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Besler v. Board of Education Of West Windsor-Plainsboro Regional School District

August 25, 2008

PHILIP A. BESLER, PLAINTIFF/CROSS-RESPONDENT, AND CAROLANN S. BESLER, PLAINTIFF, AND JENNIFER J. BESLER, PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
v.
BOARD OF EDUCATION OF WEST WINDSOR-PLAINSBORO REGIONAL SCHOOL DISTRICT, A BODY CORPORATE ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF NEW JERSEY, AND/OR ITS SERVANTS, AGENTS AND EMPLOYEES, DANIEL HUSSONG, MICHAEL CARR, AND RAY J. BANDLOW, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITY; INDIVIDUALLY, JOINTLY AND SEVERALLY, DEFENDANTS-RESPONDENTS/ CROSS-APPELLANTS, AND LORI HUSSONG AND ROBERT BANKS, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITY; TOWNSHIP OF PLAINSBORO, A MUNICIPAL CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF NEW JERSEY, AND/OR ITS SERVANTS, AGENTS AND EMPLOYEES, JOHN J. LOMELA AND RICHARD FURDA, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITY; AND TOWNSHIP OF LONG BEACH, A MUNICIPAL CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF NEW JERSEY, AND/OR ITS SERVANTS, AGENTS AND EMPLOYEES, AND MATTHEW PETERSON, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; INDIVIDUALLY, JOINTLY AND SEVERALLY, DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-0236-98.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 16, 2008

Before Judges Cuff, Lisa and Simonelli.

This appeal involves a claim by plaintiff Jennifer J. Besler (Jennifer) that she suffered emotional distress from an eating disorder and amenorrhea*fn1 she developed as a result of the actions of her high school basketball coach, defendant Daniel Hussong (Hussong), during her senior year basketball season in 1995-96. A jury found Hussong liable for negligence, reckless infliction of emotional distress, and extreme and outrageous conduct; and found defendants Board of Education of West Windsor-Plainsboro Regional School District (Board), Ray J. Bandlow (Bandlow), the district's former superintendent, and Michael Carr (Carr), the former principal of West Windsor-Plainsboro High School (WWPHS), liable for negligent supervision of Hussong, for breach of their parens patriae role, and for their failure to have in place well-publicized, effective, and informal and formal complaint structures.

The jury also found Jennifer proved she sustained a permanent loss of a bodily function consisting of emotional distress resulting from amenorrhea, and awarded her $3 million in damages, which it reduced by 51% (to $1.47 million), finding she failed to mitigate her damages. The jury allocated damages as follows: the Board %50; Carr 20%; Hussong 15%; and Bandlow 15%.

The jury rejected Jennifer's claim she sustained a permanent loss of a bodily function consisting of emotional distress resulting from an eating disorder; her intentional infliction of emotional distress and punitive damages claims against Hussong; her claim the Board, Bandlow and Carr intended Hussong's conduct; and her claim the Board, Bandlow and Carr violated the child abuse reporting statute. The jury also rejected Jennifer's claims against Hussong's wife, defendant Lori Hussong (Lori).*fn2

Defendants' cross-appeal concerns a claim by Jennifer's father, plaintiff Philip A. Besler (Philip), that the Board violated his right to free speech when he tried to address Hussong's conduct at a Board meeting. Finding Philip proved his claim, the jury awarded him $100,000. The trial judge later awarded him $45,850 in prejudgment interest.

Jennifer, Philip and defendants filed motions for directed verdicts at the close of all evidence. R. 4:40-1. The trial judge reserved decision and submitted the case to the jury. After trial, the judge granted defendants' motion for a directed verdict as to Jennifer's eating disorder and amenorrhea claims, finding she failed to prove she suffered a permanent loss of a bodily function, as required by N.J.S.A. 59:9-2(d); vacated Jennifer's damage award; and dismissed Jennifer's intentional infliction of emotional distress claim against Hussong.

The judge also denied defendants' motions for a directed verdict and/or remittitur and judgment n.o.v. against Philip;*fn3 and modified Philip's damages award from $100,000 to $170,561 and his prejudgment interest award from $45,850 to $78,202 to reflect the adverse tax consequences of receiving both his jury and prejudgment interest awards in one-time lump sums. The judge also awarded Philip $307,410 for attorney's fees and costs.

We affirm the judge's rulings as to Jennifer; and the denial of summary judgment, a directed verdict and judgment n.o.v. as to Philip. We reverse the modification of the damage award.

We do not address the following arguments raised for the first time:

(1) Jennifer's arguments the mitigation jury instruction was error, and the mitigation verdict was against the weight of the evidence; and (2) defendants' arguments the verdict cannot be reinstated because of erroneous jury instructions, and the judge erred by failing to overturn the jury's award to Philip. R. 2:6-2; R. 2:5-4; Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (citing Reynolds Offset Co. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959), certif. denied, 31 N.J. 554 (1960)). We also do not address defendants' argument Philip's award was against the weight of the evidence because they never filed a motion for a new trial on this issue.

R. 2:10-1.

We limit our review to whether the trial judge improperly granted a directed verdict on Jennifer's eating disorder and amenorrhea, and intentional infliction of emotional distress claims; whether Jennifer's willful misconduct claim is subject to the Tort Claims Act (TCA); and whether the judge's award to Philip of tax-offset damages was inappropriate.

I.

The following facts are summarized from the record. Jennifer has participated in sports since childhood, and from the record it appears she was an excellent athlete. Jennifer considered herself an athlete, and took her image from that fact.

From 1992 to 1996, Jennifer was a student at WWPHS, and played varsity soccer, basketball and softball. She was mainly a soccer player, and was the varsity soccer team's captain and goalkeeper her senior year. She became a member of the varsity basketball team her sophomore year, and was co-captain for the 1995-96 season, her senior year. Also, in her junior year, Jennifer was the starting catcher and captain of the varsity softball team.

Hussong was Jennifer's basketball coach for three years. Until her senior year, Jennifer "looked up" to Hussong and "respected" and "idolized" him, and "off the court he was very friendly and very charismatic, nice[.]" Jennifer worried about what her coach thought of her abilities, and "trusted" what he said was "golden." Also, Philip and Carol were friendly with Hussong and Lori and invited them to their shore home.

Something happened in Jennifer's senior year that changed things. Jennifer claims Hussong told her to lose weight and became abusive, eventually causing her to develop an eating disorder and amenorrhea. Hussong claims Jennifer and her parents had a vendetta against him because she lost her starting position and he cut her playing time.*fn4

We cannot describe Hussong's on-court and off-court coaching behavior as anything other than unacceptable. He got angry and yelled and screamed on the basketball court at players, parents and officials; he slammed the floor and lockers; he used profanity; he threw clipboards; he banged the bench; he kicked bleachers; he paced; he physically yanked players off and onto the court; and he even seemed to tear out his hair. One time in the locker room during half-time, Hussong was so angry he barged in, screamed at the players and then slammed the door, accidentally pinching one player's hand as a result. The injured player was so frightened by Hussong that she never said a thing about her injury during the game.*fn5

Also, Hussong got angry with anyone who broke the team code and would not play those who had complained to their parents and whose parents complained to the administration.*fn6 Hussong denied this and passed it off as his playing-time discretion.

In Jennifer's senior year, Hussong did something different from past years; he first addressed the team as a whole and then took each player inside his office for a chat. According to Jennifer, the following occurred between her and Hussong during their meeting:

Q: And what did you discuss during that meeting?

A: Mr. Hussong sat down with [me] and the other coaches were there at that meeting, and he said, first, you know, I want to tell you, you made the team, congratulations. What do you think? Where do you stand? What do you think are your goals for the season and what do you want to do? And I was really excited. I, you know, just came off a great soccer season, and was -- you know, was pretty confident. So, I was like, oh, you know, Coach, I want to be a starter. I want to play. I want to be a contributor. I know I need to work on my shot. I know I need to work on getting rebounds, and those kinds of things. Like, my goals for the team, I wanted to go all the way. I wanted to go to the same place I was with soccer. I wanted to go to the state finals. I wanted to win banners. You know, I had high hopes . . . . I really thought that, you know, I was going to be a key contributor, but also the team was going to be better. So, I was -- you know, I was interested in helping the team do as much -- you know, as much as we could that year. But I -- I mean, going to the states was one of the goals.

Q: What did he say to you?

A: You know, he said, oh, that's great, you know, I think that those are good goals, but there's -- you know, you really got to work on your speed. There's -- you got to get quicker, and there's one goal that I really have for you this season, you know, for the next two weeks before the final game. He said, is I want you to lose ten pounds. And then he went on and said, you know, it's real simple, just cut one thing out of your diet. Don't put butter on your bread, or cream cheese on your bagel. You know, don't eat late at night, and, you know, it will make you faster, it will make you quick, and it will make us better as a team, and this is one thing that you can really do to make our team better, to make our team stronger, and at that point I was humiliated. It was everything that I thought I was as an athlete. It was just stripped from me. You know, I felt that how can you be fat and be an athlete. They're two -- you can't. I had heard him, you know, make the comments before. I knew, you know, there was [sic] two groups of people, and I felt that I was huge. I felt disgusting. I felt embarrassed, and I never ever wanted to hear anybody say something like that to me again. And I just -- you know, I didn't cry. I didn't show him anything. I was like, okay, Coach. Okay, Coach. That was my only response to him, but in that instance I was completely humiliated.

After the meeting ended, Jennifer went to the locker room, got changed, told other players that Hussong said nothing to her, and left. She then went home and screamed at her mother:

[H]ow could you not tell me that I was fat?

How could you let me hear this from somebody else? Do you know how embarrassed I am? I can't believe you would let me eat all this stuff, you would let me go out and eat McDonald's and do all this. How -- it's your job to tell me that I'm fat. I can't believe you wouldn't tell me this. I can't believe you just would let me hear it from somebody else. Well, that's it. I'm not eating. I'm not eating. Whatever you make, you got to get low fat stuff. I'm not eating after seven o'clock. And I just went on this rampage and I was crying, and I couldn't even talk and then that was it. I ran up to my room and -- I mean, she tried to calm me down . . . she kept saying, you're not fat. You're not fat. And I didn't believe her. She was lying to me. I thought she was lying to me. She -- you know, she let me just be humiliated and, in my mind, it was her fault, nobody else's.

It was, you know, I let myself get to this disgusting weight, but it was her fault that I got, you know, that out of shape.

Jennifer was 5'8" and weighed 160-165 pounds at the time she met with Hussong. Hussong never weighed Jennifer or referred her to a nutritionist or a doctor. He only told her she needed to lose some weight, "like about ten pounds," because she was slower than the other players. Hussong later said he only asked Jennifer what her goals were, and that it was her idea to lose weight because she was slow on the court.

The day after meeting with Jennifer, Hussong held a team meeting and told all of the players "not to eat junk food, to look at nutrition labels, to look at fat grams, and no[t] to eat late at night, and to drink diet soda all the time, and not drink regular soda[.]" Jennifer believed that Hussong's comments were meant for her. She lost ten pounds by the first game, which was two weeks after the meeting. She stopped eating breakfast, putting cream cheese on her bagel at lunch, and drinking regular soft drinks; she also insisted her mother only buy low fat foods. She also started exercising and running instead of eating.

According to Jennifer, each year Hussong seemed to find one player to pick on. That season, Hussong made an example of her by focusing on her more than the other players. During practices, Hussong told the other players not to "be slow like [Jennifer], don't let [Jennifer] beat you." He also yelled at her "at least once a day." Jennifer claimed that during the season, her personality changed; her grades deteriorated; her sleeping became disordered, she started having nightmares about Hussong; she withdrew from her family and her teammates; and she looked very thin.

By the end of the season, Jennifer's parents began steadily complaining about Hussong's conduct. They claimed the Board and the school's administration did nothing about it. Defendants claimed that Hussong's prior evaluations had all been satisfactory, and that once they became aware of the parents' specific complaints about him, they took immediate action to mediate the matter and believed that all concerns had been resolved. Furthermore, in March 1996, Hussong was required to sign a "Memorandum of Understanding," which called for specific improvements in his conduct. Philip and Carol claimed they never knew about this document.*fn7

Jennifer gave a speech at the annual end-of-season banquet. Instead of a happy-departure speech, she apologized to her parents and siblings for yelling at them and to her teammates for not standing up to Hussong. Nevertheless, in a team card to Hussong, Jennifer wrote, "Mr. Hussong, it's been great playing for you these past three years. You've taught me a lot. Thanks. Good luck in years to come. Never forget this season. See ya. Jen, number 55." Some players said that after the banquet, Hussong called Jennifer a "traitor" to the Pirate family.

After the basketball season ended, Jennifer played softball and was captain of the team. After graduation, she ran all the time, was very irritable, did not have many friends, never kept eye contact, and had no boyfriends.

In the fall of 1996, Jennifer attended the University of Richmond, where she played varsity soccer and was coached by Peter L. Albright. When Albright first met Jennifer during her campus visit in January 1996, he thought she had "good size for a goalkeeper[,]" and she was his first choice for that position. Albright liked Jennifer's enthusiasm and her commitment to winning and being part of a team. He felt, after watching a videotape of her playing and meeting Jennifer, "she would be a very good player for us in the first year." Jennifer became the starting goalkeeper, she got along well with her teammates, and she was a team captain. Albright had "never had a first-year player as a captain, but [Jennifer] was a leader."

During the soccer season in the fall of 1996, Jennifer's teammates advised Albright of their concerns about her eating habits. Although Albright had invited Jennifer and other players to his house for home-cooked meals and had not witnessed anything out of the ordinary, Jennifer's teammates "were concerned about her well-being and that she may be anorexic and that she may be developing an eating disorder."

Albright noticed that Jennifer exercised on her own in addition to his practices, and he worried about her "developing a compulsive exercising habit that was going to be detrimental to her health." He spoke many times to her about her performance and loss of muscle tone, not about any eating disorder or her appearance. Unbeknownst to Jennifer, Albright advised her parents of his concerns.

By the fall of 1997, Albright noticed that Jennifer had considerable muscle loss and had become "physically weaker[,] [a]nd that was a factor in her ability to perform her duties as a goalkeeper." He had not observed any signs of an eating disorder, but Jennifer's speed, agility and quickness had all been affected to the point that, during her second season, Albright reduced her playing time, which did not seem to upset her. Albright explained:

[Jennifer] just struggled to perform physically. Her attitude was great. Her competitiveness was great, but she just wasn't able to move around the goalmouth the way that she was able to previously [in her freshman season].

Although Albright did not believe Jennifer had a hard time adjusting to college life, because "she handled it pretty well[,]" he admitted that coming to college "was a big adjustment" and that "it was a big transition for her." Also, Albright did not remember specifically referring Jennifer to Martha Henley, a registered dietician, but Henley spoke to the soccer team at the beginning of the season about general nutrition, and had players fill out an assessment form to identify any who were at risk for injury, poor performance or eating disorders. Since Jennifer's assessment indicated menstrual dysfunction and dieting, Henley scheduled a meeting with Jennifer to discuss nutritional concerns.

Henley met with Jennifer twice in October 1996, and once in November 1996. Jennifer weighed 147 pounds at the time. Jennifer told Henley she lost her appetite upon arriving at college; she lost three pounds since coming to college, but by the time of their last meeting she had lost, at least, ten more pounds; her soccer teammates were far too occupied with weight and fat content in foods, which contributed most to her change in eating habits; she was uncomfortable with the weekly weigh-ins; she was disappointed with how the soccer season went; and she was disappointed in her lack of playing time, which caused her not to want to eat after the games. Jennifer also told Henley she had some problems with her high school ...


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