred boys. She remembered one occasion when Bracigliano positioned a first-grade boy standing up against a wall while he rocked back and forth against the child. She felt "[i]t appeared ... sexual in nature." She was not aware of any procedure for reporting inappropriate conduct by the principal, so she reported the incident to a school nurse.

Rose Klink, a school nurse who occasionally substituted at the school, testified that on one occasion, a boy came into her office and stood in front of her desk. Bracigliano walked in, put his arms around the boy, and started to push against him from behind. She stood up and walked around the desk, at which point Bracigliano pulled away from the student. Klink said there was no system in place for reporting the principal to superiors. She said "we are supposed to report things to the principal."

Karen Rockefeller was a special education teacher at the school while Bracigliano was principal. One morning, she observed a student against the wall outside his classroom, and Bracigliano was in front of the student "rocking back and forth and pushing into him." At the time, she did not think the incident was sexual in nature but, rather, thought it was intimidation. She also was unaware of any procedure for reporting a principal to his superiors.

Linda Herina, a sixth-grade teacher at the school, recalled one occasion when Bracigliano approached a student who was known to be shy and said, "You have to learn to talk more or Mr. B. is going to have to spank you." She told Bracigliano that she felt it was inappropriate to make such remarks to a sixth-grader. She also testified concerning an incident where two of her sixth-grade students had given a wrestling demonstration during an assembly. Upon their return, there was a note asking the boys to report to the office. They subsequently told Herina that Bracigliano had photographed them. One of the boys said he took his pants off. When she asked Bracigliano about this, he said he had no idea what she was talking about. Herina arranged for a conference with the boys and their mothers, but Bracigliano was arrested before the meeting could take place.

There was also evidence that members of the staff thought it was strange that the window on Bracigliano's office door was constantly covered and that his office was always dark. On one occasion, a State monitoring inspection resulted in the paper being removed from the window. However, after the monitoring team left the school, the paper was replaced on the window and it remained there.

William Savage was the wrestling coach at Elmwood Park High School from 1983 through 1986. At that time, the rules required that boys strip naked to be weighed before matches. Bracigliano frequently attended the weigh-ins during the four years that Savage was involved with the program, even though he was not on the high school faculty and had no duties in connection with the varsity wrestling program.

Savage asked the athletic director about Bracigliano and was told that he was involved in the lower grades' recreational wrestling program and wanted to observe varsity weigh-ins to see how they were done. Savage said he also spoke to Mike Scarpa, a member of the Board, about Bracigliano. Scarpa was a supporter of the wrestling team and often came to the locker room before a match to have a cigarette. Scarpa said that he also was concerned about Bracigliano attending the weigh-ins and asked Savage if he had ever noticed anything odd. Scarpa told Savage to keep an eye on Bracigliano and to tell him if anything happened.

Dr. Harry A. Galinsky, an educational consultant and long-time school administrator, testified on behalf of plaintiffs as an expert in the field of public administration and education. He said "there was an absolute absence of oversight" on the part of the Board and various superintendents. He also opined that had there been a reporting system in place, and had the superintendents been doing their job, the children would not have been harmed. He said "[t]hey were completely indifferent to what was going on in the school system." He noted that the superintendents did not personally visit the school to make periodic evaluations of Bracigliano as "required by law." He concluded that the performance of the superintendents did not rise to the level of the standard performance of superintendents around the State....