On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, whose opinion is reported at 159 N.J. Super. 347 (1978), and from the Superior Court of New Jersey, Law Division, Union County.
Crane, Milmed and King. Crane, P.J.A.D. (dissenting).
The central issue before us in these consolidated appeals is the constitutionality of N.J.S.A. 18A:37-3, which reads:
The parents or guardian of any pupil who shall injure any school property shall be liable for damages for the amount of the injury to be collected by the board of education of the district in any court of competent jurisdiction, together with costs of suit.
The essential facts may be briefly stated. Plaintiff Board of Education of Piscataway Township brought suit against defendants Jay Caffiero, Francis O'Donnell and Dean Martone, seeking recovery from them for extensive damage caused to its school property. In essence, the board claimed that the damage was caused by acts of vandalism on the part of Jay, Francis and Dean who were at the time enrolled as students in the Piscataway school system. The remaining defendants in that action are the respective parents of the children. As to them the board sought recovery grounded: (a) in one count, on alleged negligent supervision of their children, and (b) in another count, on their vicarious liability under the above quoted statute. A judgment by default in the sum of $28,540 was entered in favor
of the board and against the Caffieros and the Martones. A consent order was thereafter entered vacating, on condition,*fn1 the default judgment against the Caffieros. In their responsive pleadings, the Caffieros and the O'Donnells challenged the constitutionality of N.J.S.A. 18A:37-3. Seeking resolution of the constitutional issue, the board moved for summary judgment against the parents for any damage their children might ultimately be found to have committed. In his opinion reported at 159 N.J. Super. 347 (Law Div.1978), Judge Stroumtsos, the trial judge, held (at 351) the statute unconstitutional "for the reason that it deprives a parent of due process of law by imposing upon him unlimited liability, regardless of fault, for the wrong committed by his child solely on the basis of the parent-child relationship." Plaintiff's motion was accordingly denied and an order to that effect was entered. We granted the board's motion for leave to appeal from that interlocutory order.
In another action plaintiff Board of Education of the Borough of Roselle sued to recover from defendant Angel Monagas for damage to its school property, claiming that Angel, a pupil in the Roselle school system at the time, caused the damage. The remaining defendants in that suit are Angel's parents. As to them the board sought recovery based on their vicarious liability under N.J.S.A. 18A:37-3. Defendants interposed a general denial and by way of defense challenged the constitutionality of the statute, claiming that it deprived them of property without due process of law. The parents thereafter moved for a dismissal of the claim*fn2 made against them. Judge Long, the trial judge who heard that motion, dismissed the board's claim
against defendant-parents "for the reasons expressed by the court in Bd. of Education of Piscataway v. Caffiero , 159 N.J. Super. 347 (Law Div.1978)." We granted the Board's motion for leave to appeal from that dismissal and for consolidation of the two appeals.
While we can understand Judge Stroumtsos' disagreement with the reasoning of another trial judge in arriving at a contrary result in Palmyra Bd. of Ed. v. Hansen , 56 N.J. Super. 567 (Law Div.1959),*fn3 we find his reliance upon Doe v. Trenton , 143 N.J. Super. 128 (App.Div.1976), aff'd 75 N.J. 137 (1977), and Corley v. Lewless , 227 Ga. 745, 182 S.E. 2d 766 (Sup.Ct.1971), to be misplaced. In Doe this court struck down as unconstitutional a criminal statutory presumption in a municipal ordinance "that a parent . . . is responsible for the misbehavior of a child who twice within one year is adjudged guilty of acts defined as violations of the public peace." 143 N.J. Super. at 130. The statute before us imposes vicarious civil liability requiring parents to respond in money damages for their child's damage or destruction of school property. Here, we are not confronted with any criminal statutory presumption which would require for its validity a finding "with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend." Leary v. United States , 395 U.S. 6, 36, 89 S. Ct. 1532, 1548, 23 L. Ed. 2d 57, 82 (1969).
In Corley the statute which the Supreme Court of Georgia held unconstitutional imposed vicarious liability upon a parent or other person in loco parentis having custody and control of a
child under 17, for the "wilful and wanton acts" of the child "resulting in death, injury or damage to the person or property, or both, of another." 182 S.E. 2d at 768. The court concluded that the statute, which imposed liability for both personal injury and property damage, "contravenes the due process clauses of the State and Federal Constitutions . . . and is void." Id. at 770. In doing so it relied heavily upon the policy of ...