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

July 29, 1998

J.S. AND M.S., HIS WIFE, AS NATURAL PARENTS AND GUARDIANS AD LITEM OF C.S., A MINOR, AND M.S., A MINOR, AND M.S., INDIVIDUALLY, PLAINTIFFS-RESPONDENTS,
v.
R.T.H., DEFENDANT, AND R.G.H., HIS WIFE, JOINTLY AND SEVERALLY DEFENDANT-APPELLANT.



The opinion of the court was delivered by: Handler, J.

Argued February 3, 1998

On certification to the Superior Court, Appellate Division, whose opinion is reported at 301 N.J. Super. 150 (1997).

In this case, two young girls, ages 12 and 15, spent substantial periods of recreational time with their neighbor at his horse barn, riding and caring for his horses. Betraying the trust this relationship established, the neighbor, an older man, sexually abused both girls for a period of more than a year. Following the man's conviction and imprisonment for these sexual offenses, the girls, along with their parents, brought this action against the man and his wife for damages, contending that the wife's negligence rendered her, as well as her husband, liable for their injuries. The man conceded liability for both the intentional and negligent injuries that he inflicted on the girls by his sexual abuse. His wife, however, denied that, under the circumstances, she could be found negligent for the girls' injuries.

This case presents the issue of whether a wife who suspects or should suspect her husband of actual or prospective sexual abuse of their neighbors' children has any duty of care to prevent such abuse. And, if there is such a duty, does a breach of that duty constitute a proximate cause of the harm that results from sexual abuse.

I.

Defendants R.T.H. and R.G.H., husband and wife (called "John" and "Mary" for purposes of this litigation), moved into a house in Vineland, New Jersey, and became next-door neighbors of plaintiffs, J.S. and M.S. and their two daughters, C.S. and M.S.

John, 64 years old, was charged with sexually assaulting the two sisters over a period of more than a year. He pled guilty to endangering the welfare of minors and was sentenced to eighteen months in state prison. Plaintiffs, as the natural parents and guardians ad litem of their two daughters, filed a complaint against John alleging intentional, reckless, and/or negligent acts of sexual assault against each of the two girls. In an amended complaint, plaintiffs added Mary as a defendant, alleging that she "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 two girls suffered physical and emotional injury. *fn1

Defendants filed a joint answer in which they denied plaintiffs' allegations. In an amended answer, Mary offered the defenses that she owed no duty to plaintiffs, that any alleged negligence on her part was not the proximate cause of any injuries or damages sustained by plaintiffs, and that any damages sustained by plaintiffs were the result of actions by a third party over whom she exercised no control. Mary also filed a cross-claim for contribution and indemnification against John, alleging that even if plaintiffs' allegations were proven, John was the primary, active, and sole culpable cause of any injuries to the plaintiffs.

Mary filed a motion for summary judgment, contending that there was no legal basis for finding her negligent. In opposition, plaintiffs submitted the certifications of the two minor plaintiffs. Plaintiffs also argued that the summary judgment motion was premature, in that they had not yet had the opportunity to depose John, who was still incarcerated, nor had they completed other discovery.

The trial court entered summary judgment on behalf of Mary. *fn2 On appeal, the Appellate Division reversed the order and remanded for entry of an order granting plaintiffs extended discovery. 301 N.J. Super. 150 (1997).

This Court granted defendant's petition for certification. 151 N.J. 464 (1997).

On this appeal, we assess the sufficiency of the evidence under the standard applicable to summary judgments. Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520 (1995). Under that standard, the court accepts as true all the evidence and favorable legitimate inferences that support the non-moving party. Id. at 523.

The summary judgment record, which includes plaintiffs' certifications and Mary's deposition testimony, indicates that after defendants moved next door to plaintiffs in 1988, the two families quickly became friendly and spent a lot of time together. Defendants owned horses and a barn, and, at John's encouragement, the minor plaintiffs visited daily to ride horseback and to help care for the horses. Additionally, John would take at least the older of the two girls horseback riding on various trails in New Jersey and Pennsylvania. Usually John was the only adult in their company; Mary never joined the trio. However, during the summer of 1992, there were several occasions when Mary entered the barn, saw John with the girls, and stated to him:

"Oh. Your whores are here." On several occasions that summer when the girls were on the property riding horses, Mary yelled to them from one of the windows of the house: "You bitches." Nevertheless, Mary never "confronted" her husband about the time he was spending alone with either or both of the girls.

The sexual assaults occurred over a period of a year, from 1991 until John's arrest in November 1992. Additional evidence indicates that for at least some period in 1992, Mary lived outside of the marital home. It was not until November 1992, when her son informed her of John's arrest, that Mary first learned that her husband had had any sexual contact with the girls. Mary was shocked by the news; she had believed her husband and the girls were just friends who spent time together because of the horses. She saw John the next day, following his release from prison. He told her that the police, acting on information received in a phone call, had caught him behind the house with the two girls. Both at the trial level and on appeal, however, Mary conceded for the purposes of argument that "at all relevant times" she "knew or should have known of her husband's proclivities/propensities."

II ...


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