On certification to the Superior Court, Appellate Division, whose opinion is reported at 351 N.J. Super. 328 (2002).
The Court determines whether the trial court properly directed a liability verdict in favor of plaintiffs on their negligence and negligent supervision claims against the defendant Elmwood Park Board of Education (Board or School Board) and whether it properly declined to submit to the jury the issue of apportionment of liability between the Board and defendant Bracigliano. The Court also considers whether the trial court properly exercised its discretion in not submitting the issue of diminished earning capacity to the jury.
Bracigliano was the principal of the Gilbert Avenue Elementary School in Elmwood Park, New Jersey, from 1982 until his arrest on November 29, 1990, when investigators discovered an assortment of pornographic photographs and videotapes in his home. The investigators also found 176 photographs of past and present male students that had been taken in Bracigliano's elementary school office. Bracigliano was charged with and convicted of official misconduct, N.J.S.A. 2C:30-2a. The parents of B.F. and R.H, two of the victimized students, individually and on behalf of their children, sued Bracigliano and the Board. Plaintiffs asserted against the Board claims of common-law negligence and negligent supervision, among others. The Board denied the allegations, but Bracigliano failed to respond to the claims asserted against him and a default judgment was entered.
The testimony before the jury revealed that Bracigliano blocked the view into his office by covering the window in his office door with paper as soon as he assumed his post as principal. Obscuring the window violated N.J.A.C. 6:22-5.4(c). During Bracigliano's tenure, state monitors ordered the removal of the paper, but Bracigliano replaced it shortly thereafter. According to the testimony of one witness, a Board member commented during a break at a Board meeting about the state monitors' order, demonstrating that the Board was aware of the actions of the state monitors. Thereafter, the Board took no action to assure that the door window complied with administrative regulations. Testimony also was offered about the numerous boys who came to Bracigliano's office each day, one at a time, and his habit of calling the students to his office from their classrooms. Bracigliano's secretary testified that the door to his office was always locked during these visits and that she would often hear the click of a camera and the pop of flashbulbs from behind the door. A teacher testified to witnessing Bracigliano rocking back and forth against a first-grader who was standing against a wall. A substitute school nurse also witnessed an incident during which Bracigliano walked into the nurse's office, put his arms around a boy and began pushing against him. Another teacher testified to witnessing Bracigliano rocking back and forth against a student and hitting him with his stomach. Witnesses testified to other incidents as well. However, not one school staff member who witnessed Bracigliano's questionable behavior reported his conduct directly to DYFS or to his superiors at the Board. Each was unaware of any procedure for disclosing such information to the Board. Testimony revealed also that the Board was aware of Bracigliano's attendance at the weigh-ins of naked athletes on the high school's varsity wrestling team. Moreover, the school superintendent knew of Bracigliano's attendance at the weigh-ins and considered it inappropriate, but took no action. Finally, a complaint was registered with the Board by a student's mother about Bracigliano's insistence that her son attend private counseling sessions with him during the summer, even though Bracigliano was not a counselor and the school building was officially closed. The president of the Board reported the incident to the superintendent, who instructed Bracigliano to cease and desist.
In respect of harm to B.F. and R.H., witnesses and plaintiffs' expert testified to the emotional harm that resulted from their experiences with Bracigliano, including psychological harm requiring therapy. The parents also determined to transfer the children to private school.
At trial, before closing arguments, the judge directed a liability verdict in favor of plaintiffs on their negligence and negligent supervision claims against the Board, and on their negligence, intentional tort, and 42 U.S.C.A. § 1983 claims against Bracigliano. The trial court declined to submit to the jury the issue of apportionment of liability between the Board and Bracigliano and the issue of lost future income in calculating any award for B.F. and R.H. The jury returned a damages verdict on plaintiffs' negligence claims in the amounts of $275,000 to B.F. and $117,000 to his parents, and $275,000 to R.H. and $109,250 to his parents. The trial court entered judgment on all claims against Bracigliano.
The Appellate Division reversed.
The opinion of the court was delivered by: Albin, J.
Defendant Samuel Bracigliano, the former principal of the Gilbert Avenue Elementary School in Elmwood Park, photographed scores of young male students in provocative poses and retained those photographs for his sexual gratification. As a result, he was charged with and convicted of official misconduct, N.J.S.A. 2C:30-2a. Frugis v. Bracigliano, 351 N.J. Super. 328, 339 n.2 (App. Div. 2002). The parents of two of the victimized students, individually and on behalf of their children, sued Bracigliano and the Elmwood Park Board of Education (Board).
Although various theories of liability were asserted in the complaints, the focus of the appeal before us is plaintiffs' allegation that the Board negligently supervised Bracigliano, causing emotional and economic injuries to the two families. We must determine whether the evidence presented against the Board at trial was so overwhelming as to justify a directed verdict in favor of plaintiffs. We must also determine whether, if the Board is liable, apportionment of damages between the negligent Board and the intentional tortfeasor principal is required pursuant to the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, or whether such apportionment is contrary to public policy because it would dilute the responsibility of the Board to protect the children from the very harm it should have anticipated f8e7 the principal's wrongful acts. Last, we must decide whether the trial court properly exercised its discretion in not submitting the issue of diminished earning capacity to the jury.
On August 11, 1993, plaintiffs Brian and Susan Frugis, the parents of then ten-year-old B.F., and Robert and Jeanne Hutzel, the parents of then eleven-year-old R.H., filed separate but similar ten-count complaints, individually and on behalf of their sons, naming Bracigliano and the Board as defendants.
Plaintiffs asserted common-law claims of negligence, intentional infliction of emotional distress, false imprisonment, and invasion of privacy against Bracigliano, and claims of negligent hiring, negligent supervision, and vicarious liability against the Board. Plaintiffs also claimed that both defendants violated B.F.'s and R.H.'s civil rights under 42 U.S.C.A. § 1983. The plaintiff parents sought reimbursement for medical and private school tuition expenses. Although the Board answered by denying the allegations, Bracigliano failed to respond, and ultimately, default judgment was entered against him.
The complaints were consolidated for trial and protracted pretrial proceedings ensued. The trial court dismissed the punitive damages and negligent hiring claims against the Board on summary judgment. At a ten-day trial in 2000, the jury heard the testimony of eighteen witnesses. We summarize the relevant portions of that testimony in considering this appeal.
Bracigliano was the principal of the elementary school from 1982 until his arrest on November 29, 1990, when investigators discovered an assortment of pornographic photographs and videotapes in his home. The investigators also found 176 photographs of past and present male students, each depicting a similar pose f8e7 a clothed boy seated in a chair with his legs spread wide apart, and one leg dangling over each arm of the chair. Bracigliano had taken those photographs in his elementary school office. One of the photographs of a child in the so-called "spread-legged pose" was of B.F. No photograph of R.H. was discovered.
As soon as Bracigliano assumed his post as principal of the elementary school, he blocked the view into his office by covering the 12" x 12" window in his office door with a paper picture. Obscuring that window violated N.J.A.C. 6:22-5.4(c),*fn1
which required that every door to a room used by school staff have an unobstructed safety-vision panel. The exterior windows to Bracigliano's office were also obscured by half-drawn shades and overgrown hedges. During Bracigliano's tenure, state monitors conducting a routine inspection ordered that the paper covering the office-door window be removed. Undeterred, Bracigliano replaced the paper shortly thereafter, and the window remained covered until his arrest.
According to one witness, Linda Herina, a former sixth grade teacher at the elementary school, the Board was aware of the actions of the state monitors. Ms. Herina overheard one member of the Board comment, during a break at a Board meeting, that the monitors had ordered that the paper masking the window looking into Bracigliano's office be taken down. At no time did the Board take measures to assure that the door window complied with administrative regulations.
It was not uncommon for numerous boys to come to Bracigliano's office each day, many, one at a time. Bracigliano was known to be an avid photographer, and frequently took pictures of students, faculty, and school events. Some of those photographs were displayed on the walls of the school. His secretary, Patricia Showers, would often hear the click of a camera and the pop of flashbulbs from behind the closed door after students entered Bracigliano's office. The door "was always locked," even when students visited. Ms. Showers was unable to see into the office because of the paper covering the door window. Although "comments were made" among the elementary school staff about the covered window and locked door, "there was nothing... [they] could do. He was [their] superior." Some staff members believed that Bracigliano's frequent habit of calling students to his office from their classrooms simply reflected his positive interaction with students. Others found the habit "annoying" and "disruptive," but did not attach any untoward significance to it.
Joan Gerard, the elementary school's English-as-a-Second-Language teacher, had believed at first that Bracigliano merely had a preference for boys that was not "unwholesome." However, approximately three years before his arrest, she witnessed Bracigliano "rocking back and forth" against a first-grader that he "had... standing against [a] wall." She "really panicked," because "[i]t appeared... to be sexual in nature." She believed at the time that "reporting any kind of abuse to [the Division of Youth and Family Services (DYFS)]" had to go through the school nurse's office. She dutifully reported the incident to the elementary school nurse substituting that day, Rose Klink. Ms. Gerard was unaware of any procedure for reporting such an incident to Bracigliano's superiors.
Nurse Klink did not pass the information along to the Board of Education because she too was unaware of any reporting protocol. A short time later, Nurse Klink witnessed an incident in her own office that caused her alarm. Bracigliano walked into the nurse's office and "put his arms around [a] boy and started to push against the student." Nurse Klink was "shocked" and in disbelief and decided she had to "stop this." She stood up and walked around her desk. Only then did Bracigliano "pull away from the student." Nurse Klink considered the conduct "definitely inappropriate," and would have reported the incident to the principal, had Bracigliano not been the principal himself. Unaware of any alternate reporting procedure, she related her concerns to the regular elementary school nurse, Karen Glouster. And there, apparently, the report found its final resting place.
Karen Rockefeller, who taught remedial reading and writing, also observed conduct that she considered "odd." One morning, she saw one of her students against the wall outside a classroom, and Bracigliano "was in front of the child rocking back and forth and pushing into him.... hitting him with his stomach." She "thought it was intimidation" and mentioned the incident to Ms. Gerard and Ms. Glouster. Ms. Rockefeller knew of no procedure for reporting the matter to the administrators of the Elmwood Park school system.
Ms. Herina, the sixth-grade teacher, recalled walking a very shy sixth-grade boy down a hallway one day, when Bracigliano approached them and warned the student that he would "have to learn how to talk more or Mr. B's going to have to spank you." Ms. Herina found the comment "inappropriate," and told Bracigliano to "knock it off." She did not report the incident. She did, however, confront Bracigliano again the day before his arrest. That day, two sixth-grade boys in her class returned from the principal's office after a wrestling demonstration at a school assembly. The boys related that Bracigliano took photographs of them while they posed in a seated position. Bracigliano had one of the boys disrobe down to his wrestling shorts. Ms. Herina went to the principal's office and requested copies of the photographs from Bracigliano. He became incensed and insisted that there were none. Ms. Herina arranged for a conference with the boys' mothers for the following day, but Bracigliano was arrested and the meeting never took place.
Not one school staff member who witnessed Bracigliano's questionable behavior toward young male students at the elementary school reported his conduct directly to DYFS or his superiors at the Board. Each was unaware of any procedure for disclosing such information to the Board.
In addition to the incidents at the elementary school, there was the strange matter of Bracigliano's attendance at the weigh-ins of naked athletes on the high school's varsity wrestling team. William Savage, the Elmwood Park High School wrestling coach from 1983 to 1986, found Bracigliano's presence at the weigh-ins "odd" and "out of order." Savage was informed by the school district's athletic director that Bracigliano conducted weigh-ins for the township recreational wrestling program, and wanted to "see how they were done" at the varsity level. Mike Scarpa, a Board member who would frequently "sneak cigarettes" in the adjacent Physical Education office during the weigh-ins, expressed concern about Bracigliano's presence. Both the athletic director and Scarpa advised Savage "to keep an eye on Bracigliano" at the wrestling weigh-ins and to let them know "if anything happened." On one occasion, Scarpa inquired whether Savage had ever noticed "anything odd" during Bracigliano's attendance. Although Savage said "no," and let Bracigliano "run the weigh-ins" during the 1985-86 school year, he admittedly "wasn't shocked" when Bracigliano was finally arrested. The school superintendent knew of both Scarpa's and Bracigliano's attendance at the high school wrestling team's nude weigh-ins and considered their presence to be "inappropriate," but took no action to stop them.
The Board was aware of another incident that also aroused concern. Its president, Dr. Michael Schill, had once received a complaint directly from a student's mother about Bracigliano because of his insistence that she send her son to him for private counseling sessions during the summer, even though Bracigliano was not a counselor and the school building was officially closed. Dr. Schill reported the incident to then District Superintendent Dr. Victoria Williams, who instructed Bracigliano to "[c]ease and desist." Dr. Williams never "follow[ed] through" by making any inquiry into Bracigliano's overall conduct as principal.
Dr. John Santini, the school district's superintendent from 1978 to 1988, estimated that he had visited the elementary school building once or twice a month, and more frequently when construction and repairs were done in the building. Dr. Santini, however, was uncertain about ever having visited Bracigliano's office during his nearly eight-year tenure as principal.
Dr. Santini listed various reporting mechanisms available to faculty members for airing complaints, such as the teachers' collective-bargaining grievance procedure, their affirmative action grievance procedure, and a Board policy that permitted discussion between Board and faculty members. He did not, however, explain how those procedures would have enabled teachers and nurses who had concerns about Bracigliano's untoward conduct to disclose their observations to the Board. Dr. Santini claimed that at the beginning of each school year all staff members and administrators would assemble and he "would mention DYFS... [and] the teachers' contract." The record does not disclose precisely what Dr. Santini discussed on the subject of DYFS. However, it is apparent from the record that faculty members at the elementary school were wholly unfamiliar with any procedure for reporting Bracigliano's alarming behavior directly to the Board or to DYFS.
Dr. Santini stated that it was his policy to install windows in all office doors at the schools in the district. He explained that his motivation for doing so was to minimize prolonged visits by Board members who, due to "political" factions and disagreements, would otherwise linger for hours in various administrators' offices. In his mind, the students' safety was "[o]nly [a] secondary" consideration with respect to the windows.
Although Dr. Santini claimed to have made formal written evaluations of Bracigliano annually,*fn2 he described his meetings with Bracigliano as "[i]nformal, very informal," and typically over an impromptu lunch with several other people. Dr. Santini described Bracigliano as an "excellent" principal, who achieved "marvelous" academic results. He was "shocked" and "astonished" when Bracigliano was arrested.
Dr. Harry Galinsky, plaintiffs' public administration and education expert, stated that "there was an absolute absence of oversight" on the part of the Board and three successive superintendents throughout Bracigliano's tenure as principal. He found the Board "completely indifferent to what was going on in the school system," because it failed to assess the superintendents' performance "in terms of evaluating other personnel." He found the superintendents' written evaluations of Bracigliano to be "superficial." In his opinion, their failure to make frequent on-site visits to the elementary school to evaluate staff performance and facilitate staff administration communications "led directly to... what happened to the children in this case." Dr. Galinsky also found that the Board had failed in its duty to establish an effective reporting system and to adequately inform the school staff of procedures to be followed in the event they needed to report concerns to the administration. As to the window covering, Dr. Galinsky opined that Bracigliano's practice violated N.J.A.C. 6:22-5.4, see supra note 1, and that the superintendents' and Board's "indifference" to that violation, and thus to the health and safety of the students, "led to the kind of behaviors that took place behind the covered window."
Acknowledging that the reporting procedures available to the elementary school staff during Bracigliano's tenure were not significantly different from those in other school systems in Bergen County at that time, Dr. Galinsky maintained that the Board's failure to instruct the staff in the proper use of those procedures made them ineffective. He concluded that the superintendents' performance did not "rise to the level of the standard of performance of superintendents around the state." He also concluded that had an effective reporting system been in place, and the superintendents done their job, the children would not have been harmed.
Shortly after Bracigliano's arrest, nine-year-old B.F. informed his parents that while he was in the second and third grades "he was brought into the [principal's] office on many occasions" and "photographed." B.F.'s parents were shocked when he "very innocently" showed them how he was photographed, spread-legged, on a chair. They listened to their son explain that "he was asked to sit on the principal's lap many times," and that on one occasion Bracigliano "touched him on his penis." Bracigliano routinely gave B.F. a "swat" on the "butt" when the child left the office.
B.F. had nightmares about Bracigliano for several months after Bracigliano's arrest, and became withdrawn and tearful. Even at the time of trial, B.F. sometimes felt "depressed" and "would cry" when he thought of his experiences with Bracigliano. B.F. received psychotherapy and social-skills counseling for a span of three years, from the third through sixth grades. On the recommendation of a social worker, B.F.'s parents enrolled him in a private Catholic school for the fourth grade. B.F.'s parents had originally planned to have their children educated in public schools, but elected to send them to private school as a result of their son's experience with Bracigliano.
Plaintiffs' psychiatric expert, Dr. Michael Feldman, expressed the view that B.F. suffered from "post-traumatic stress disorder" and "attention deficit hyperactivity disorder," as well as from "depression" and "social phobia." From that diagnosis, Dr. Feldman arrived at several conclusions. First, he concluded that it was "very probable that [B.F.'s] difficulties... [were] caused by the abusive experiences he had with [Bracigliano]." He also concluded that B.F.'s psychological damage was "permanent and... significant," with a "very guarded and potentially poor" prognosis. Last, he determined that the impact of B.F.'s symptoms on his life would increase, rather than decrease, over time. Dr. Feldman conceded that B.F. had not received psychiatric treatment of any kind since 1992 and suffered from attention-deficit and developmental disorders that pre-existed his experiences with Bracigliano.
Dr. David Gallina, the Board's psychiatric expert, delineated B.F.'s neurological problems and developmental delays that predated Bracigliano's abuse. He reported that although B.F.'s anxiety increased as a result of his experiences with Bracigliano, B.F. had "gotten a lot better over the last couple of years," and was "a pretty well functioning kid" who did not suffer from post-traumatic stress or any other serious neuropsychiatric disorder.
R.H. was eight years old at the time of Bracigliano's arrest. Upon learning of the arrest, R.H. became "hysterical," and ultimately revealed to his parents the embarrassing details of what had occurred in Bracigliano's office. At trial, R.H. remembered being called to the principal's office over the public-address system while in the second and third grades. He also remembered Bracigliano photographing him in various poses in a chair, including the "spread-legged" pose. In choreographing one picture, Bracigliano "opened" R.H.'s pants. For another, he had R.H. take off his shirt to "expose his muscles." ...