On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Bergen County, L-1171-99 and L-1168-99.
Before Judges Petrella, Steinberg, and Alley.
The opinion of the court was delivered by: Steinberg, J.A.D.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Reconsideration Granted: May 1, 2002
Decision upon Reconsideration: May 8, 2002
This appeal and cross-appeal arise from a lawsuit filed by two students, B.F. and R.H., and their parents against a former elementary school principal and a board of education, based on theories of intentional tort, negligence, and civil rights violations. In essence, plaintiffs B.F. and R.H. claimed they suffered severe and permanent psychological injuries as a result of being sexually abused by their elementary school principal, defendant Samuel Bracigliano, during 1988 and 1989. Brian and Susan Frugis, B.F.'s parents, and Robert and Jeane Hutzel, R.H.'s parents, claimed they suffered economic losses due to the medical expense and private school education costs that they incurred as a result of what happened to their sons. Plaintiffs asserted claims against the Elmwood Park Board of Education (Board) under theories of vicarious liability, negligent hiring, negligent supervision, and violation of civil rights, pursuant to 42 U.S.C. § 1983 (1994).*fn1 The two complaints were consolidated. Bracigliano did not file an answer or otherwise move as to the complaint. Consequently, a default was entered against him.
Bracigliano was the principal of Gilbert Avenue Elementary School in Elmwood Park from 1982 until his arrest on November 30, 1990. During that time, Bracigliano would call a number of students, mostly boys, to his office each day.
At trial, with the consent of the parties, the deposition of Patricia Showers, Bracigliano's secretary, was read to the jury. She said the window in his office door was covered with paper so that no one could see inside. In addition, the windows to the outside were obscured with hedges and brush. Again, no one could see inside. From her desk near the locked door, Showers could hear the clicking of a camera and the pop of flashbulbs going off.
In November 1990, the Bergen County Prosecutor's Office received reports of young boys being photographed by Bracigliano. A search warrant was issued. In executing the warrant, investigators discovered pornographic photographs, magazines, books, and videotapes in a locked room in Bracigliano's home. The investigators also found a small, black, metal index box located in a desk drawer in an office in Bracigliano's home. It contained 176 photographs of young boys in a "spread-legged pose." In other words, the boys were seated with their legs spread open and hanging over the arms of the chair. It was determined that the photographs had been taken in Bracigliano's school office and that the photographs were of past and present students at the school.*fn2
One of the photographs found at Bracigliano's home was of eight-year-old B.F. After Bracigliano was arrested, B.F.'s parents asked him about any involvement he might have had with Bracigliano. Reluctantly, B.F. advised his parents that he had been brought into Bracigliano's office on many occasions and had been photographed by him. He demonstrated to his parents how he had been photographed. He related that he had been asked to sit on Bracigliano's lap many times and, on one occasion, Bracigliano touched him on his penis. He also told his father that when he left the office, Bracigliano would give him a "swat" on his buttocks.
Jeane Hutzel testified that when she told her son, R.H., that Bracigliano had been arrested, he became hysterical but said Bracigliano had not done anything to him. However, she noticed that during the next few days, R.H.'s behavior was "totally off the wall." Ultimately, he related to her that Bracigliano used to call him to his office, lock the door, and pull down the shades. Once, Bracigliano unzipped R.H.'s pants to expose his underwear and took a photograph of him. On occasion, Bracigliano had R.H. remove his shirt and show his muscles for the camera. On these occasions, Bracigliano also took his shirt off. In addition, Bracigliano often called R.H. to the office and posed him in different positions in a chair. Bracigliano showed R.H. airline tickets to California and said that if he told anyone about the photographs, he would send him there and no one would ever find him. He also threatened to suspend R.H. from school if he told his parents what happened.
In the years that Bracigliano was principal, several staff members at the school noticed unusual incidents involving him and young male students. Joan E. Gerard, an ESL (English as a second language) teacher, testified that Bracigliano always preferred boys. She remembered one occasion when Bracigliano positioned a first-grade boy standing up against a wall while he rocked back and forth against the child. She felt "[i]t appeared . . . sexual in nature." She was not aware of any procedure for reporting inappropriate conduct by the principal, so she reported the incident to a school nurse.
Rose Klink, a school nurse who occasionally substituted at the school, testified that on one occasion, a boy came into her office and stood in front of her desk. Bracigliano walked in, put his arms around the boy, and started to push against him from behind. She stood up and walked around the desk, at which point Bracigliano pulled away from the student. Klink said there was no system in place for reporting the principal to superiors. She said "we are supposed to report things to the principal."
Karen Rockefeller was a special education teacher at the school while Bracigliano was principal. One morning, she observed a student against the wall outside his classroom, and Bracigliano was in front of the student "rocking back and forth and pushing into him." At the time, she did not think the incident was sexual in nature but, rather, thought it was intimidation. She also was unaware of any procedure for reporting a principal to his superiors.
Linda Herina, a sixth-grade teacher at the school, recalled one occasion when Bracigliano approached a student who was known to be shy and said, "You have to learn to talk more or Mr. B. is going to have to spank you." She told Bracigliano that she felt it was inappropriate to make such remarks to a sixth-grader. She also testified concerning an incident where two of her sixth-grade students had given a wrestling demonstration during an assembly. Upon their return, there was a note asking the boys to report to the office. They subsequently told Herina that Bracigliano had photographed them. One of the boys said he took his pants off. When she asked Bracigliano about this, he said he had no idea what she was talking about. Herina arranged for a conference with the boys and their mothers, but Bracigliano was arrested before the meeting could take place.
There was also evidence that members of the staff thought it was strange that the window on Bracigliano's office door was constantly covered and that his office was always dark. On one occasion, a State monitoring inspection resulted in the paper being removed from the window. However, after the monitoring team left the school, the paper was replaced on the window and it remained there.
William Savage was the wrestling coach at Elmwood Park High School from 1983 through 1986. At that time, the rules required that boys strip naked to be weighed before matches. Bracigliano frequently attended the weigh-ins during the four years that Savage was involved with the program, even though he was not on the high school faculty and had no duties in connection with the varsity wrestling program.
Savage asked the athletic director about Bracigliano and was told that he was involved in the lower grades' recreational wrestling program and wanted to observe varsity weigh-ins to see how they were done. Savage said he also spoke to Mike Scarpa, a member of the Board, about Bracigliano. Scarpa was a supporter of the wrestling team and often came to the locker room before a match to have a cigarette. Scarpa said that he also was concerned about Bracigliano attending the weigh-ins and asked Savage if he had ever noticed anything odd. Scarpa told Savage to keep an eye on Bracigliano and to tell him if anything happened.
Dr. Harry A. Galinsky, an educational consultant and long-time school administrator, testified on behalf of plaintiffs as an expert in the field of public administration and education. He said "there was an absolute absence of oversight" on the part of the Board and various superintendents. He also opined that had there been a reporting system in place, and had the superintendents been doing their job, the children would not have been harmed. He said "[t]hey were completely indifferent to what was going on in the school system." He noted that the superintendents did not personally visit the school to make periodic evaluations of Bracigliano as "required by law." He concluded that the performance of the superintendents did not rise to the level of the standard performance of superintendents around the State. He was particularly concerned about the covered window in Bracigliano's office door, claiming the practice was violative of N.J.A.C. 6:22-5.4. He believed that Bracigliano violated the regulation by covering the window and that this violation led directly to the behavior that took place within the office.
In addition, Galinsky explained that every board of education has a responsibility to institute an effective reporting system so that it can be aware of what is happening within its schools. He concluded that the reporting system in effect in the Elmwood Park School District was grossly inadequate. He also opined that the superintendents made no effort to communicate with the teachers at the school to see how things were going. He suggested that superintendents should spend time in their buildings, particularly in a small district. Had that been done, the superintendents would have noticed the covered window and also would have had the opportunity to speak with staff members.
The Board did not present expert testimony to refute Galinsky's opinions. Rather, it presented testimony from John M. Santini, Superintendent of the Elmwood Park School District from 1978 to 1988. He said there were several reporting mechanisms available to teachers within the district. A teacher could report problems directly to the principal. There was a grievance procedure within the collective bargaining agreement that was broad enough to address many different issues. There was also an anonymous reporting procedure through the Division of Youth and Family Services.
Susan Frugis testified concerning personality changes in B.F. sometime during the first grade when he started having trouble falling asleep at night and having fears that he was going to die. She said that after Bracigliano's arrest, B.F.'s personality changed. He became withdrawn, argumentative, and distrustful. In September 1991, B.F. was enrolled in a private, Catholic elementary school. He had trouble making friends and primarily became a loner. At the time of trial, B.F. was finishing his senior year and still had emotional difficulties. B.F. said that it was hard for him to adjust and make new friends. He said he consistently thought about what Bracigliano did to him. He was frequently depressed and often cried.
B.F.'s father testified that his son's therapist recommended taking him out of the Elmwood Park School District and putting him in private school. Consequently, in September 1991, he removed B.F., as well as his daughter, who is one year younger than B.F., from Gilbert Avenue Elementary School and enrolled them in St. Anne's. He said that prior to the revelations about Bracigliano, he and his wife had planned to send all of their children to public schools.
Dr. Michael Feldman, a psychiatrist, testified as plaintiffs' expert concerning his evaluation of B.F. He diagnosed B.F. as suffering from posttraumatic stress disorder and attention deficit hyperactivity disorder. He also found that B.F. suffered from depression and social phobia. He said "it's very probable that [B.F.'s] difficulties . . . [were] caused by the abusive experiences he had with [Bracigliano] at the school." He further opined that the psychological damage was permanent and significant. Finally, he said B.F.'s prognosis was "very guarded and potentially poor." In his opinion, the symptoms would increase in their impact for the rest of his life, rather than decrease.
Jeane Hutzel testified that her son, R.H., started kindergarten at Gilbert Avenue Elementary School. He began to have problems in the second grade and often asked if he could go to a different school. After Bracigliano's arrest, he became very upset. He began crying for no reason, was irritable, woke up at night with nightmares, sat up at night terrified, and antagonized his younger sisters for no reason. His parents withdrew him from the school and enrolled him in St. Anne's. However, R.H.'s mother noticed he was "pathetically sad, just a miserable, unhappy kid" who could not fit in. She said other students at St. Anne's were aware of what had taken place and made fun of him, saying he was gay, and "was one of [Bracigliano's] boys. It was just humiliating." She said R.H.'s relationship with his parents, especially his father, was not good. She also testified that she and her husband were totally alienated from R.H., and he refused to involve them in any aspect of his life. She said she did not believe "he even has a self esteem. He just has a terribly low opinion of himself."
R.H.'s father testified that at the therapist's recommendation, he and his wife removed R.H. from the school and enrolled him in St. Anne's. At the end of the school year, they also removed their twin daughters, who are three-and-one-half years younger than R.H., from the school and enrolled them in St. Anne's as well. Prior to the incident with Bracigliano, they intended that all of their children would attend public school.
Dr. Feldman also testified as plaintiffs' expert concerning his evaluation of R.H. He said that although R.H. was generally better adjusted than B.F., he also had a significant emotional impairment. He opined that R.H. has significantly impairing depression and anxiety that are related to the sexual abuse by Bracigliano. He noted:
R.H. continued to suffer from residual symptoms of posttraumatic stress disorder, including intense psychological distress when reminded of abuse, avoidance of thoughts and feelings about the abuse, numbing of his emotional -- of his emotions, as well as feeling detached from others and finally reporting excessive moodiness and angry outbursts. And a significantly increased need to be on the alert and in control of his surroundings.
He also testified that R.H. suffered from dysthymia, which is "a type of a depressive disorder, characterized by a sad and irritable mood," low self esteem, and a mixed disturbance of sleep, appetite, and energy level. He indicated that R.H.'s "current problems [were] ...