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D.T., A Sexually Abused Person Within the Meaning of N.J.S.A. 2a:61b-1 v. Hunterdon Medical Center

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


September 27, 2012

D.T., A SEXUALLY ABUSED PERSON WITHIN THE MEANING OF N.J.S.A. 2A:61B-1, F.T., THE FATHER OF D.T., AND D.A.T., THE MOTHER OF D.T., PLAINTIFFS-APPELLANTS,
v.
HUNTERDON MEDICAL CENTER, DEFENDANT-RESPONDENT, AND J.H., DEFENDANT.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-961-07.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: October 19, 2011

Before Judges Cuff, Lihotz and Waugh.

Fourteen-year-old D.T. performed volunteer work at defendant Hunterdon Medical Center (HMC), a full service hospital, near her home. In February 2003, D.T. and J.H., a nineteen-year-old employee, began a flirtatious relationship; by late summer or fall 2003, they were engaged in a sexual relationship that continued until October 2004. J.H. was arrested, indicted and pled guilty to one count of second degree sexual assault for which he received a three-year term of imprisonment subject to a one-year period of parole ineligibility. D.T. and her parents filed a complaint against J.H. and HMC in which they asserted twelve causes of action, including negligent hiring, supervision and retention of J.H.; sexual abuse; common law assault; common law battery; negligent infliction of emotional distress; and intentional infliction of emotional distress. Generally, plaintiffs alleged that HMC had a non-delegable duty to protect its minor volunteers from the actions of adult employees. We review an order granting summary judgment in favor of HMC. We affirm.

I.

The facts viewed in the light most favorable to plaintiffs reveal that HMC has a formal volunteer program in which approximately 300 adults and 150 teenagers not less than fourteen years of age participate. Every volunteer is required to participate in a training program that includes instruction about hospital policies, including its policy against any form of sexual harassment. Every participant also receives a handbook and is required to take a multiple-choice test on HMC policies.

D.T. applied to serve as a volunteer at HMC, and commenced her volunteer work in Spring 2002. D.T. also received instruction in patient care and transportation of patients.

HMC hired J.H. on October 21, 2002, as a transporter at a pay rate of $9.14 an hour. He was nineteen when he commenced his employment at HMC. He had no criminal history and good references. As a transporter, he moved patients and patient-related items throughout the hospital. According to his job description, he reported to the supervisor/dispatcher and shipping/receiving/supply distribution technicians, and directed adult and teen volunteers.

On a typical day, between 8:00 a.m. and 5:00 p.m., eight transporters were on duty. Each transporter received an assignment from the transport dispatcher and was expected to return to the dispatcher after completion of each assignment. After 5:00 p.m., a nurse supervised the transporters from a remote location. Usually two transporters remained on duty until 7:00 p.m.; one would stay until 10:30 p.m. At some point, J.H. switched to the night shift, working from 2:00 p.m. to 10:30 p.m.

D.T. chose to volunteer in the transport department because a friend volunteered there as well. She usually worked during late afternoons and early evenings. She met J.H. while assigned to the transport department. Between January 2003 and February 2003, D.T. and J.H. began exchanging emails and text messages. She admitted that the two flirted, and she may have given him the impression that she liked him.

D.T. testified that her first sexual encounter with J.H. occurred in a stairwell at the hospital on a Saturday night in February 2003. At the request of J.H., she went to the hospital that night even though she was not scheduled to work that evening, and she did not report to the volunteer office when she arrived. J.H. approached her from behind in a stairwell, put his hand on her waist, and started to touch her. In a certification in opposition to defendant's motion for summary judgment, D.T. stated J.H. "repeatedly groped [her] intimate parts, breasts, and/or buttocks."

Although she testified at her deposition that she felt confused by this encounter, the couple engaged in other sexual acts on and off hospital premises. To facilitate further contact with her, J.H. asked D.T.'s supervisor to assign D.T. and her friend to different shifts. The request was declined. In Summer or Fall 2003, D.T. and J.H. engaged in their first act of sexual penetration. This encounter did not occur at the hospital. Rather, D.T. sneaked out of her house and met J.H. on a local soccer field.

The sexual relationship between D.T. and J.H. continued until October 2004. During this time, they had sexual relations on and off hospital premises. She knew the relationship was against hospital policy, and both tried and succeeded in keeping the relationship secret, until D.T. told her mother in October 2004. At that time, D.T. was sixteen. She admitted that J.H. once showed her and other volunteers a gun he carried in the trunk of his car, but D.T. insisted J.H. never threatened her with the gun.

D.T.'s parents reported the relationship to the police. J.H. was arrested at work in December 2004.*fn1 HMC suspended J.H. from his employment and he resigned on January 24, 2005. Although he had attendance issues and occasionally disappeared for periods of time during a shift, his absences were reported to supervisors, and he was considered a "likeable guy."

II.

D.T. and her parents filed a twelve count complaint seeking compensatory and punitive damages against HMC and J.H. In general, they alleged that D.T. had a reasonable expectation that she would be working in a safe environment and free from becoming a victim of a crime or sexual harassment. Specifically, they alleged HMC breached their trust by negligently hiring, supervising, and retaining J.H. (Count I); HMC and J.H. engaged in extreme and outrageous conduct intended to produce emotional distress or acted recklessly in deliberate disregard of a high degree of probability that emotional distress would occur (Count V); and HMC and J.H. acted negligently with a high probability that D.T. would suffer emotional distress (Count VI). Plaintiffs also alleged HMC had a non-delegable duty to protect D.T. from the sexual conduct in which she engaged with J.H., and HMC was vicariously liable for the acts of its agent, J.H., even those acts were beyond the scope of his employment (Count VII); HMC had a "special non-parental relationship" with D.T., and it failed to exercise reasonable care to protect her from "unreasonable risk of injury" (Count VIII); HMC requested D.T. "to assist voluntarily in performing tasks" for its benefit and failed to exercise reasonable care under the circumstances (Count IX); and HMC and J.H. engaged in a pattern of racketeering activity contrary to N.J.S.A. 2C:41-1(a)(d) and (e) and N.J.S.A. 2C:34:3(b)(2) (Count X). D.T.'s parents also asserted a Portee*fn2 claim (Count XI) and a loss of consortium claim (Count XII) against HMC.*fn3 By order dated January 8, 2008, Judge Accurso granted a motion to dismiss the negligent hiring claim of Count I, Count V (intentional infliction of emotional distress), Count IX (negligent taskmaster), Count X (RICO), and Count XI (the Portee claim). Following discovery, HMC filed a motion for summary judgment.

III.

Judge Edward M. Coleman granted summary judgment in favor of HMC. In his written opinion, the judge commenced his discussion with those claims founded on a respondeat superior theory of liability for the actions of J.H. The judge noted that to support liability plaintiffs must prove that a master-servant relationship existed between HMC and J.H. and that the actions of J.H. occurred during the course of his employment. Judge Coleman held that J.H. was not acting within the scope of his employment when he engaged in a sexual relationship with D.T. The judge found J.H. was not hired to perform this kind of conduct and his employer did not condone this type of conduct. Furthermore, the conduct was not authorized by HMC, it was illegal, and "a major departure from the work J.H. was hired to perform." J.H.'s conduct did not benefit HMC, and the relationship was not commenced by a purpose to serve the interests of HMC. The judge also emphasized that the conduct did not occur solely on HMC's premises.

Judge Coleman also rejected the contention that HMC could be considered liable for conduct beyond the scope of J.H.'s employment on the basis that J.H.'s conduct created a hostile work environment. The judge noted such liability is dependent on the actor being a supervisor and J.H. could not be considered a supervisor of D.T. or any other employee. The judge found J.H. had no authority to fire anyone, assign any volunteer to a department or shift, and the sexual misconduct was not due to any supervisory power J.H. exercised over D.T. Rather, the judge found D.T. readily admitted she viewed the relationship as a romantic relationship not anything foisted on her. In fact, the judge noted D.T. never alleged sexual harassment by J.H.

Judge Coleman also found no basis to extend liability pursuant to Hardwicke v. American Boychoir School, 188 N.J. 69 (2006), for actions outside the scope of employment based on an in loco parentis position of defendant HMC. The judge noted HMC cannot be considered a boarding school, as in Hardwicke, and did not occupy an in loco parentis position to D.T.

Judge Coleman also found no basis in law to support liability of HMC due to negligent or reckless conduct by it as an employer. According to plaintiffs, alleged negligent or reckless conduct created an unsafe place to work or permitted the sexual relationship between one of its employees and one of its teenage volunteers to progress undetected. The judge, however, found liability due to sexual harassment program failures unfounded because J.H. did not use any authority granted by HMC to commit any unlawful acts against D.T. Highlighting that an employer may be liable for co-worker harassment only when employer negligence prevents detection of the harassment or prevents remedial action, Judge Coleman found the record contained no evidence of negligence by HMC. He emphasized that D.T. encouraged the admittedly illegal acts by J.H., and "the two teenagers were doing everything in their power to hide the relationship."

Furthermore, D.T.'s status as an invitee on the HMC premises did not create an absolute duty by HMC to provide a safe workplace. The judge noted the record contained no evidence that HMC knew or should have known from experience that there was a likelihood of harm to D.T., or anyone else on their premises, by J.H. Furthermore, HMC took proactive measures by establishing policies to prevent employees from suffering unwanted attention from other employees.

Judge Coleman also granted summary judgment on the remaining claims asserted in Count I: negligent supervision and negligent retention. The judge found the record contained no evidence that J.H. engaged in violent or aggressive behavior. Plaintiffs failed to adduce any evidence that HMC knew or had reason to know of any particular threat of harm to others by J.H. He had no prior criminal history. The prosecutor considered his risk of recidivism low. The only negative performance information obtained by plaintiffs about J.H. related to tardy responses to some pages by his supervisors and some attendance issues. Nothing suggested he would engage in criminal sexual behavior with a teenage volunteer. Therefore, the harm alleged by D.T. was not reasonably foreseeable by J.H.'s employer.

Judge Coleman also dismissed the negligent infliction of emotional distress claim (Count VI). The judge found no amount of security, such as additional security officers or cameras, would have prevented D.T. and J.H. from engaging in a sexual relationship. He emphasized that the sexual conduct occurred on and off the HMC premises.

The judge also found no basis for a special relationship between D.T. and HMC. Without such a relationship, the judge held that the child left unsupervised by non-parent claim (Count

VIII) must fail. Finally, the judge dismissed the loss of consortium claim (Count XII) because it was a derivative claim and all underlying negligence claims had been dismissed.

IV.

All of the claims asserted by plaintiffs against HMC are founded on HMC's status as an employer of J.H. and D.T. As to D.T., plaintiffs posit several theories that would make HMC liable to them, all of which depend on D.T.'s status as a minor. From that status, plaintiffs urge HMC had a duty to protect D.T. from her acts that derived from naivete or rebellion. Plaintiffs do not contend that HMC stood in loco parentis. However, they do argue that an institution, such as a hospital, which encourages volunteer work by teenagers, must provide extra supervision and training programs to protect teenagers from the type of encounters that occurred here. Plaintiffs insist they do not urge that HMC had a non-delegable duty to D.T. or that it should be held strictly liable; however, some of their arguments seem to approach these positions.

We, of course, apply the same standard as the motion judge, who granted summary judgment in favor of HMC. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). A trial court will grant summary judgment to the moving party "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). "An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c). The facts should be viewed in the light most favorable to the non-moving party. Brill, supra, 142 N.J. at 523. However, a trial court's legal rulings "are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). Thus, "the appellate court should first decide whether there was a genuine issue of material fact, and if none exists, then decide whether the trial court's ruling on the law was correct." Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010).

Generally, an employer is not liable for an employee's torts that are outside the scope of his duties. Davis v. Devereux Found., 209 N.J. 269, 312 (2012); Hardwicke, supra, 188 N.J. at 101. Unquestionably, the sexual relationship initiated by J.H. is outside the scope of his employment. All of the sexual acts between J.H. and D.T. were criminal solely because of her age. N.J.S.A. 2C:14-2(c)(4).

Notwithstanding this general rule, there are circumstances in which an employer may be liable for the torts of employees acting outside the scope of their employment. The Restatement (Second) of Agency section 219(2) (1958)*fn4 provides:

(2) A master is not subject to liability for the torts of his servants acting outside the scope of their employment, unless:

(a) the master intended the conduct or the consequences, or

(b) the master was negligent or reckless, or

(c) the conduct violated a non-delegable duty of the master, or

(d) the servant purported to act or to speak on behalf of the principal and there was reliance upon apparent authority, or he was aided in accomplishing the tort by the existence of the agency relation.

An employee's act is outside the scope of employment "if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master." Id. at § 228(2). Manifestly, J.H.'s sexual acts with D.T. had no relationship to his position as a transport aide at the hospital and were never undertaken with any reference to his employment. See Cosgrove v. Lawrence, 214 N.J. Super. 670, 679-80 (Law Div. 1986) (social worker-therapist acted outside the scope of employment when he initiated a sexual relationship with his patient), aff'd, 215 N.J. Super. 561 (App. Div. 1987).

Thus, if J.H.'s acts are beyond the scope of his employment, plaintiffs must establish HMC acted negligently or recklessly, violated a non-delegable duty to D.T., or permitted J.H. to act as its agent and his status aided his tortuous conduct. See Restatement supra, § 219(2). Plaintiffs do not argue that HMC committed intentional acts. Plaintiffs also do not argue that HMC occupied an in loco parentis position concerning D.T.

Plaintiffs contend HMC acted negligently or recklessly by failing to implement sexual harassment prevention systems, policies, procedures, and training. They also contend HMC negligently supervised and retained J.H., HMC had a non-delegable duty to keep the workplace safe for D.T., and HMC delegated some measure of supervisory authority to J.H. that permitted him to abuse that minimal authority to gain access to and isolate D.T. We address the implementation of HMC's sexual harassment policies first.

A. Negligent Implementation of Sexual Harassment Policies, Procedures and Training.

Plaintiffs point to three instances of negligence by HMC regarding its sexual harassment program. First, plaintiffs assert HMC failed to exercise reasonable care about proper sexual harassment prevention and detection systems. Second, plaintiffs assert HMC failed to have effective anti-harassment policies. Third, plaintiffs insist HMC failed to properly train personnel and have proper reporting systems. HMC responds that this is not a sexual harassment case, that its knowledge of J.H.'s actions by his employer is the central issue, that J.H. cannot be considered a supervisor of D.T. as a matter of law, and that its sexual harassment program was adequate, assuming that is a relevant issue.

Whether plaintiffs asserted a sexual harassment claim or whether they sought to borrow from principles governing an employer's liability for sexual misconduct by one employee against another was not clear to us from their brief; nevertheless, much of the discussion of HMC's legal duty to a teenage volunteer is based on principles involving sexual harassment in the workplace principles. Moreover, at oral argument, counsel for plaintiffs insisted this is a sexual harassment case. We, therefore, will address plaintiffs' claims in accordance with their stated position.

In Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 592 (1993), the Court addressed the standards for a cause of action for hostile work environment sexual harassment under the LAD and the scope of an employer's liability for such harassment. The Court identified two questions: first, the elements of a cause of action for hostile work environment in the workplace; and second, the scope of an employer's liability for a supervisor's sexual harassment of an employee that creates a hostile work environment. Ibid. With respect to the second question, the Court relied on section 219 of the Restatement in its analysis. Id. at 619. It first held that "under § 219(1) an employer whose supervisory employee is acting within the scope of his or her employment will be liable for the supervisor's conduct in creating a hostile work environment." Ibid. (footnote omitted). Next, the Court held an employer could be liable under section 219(2)(d) under the following circumstances:

"1. Did the employer delegate the authority to the supervisor to control the situation of which the plaintiff complains . . . ?

2. Did the supervisor exercise that authority?

3. Did the exercise of authority result in a violation of [the LAD]?

4. Did the authority delegated by the employer to the supervisor aid the supervisor in injuring the plaintiff?" [Id. at 620 (quoting Bruce Chandler Smith, When Should an Employer Be Held Liable For The Sexual Harassment by a Supervisor Who Creates a Hostile Work Environment? A Proposed Theory of Liability, 19 Ariz. St.

L.J. 285, 321 (1987)).]

The Court also referred to section 219(2)(b), and in doing so, "decline[d] to set forth a standard of negligence governing sexual harassment claims . . . ." Id. at 621. However, it noted that a plaintiff may show that an employer was negligent by its failure to have in place well-publicized and enforced anti-harassment policies, effective formal and informal complaint structures, training, and/or monitoring mechanisms. We do not hold that the absence of such mechanisms automatically constitutes negligence, nor that the presence of such mechanisms demonstrates the absence of negligence. However, the existence of effective preventative mechanisms provides some evidence of due care on the part of the employer. [Ibid.]

The Court briefly discussed liability under section 219(2)(a) (employer liability for torts of its servants), but suggested that if an employer had actual knowledge of harassment and failed to stop it, that scenario "would also more clearly qualify as negligence or recklessness, thus triggering liability under § 219(2)(b)." Id. at 622.

The Court summarized its holding and stated:

Under agency law, an employer's liability for a supervisor's sexual harassment will depend on the facts of the case. An employer will be found vicariously liable if the supervisor acted within the scope of his or her employment. Moreover, even if the supervisor acted outside the scope of his or her employment, the employer will be vicariously liable if the employer contributed to the harm through its negligence, intent, or apparent authorization of the harassing conduct, or if the supervisor was aided in the commission of the harassment by the agency relationship. Thus, an employer can be held liable for compensatory damages stemming from a supervisor's creation of a hostile work environment if the employer grants the supervisor the authority to control the working environment and the supervisor abuses that authority to create a hostile work environment. An employer may also be held vicariously liable for compensatory damages for supervisory sexual harassment that occurs outside the scope of the supervisor's authority, if the employer had actual or constructive notice of the harassment, or even if the employer did not have actual or constructive notice, if the employer negligently or recklessly failed to have an explicit policy that bans sexual harassment and that provides an effective procedure for the prompt investigation and remediation of such claims. [Id. at 624 (emphasis added).]

Here, the record establishes that HMC had no knowledge of the relationship between J.H. and D.T. In fact, the record demonstrates that no one other than J.H. and D.T. knew they had commenced a sexual relationship. This lack of knowledge by HMC is critical because Lehmann addresses vicarious liability of the employer who knew or should have known of the harassment and failed to do anything about it. Id. at 622-23.

In doing so, the Court recognized that it "declined to hold employers strictly liable for hostile work environment sexual harassment by supervisors . . . ." Id. at 623. The Court recognized, however, that it had created a standard that results in vicarious liability for an employer. Ibid. The Court explained it declined to impose strict liability on employers because Under a strict liability standard, an employer would always be liable for supervisory hostile work environment sexual harassment, regardless of the specific facts of the case. We think that in some cases strict liability would be unjust -- for example, "where a supervisor rapes one of his subordinates in the workplace." [Id. at 624 (quoting Lehmann v. Toys 'R' Us, 255 N.J. Super. 616, 661 (App. Div. 1992) (Skillman, J.A.D., dissenting)).]

This is consistent with Title VII*fn5 case law, where the Supreme Court has noted "'an employer is liable when the tort is attributable to the employer's own negligence.'" Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 758-59, 118 S. Ct. 2257, 2267, 141 L. Ed. 2d 633, 651 (1998) (quoting Restatement, supra, § 219(2)(b)). The Court explained: "[A]lthough a supervisor's sexual harassment is outside the scope of employment because the conduct was for personal motives, an employer can be liable, nonetheless, . . . if it knew or should have known about the conduct and failed to stop it." Id. at 759, 118 S. Ct. at 2267, 141 L. Ed. 2d at 651.

Additionally, this court has held that employers are liable for the harassment of co-workers only when the employer knew or should have known of the harassment. Heitzman v. Monmouth Cnty., 321 N.J. Super. 133, 146 (App. Div. 1999), overruled on other grounds by Cutler v. Dorn, 196 N.J. 419, 440 (2008). This is because "under agency principles, an employer is not generally liable for harassing conduct by co-workers, '[b]ecause employers do not entrust mere co-employees with any significant authority with which they might harass a victim.'" Id. at 145-46 (quoting Parkins v. Civil Constructors of Ill., Inc., 163 F.3d 1027, 1032 (7th Cir. 1998)). Rather, "when a co-worker engages in harassing conduct, the employer is liable only if 'management-level employees knew, or in the exercise of reasonable care should have known, about the campaign of harassment.'" Id. at 146 (quoting Hunter v. Allis-Chalmers Corp., 797 F.2d 1417, 1421 (7th Cir. 1986)).

As noted, the record is devoid of any evidence that HMC knew or should have known of the relationship between D.T. and J.H. In fact, the record is clear that the two intentionally hid their interactions from HMC. D.T. testified she kept their relationship a secret from everyone at HMC as well as her parents. She knew J.H. would get in trouble if anyone discovered the relationship. There was nothing in J.H.'s past to indicate that HMC should have known he might have a relationship with a volunteer. The only complaints about his job performance were a history of tardiness and unavailability at times. None of these circumstances are sufficient to create a genuine issue of material fact whether HMC knew or should have known about the relationship between D.T. and J.H. Moreover, many of the encounters occurred off HMC premises and many of those meetings can be characterized as clandestine, thereby minimizing the opportunity for anyone associated with HMC to discover the relationship.

The record also does not permit a motion judge to find the existence of a genuine issue of material fact as to whether J.H. was a supervisory employee. His status as a supervisor is critical to any liability of HMC due to negligent implementation or enforcement of its sexual harassment policy. "Supervisory status depends on the nature of the employer's delegation of authority to the harassing co-worker." Entrot v. BASF Corp., 359 N.J. Super. 162, 174 (App. Div. 2003). This determination "turn[s] on whether the power the offending employee possessed was reasonably perceived by the victim, accurately or not, as giving that employee the power to adversely affect the victim's working life." Id. at 181. For example, "such indicia as the power to fire and demote, to influence compensation, and to direct all job functions would be probative of supervisory status, but would not exclude other indicia." Ibid. Furthermore, this court stated that "[a]lso relevant would be any evidence that the alleged harasser controlled the workplace in subtler and indirect ways, as long as the effect was to restrict the victim-employee's freedom to ignore sexually harassing conduct." Ibid.

Although J.H.'s job description stated that he "supervises" "Volunteers (Jr. and Adult)," this job description is neither dispositive nor persuasive. The focus of the analysis is "whether the power the offending employee possessed was reasonably perceived by the victim, accurately or not, as giving that employee the power to adversely affect the victim's working life." Id. at 181. Viewing the facts in the light most favorable to plaintiffs, J.H.'s ability to assign tasks to D.T. when she volunteered at HMC can more suitably be considered an ability to delegate at a minimal level some tasks to others. D.T. chose her own work hours. J.H. had no authority to alter D.T.'s hours or those of any other volunteer. In fact, the record demonstrates that the person who supervised J.H. did not act on J.H.'s recommendation to separate D.T. and her friend. Moreover, the record is barren of any evidence to support a finding of fact D.T. reasonably believed J.H. had the power to adversely affect her status as a volunteer or the tasks she performed at the hospital.

B. Non-Delegable Duty.

Plaintiffs also contend that HMC had a non-delegable duty to keep its premises and the workplace safe for all invitees, including D.T. Specifically, plaintiffs contend HMC had a non-delegable duty to protect a young worker from situations and experiences unsuitable to her age. Plaintiffs assert an institution, such as HMC or another employer, which utilizes the services of teenage volunteers, can satisfy this duty by supervising teenage volunteers or workers more closely than adult volunteers or workers and providing specific training calculated to address their youth and naivete.

Plaintiffs insist they do not consider the relationship between HMC and D.T. as an in loco parentis relationship. Nevertheless, the parameters of the duty they outlined seem markedly similar to an in loco parentis relationship. It is, therefore, important to recognize that even in a true in loco parentis relationship, such as a student-school principal relationship, the Court has articulated the standard for assessing the employer's liability for the principal's actions as grounded in a duty of reasonable care. Frugis v. Bracigliano, 177 N.J. 250, 268 (2003).

In Frugis, the Court identified the duty as follows:

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. [Ibid.]

Moreover, in Davis, supra, involving the liability of a nonprofit facility to a developmentally disabled resident severely burned by his caretaker, the Court declined to impose a non-delegable duty of care but rather held that the employer owed to injured residents a duty of reasonable care. 209 N.J. at 292.*fn6

Notably, that duty extends to selection and supervision of employees such as J.H. As noted in Davis, "[c]onsistent with Restatement section 219(2)(b), New Jersey courts recognize the tort of negligent hiring, 'where the employe[r] either knew or should have known that the employee was violent or aggressive, or that the employee might engage in injurious conduct toward third persons.'" Ibid. (quoting Di Cosala v. Kay, 91 N.J. 159, 173 (1982)).

We also note that the parameters of the duty articulated by plaintiffs is not consistent with the concept of non-delegable duty. As articulated by plaintiffs, HMC would satisfy its standard of care if it adopted and implemented a program of extra supervision for teenage volunteers and provided a training program that specifically warned teenage volunteers to be watchful for and to resist all sexual or simply romantic advances by older volunteers or workers. However, when a non-delegable duty is imposed, "'the employers use of care is irrelevant.'" Davis, supra, 209 N.J. at 289 (quoting Davis v. Devereux Found., 414 N.J. Super. 1, 6 (App. Div. 2010) (citing Majestic Realty Assocs. v. Toti Contracting Co., 30 N.J. 425, 439 (1959)). Moreover, in accordance with the Restatement section 214 comment a,*fn7 measures taken to keep older and younger workers apart, such as assignment of a chaperone or "buddy" to accompany the teenage volunteer at all times or adoption and implementation of a vigorous training program would provide no defense to liability, if we were to recognize a non-delegable duty. Ibid.

C. Negligent Supervision.

The Court has explicitly recognized "the tort of negligent hiring or retention of an incompetent, unfit or dangerous employee and h[e]ld that one may be liable for injuries to third persons proximately caused by such negligence." Di Cosala, supra, 91 N.J. at 174. The Court explained there are two "fundamental requirements" to this cause of action:

The first involves the knowledge of the employer and foreseeability of harm to third persons. An employer will only be held responsible for the torts of its employees beyond the scope of the employment where it knew or had reason to know of the particular unfitness, incompetence or dangerous attributes of the employee and could reasonably have foreseen that such qualities created a risk of harm to other persons. The second required showing is that, through the negligence of the employer in hiring the employee, the latter's incompetence, unfitness or dangerous characteristics proximately caused the injury. [Id. at 173-74 (citations omitted).]

Plaintiffs assert summary judgment was inappropriate under section 219(2)(b) of the Restatement because of HMC's "failure to use reasonable care in supervising and/or retaining J.H." Additionally, plaintiffs argue "the focus of Count I is not necessarily on just HMC's negligent supervision/retention of Defendant J.H., but instead is much broader." Relying on section 213 of the Restatement, they offer a litany of bases to find HMC liable, including failure to provide proper orders and work regulations, failure to use reasonable care in supervising employees' activities, failure to use reasonable care to prevent tortious conduct by persons on premises or with instrumentalities under the employer's control, and failure to use reasonable care in providing adequate security and a safe environment on its premises.

HMC argues this aspect of the Restatement is a codification of the common law claim for negligent supervision recognized in Di Cosala. It contends the motion judge correctly dismissed this aspect of plaintiffs' complaint "based on the lack of any evidence showing that J.H. was violent or aggressive or that [HMC] knew or should have known of 'any particular unfitness or incompetence, or dangerous attributes of J.H. that would make the harm alleged by D.T. foreseeable.'" Moreover, HMC argues that even if J.H.'s conduct was foreseeable, plaintiffs cannot establish that any of its acts or omissions were a proximate cause of any harm to D.T.

There is nothing in the record that suggests HMC knew or should have known of any "particular unfitness, incompetence or dangerous attributes" of J.H. Di Cosala, supra, 91 N.J. at 173. J.H.'s criminal background check was negative and, aside from a record of tardiness and some occasions where he was unavailable while working, there is nothing in his employment record that reveals J.H. would have harassed or sexually assaulted a volunteer. The only incident that comes close is a "shouting match" between J.H. and another transporter. There is simply nothing in this record to permit HMC to have reasonably foreseen J.H. would engage in a sexual relationship with a teenage volunteer.

Notwithstanding plaintiffs' argument that Count I is much broader than just negligent retention and supervision, during the argument of HMC's motion to dismiss, this count was characterized as simply a claim for negligent hiring, supervision, and retention. Judge Coleman properly treated the disposition of Count I as a claim for only negligent supervision and retention.*fn8

To the extent plaintiffs contend HMC failed to provide a safe place to work, the record does not provide support for this claim. It also was not addressed to the motion judge.

D. J.H. as an Agent of HMC.

Plaintiffs argue the motion judge should have found J.H. purported to act or speak on behalf of HMC and HMC aided his tortious conduct through the existence of this agency relationship. Relying on section 219(2)(d) of the Restatement, plaintiffs contend HMC is liable because it delegated supervisory authority to J.H. and the authority he exercised furthered his tortuous conduct. HMC disputes that the facts establish an agency relationship and argues section 219(2)(d) is inapplicable. We have previously held that the record does not permit a finding that J.H. exercised any supervisory authority over D.T. Moreover, the mere use of keys, the elevator, and access to the premises cannot be considered a delegation of authority to act in any manner injurious to D.T. or any other person. See Lehmann, supra, 132 N.J. at 620 (fact specific analysis required to determine if employer delegated power to offending employee "to control the day-to-day working environment").

V.

Plaintiffs argue summary judgment was inappropriate with respect to their negligent infliction of emotional distress claim. They suggest there is a difference between the direct and bystander versions of this claim, and it was error to apply the rules of bystander emotional distress. They contend HMC "breached multiple duties owed to D.T.," and as such, granting summary judgment in HMC's favor was erroneous.

HMC argues plaintiffs identify no evidence to support this claim or the specific duty HMC allegedly owed to D.T. It argues the motion judge correctly dismissed this claim because the relationship was not foreseeable, it had no knowledge of it, and D.T. and J.H. actively sought to conceal it.

Negligent infliction of emotional distress is defined as "negligent conduct that is the proximate cause of emotional distress in a person to whom the actor owes a legal duty to exercise reasonable care." Decker v. Princeton Packet, Inc., 116 N.J. 418, 429 (1989). To establish liability, "a plaintiff must prove that defendant's conduct was negligent and proximately caused plaintiff's injuries. The negligence of defendant, however, depends on whether defendant owes a duty of care to the plaintiff, which is analyzed in terms of foreseeability." Ibid. Furthermore, "it must be reasonably foreseeable that the tortious conduct will cause genuine and substantial emotional distress or mental harm to average persons." Id. at 430.

Foreseeability of the injury "is a crucial element in determining whether imposition of a duty on an alleged tortfeasor is appropriate." Carter Lincoln-Mercury, Inc. v. EMAR Grp., 135 N.J. 182, 194 (1994). Once foreseeability of harm to a plaintiff is established, "we must decide whether considerations of fairness and policy warrant the imposition of a duty." Id. at 195.

Implicit in recognition of a duty to prevent harm to another is an explication of the contours of that duty. Plaintiffs' vague statement that HMC "breached multiple duties" does not assist this inquiry. Sifting through their various contentions, we glean plaintiffs advocate that an employer of voluntary and compensated teens and young adults owes a duty to them and their parents to prevent the formation of romantic relationships between members of this set of employees. That would be a formidable and probably impossible task. We encourage teens and young adults to volunteer their time and talents in order to become involved in the life of their community. In the course of such activity, they may identify academic and career interests they wish to pursue. They also have the opportunity to learn how to interact with others of every age and background to accomplish a task. They also have the opportunity to learn the need for positive social interaction with their co-workers, volunteer and paid. During this experience, it is foreseeable that friendships will develop. To prevent the formation of friendships among volunteers and co-workers is a formidable, if not impossible, task. If we impose a duty on an employer to prevent the formation of romantic relationships between co-workers, it is entirely foreseeable that employers such as HMC will terminate their volunteer programs for teenagers. The inevitable result of such action would be to deprive young people of the various benefits afforded by volunteer efforts.

Moreover, the existing duty of the employer to assure that its employees or volunteers are not subject to unwanted advances is sufficient to address those situations when a worker decides to prey on a vulnerable and impressionable co-worker. In the end, although it is foreseeable that a young volunteer will develop a crush on an older volunteer or paid employee, it is not foreseeable that a young volunteer and an older employee would form a romantic and sexually inappropriate relationship and would be able to conceal that relationship for eighteen months from co-workers, supervisors, and family members. Under these circumstances, we decline to recognize the duty plaintiffs seek to impose on HMC.

VI.

Plaintiffs contend HMC assumed a duty to supervise D.T. once it permitted this teenager to volunteer at its hospital. Plaintiffs reiterate they do not assert HMC assumed in loco parentis status. They frame the duty as one of supervision and oversight due to the known proclivities of children to act impulsively.

The cause of action for negligent supervision by a non-parent was recognized in Convery v. Maczka, 163 N.J. Super. 411 (Law Div. 1978). There, the five-year-old plaintiff was playing unsupervised in a family friend's basement while his mother and the friend were upstairs talking. Id. at 413. After about fifteen minutes, the plaintiff jumped off a chair and fractured his arm. Ibid. The court discussed "the established cause of action in tort based upon a breach of the duty to supervise a child by a parent or other person in loco parentis." Id. at 415. It noted that the cause of action "will lie in favor of third parties (including other children under supervision) when the child had use of or access to a dangerous instrumentality without adequate supervision or was not controlled or curbed despite the defendant's knowledge of a propensity to dangerous conduct." Id. at 415-16. The court elaborated: "[t]hat cause of action . . . does not arise exclusively out of the parent-child relationship but is actionable within the limits of reasonable foreseeability against others with a special relationship to the child." Id. at 416.

The negligent supervision by a non-parent cause of action requires the defendant to be in a special relationship with the plaintiff. Despite plaintiffs insistence they do not assert HMC had an in loco parentis relationship with D.T., the case on which plaintiffs rely begins with the premise that "[t]he duty of school personnel to exercise reasonable supervisory care for the safety of students entrusted to them, and their accountability for injuries resulting from failure to discharge that duty, are well-recognized in our State and elsewhere." Titus v. Lindberg, 49 N.J. 66, 73 (1967) (emphasis added). The Court also notes that

"[i]n a limited sense the teacher stands in the parent's place in his relationship to a pupil under his care and charge, and has such a portion of the powers of the parent over the pupil as is necessary to carry out his employment. In such relationship, he owes his pupils the duty of supervision, and if a failure to use due care in such supervision results in injury to the pupil in his charge . . . [he is] . . . liable to such pupil." [Id. at 74 (quoting Eastman v. Williams, 207 A.2d 146, 147 (Vt. 1965)) (emphasis added).]

Thus, the defendant must be in a special relationship, or in loco parentis, with the plaintiff. See also Hardwicke, supra, 188 N.J. at 91 (discussing in loco parentis in context of students enrolled at boarding school).

HMC was not responsible for shelter, food, recreation, succor, or the like precluding imposition of such a relationship on HMC. D.T. was a volunteer at HMC and controlled her own hours. She lived at home and her parents never surrendered direct supervision of activities. Judge Coleman properly dismissed this claim.

VII.

Having concluded that Judge Coleman properly granted summary judgment on all claims, plaintiffs' loss of consortium claim must fail. A per quad claim, whether by a spouse or parent, is incidental to and derivative of the personal injury action. Tynan v. Curzi, 332 N.J. Super. 267, 289 (App. Div. 2000); Tichenor v. Santillo, 218 N.J. Super. 165, 173 (App. Div. 1987). Once the substantive claims asserted by plaintiffs are dismissed, this claim fails. Tichenor, supra, 218 N.J. Super. at 173.

VIII.

The remaining issues asserted by plaintiffs, including the argument that an expert opinion regarding the duty of HMC to its teenage volunteer or measures HMC could have employed created a genuine issue of fact, and compliance with accreditation of standards, are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.


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