Hardwicke v. American Boychoir
| Citation | 845 A.2d 619,368 N.J. Super. 71 |
| Parties | John W. HARDWICKE, Jr. and Terri S. Hardwicke, Plaintiffs-Appellants, v. AMERICAN BOYCHOIR SCHOOL, Defendant-Respondent, and Donald Hanson, Richard Brenner, Thomas Conlin, Donald Profitt, David Schuster, J. Bruce Mellinger, Howard A. Jewell, Harold Jones and The Cook identified as "Ed" or "John," Defendants. Douglas Palmatier, Plaintiff-Appellant, v. American Boychoir School, Defendant-Respondent, and Donald Hanson, Defendant. |
| Decision Date | 26 March 2004 |
| Court | New Jersey Superior Court |
Lawrence Lessig of the Illinois Bar, admitted pro hac vice, argued the cause for appellants (Piper Rudnick, attorneys; Robert A. Assuncao, Edison, and Keith E. Smith, of counsel and on the brief).
Wilentz Goldman & Spitzer, attorneys for appellant Douglas Palmatier, join in and rely upon the brief of appellants Hardwicke.
Jay H. Greenblatt, Vineland, argued the cause for respondent (Greenblatt & Laube and Destribats Campbell DeSantis & Magee, attorneys; Mr. Greenblatt, on the brief).
Before Judges STERN, PAYNE and LANDAU. The judgment of the court was announced in an opinion by PAYNE, J.A.D
In a recent opinion in Frugis v. Bracigliano, 177 N.J. 250, 827 A.2d 1040 (2003), an action against a public elementary school principal and his employer, the Elmwood Park Board of Education, for damages sustained by minors as the result of the principal's sexual abuse, the Supreme Court affirmed the entry by the trial court of a directed verdict against the school board, finding that the evidence at trial incontrovertibly demonstrated a breach of the duty of care that the Board owed to the school's students. The Court prefaced its legal analysis with the following statement of legal principles:
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. No greater obligation is placed on school officials than to protect the children in their charge from foreseeable dangers, whether those dangers arise from the careless acts or intentional transgressions of others. Although the overarching mission of a board of education is to educate, its first imperative must be to do no harm to the children in its care. A board of education must take reasonable measures to assure that the teachers and administrators who stand as surrogate parents during the day are educating, not endangering, and protecting, not exploiting, vulnerable children. With those fundamental principles in mind, we address plaintiffs' claims.
In Frugis, plaintiffs' claims were premised on theories of intentional tort, negligence, vicarious liability, negligent hiring, negligent supervision, and civil rights violations under 42 U.S.C. § 1983. They were not asserted under New Jersey's Child Sexual Abuse Act, N.J.S.A. 2A:61B-1, and because a public school board and its employee were the defendants, the case did not raise issues of charitable immunity. See N.J.S.A. 2A:53A-7.
In the present cases, like Frugis, plaintiffs John W. Hardwicke, Jr. and Douglas Palmatier have alleged that they were the victims of sexual abuse by school employees. However, unlike Frugis, these plaintiffs were boarding students at a non-profit institution organized for educational purposes, the Columbus Boychoir School (now, the American Boychoir School, as we shall refer to it), and the relevant defendant for purposes of this appeal is their school, not a local school board. Moreover, in pursuing their claims against the school, plaintiffs have asserted causes of action under the New Jersey Child Sexual Abuse Act, as well as common-law causes of action similar to those in Frugis.
Following motions by the school for summary judgment, the trial court dismissed plaintiffs' claims asserted against it under the Child Sexual Abuse Act, determining that the school was not a "person" to which the Act applied. The court additionally dismissed plaintiffs' common-law claims against the school as barred by the Charitable Immunity Act, N.J.S.A. 2A:53A-7 to -11. Finally, the court dismissed a claim by plaintiff Hardwicke against the school arising out of abuse occurring there during the summer after Hardwicke had withdrawn as a student, holding that if the abusive conduct were within the scope of the perpetrator's employment, it was barred by charitable immunity and if it were outside the scope of his employment, the school could not be held liable for the conduct on a theory of vicarious liability.
In a consolidated interlocutory appeal, which we agreed to hear by leave granted, plaintiffs challenge the court's rulings as lacking statutory and decisional support. Further, they argue as a constitutional matter that, particularly in light of the principles recognized in Frugis, a case decided after the trial court rendered its opinions, the construction accorded the statutes by the trial court operates to deny them equal protection under the law.1
We have been informed that, since the time of oral argument, a settlement has been reached between Douglas Palmatier and the American Boychoir School. As a result, his appeal is dismissed. However, we retain some background references to his action, since that action was also the subject of the opinions and orders of the trial court from which these appeals have been taken. A central issue in the appeal by the remaining appellant, Hardwicke, is whether the result in this factually similar case should be different from that in Frugis (), just because he sued the school, not the school's board, and because the school that plaintiff attended was private and non-profit. Because, in the main, we find no principled distinction between the two cases, we reverse.
We derive the facts of this matter from documents constituting the record on appeal. For purposes of the motions in the trial court and on appeal, they have been deemed admitted by the school. We construe them in a light most favorable to plaintiff Hardwicke, giving him the benefit of all inferences that the facts support. Baird v. American Medical Optics, 155 N.J. 54, 58, 713 A.2d 1019 (1998).
The American Boychoir School, founded in 1937, was in the late 1960s and 1970s a very small private school of approximately fifty male students located in a fifty-room Princeton mansion. In addition to its academic programs, it offered vocal and other musical training to boys in grades five through eight. Its touring choir, comprised of school students, was then and remains well known both nationally and internationally. In addition to providing a source of acclaim, the choir constitutes a major funding resource for the institution. During the period of plaintiff's attendance, the choir's director, known by the title of Music Director, functioned virtually as the alter ego of the school, performing a wide variety of key administrative and educational functions, as well as wholly controlling the school's musical program and associated tours.
In 1968, the employment of a prior Music Director of the school was terminated after it was learned that he had engaged in a "love affair" with a male student. He was replaced in 1970 at the behest of a wealthy benefactor by defendant Donald Hanson. It has been alleged that the benefactor was a pedophile, and that the benefactor was instrumental in causing a number of employees with similar interests, including Hanson, to be employed in the relevant period by the school.
As a condition of Hanson's employment, he was required to live in the main, mansion building of the school and to be present there all night throughout the week and on weekends. Various apartments in the same area in which the boys were housed were supplied by the school for Hanson's use. During a part of his tenure, Hanson lived on the third floor of the mansion in proximity to the single rooms of two specially chosen students, upon whom he and others particularly preyed. In addition, other school employees accused of engaging in sexual relations with the school's students were housed in the building. Plaintiff claims that, at the time, sex abuse was "institutionalized." If the accounts provided by him and others are accurate, it was at very least high-level and pervasive, including conduct not only by the school's Music Director but also its Headmaster and various others.
Approximately one year before Hanson was hired, in September 1969, plaintiff Hardwicke was enrolled in the seventh grade at the school as a twelve-year-old boarding student. He remained there until approximately April 1971, when he was allegedly asked to leave because his voice had changed. From October 1970 to his departure from the school in the spring of 1971, and then again during a period of two weeks in the summer of 1971, Hardwicke was subject to sexual abuse, principally by Hanson. At the time that the abuse commenced, Hardwicke was just barely sexually mature, and he had little knowledge or understanding of his developing adolescent sexuality. Hanson recognized and took advantage of Hardwicke's condition, performing on him and inducing Hardwicke to perform virtually every sexual act that could conceivably have been accomplished between two males, and creating in Hardwicke's mind the unwarranted conviction that he was homosexual. As Hardwicke expressed it in a televised interview conducted in 2002, a transcript of which is included in the record, "he had me absolutely convinced that this was something I shouldn't tell, that it was—that it was something I wanted to do."
The abuse was repetitive, often occurring more than once per day in Hanson's room and in various other public and private locations...
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