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J.S. v. R.T.H.

May 21, 1997

J.S. AND M.S., H/W, AS NATURAL PARENTS AND GUARDIANS AD LITEM OF C.S. AND M.S., MINORS, PLAINTIFFS/APPELLANTS,
v.
R.T.H. AND R.G.H., HIS WIFE, JOINTLY AND SEVERALLY, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Cumberland County.

Approved for Publication May 21, 1997.

Before Judges Stern, Humphreys and Wecker. The opinion of the court was delivered by Wecker, J.s.c., temporarily assigned

The opinion of the court was delivered by: Wecker

The opinion of the court was delivered by WECKER, J.S.C., temporarily assigned

Plaintiffs appeal from summary judgment dismissing their complaint against defendant R.G.H. (fictitiously named Mary) for negligence in failing to protect plaintiffs' minor daughters from sexual abuse by Mary's husband, co-defendant R.T.H. (fictitiously named John). *fn1 As a result of sexual assaults upon the twelve-year-old and fifteen-year-old sisters over a period of more than a year, John pled guilty to endangering the welfare of minors. In accordance with a plea bargain, he was sentenced to eighteen months in state prison. Plaintiffs then brought this action against John and Mary on behalf of the children.

Plaintiffs' amended complaint alleged that John sexually assaulted the children in his home and automobile on various dates in 1991 and 1992; that Mary was aware of her husband's history of pedophilia as well as his conduct involving these children; that Mary "was negligent in that she knew and/or should have known of her husband's proclivities/propensities" and that as a result of her negligence the girls were physically and emotionally injured. The motion Judge concluded that even if Mary knew that her husband posed a danger to their neighbors' daughters, she had no duty to warn plaintiffs or to take other steps to protect the children. We disagree and reverse.

The nature of the relationship of these parties is not in dispute. Plaintiffs and their two daughters were next-door neighbors and friends of the defendants. Defendants owned horses and the girls frequently visited, helping to care for the horses and horseback riding with John. On many occasions John was the only adult in their company.

The record before the motion Judge and hence before us is sparse. The extent of Mary's knowledge of John's sexual appetites and activities is in dispute. In her deposition testimony, Mary apparently denied knowledge that John was interested or had engaged in sexual activity with these young girls. Certifications of the two teen-age victims, however, included allegations that when they visited defendants, Mary announced their presence by calling out "Your whores are here," and that she addressed them as "you bitches." Those words, if accurately quoted, permit an inference that Mary was aware of John's sexual abuse of the girls.

In opposition to summary judgment plaintiffs argued, inter alia, that they had not yet received Mary's answers to interrogatories nor had an opportunity to depose John, who was still incarcerated. They argued that depending upon John's testimony, they might seek to amend their complaint against Mary to allege her active wrongdoing. They also sought the opportunity to take depositions of other persons identified during Mary's deposition, including an ex-daughter-in-law. *fn2 On a motion for summary judgment, the non-moving party must be given the benefit of every favorable inference. Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520, 523-24, 666 A.2d 146 (1995); Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 75, 110 A.2d 24 (1954).

Because the motion Judge considered that Mary owed no duty to the children irrespective of what she knew, he apparently concluded that the factual dispute was not material and therefore granted summary judgment. Because we conclude that a spouse in the circumstances alleged by plaintiff does have a duty to take reasonable steps to prevent harm, Mary's knowledge or awareness was a disputed material fact. Under Brill, summary judgment was therefore improper, particularly in light of the incomplete discovery. See Bilotti v. Accurate Forming Corp., 39 N.J. 184, 206, 188 A.2d 24 (1963); Martin v. Educ. Testing Serv., 179 N.J. Super. 317, 326-27, 431 A.2d 868 (Ch. Div. 1981).

"A prerequisite to recovery on a negligence theory is a duty owed by defendant to plaintiff." Strachan v. John F. Kennedy Memorial Hosp., 109 N.J. 523, 529, 538 A.2d 346 (1988) (hospital owed a duty to parents of deceased child to properly care for the body and to properly inform the parents). It is generally for the court to determine whether the circumstances alleged, if true, imposed a duty upon the defendant and if so, the nature of that duty. Petrillo v. Bachenberg, 139 N.J. 472, 479, 655 A.2d 1354 (1995) (attorney owed duty to non-clients who foreseeably relied upon test reports he provided); Wang v. Allstate Ins. Co., 125 N.J. 2, 15, 592 A.2d 527 (1991).

Our Supreme Court has described "the determination of the existence of a duty ultimately [as] a question of fairness and policy." Snyder v. American Ass'n. of Blood Banks, 144 N.J. 269, 292, 676 A.2d 1036 (1996). The facts of a case inform the court in determining whether a duty exists. Wang, supra, 125 N.J. at 15. While foreseeability alone does not create a duty, Snyder, supra, there can be no duty unless harm to another is reasonably foreseeable. Hill v. Yaskin, 75 N.J. 139, 143-44, 380 A.2d 1107 (1977). See also Werrmann v. Aratusa, Ltd., 266 N.J. Super. 471, 474, 630 A.2d 302 (App. Div. 1993).

As Judge Cardozo stated in Palsgraf v. L.I.R.R. Co., 248 N.Y. 339, 162 N.E. 99 (N.Y. 1928):

The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others ...


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