On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L-1855-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves, J.N. Harris, and Haas.
Plaintiffs Steven Kowaleski and his parents, Robert and Lucille Kowaleski, appeal from a May 13, 2011 order that barred their expert's report as a net opinion and granted defendants' motions for summary judgment. Plaintiffs' complaint sought damages from defendants George Wolff, Michelle Swisher, and the Morris-Union Jointure Commission Developmental Learning Center (MUJC) under the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3. Plaintiffs alleged that twenty-four-year-old Steven, who is autistic, experienced post-traumatic stress disorder as a result of physical abuse inflicted by Wolff, a teacher formerly employed by MUJC. Plaintiffs further alleged that Swisher, Wolff's teaching assistant, failed to properly "care for and otherwise provide for the safety of" Steven. For the reasons that follow, we affirm.
When Steven was three years old, the Westfield Child Study Team classified him as Pre-School Handicapped and he was enrolled in Edison's Pre-School Handicapped class, where he received speech and occupational therapy. In February 1992, when Steven was four years old, he was diagnosed with Pervasive Developmental Disorder and placed in a program at Children's Specialized Hospital designed to meet the specific needs of children with autistic behaviors. Steven attended kindergarten at the Midland School, where he continued to receive speech and occupational therapy. A psychological evaluation conducted by a school psychologist on January 31, 1996, when Steven was eight years old, found that he was "an essentially happy youngster who enjoy[ed going] to school," but that he had been known to "kick out" when he was "particularly frustrated."
After several years at the Midland School, Steven began experiencing "increasing behavioral difficulties" and the Office of Special Services for the Westfield Public Schools referred Steven to Lawrence DeMilio, M.D., for a psychological evaluation. In his report, dated February 21, 2004, Dr. DeMilio noted that Steven had "been seen by both school officials and his parents as more difficult and more irritable." Specifically, Steven had become "more argumentative and much more irritable toward faculty," and "more agitated." Steven's mood was described as "tense" and he had "very low frustration tolerance." Dr. DeMilio, however, noted that Steven's behavior did not escalate "to any physical type dangerousness."
On October 16, 2004, Dr. DeMilio conducted a follow-up evaluation because of continuing problems with Steven's behavior at the Midland School. Steven had been "having periods of rapid, out of proportion and at times difficult to manage sense of tension." Steven was "frequently pacing out of the [classroom], looking tense, [and] looking almost 'panicky.'" During these episodes, Steven sometimes "struck students, usually with an open hand, usually on the back." Dr. DeMilio did not believe that Steven had an "intent to harm," but he found Steven's behavior to be "totally inappropriate." In response to Steven's behavior, school staff tried "to remove him from class," "separate him for time-outs," and "to talk him down." Dr. DeMilio noted that Steven's teachers felt "stretched, almost [to] their limits[,] in terms of managing Steven in a safe manner." Eventually, Steven's behavior became so uncontrollable that he was removed from the Midland School.
In January 2005, when Steven was seventeen years old, he was enrolled in MUJC, which provides public school programs for children with autism. At MUJC, Steven continued to have problems with his behavior. For example, on March 7, 2005, he hit another student on the way to lunch; on June 9, 2005, he hit and kicked other students on the school bus; on June 30, 2005, he hit and spit on the school aides and tried to open the emergency exit on the school bus; on August 3, 2005, he threw trash at another student; and on September 19, 2005, he hit another student and attempted to hit several MUJC staff members. Wolff became Steven's teacher in July 2005.
In the fall of 2006, Steven's parents noticed that his "behavior started to regress." He began "yelling" and "screaming" and "having some really bad . . . behavior problems." In November 2006, Steven returned home from school one day and told his mother that Wolff had hit him. In response, the Kowaleskis first spoke with Steven's case manager, Nathan Hollis, and then they "brought it to the school's attention."
On January 24, 2007, a meeting was held at MUJC between the Kowaleskis, Wolff, Swisher, Hollis, and school administrator Barbara Starling. At the meeting, the Kowaleskis expressed their concern regarding Steven's behavior and the "allegations of excessive force" by Wolff. The Kowaleskis were "assured by everyone present that those allegations were not true," and that it was just "Steven's perspective of the situation." Wolff explained "there were times when he had to restrain Steven from hurting himself or someone else" and it "appear[ed] that Steven [did] not like to be touched." The meeting ended with Wolff being encouraged to "first speak with Steven as a way of calming him."
On June 5, 2007, Miriam Calabrese and Jill Chmiel, who were teaching assistants at MUJC, wrote letters to the school's administration regarding Wolff's aggressive response to Steven's behavior. Calabrese noted that when Steven exhibited problematic behavior, Wolff would "grab Steven by his shirt" and "with both fists[,] push really hard into Steven's throat." Calabrese characterized this as "a form of choking." Calabrese also alleged that Wolff "put his forearm into Steven's throat and pushed him hard enough that Steven's head . . . slam[med] against the wall." According to Calabrese, Wolff's aggressive behavior towards Steven "began sometime in early winter."
Chmiel alleged in her letter that she had seen Wolff "hit Steven . . . with a closed fist repeatedly in the head when Steven is having behaviors." Chmiel also alleged that Wolff would "grab Steven by the neck of his shirt and proceed to put his two fists hard into Steven's throat choking him." In addition, Chmiel indicated that if Steven got an answer to a question wrong, Wolff would elbow him "in the side of the face hard enough that [his] head would bang into the wall." According to Chmiel, Wolff's "aggressive behavior" occurred "several times a month."
Barbara Starling and Ethel Kozlik, another MUJC administrator, met with Wolff on June 5 and 6, 2007, to discuss Calabrese's and Chmiel's allegations. Wolff denied the accusations, but he admitted that on one occasion he "had to grab [Steven] and pull him out of the bathroom." On June 7, 2007, Starling and Kozlik sent Wolff a letter summarizing the issues they had discussed. ...