October 25, 2018
New Jersey’s Appellate Division recently decided the matter of L.E. v. Plainfield Public School District, arising from a plaintiff’s allegation that the public school district negligently supervised the Plaintiff, L.E., and two other students, failed to prevent a sexual assault, and failed to investigate the assault after it was reported some time later.
The Plaintiff, a high school freshman, recounted an unwanted sexual encounter on the last day of her freshman year involving two boys in a high school restroom. The three students had entered a “nearly empty” school building for a bathroom break in the middle of a physical education class, which, being on the last day of school, was allegedly treated as a “free period.” In December of the following year, L.E. reported this assault to the school, after hearing one of the assailants bragging about the incident. Although law enforcement officers were contacted, no charges were filed. L.E. left school and was hospitalized for mental illness after reporting the assault, and claimed that the assault aggravated her condition. Plaintiff’s theory of liability, bolstered by an expert witness, was that the school’s failure to enforce its hall-pass policy, failure to control access to the building, and failure to monitor the hallways either via CCTV or the presence of staff ultimately allowed the three students involved in the incident to be unaccompanied on the date of the incident and resulted in the assault.
The trial court applied two provisions of New Jersey’s Tort Claims Act to dismiss the complaint. In particular, the court relied on N.J.S.A. 59:5-4, governing the failure to provide police protection services, and N.J.S.A. 59:3-5, governing the failure to enforce laws. The court also determined that Plaintiff had failed to demonstrate a standard of care for the school’s handling of the post-assault investigation, or any harm resulting from the alleged shortcomings of that investigation. The court reasoned that the negligent supervision claim was, in reality, an inadequate security claim, and dismissed the suit. It also determined that there was no standard of care established for the post-assault investigation, and no demonstration of any damages caused by that investigation, and dismissed that component of the action as well.
The Appellate Division disagreed with the application of police protection immunity, noting that Plaintiff’s complaint and the theory of liability raised by Plaintiff’s expert in no way relied upon the presence or absence of police officers, and that there is a distinction between police protection and educators’ duty to supervise and assure the safety of students. The Court also disagreed with the trial court’s dismissal for failure to enforce a law, noting that the school defendant had assumed a supervisory duty over its students, and that New Jersey law made clear that there was a duty of supervision and care required by law. The Appellate Division further noted that school personnel’s supervisory responsibilities “may extend to the prevention of unwanted sexual encounters between students.” School officials must act with the same care that a person of “ordinary prudence,” charged with the same or comparable duties, would have exercised in the circumstances.
Against this legal backdrop, the court determined that a jury could find liability on the part of the school board. For instance, they determined that a jury could find that a teacher exercising reasonable care would not have permitted L.E. and the two assailants to enter the building simultaneously for a bathroom break; or that a properly supervised gym class, rather than a “free day,” may have prevented the contact in the first place; or that staff monitoring or presence in the hallways may have prevented the claimed assault.
This case reinforces established principles of New Jersey law, requiring schools to supervise their students and, to the extent reasonably possible and foreseeable, prevent inter-student conflict and assaults.