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Hardwicke v. American Boychoir School

August 8, 2006

JOHN W. HARDWICKE, JR. AND TERRI S. HARDWICKE, PLAINTIFFS-RESPONDENTS,
v.
AMERICAN BOYCHOIR SCHOOL, DEFENDANT-APPELLANT, AND DONALD HANSON, RICHARD BRENNER, THOMAS CONLIN, DONALD PROFITT, DAVID SCHUSTER, J.BRUCE MELLINGER, HOWARD A. JEWELL, HAROLD JONES AND THE COOK IDENTIFIED AS "ED" OR "JOHN" JOHN DOES 1-10 AND JOHN DOES 11-20, DEFENDANTS.



On appeal from the Superior Court, Appellate Division, whose opinion is reported at SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

In this appeal, the Supreme Court must determine whether a non-natural person, such as an institutional entity, may be a "person" standing "in loco parentis" within the "household" that is subject to liability under the Child Sexual Abuse Act (CSAA), N.J.S.A. 2A:61B-1; whether the Charitable Immunity Act (CIA), N.J.S.A. 2A:53-7 to -11, bars only those claims that are based on simple negligence and not claims based on intentional, reckless or grossly negligent conduct; whether the discovery rule provisions of the CSAA are applicable to common-law claims; and whether an employer can be held vicariously liable for the acts of its employees for child abuse claims brought under the common law.

Because the issues were decided below on summary judgment, the Court must view the facts inferred from the record in the light most favorable to the non-moving party, here the plaintiff, John Hardwicke. Viewed in that light, the relevant facts are as follows. The American Boychoir School (the School) provides a specialized musical education and standard academic curriculum for boys in grades five through eight. Full-time boarding students resided at the School seven days a week and were supervised by faculty and staff. In 1970, Donald Hanson was hired as Music Director, one of the School's principal administrators. He controlled the musical program, served as the Concert Choir conductor, and ran the admissions office. He resided at the School at night and on weekends. From the boys' perspective, Hanson was the person in control.

From the fall of 1969 to April 1971, John Hardwicke was a boarding student at the School. He was twelve years old when he arrived. Between October 1970 and April 1971, Hanson sexually abused Hardwicke almost daily and sometimes several times a day at the School and on School-sponsored trips. Other School staff and Hanson's friends also abused Hardwicke. Hardwicke claims that the School condoned that behavior and fostered a sexually charged atmosphere of teacher-on-student and student-on-student abuse; that Hanson and others preyed on young boys; that Hanson was hired even though his pedophilic tendencies were known; that Hanson's abuse was open and frequent; that many employees sexually abused students; and that the abuse could not have continued unnoticed because the School was small. Hardwicke claims that the School and its employees stood in loco parentis ("in the place of a parent") to the students and that the School had a non-delegable duty to protect them from harm.

Ten years later, in November 1981, the parents of a then-current student reported to the School that Hanson had sexually abused their son. The Board of Trustees adopted a plan that required Hanson immediately to move off-campus, seek counseling, and not be alone with students, but Hanson was permitted to remain as Music Director until the choir completed its major tour in March 1982. Meanwhile, another parent reported that Hanson had abused her son; Hanson eventually admitted that he had behaved inappropriately toward that boy. The School kept both families' complaints confidential. After the choir returned from its tour in March 1982, the School sent parents a letter informing them that Hanson had been given a medical leave of absence, that he had resigned effective June 20, 1982, for personal health reasons, and that it was "unfortunate" Hanson was "unable to complete the current year." The letter also stated that Hanson's "story at the Boychoir School is one of total devotion to the boys" and that "he deserves our heartfelt thanks for all he has done."

In October 1999, Hardwicke informed the School about the abuse he had endured. Between 1982 and 1999, other students also had notified the School that they had been sexually abused. The School, however, did not notify students about the abuse until April 2000, when it sent a letter to all School alumni who had attended during Hanson's tenure. The April 2000 letter explained that the School had dismissed a "senior staff member" in 1982 after reports of inappropriate sexual contact with students; that other former students later informed the School of similar problems with the same man; and that the School had reported the allegations to the New Jersey Division of Youth and Family Services (DYFS). The letter also encouraged those with information or concerns about inappropriate behavior to contact the School.

Hardwicke asserts that the School's lack of notice prolonged the students' trauma because they were unable to seek treatment as soon as they might have. He claims that he has suffered severe emotional harm and physical pain, and that the abuse caused him to be confused about his sexuality for the remainder of his childhood and for most of his adult life.

In 2001, Hardwicke sued Hanson, the School, and others, claiming that he had been repeatedly sexually abused, and that the School knew, or should have known, of the abuse. He sought damages based on several counts, including violation of the Child Sexual Abuse Act; intentional infliction of emotional distress; and breach of the duty to disclose, and active concealment of, the abuse that Hanson committed on students. Hanson has not responded to the complaint.

The School answered the complaint and filed motions for summary judgment. The trial court eventually dismissed Hardwicke's count under the CSAA, reasoning that although the School qualified as a "household" that stood "in loco parentis" to the students, the word "person" in the CSAA refers only to "natural persons" and not corporations or institutional entities. The trial court also held that because there was no cause of action under the CSAA, Hardwicke's common-law claims did not trigger the more generous accrual provision of the CSAA, N.J.S.A. 2A:61B-1b,which allows a cause of action for sexual abuse to be filed within two years of the time of reasonable discovery of the relationship between the abuse and the injuries. Finally, the trial court held that the School was immune under the CIA from common-law claims even when its employees acted willfully, wantonly, recklessly, or criminally.

In 2004, a divided panel of the Appellate Division reversed in part and affirmed in part. Judge Payne, writing the principal opinion, concluded that Hardwicke stated a cause of action under the CSAA. She held that the School operated in an "in loco parentis" capacity and acted as the "household" under the CSAA, and that the term "person" includes institutional entities. She also determined that the CIA provides insulation only from claims based on negligence; thus, the CIA would not shield the School from liability under the passive abuse provision of the CSAA, which is premised on a finding of "knowing" conduct. Likewise, the CIA does not bar common-law claims based on the School's own intentional conduct or intentional conduct attributed to it through agency doctrine. She concluded that the CSAA's relaxed statute of limitations applies to all of Hardwicke's claims, including the common-law causes of action.

In a separate opinion, Judge Stern agreed that the School is not immune from suit under the CIA. He determined that although the CIA generally protects charitable entities from claims based on intentional wrongdoing, a student abused for the sexual gratification of a person having a role like Hanson's may bring an action against the School even though it is a nonprofit educational corporation. Judge Landau filed a dissenting opinion, expressing the view that the trial court's judgment dismissing Hardwicke's claims should be affirmed.

The Supreme Court granted the School's motion for leave to appeal and granted the New Jersey Catholic Conference leave to file an amicus curiae brief.

HELD: Under the Child Sexual Abuse Act, the School is a "person" standing "in loco parentis" within the "household." The Charitable Immunity Act immunizes charitable entities for negligence only; it does not bar statutory or common-law claims that are based on willful, wanton or grossly negligent conduct. The discovery rule provisions of the CSAA are applicable to common-law claims based on sexual abuse as that term is defined in the CSAA. An employer can be held vicariously liable for the acts of its employees for child abuse claims brought under the common law.

1. The CSAA, N.J.S.A. 2A:61B-1, contains a provision that relaxes the usual two-year statute of limitations for personal injury actions. The Legislature explained that because sexual abuse may only be discovered by an adult victim after years of repression, an action for sexual abuse under the CSAA must be brought within two years after the time of reasonable discovery of the injury and its causal relationship to the act of sexual abuse. (pp. 18-20)

2. The CSAA establishes two classes of abusers: persons who inflict the abuse (active abusers), and persons who stand in loco parentis within the household who know of the abuse and fail to protect the child (passive abusers). Thus, under the CSAA, a passive abuser is (1) a person (2) standing in loco parentis (3) within the household. Those terms are not defined in the CSAA. The Court looks first to the statutory language as the best indicator of the Legislature's intent. (pp. 20-22)

3. The School maintains that a "person" under the CSAA means "natural" persons only. The School reasons that only a natural person can assert the affirmative defense contained in the CSAA that is available to passive abusers who had a "reasonable fear" of physical or sexual abuse by the active abuser. The School also argues that because "person" appears in a list of terms that includes "parent," "foster parent," and "guardian," which denote natural persons, then "person" is also limited in scope. Hardwicke maintains that "person" includes institutions; because an entity such as DYFS can qualify as a "guardian" under the CSAA, then an entity such as the School can qualify as a "person." He also points out that the general definition of "person" under Title I, N.J.S.A. 1:1-2, includes corporations. (pp. 22-24)

4. The meaning of the word "person" is ambiguous, requiring the Court to look to extrinsic evidence of legislative intent. In light of the language of the CSAA, the definition of "person" in Title I, the legislative intent evidenced by the amendments to the bill that became the CSAA, and New Jersey's strong policy to hold active and passive abusers accountable, the Court finds that the School is a "person" under the passive abuse provision of the CSAA. (pp. 24-28)

5. There is more than sufficient evidence that the School's exercise of parental authority brings it within the "in loco parentis" requirement of the CSAA. Characteristics of the in loco parentis relationship include the responsibility to rear, educate, supervise, and care for the child. The School acted in place of the students' parents by providing them with shelter, food, education, recreation, and transportation; regulating their hygiene; requiring letter-writing to family and attendance at religious services on the weekend; assigning each student a faculty advisor to act as the student's confidant; and disciplining students who violated the School's policies. The School accepted the responsibility to nurture these children at a critical and vulnerable stage in their development. (pp. 28-31)

6. The meaning of "household" depends on the circumstances and is not restricted to family members. The School provides food, shelter, instruction, recreational activities and emotional support to its full-time boarders. The qualities and characteristics of the School's relationship with the students establish it as a "household" under the CSAA. (pp. 31-33)

7. The CIA, N.J.S.A. 2A:53A-7(a), explicitly states that no nonprofit corporation, society or association shall be liable for damages caused by the "negligence" of its agents. Before the CIA was enacted, no case under the common law of New Jersey relieved a charity from liability for any tort but negligence. No other jurisdiction provides immunity for intentional or willful conduct. The CIA immunizes simple negligence only, and not other forms of aggravated wrongful conduct, even grossly negligent behavior. (pp. 33-39)

8. The relaxed discovery rule provision of the CSAA, N.J.S.A. 2A:61B-1b, applies to "any civil action" that is "based on sexual abuse." There is no restriction limiting that section to actions arising under the CSAA. A plain reading of the statute indicates that "any civil action" includes common-law claims based on conduct that falls within CSAA's definition of sexual abuse, and that such claims may be brought under the CSAA's liberal tolling provision. (pp. 41-43)

9. An employer can be held vicariously liable for the acts of its employees for common-law child abuse claims, even when the employee was acting outside the scope of his or her employment, where the employer delegated the authority to control the environment to the employee and the employee abused that authority. The Court previously reached a similar result in cases brought under the Law Against Discrimination and the Conscientious Employee Protection Act. The Court recognized that those statutes further the important public policies of protecting those who are especially vulnerable from the unlawful exercise of authority by employers, and that employers are in the best position to eliminate impermissible or unlawful practices by employees. Those considerations apply equally to claims based on child abuse, whether brought under the CSAA or the common law, where the goal is to protect children from victimization.(pp. 43-46)

The judgment of the Appellate Division is AFFIRMED AS MODIFIED and the matter is REMANDED to the trial court for further proceedings consistent with this opinion.

JUSTICE RIVERA-SOTO has filed a separate opinion CONCURRING IN PART and DISSENTING IN PART. He agrees with the conclusion that the School is a "person" that acted "in loco parentis" within the "household" under the Child Sexual Abuse Act. However, he would hold that based on the language, history, and prior judicial interpretation of the Charitable Immunity Act, the immunity provided by that statute is not limited to only negligence claims. He is also of the view that plaintiff's statutory and common-law claims are likely time-barred.

JUSTICES LONG, LaVECCHIA, ZAZZALI and WALLACE join in CHIEF JUSTICE PORITZ's opinion. JUSTICE RIVERA-SOTO filed a separate opinion concurring in part and dissenting in part. JUSTICE ALBIN did not participate.

The opinion of the court was delivered by: Chief Justice Poritz

Argued November 29, 2004

For about two years, from the fall of 1969 to April 1971, John W. Hardwicke was a boarding student at the American Boychoir School (the Boychoir School or School)*fn1 in Princeton, New Jersey. Hardwicke was twelve years old when he arrived, and forty-three years old in 2001 when he filed suit against the Musical Director Donald Hanson, the School, and persons connected with the School and Hanson, claiming that he had been repeatedly sexually abused by Hanson and others, and that the School knew, or should have known, of the abuse.

The trial court held that only natural persons are potentially liable under the Child Sexual Abuse Act (CSAA), N.J.S.A. 2A:61B-1, and that, in any case, the Charitable Immunity Act (CIA), N.J.S.A. 2A:53-7 to -11, immunizes the School from liability for intentional torts whether the claim is based on the CSAA or the common law. A majority of the Appellate Division reversed, Hardwicke v. Am. Boychoir Sch., 368 N.J. Super. 71, 77 (App. Div. 2004), and we today affirm that judgment. We hold that Hardwicke has alleged facts sufficient to overcome dismissal of his case as to the School, both under the CSAA and the common law, and that neither the CIA nor the CSAA bars his claims as a matter of law.

I.

The trial court granted motions for summary judgment brought by the School. After the split decision in the Appellate Division, this Court granted the parties' consolidated interlocutory appeals. 180 N.J. 446 (2004). Because the issues presented were decided below on summary judgment, "we must view the facts that may be inferred from the pleadings and discovery[] in the light most favorable to" the non-moving party, here the plaintiff, John Hardwicke. Strawn v. Canuso, 140 N.J. 43, 48 (1995); see Baird v. Am. Med. Optics, 155 N.J. 54, 58 (1998). Those facts in the record and relevant to the issues to be decided by the Court follow.

A.

Founded in 1937, the Boychoir School provides a highly specialized musical and choral education for young boys (grades five through eight), while also offering the standard academic curriculum appropriate at those grade levels. It boasts an internationally renowned touring choir that has performed for the President of the United States and the Pope. Because of its prestige, the choir brings in substantial revenues, thereby serving as an important funding resource for the School. During the 1960s and '70s, approximately fifty students attended the School, which is located in a fifty-room Princeton mansion and adjunct buildings. Those boys who were full-time boarders and members of the touring choir resided in the mansion both during the week and on weekends, and were supervised by faculty and staff, including university student "proctors" who resided there as well. At that time, the principal administrators of the School were the Headmaster and the Music Director.

In 1968, the year before plaintiff was enrolled at the School, the Music Director was fired because he engaged in what the School described as a "love affair" with a student. At the behest of a wealthy benefactor, in 1970 the Board hired Donald Hanson as Music Director, a position he held until 1982.*fn2

During Hanson's period of employment, he appears to have functioned as the School's "alter ego." In addition to controlling the musical program and associated tours and serving as the conductor of the Concert Choir, Hanson performed a wide variety of key administrative and educational tasks, such as running the admissions office and hiring and firing staff. As a condition of employment, he was required to reside in the mansion and to be there at night and on weekends. In respect of Hanson's role at the School, a past headmaster has stated that Hanson "alone held the School together during the early seventies," whereas a student who attended in the 1970s has explained that "as far as the boys were concerned, [Hanson] was certainly the person in control."

Hanson sexually abused Hardwicke on an almost daily basis and sometimes several times a day between October 1, 1970, and April 1971, at the School, on School-sponsored field trips and in Hanson's car, among other places. To a lesser extent, other school staff (a former headmaster, a teacher, and a cook) and two of Hanson's friends, also abused Hardwicke. Hardwicke contends that the School not only condoned that behavior, but fostered a "sexually charged atmosphere" of teacher-on-student and student-on-student abuse; that Hanson and others "preyed on young boys . . . because they knew [the boys] were alone and vulnerable"; and that, in light of his age, he was incapable of consent. He asserts that before Hanson was hired, the School knew that staff had abused students and that Hanson was brought to the School even though his pedophilic tendencies were known or should have been known. He also asserts that Hanson's abuse of students was "open, frequent and prolonged;" that a "significant number of employees other than Hanson" sexually abused students; and that "the [S]chool was sufficiently small that the abuse could not have continued unnoticed." Hardwicke, supra, 368 N.J. Super. at 79. Based on those facts, Hardwicke claims that the School and its agents and employees stood in loco parentis to the students who lived there and that the School had a non-delegable duty to protect them from harm.

In addition to the abuse that occurred when Hardwicke was a student, Hanson abused Hardwicke during the summer of 1971. Shortly after Hardwicke left the School he called Hanson, who drove to Hardwicke's family home in Maryland and brought him back to the School. There, over the course of two weeks, Hanson shared sleeping accommodations with the fourteen-year-old boy and performed various sex acts on him at different locations around the School and elsewhere. After that summer Hardwicke had no further contact with Hanson.

Ten years later, in November 1981, the parents of a then current student reported to the School that Hanson had sexually abused their son. The Board of Trustees held a special meeting on November 8, 1981, and adopted a plan of action that required Hanson immediately to move off-campus, to seek counseling, to not be alone with students, and to be always accompanied by a proctor when on campus. The Board decided, however, that Hanson would remain as Music Director until the completion of the choir's major tour in March 1982 because the School's financial security depended on the tour and because the Board believed that students were well-protected by the new policies. While the Board was investigating the November 1981 claim, the mother of another student reported that her son had been abused by Hanson. Although Hanson initially denied any wrongdoing, he eventually admitted inappropriate behavior toward the second boy. Both families' complaints were kept confidential by the School.

After the choir returned from its tour, in a letter dated March 28, 1982, the School's Headmaster informed parents that Hanson had resigned for "reasons of personal health . . . effective . . . June 20, 1982." The parents were told that Hanson had been given a "medical leave of absence" from March 28 through June 20, and that it was "unfortunate" Hanson was "unable to complete the current year." The letter also stated:

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.

Then, between 1982 and 1999, two other students came forward with claims against school employees. Sometime in the early 1980s, one of the students informed the school that he had endured daily abuse by a proctor. There was no response from the School. The other student sued the School and Hanson, alleging that Hanson had abused him and other boys. The School reportedly settled the suit for $875,000. More recently, a former student described an incident in which a Headmaster had roused him and other students from their beds and paddled them for engaging in sexual activity with Hanson. That student's father came to the School when his son called to report the paddling but was not told the reason for the Headmaster's action.

The record informs us that the School did not notify students or parents about the abuse until April 2000. Hardwicke asserts that the lack of notice not only demonstrates the School's disregard for the students under its care, but prolonged the students' trauma because they were unable to seek treatment as soon as they might have. He claims that he has suffered severe emotional harm as well as physical pain, and that the abuse, occurring when he was barely sexually mature, caused him to be confused about his sexuality for the remainder of his childhood and for most of his adult life. Hardwicke states that Hanson "convinced" him that he "shouldn't tell . . . [and] that it was something [he] wanted to do." He believed that he was to blame for what happened to him.

It was not until October 15, 1999, that plaintiff informed the School about the abuse he had endured. Although President John Ellis*fn3 did not respond directly to Hardwicke, he provided information for the first time by way of an April 2000 letter to all School alumni who had attended during Hanson's tenure. Ellis explained:

In 1982, our School dismissed a senior staff member after two students separately reported that he had had inappropriate sexual contact with them. Since then, at different times, two additional students (by then, alumni) have reported similar problems with the same man. None of these former students has chosen to file criminal charges, and each has requested confidentiality.

Late last year, I received a telephone call from a graduate from the early 1970s who told me that when he was a student he was sexually abused by the same man.

Ellis indicated that the School had hired outside consultants, including mental health professionals and attorneys, and had reported the allegation to the New Jersey Division of Youth and Family Services. He also encouraged those with "any information or any concerns regarding inappropriate behavior that may have occurred" during their time as students to contact the School. When one former student notified the School that he had been abused, Ellis revealed that he had received "many, many difficult phone calls" in response to his letter.

B.

On January 31, 2001, John W. Hardwicke and his wife, Terri S. Hardwicke, sued Donald Hanson, the School, and twenty other unnamed defendants. Later, on October 21, 2002, the Hardwickes amended the complaint, substituting certain former employees for John Doe defendants. John Hardwicke sought compensatory and punitive damages based on violation of the CSAA, 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 the duty to disclose the abuse committed by Hanson on students, and active concealment of that abuse (Count IV); assault and battery (Count V); negligent hiring and supervision (Count VI); and false imprisonment (Count VII). Terri S. Hardwicke made a claim for loss of consortium (Count VIII). Also, in 2002, Douglas Palmatier, who attended the School from 1971 (when he was nine) to 1977, sued Hanson and the School, among others, claiming that Hanson had sexually abused him daily, and sometimes, more than once a day. Although Palmatier's allegations were substantially similar to those of Hardwicke, the suit filed by Palmatier was styled as a class action brought on behalf of those former students who were sexually abused at the School between 1970 and 1982.

Hanson, who resides in Canada, was served with Hardwicke's complaint in 2001. He has not filed a responsive pleading and Hardwicke has not sought a default judgment against him. The School filed answers to Hardwicke's complaint and amended complaint, and then followed with motions for summary judgment on all Counts except Count IV (breach of the duty to disclose). First, the School contended that Hardwicke's common-law claims (Counts II, III, V, VI, VII, and VIII) were time-barred because he should have brought them by 1977, within two years after he reached the age of majority, as required by N.J.S.A. 2A:14-2.

On February 8, 2002, the trial court denied the School's motion. The court found that Hardwicke's common-law claims were "based on" sexual abuse and therefore covered by the statutory accrual provision of the CSAA, N.J.S.A. 2A:61B-1b, and, further, that there were contested factual issues as to when Hardwicke should have reasonably discovered the relationship between the abuse and his injuries.*fn4

On motion for reconsideration, the School argued that the CSAA did not apply to it because the School is not a "person standing in loco parentis within the household who knowingly permit[ted] or acquiesce[d] in sexual abuse." N.J.S.A. 2A:61B-1a(1). After further review, on June 14, 2002, the trial court granted the School's motion in respect of the applicability of the CSAA (Count I). Although the court found that the School qualified as a "household", and that it stood "in loco parentis" to the students, it held that the word "person" in the CSAA refers only to "natural persons" and not corporations or institutional entities. It therefore followed, and the court so held, that Hardwicke could not make out a claim against the School under the CSAA. The court also granted partial reconsideration in favor of the School and held that plaintiff's remaining common-law claims (Counts II, III, V, VI, VII, and VIII) did not trigger N.J.S.A. 2A:61B-1b, the more generous accrual provision of the CSAA, because there was no cause of action under the CSAA in the first instance. Nonetheless, the court denied without prejudice the School's motion for summary judgment pending an evidentiary hearing to determine whether the statute of limitations had tolled on equitable grounds under Lopez v. Swyer, 62 N.J. 267 (1973).

On January 6, 2003, the trial court dismissed Hardwicke's common-law claims against the School as barred by the CIA. The court rejected plaintiff's contention that the CIA improperly deprives a particular class of injured parties -- charity beneficiaries -- of the right to access the courts under the Federal Constitution, specifically the Petition Clause of the First Amendment, and the Due Process and Equal Protection Clauses of the Fourteenth Amendment, or the analogous provisions of the State Constitution. Ultimately, the court held that the School was immune from suit under the CIA even when its employees and agents "acted willfully, wantonly, recklessly, indifferently [or] criminally." Concerning the abuse of Hardwicke during the summer of 1971 (in relation to Counts II, V, and VII), the court further held that the School was not vicariously liable for Hanson's actions because Hardwicke was either Hanson's personal guest during that time and, therefore, Hanson was not acting within the scope of his employment, or, Hardwicke was not a personal guest and Hanson was acting within the scope of his employment but the School was immune under the CIA as Hardwicke was a beneficiary of the School.

When the last of Hardwicke's remaining claims against the School were dismissed, he sought leave to appeal.*fn5 The Appellate Division granted leave and consolidated his appeal with Palmatier's appeal as of right. Hardwicke, supra, 368 N.J. Super. at 76. After oral argument, Palmatier settled with the School. Id. at 77.

C.

On March 26, 2004, in three separate opinions, a divided panel of the Appellate Division reversed in part, affirmed in part, and remanded the matter to the trial court for further proceedings. In the principal opinion, Judge Payne held, as had the trial court, that under the CSAA the School "operated in an in loco parentis capacity," id. at 86, and, further, "effectively acted as the 'household' within which the abusive conduct occurred." Id. at 87. On the question whether the CSAA applies only to natural persons, Judge Payne rejected the lower court's reading of the statute. She observed that although the CSAA was enacted in response to abuse by a natural person, neither the legislative history nor the language of the statute suggests that the CSAA is restricted to natural persons. Id. at 88-89. Relying on the purpose of the CSAA to provide a statutory cause of action for childhood sexual abuse and the lack of specific limiting language in the CSAA, the principal opinion adopted the broad definition of "person" found at N.J.S.A. 1:1-2 that includes "corporations, companies [and] associations . . . as well as individuals," and held that the School is a person under the CSAA.

Having held that Hardwicke stated a cause of action under the CSAA, Judge Payne turned to the question whether the CIA nonetheless barred his lawsuit. Concerned that our opinion in Frugis v. Bracigliano, 177 N.J. 250 (2003), had recognized as fundamental a school board's "heightened duty" to protect the children in its care, she chose to construe the statute to avoid an unconstitutional result.*fn6 In that vein, the principal opinion stated:

In the present case, the [CIA] . . . need not be read so as to insulate the school from substantial liability, since the [CIA] does not address liability premised on either a statutory violation requiring knowing conduct or a common law violation involving intentional or other non-negligent conduct. As a consequence, the constitutional concerns . . . can be more directly addressed as a matter of statutory interpretation. [Hardwicke, supra, 368 N.J. Super. at 95.]

As a matter of statutory interpretation, then, Judge Payne determined that the passive abuse provision of the CSAA is premised on a finding of "knowing" conduct and "that the [CIA], by its terms, provides insulation only from liability as the result of 'damage from . . . negligence' -- a common-law theory of liability." Id. at 95-96.

Judge Payne also held that the CIA does not bar Hardwicke's common-law causes of action based on intentional conduct, similarly reasoning that the CIA only bars common-law claims based on negligence and not "claims of intentional conduct by or attributed to the . . . School arising out of sexual abuse, insofar as those claims are independent from those asserted under the [CSAA]." Id. at 102. She observed that no reported decision . . . has held that a charitable institution is immune from suit by its beneficiaries when that suit is based on the institution's own intentional conduct or ...


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