On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.
Approved for Publication August 15, 1996.
Before Judges Dreier, A.m. Stein and Cuff. The opinion of the court was delivered by Cuff, J.A.D.
The opinion of the court was delivered by: Cuff
The opinion of the court was delivered by CUFF, J.A.D.
C.P. was sexually molested in a swimming pool by a volunteer instructor in a school board sponsored swimming program. Through her guardian ad litem, she appeals the dismissal of her Tort Claims Act claims and her federal civil rights claims against the school board. In a separate appeal, we must decide whether C.P. can execute on an Individual Retirement Account (IRA) held by the volunteer instructor in her effort to collect the default judgment entered against him. *fn1 We affirm the dismissal of the Tort Claims Act and federal civil rights claims and reverse the order authorizing execution against the defendant volunteer's IRA.
In 1990, C.P. was eight years old and in the third grade at an elementary school in Piscataway. In November 1990, she was a participant in a school board sponsored swimming program known as Swimming Education and Aquatic Safety (SEAS). Instruction was provided at the Grant Avenue Community Center in Plainfield.
In November 1990, C.P. informed her mother that a volunteer male swim instructor at her swim class had touched her in the vaginal area. Her father contacted the principal at her school. The principal contacted the Division of Youth and Family Services which contacted the Union County Prosecutor's office. The volunteer, defendant Joseph Carabillo, was charged with aggravated sexual assault, sexual assault, and endangering the welfare of a child and ultimately pled guilty to sexual assault, a second degree offense, in exchange for the dismissal of the other charges.
According to the certifications, depositions, and answers to interrogatories submitted in support of and in opposition to the school board's motions for summary judgment, the SEAS program has been under the direction of Phyllis Woestemeyer, a physical education teacher employed by the school board, since its inception in 1972.
Ms. Woestemeyer's deposition testimony revealed that when a volunteer from the general public, rather than the school community, expressed an interest to participate in the SEAS program, she would speak to that person and ascertain what type of commitment he or she was willing to make. If the volunteer was from the school community, such as a high school student or a parent, she would contact someone at the high school who was familiar with the student or the parent before inviting him or her to participate in the program. If the volunteer was from the general public, she would try to speak to someone who knew the candidate. She did not conduct any formal interviews.
Defendant Carabillo's interest was communicated to Woestemeyer through his wife. Woestemeyer spoke to Mrs. Carabillo and inquired about his availability.
Prior to November 20, 1990, background checks of a volunteer's history of criminal behavior, psychiatric problems or substance abuse were not administered. Subsequent to Carabillo's assault of C.P., the school board developed an official policy regarding the screening of volunteers. Prior to the assault on C.P., there had been no reported incidents of any assault on any participant by a volunteer.
In the action commenced in April 1991, C.P. and her parents asserted state law claims pursuant to the Tort Claims Act, N.J.S.A. 59:1-1 through 12-3, and federal civil rights claims pursuant to 42 U.S.C.A. § 1983 ( § 1983) against defendant Piscataway Board of Education, and negligence and intentional tort claims against Carabillo.
On December 20, 1993, Judge Robert A. Longhi entered partial summary judgment in favor of the school board dismissing the state claims for failure to satisfy the threshold set forth in N.J.S.A. 59:9-2d. He found that the claim asserted by C.P. was for emotional distress and that her proofs did not establish that she had sustained a permanent loss of a bodily function.
In opposition to the school board's motion for summary judgment, plaintiffs submitted the report of Marsha Heiman, Ph.D., a clinical psychologist who has treated C.P. In her report of her clinical interviews with C.P., which occurred within six weeks of the assault, she related that C.P. told her that initially she was very embarrassed by the touching and afraid to tell her parents. She said nightmares made her afraid to go to sleep. She expressed fear that Carabillo might try to hurt her and her family. She also expressed a fear that others, particularly older men, might try to touch her. Dr. Heiman rendered a diagnosis of acute post-traumatic stress disorder.
In her summary and recommendations, Dr. Heiman wrote:
She experienced some symptoms of distress, consistent with a diagnosis of Post-Traumatic Stress Disorder. Her difficulty sleeping, frequent nightmares, decreased grades, clinging behavior, and other expressed fears are all manifestations of the initial trauma and are behaviors typically seen in children who have been sexually abused....
It is recommended that C. be seen in short term therapy to help reduce symptoms and to help her clarify and resolve any feelings that might still linger as a result of this experience. It is anticipated that with a short course of treatment, along with her parent's support, C.'s symptoms will totally abate and she will not suffer any long term consequences.
In a supplemental report dated June 23, 1993, Dr. Heiman reported that she terminated visits with the child on February 4, 1991; however, since that date she had seen C.P. seven additional times: once in 1991, five times in 1992, and once in 1993. The 1993 visit was on June 22, 1993. Except for the last visit, some specific event triggered memories of the assault and "brought up additional issues which previously were not addressed." Dr. Heiman reported that C.P. experienced sleep difficulties in August 1991 and April 1992. Three visits in December 1992 were precipitated by sleep difficulties when she learned that Carabillo was being released from prison and returning to his home in a nearby community. Dr. Heiman noted that "allowing C. to process her fears ... returned C.'s functioning to normal, and she was back on track developmentally."
Dr. Heiman concluded her report as follows:
C. has strong ego strengths and a supportive family, both of which mitigate against any permanent, long term consequence or emotional sequelae. As with any child, it remains a distinct possibility that C. could be triggered at any point in the future by events which bring back memories of the abuse, thereby producing transient short-term symptoms. Two years following the molestation, C. has experienced several episodes in which abuse issues have resurfaced and she has required therapy. With immediate intervention, however, C. shows the capacity to understand her feelings and reactions and quickly resolve any continued aftereffects from her abusive experience.
The negligence claims asserted on behalf of C.P. individually and by her parents against the school board are governed by the New Jersey Tort Claims Act, N.J.S.A. ...