Frugis v. Bracigliano

• Court: United States State Supreme Court (New Jersey)
• Citation: 177 N.J. 250,827 A.2d 1040
• Parties: Brian FRUGIS and Susan Frugis, Individually and as guardians for their minor child, B.F., Plaintiffs-Appellants, v. Samuel BRACIGLIANO, the Borough of Elmwood Park and John Doe I & II (individuals whose identities are as yet unknown), Defendants, and The Elmwood Park Board of Education, Defendant-Respondent. Robert and Jeanne Hutzel, Individually, and as guardians for their minor child, R.H., Plaintiffs-Appellants, v. Samuel Bracigliano, the Borough of Elmwood Park and John Doe I & II (individuals whose identities are as yet unknown), Defendants, and The Elmwood Park Board of Education, Defendant-Respondent.
• Decision Date: 28 July 2003

827 A.2d 1040
177 N.J. 250

Brian FRUGIS and Susan Frugis, Individually and as guardians for their minor child, B.F., Plaintiffs-Appellants,
v.
Samuel BRACIGLIANO, the Borough of Elmwood Park and John Doe I & II (individuals whose identities are as yet unknown), Defendants, and
The Elmwood Park Board of Education, Defendant-Respondent.
Robert and Jeanne Hutzel, Individually, and as guardians for their minor child, R.H., Plaintiffs-Appellants,
v.
Samuel Bracigliano, the Borough of Elmwood Park and John Doe I & II (individuals whose identities are as yet unknown), Defendants,
and
The Elmwood Park Board of Education, Defendant-Respondent

Supreme Court of New Jersey.

Argued December 3, 2002.

Decided July 28, 2003.

827 A.2d 1043

Herbert C. Klein, Roseland, argued the cause for appellants (Nowell Amoroso Klein Bierman, attorneys; Mr. Klein and Sean M. Lipsky, Hackensack, on the briefs)

Christopher R. Carroll, Gladstone, argued the cause for respondent (Carroll, McNulty & Kull, attorneys; Mr. Carroll and James W. Gunson, on the brief).

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827 A.2d 1042

The opinion of the Court was delivered by ALBIN, J

Defendant Samuel Bracigliano, the former principal of the Gilbert Avenue Elementary School in Elmwood Park, photographed scores of young male students in provocative poses and retained those photographs for his sexual gratification. As a result, he was charged with and convicted of official misconduct, N.J.S.A. 2C:30-2a. Frugis v. Bracigliano, 351 N.J.Super. 328, 339 n. 2, 798 A.2d 614 (App.Div.2002). The parents of two of the victimized students, individually and on behalf of their children, sued Bracigliano and the Elmwood Park Board of Education (Board).

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Although various theories of liability were asserted in the complaints, the focus of the appeal before us is plaintiffs' allegation that the Board negligently supervised Bracigliano, causing emotional and economic injuries to the two families. We must determine whether the evidence presented against the Board at trial was so overwhelming as to justify a directed verdict in favor of plaintiffs. We must also determine whether, if the Board is liable, apportionment of damages between the negligent Board and the intentional tortfeasor principal is required pursuant to the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, or whether such apportionment is contrary to public policy because it would dilute the responsibility of the Board to protect the children from the very harm it should have anticipated—the principal's wrongful acts. Last, we must decide whether the trial court properly exercised its discretion in not submitting the issue of diminished earning capacity to the jury.

I.

On August 11, 1993, plaintiffs Brian and Susan Frugis, the parents of then ten-year-old B.F., and Robert and Jeanne Hutzel, the parents of then eleven-year-old R.H., filed separate but similar ten-count complaints, individually and on behalf of their sons, naming Bracigliano and the Board as defendants. Plaintiffs asserted common-law claims of negligence, intentional infliction of emotional distress, false imprisonment, and invasion of privacy against Bracigliano, and claims of negligent hiring, negligent supervision, and vicarious liability against the Board. Plaintiffs also claimed that both defendants violated B.F.'s and R.H.'s civil rights under 42 U.S.C.A. § 1983. The plaintiff parents sought reimbursement for medical and private school tuition expenses. Although the Board answered by denying the allegations, Bracigliano failed to respond, and ultimately, default judgment was entered against him.

The complaints were consolidated for trial and protracted pretrial proceedings ensued. The trial court dismissed the punitive damages and negligent hiring claims against the Board on summary judgment. At a ten-day trial in 2000, the jury heard the testimony of eighteen witnesses. We summarize the relevant portions of that testimony in considering this appeal.

A.

Bracigliano was the principal of the elementary school from 1982 until his arrest on November 29, 1990, when investigators discovered an assortment of pornographic photographs and videotapes in his home. The investigators also found 176 photographs of past and present male students, each depicting a similar pose—a clothed boy seated in a chair with his legs spread wide apart, and one leg dangling over each arm of the chair. Bracigliano had taken those photographs in his elementary school office. One of the photographs of a child in the so-called "spread-legged pose" was of B.F. No photograph of R.H. was discovered.

As soon as Bracigliano assumed his post as principal of the elementary school, he blocked the view into his office by covering the 12" X 12" window in his office door with a paper picture. Obscuring that window violated N.J.A.C. 6:22-5.4(c),¹ which

827 A.2d 1045

required that every door to a room used by school staff have an unobstructed safety-vision panel. The exterior windows to Bracigliano's office were also obscured by half-drawn shades and overgrown hedges. During Bracigliano's tenure, state monitors conducting a routine inspection ordered that the paper covering the office-door window be removed. Undeterred, Bracigliano replaced the paper shortly thereafter, and the window remained covered until his arrest.

According to one witness, Linda Herina, a former sixth-grade teacher at the elementary school, the Board was aware of the actions of the state monitors. Ms. Herina overheard one member of the Board comment, during a break at a Board meeting, that the monitors had ordered that the paper masking the window looking into Bracigliano's office be taken down. At no time did the Board take measures to assure that the door window complied with administrative regulations.

It was not uncommon for numerous boys to come to Bracigliano's office each day, many, one at a time. Bracigliano was known to be an avid photographer, and frequently took pictures of students, faculty, and school events. Some of those photographs were displayed on the walls of the school. His secretary, Patricia Showers, would often hear the click of a camera and the pop of flashbulbs from behind the closed door after students entered Bracigliano's office. The door "was always locked," even when students visited. Ms. Showers was unable to see into the office because of the paper covering the door window. Although "comments were made" among the elementary school staff about the covered window and locked door, "there was nothing ... [they] could do. He was [their] superior." Some staff members believed that Bracigliano's frequent habit of calling students to his office from their classrooms simply reflected his positive interaction with students. Others found the habit "annoying" and "disruptive," but did not attach any untoward significance to it.

Joan Gerard, the elementary school's English-as-a-Second-Language teacher, had believed at first that Bracigliano merely had a preference for boys that was not "unwholesome." However, approximately three years before his arrest, she witnessed Bracigliano "rocking back and forth" against a first-grader that he "had... standing against [a] wall." She "really panicked," because "[i]t appeared ... to be sexual in nature." She believed at the time that "reporting any kind of abuse to [the Division of Youth and Family Services (DYFS)]" had to go through the school nurse's office. She dutifully reported the incident to the elementary school nurse substituting that day, Rose Klink. Ms. Gerard was unaware of any procedure for reporting such an incident to Bracigliano's superiors.

Nurse Klink did not pass the information along to the Board of Education because she too was unaware of any reporting protocol. A short time later, Nurse Klink witnessed an incident in her own office that caused her alarm. Bracigliano walked into the nurse's office and "put his arms around [a] boy and started to push against the student." Nurse Klink was "shocked" and in disbelief and decided she had to "stop this." She stood up and walked around her desk. Only then did Bracigliano "pull[ ] away from the student." Nurse Klink considered the conduct "definitely inappropriate," and would have reported the incident to the principal, had Bracigliano not been the principal himself. Unaware of any alternate reporting

827 A.2d 1046

procedure, she related her concerns to the regular elementary school nurse, Karen Glouster. And there, apparently, the report found its final resting place.

Karen Rockefeller, who taught remedial reading and writing, also observed conduct that she considered "odd." One morning, she saw one of her students against the wall outside a classroom, and Bracigliano "was in front of the child rocking back and forth and pushing into him.... hitting him with his stomach." She "thought it was intimidation" and mentioned the incident to Ms. Gerard and Ms. Glouster. Ms. Rockefeller knew of no procedure for reporting the matter to the administrators of the Elmwood Park school system.

Ms. Herina, the sixth-grade teacher, recalled walking a very shy sixth-grade boy down a hallway one day, when Bracigliano approached them and warned the student that he would "have to learn how to talk more or Mr. B's going to have to spank you." Ms. Herina found the comment "inappropriate," and told Bracigliano to "knock it off." She did not report the incident. She did, however, confront Bracigliano again the day before his arrest. That day, two sixth-grade boys in her class returned from the principal's office after a wrestling demonstration at a school assembly. The boys related that Bracigliano took photographs of them while they posed in a seated position. Bracigliano had one of the boys disrobe down to his wrestling shorts. Ms. Herina went to the principal's office and requested copies of the photographs from Bracigliano. He became incensed and insisted that there were none. Ms. Herina arranged for a...