Judges Stern, Landau and Wecker.
The opinion of the court was delivered by: Stern, P.J.A.D.
December 16, 1998, Submitted
Approved for Publication March 11, 1999.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.
We affirm the denial of the application for late filing against the Township and Board of Education. We also affirm the dismissal of the complaint against Collier High on charitable immunity grounds. We reverse the grant of summary judgment to Bock and reinstate his third-party complaint against the Board of Education.
The opinion of the court was delivered by STERN, P.J.A.D.
Following the entry of final judgment, plaintiff appeals from an order of September 15, 1995, denying her motion to file a late notice of claim under the Tort Claims Act against the Township of Monroe and its Board of Education. Plaintiff also appeals from an order of July 16, 1997, granting summary judgment to defendants Collier High School (Collier High) and its principal, Raymond Bock, III.
Defendants Collier High and Bock, as third party plaintiffs, cross appeal from the same order of July 16, 1997, dismissing their third party complaint. The cross-appeal "is made solely for the purpose of restoring the third party complaint in the event plaintiff's appeal is successful." The third party Complaint was filed against the Township of Monroe, the Monroe Township Board of Education ("Board") and H.C. ("C."). *fn1 C. is alleged to have sexually harassed plaintiff on the school bus they mutually rode to and from Collier High, a private high school for children with special needs. Plaintiff was placed there by the Board which was responsible for the busing of plaintiff to and from school. The third party complaint sought "common law indemnification" and contribution from all three third party defendants and "contractual indemnification" from the Board and Township.
Plaintiff endeavored to sue Monroe Township and the Monroe Township Board of Education as well as Collier High and Bock who, she claims, failed to "protect and care for" her while she was in their "custody." However, the Law Division declined to permit the late filing of the tort claim notice. The motion Judge concluded that there were no "extraordinary circumstances" to warrant the late filing (more than ninety days after, but within a year of, plaintiff's eighteenth birthday). See N.J.S.A. 59:8-1, -8, -9. Vedutis v. Tesi, 135 N.J. Super. 337, 340-41, 343 A.2d 171 (Law Div. 1975), aff'd o.b., Vedutis v. South Plainfield Bd. of Educ., 142 N.J. Super. 492, 362 A.2d 51 (App. Div. 1976)); Rost v. Fair Lawn Bd. of Educ., 137 N.J. Super. 76, 347 A.2d 811 (App. Div. 1975). Plaintiff challenges that order and the order which granted summary judgment to Collier High and Bock on the grounds that they owed "no duty" to plaintiff because she was on the school bus over which they had "no control." Plaintiff contends that "Collier and Bock had an obligation to notify plaintiff's parents of her allegations of criminal sexual contact and abuse on the school bus" and argues that "the fact that the third party defendants were responsible for setting up the transportation of students to and from Collier, has no bearing upon the liability of Collier and Bock in failing to protect the plaintiff when she went to them for help." Under plaintiff's version, she went to Bock several times and he promised to do something about it, but took action which was inadequate and ineffective. Plaintiff alleges that because Bock's efforts were so inadequate and ineffective, the harassment became progressively worse. Under plaintiff's version, Bock, as an agent for Collier High, was advised of the facts and assumed the responsibility as principal to correct the problem. Plaintiff also contends that neither Collier High nor Bock is protected by charitable immunity which was an alternative basis for the grant of summary judgment.
Collier High, which is located in Monmouth County, is an "alternative" high school that serves over forty school districts from several counties. Students are enrolled there upon referral by their local school district's child study teams.
The school is part of Collier Services, "a non-sectarian, not-for-profit, private agency sponsored by the Sisters of the Good Shepherd." Collier Services "qualifies as a non-profit entity organized exclusively for charitable, religious or educational purposes for tax exemption status and files IRS Form 990." Bock has been the principal of Collier High since 1987. As principal, Bock is primarily responsible for student behavior and "oversee[s] transportation issues."
Plaintiff, a Jamesburg resident, was enrolled in Collier High since 1992. At the time of her enrollment, plaintiff was a sophomore. Plaintiff was transported to and from the school by "a mini-bus" provided by the Monroe Township Board of Education. During plaintiff's junior year (1992-93), there were approximately five passengers on the bus, including plaintiff and C. The passengers did not have assigned seats. The bus had different drivers over the course of the school year. At the end of plaintiff's junior year, the bus was driven by Joseph Sabba, who continued to hold that position through plaintiff's senior year. During plaintiff's senior year (1993-94), there were six passengers who rode the bus, including plaintiff and C.
For purposes of summary judgment, we must accept the facts as alleged by plaintiff and give her the benefit of all inferences those facts support. Baird v. American Medical Optics, 155 N.J. 54, 58, 713 A.2d 1019 (1998).
Plaintiff testified that she first met C. at "the beginning of [her] junior year" (1992-93). By November or December, they "started talking ... as friends," although plaintiff denied that they "fooled around ... verbally." The friendship was limited to the time spent on the bus. They did not socialize or speak either in or out of school.
According to plaintiff, C. started making "rude comments, sexual comments" to her in early 1993. Initially, plaintiff responded by telling him either to "shut up" or to "stop" making the comments. However, when he did not do so, plaintiff would "say something back to him or ... hit him."
When C. began to make the remarks, plaintiff at first did "nothing" after she got off the bus. She simply hoped that it "wouldn't happen again." However, as the situation intensified and the comments continued, plaintiff went to Bock in February or March 1993 and informed him that C. "was bothering [her] and making rude ... and sexual comments" and that she wanted it to stop. Bock told plaintiff that "he would speak to" C. and that "it shouldn't happen again."
Although plaintiff did not know whether Bock, in fact, talked to C., the comments subsided for a few days. However, shortly thereafter C. not only resumed making the remarks but also began to "grab [plaintiff's] chest [and] genital area." Plaintiff continued to tell C. to stop. She also moved to other seats on the bus to get away from him, but he would "follow" her. By April 1993, C. was "grabbing [her] and putting [her] into sexual positions." Plaintiff admitted that she responded by hitting C. and calling him a "nig---" and "black piece of ."
Plaintiff met with Bock again in either late April or early May of 1993. She told Bock that C. was still making the remarks, that he was grabbing her, and that she could neither defend herself nor "take it any more." *fn2 Bock said that he would meet with C. again "and that it should stop." Bock asked plaintiff if she wanted to attend the meeting, but plaintiff declined.
After the meeting with Bock, C.'s offensive behavior subsided for up to a week, but then resumed. Plaintiff told C. that she would go back to Bock if he did not stop. However, she never went back to Bock because the school year was almost over.
Plaintiff did not see C. during the summer. By either the end of September or early October of her senior year (1993-94), the comments and grabbing started again. After a few weeks, plaintiff had another meeting with Bock. During this meeting, an administrative assistant named Buchanan was called in. When Bock again asked plaintiff if she wanted to be present when he spoke to C., plaintiff said that she did.
C. was then called to the meeting. Bock told him that his behavior was "a criminal offense," that it would not be tolerated, and that he could be "kicked off the bus" if it continued. According to plaintiff, C. apologized and said nothing about plaintiff's behavior during the meeting.
Following the meeting, there was a period of good behavior. However, around Christmas time, a Collier High administrative assistant named Collins found plaintiff "crying" in the ladies room. Plaintiff told Ms. Collins "what was happening," and Collins took her to Bock. Consistent with the past practice, after plaintiff's meeting with Bock, C. stopped harassing her for a short time and then started up again after the Christmas break. Plaintiff met with Bock a few more times as the circumstances required, and Bock continued to warn that C. "could be kicked off the bus or C. could be suspended ... or kicked out of school."
Plaintiff did not tell her mother about these events until some time in her senior year. On May 24, 1994, plaintiff reported that she "was never going back" on the bus again. The next day, plaintiff's mother went to school with plaintiff and met with Bock. Plaintiff subsequently submitted a written request that she be permitted "to ...