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Hardwicke v. American Boychoir School

March 26, 2004


On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket Nos. L-333-01 and L-1975-02.

Before Judges Stern, Payne and Landau.

The opinion of the court was delivered by: Payne, J.A.D.


Argued November 12, 2003

In a recent opinion in Frugis v. Bracigliano, 177 N.J. 250 (2003), an action against a public elementary school principal and his employer, the Elmwood Park Board of Education, for damages sustained by minors as the result of the principal's sexual abuse, the Supreme Court affirmed the entry by the trial court of a directed verdict against the school board, finding that the evidence at trial incontrovertibly demonstrated a breach of the duty of care that the Board owed to the school's students. The Court prefaced its legal analysis with the following statement of legal principles:

The law imposes a duty on children to attend school and on parents to relinquish their supervisory role over their children to teachers and administrators during school hours. While their children are educated during the day, parents transfer to school officials the power to act as the guardians of those young wards. No greater obligation is placed on school officials than to protect the children in their charge from foreseeable dangers, whether those dangers arise from the careless acts or intentional transgressions of others. Although the overarching mission of a board of education is to educate, its first imperative must be to do no harm to the children in its care. A board of education must take reasonable measures to assure that the teachers and administrators who stand as surrogate parents during the day are educating, not endangering, and protecting, not exploiting, vulnerable children. With those fundamental principles in mind, we address plaintiffs' claims.

[Id. at 268.]

In Frugis, plaintiffs' claims were premised on theories of intentional tort, negligence, vicarious liability, negligent hiring, negligent supervision, and civil rights violations under 42 U.S.C. § 1983. They were not asserted under New Jersey's Child Sexual Abuse Act, N.J.S.A. 2A:61B-1, and because a public school board and its employee were the defendants, the case did not raise issues of charitable immunity. See N.J.S.A. 2A:53A-7.

In the present cases, like Frugis, plaintiffs John W. Hardwicke, Jr. and Douglas Palmatier have alleged that they were the victims of sexual abuse by school employees. However, unlike Frugis, these plaintiffs were boarding students at a non profit institution organized for educational purposes, the Columbus Boychoir School (now, the American Boychoir School, as we shall refer to it), and the relevant defendant for purposes of this appeal is their school, not a local school board. Moreover, in pursuing their claims against the school, plaintiffs have asserted causes of action under the New Jersey Child Sexual Abuse Act, as well as common-law causes of action similar to those in Frugis.

Following motions by the school for summary judgment, the trial court dismissed plaintiffs' claims asserted against it under the Child Sexual Abuse Act, determining that the school was not a"person" to which the Act applied. The court additionally dismissed plaintiffs' common-law claims against the school as barred by the Charitable Immunity Act, N.J.S.A. 2A:53A-7 to -11. Finally, the court dismissed a claim by plaintiff Hardwicke against the school arising out of abuse occurring there during the summer after Hardwicke had withdrawn as a student, holding that if the abusive conduct were within the scope of the perpetrator's employment, it was barred by charitable immunity and if it were outside the scope of his employment, the school could not be held liable for the conduct on a theory of vicarious liability.

In a consolidated interlocutory appeal, which we agreed to hear by leave granted, plaintiffs challenge the court's rulings as lacking statutory and decisional support. Further, they argue as a constitutional matter that, particularly in light of the principles recognized in Frugis, a case decided after the trial court rendered its opinions, the construction accorded the statutes by the trial court operates to deny them equal protection under the law.*fn1

We have been informed that, since the time of oral argument, a settlement has been reached between Douglas Palmatier and the American Boychoir School. As a result, his appeal is dismissed. However, we retain some background references to his action, since that action was also the subject of the opinions and orders of the trial court from which these appeals have been taken.

A central issue in the appeal by the remaining appellant, Hardwicke, is whether the result in this factually similar case should be different from that in Frugis (assuming plaintiff's claims against his school are evidentially supported), just because he sued the school, not the school's board, and because the school that plaintiff attended was private and non-profit. Because, in the main, we find no principled distinction between the two cases, we reverse.


We derive the facts of this matter from documents constituting the record on appeal. For purposes of the motions in the trial court and on appeal, they have been deemed admitted by the school. We construe them in a light most favorable to plaintiff Hardwicke, giving him the benefit of all inferences that the facts support. Baird v. American Medical Optics, 155 N.J. 54, 58 (1998).

The American Boychoir School, founded in 1937, was in the late 1960s and 1970s a very small private school of approximately fifty male students located in a fifty-room Princeton mansion. In addition to its academic programs, it offered vocal and other musical training to boys in grades five through eight. Its touring choir, comprised of school students, was then and remains well known both nationally and internationally. In addition to providing a source of acclaim, the choir constitutes a major funding resource for the institution. During the period of plaintiff's attendance, the choir's director, known by the title of Music Director, functioned virtually as the alter ego of the school, performing a wide variety of key administrative and educational functions, as well as wholly controlling the school's musical program and associated tours.

In 1968, the employment of a prior Music Director of the school was terminated after it was learned that he had engaged in a"love affair" with a male student. He was replaced in 1970 at the behest of a wealthy benefactor by defendant Donald Hanson. It has been alleged that the benefactor was a pedophile, and that the benefactor was instrumental in causing a number of employees with similar interests, including Hanson, to be employed in the relevant period by the school.

As a condition of Hanson's employment, he was required to live in the main, mansion building of the school and to be present there all night throughout the week and on weekends. Various apartments in the same area in which the boys were housed were supplied by the school for Hanson's use. During a part of his tenure, Hanson lived on the third floor of the mansion in proximity to the single rooms of two specially chosen students, upon whom he and others particularly preyed. In addition, other school employees accused of engaging in sexual relations with the school's students were housed in the building. Plaintiff claims that, at the time, sex abuse was "institutionalized." If the accounts provided by him and others are accurate, it was at very least high-level and pervasive, including conduct not only by the school's Music Director but also its Headmaster and various others.

Approximately one year before Hanson was hired, in September 1969, plaintiff Hardwicke was enrolled in the seventh grade at the school as a twelve-year-old boarding student. He remained there until approximately April 1971, when he was allegedly asked to leave because his voice had changed. From October 1970 to his departure from the school in the spring of 1971, and then again during a period of two weeks in the summer of 1971, Hardwicke was subject to sexual abuse, principally by Hanson. At the time that the abuse commenced, Hardwicke was just barely sexually mature, and he had little knowledge or understanding of his developing adolescent sexuality. Hanson recognized and took advantage of Hardwicke's condition, performing on him and inducing Hardwicke to perform virtually every sexual act that could conceivably have been accomplished between two males, and creating in Hardwicke's mind the unwarranted conviction that he was homosexual. As Hardwicke expressed it in a televised interview conducted in 2002, a transcript of which is included in the record,"he had me absolutely convinced that this was something I shouldn't tell, that it was -- that it was something I wanted to do."

The abuse was repetitive, often occurring more than once per day in Hanson's room and in various other public and private locations throughout the institution. Additional, but far less frequent, abuse of Hardwicke by the Headmaster, a proctor, the school's cook, and one or more friends of Hanson also took place.

It is Hardwicke's position that the abuse was known to the school, or if it were not, it should have been. This position is based upon claims that the school was aware of the sexual abuse of students by school employees prior to the time that Hanson was hired; Hanson's homosexuality was known to some when hiring occurred; while employed, Hanson maintained a homosexual relationship with a senior staff member; the abuse perpetrated upon students by Hanson was open, frequent and prolonged; abuse was perpetrated as well by a significant number of employees other than Hanson; and the school was sufficiently small that the abuse could not have continued unnoticed.

Not unexpectedly, Hardwicke claims to have sustained severe emotional and physical injuries as well as other damages as the result of the conduct that took place during his formative early adolescent years. However, he claims that he was not aware until, at the earliest, the fall of 1999 that his serious psychological illness and other injuries were caused by that abuse.

Douglas Palmatier, who entered the school at the age of nine, alleged similar abuse, exclusively at the hands of Hanson, occurring during the period of his enrollment from 1971 to 1977, along with similar emotional and other injuries and damages.

According to televised statements and reports by school students, the existence of sexual abuse by Hanson and others at the school and on tour has been described by"at least a dozen" young student victims attending the school during the 1970s. One has described a night when the students were roused from bed and paddled by the Headmaster for engaging in sex with Hanson. However, no discipline was meted out to Hanson at the time and no information regarding the cause for student discipline was given to a parent who promptly and angrily responded to his son's report of the paddling episode.

The school disclosed in answers to supplemental interrogatories that in early November 1981, eleven years after the abuse by Hanson had begun, the parents of a student informed a school board member of sexual contact by Hanson with their son. A special meeting of the school's board was convened, and it was determined that Hanson should move off campus, his contact with students should be restricted, and he should be closely monitored while the matter was investigated. During the investigation, another parent came forward with similar allegations. Although Hanson eventually admitted sexual contact with the second child, he was not immediately terminated. According to the school's interrogatory answers,

The Board determined that given the School's finances the continued existence of the School would be called into serious question should the Choir's major tour of the year, scheduled for February and March, be cancelled due to the firing of Donald Hanson as Music Director, with attendant loss of income.

Finding that the school's students were well protected by the procedures put in place immediately following the initial disclosure, the board continued Hanson's employment until March 1982 when his resignation was accepted, and he was relieved of his duties effective either on March 30, 1982 or in June of that year.

On March 28, 1982, the school sent a letter to all parents, signed by board member Stephen N. Howard, in which Howard announced that it was his"very sad duty" to report the resignation of Hanson"for reasons of personal health." The letter did not mention Hanson's by then admitted sexual misconduct, but stated instead:

Donald's contributions to the School over the years have been monumental. In fact, as many parents are aware, he alone held the School together during the early seventies: acting as executive director as well as music director, hiring and firing staff, running the admissions and concert offices, from time to time driving the bus and occasionally even washing the dishes -- and all the while by slow degrees rebuilding a choir that soon became recognized internationally as we know it today. His story at the Boychoir School is one of total devotion to the boys and dedication to the best interests of the School. He held the School together while the Board of Trustees rediscovered its own mission, and he deserves our heartfelt thanks for all he has done.

The parents of the two students whose complaints led to Hanson's termination chose to keep their accusations confidential. Hanson moved to Canada, where he remains.

Between 1982 and 1999, two additional students came forward with allegations against school employees. One wrote to the school in 1982 or 1984 to describe sex abuse by a proctor, but received no response. The other filed suit, and in 1986 reportedly received a settlement of approximately $875,000.

In 1999, Hardwicke verbally disclosed the sexually abusive conduct of the school's employees to American Boychoir School President, John Ellis. Although the school did not follow up directly with Hardwicke, in April 2000 it disclosed in a letter addressed to its alumni that it had dismissed a"senior staff member" in 1982 after allegations of inappropriate sexual contact had been made by two students. The letter continued by stating that, since 1982, two additional students had reported similar contact, and it acknowledged the call by Hardwicke. The letter stated that the conduct had been reported recently to the New Jersey Division of Youth and Family Services, which had chosen not to pursue the matter, and that to"help us develop an appropriate response," the school had engaged"outside consultants" including"mental health professionals and attorneys with extensive experience in working with victims of abuse." Calls from those alumni with information or concerns regarding inappropriate behavior were encouraged. In deposition testimony, a former student stated that he had been told by Ellis that he had received"many, many difficult phone calls" following the 2000 letter.


On January 31, 2001,*fn2 a complaint was filed on behalf of John Hardwicke, Jr. and his wife, Terri Hardwicke, against Hansen and the American Boychoir School. In that complaint, plaintiff John Hardwick sought compensatory and punitive damages on the following theories: sexual abuse in violation of the Child Sexual Abuse Act, N.J.S.A. 2A:61B-1 (Count I); intentional infliction of emotional distress (Count II); negligent infliction of emotional distress (Count III); breach of a duty to disclose the misconduct of Hanson to students and active concealment of that misconduct (Count IV); assault and battery (Count V); negligent hiring and supervision (Count VI); and false imprisonment (Count VII). A claim for loss of consortium was asserted on behalf of Terri Hardwicke in Count VIII.*fn3 In an amended complaint filed on October 21, 2002, school officials Richard Brenner, Thomas Conlin, Donald Profitt, David Schuster, J. Bruce Mellinger, Howard A. Jewell, Harold Jones,*fn4 and the school's cook, identified as"Ed" or"John," were added as named defendants. The defense of charitable immunity was first pled in answer to the Hardwickes' amended complaint.

A complaint styled as a class action asserting the same causes of action against Donald Hanson and the American Boychoir School as those raised by John Hardwicke was filed on behalf of Douglas Palmatier in 2002. Hanson was served with the Hardwicke complaint in Canada, and he has defaulted.

Subsequently, various motions for summary judgment were brought on behalf of the American Boychoir School. In an opinion filed on June 14, 2002 in the Hardwicke matter, the trial court addressed the applicability of the Child Sexual Abuse Act to claims against the school. There, the court held that the school met some of the Act's foundational requirements for applicability by constituting Hardwicke's household and standing in an in loco parentis relationship to him. However, the court also held that, because the school was not a"person" subject to the Act's provisions, the Act was not applicable to it.

Further, the court held that Hardwicke's common-law claims against the school did not trigger the Act's extended accrual features set forth in N.J.S.A. 2A:61B-1b. This was so, the court held, because liability under the Act on the part of the school for the underlying conduct was nonexistent."It would make no sense" the court held, for the Legislature to craft a statutory remedy that excluded the school, while permitting plaintiffs asserting common-law claims against the school to rely on the Act's relaxed statute of limitations provisions. However, the court declined to find plaintiff's common-law claims untimely as a matter of law. Accordingly, in an accompanying order, the court dismissed Hardwicke's statutory claims contained in Count I of his complaint against the school and denied summary judgment on the remaining claims pending a hearing pursuant to the discovery rule principles set forth in Lopez v. Swyer, 62 N.J. 267 (1973). Count IV of the complaint, which was not a subject of the school's motion, was not addressed by the court. The court's decision on the inapplicability of the Child Sexual Abuse Act was later extended to the Palmatier matter.

In a second opinion entered in both the Hardwicke and Palmatier cases on January 6, 2003, the trial court addressed the school's motion for summary judgment based upon the school's alleged immunity from suit as a non-profit educational institution and the absence of any vicarious liability for the intentional torts of Hanson and other employees. In that opinion, the court rejected Hardwicke's argument that the school had waived a charitable immunity defense by failing to raise it in answer to his initial complaint or in the sixteen months prior to the school's answer to his amended complaint.

Further, the court found charitable immunity to apply to the school, and it found that the use of statutory charitable immunity did not violate the plaintiffs' right of access to the courts protected under the Petition clause of the First Amendment, either the Due Process or the Equal Protection clauses of the Fourteenth Amendment of the Federal constitution, or applicable provisions of the State's constitution.

As a final matter, the court addressed the school's arguments with respect to vicarious liability for acts by Hanson. It found that in light of its ruling on charitable immunity, it need not address issues concerning the school's liability while Hardwicke and Palmatier were present as students. In connection with Hardwicke's claims arising out of conduct occurring in the summer of 1971, the court found, as we have previously stated, that if Hardwicke were present solely as a guest of Hanson, then vicarious liability could not be imposed upon the school because Hanson's acts occurred outside the scope of his employment. Alternatively, if the acts were within Hanson's employment, then the school was immune from liability on charitable immunity grounds.

The court therefore entered orders granting summary judgment to the American Boychoir School on all remaining counts of the Hardwicke and Palmatier complaints, ruling that their actions could ...

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