United States District Court, D. New Jersey
Bruce H. Zamost, Esq., PELLETTIERI RABSTEIN & ALTMAN, Mount Laurel, NJ, Attorney for Plaintiffs Tasia Lockhart, Robbie Lockhart, and James Lockhart.
Jeffrey L. Shanaberger, Esq., HILL WALLACK, LLP, Princeton, NJ, Attorney for Defendants Willingboro Board of Education, Nython Carter, and Ms. Car.
JEROME B. SIMANDLE, Chief District Judge.
This is an action by Tasia Lockhart ("Tasia") and her legal guardians, Robbie Lockhart and James Lockhart, seeking to hold Willingboro High School and other related defendants responsible for a sexual assault against Tasia committed by another student while school was in session.
Presently before the Court is the motion of Defendants Willingboro Board of Education, Nython Carter, and Ms. Car to dismiss the Complaint for failure to state a claim, and Plaintiffs' motion to amend the Complaint. Plaintiffs have agreed to the dismissal of certain claims, and the remaining claims are those under Title IX of the Education Amendments of 1972 and 42 U.S.C. § 1983; negligence claims; and a claim of intentional infliction of emotional distress against Carter and Car.
Because the motion to amend the Complaint raises only new factual grounds for the remaining causes of action and because the Defendant has briefed the insufficiency of the proposed amendments under the Rule 12(b)(6) standard, the Court will incorporate the proposed amendments and address their sufficiency as if included in the initial motion to dismiss. Thus, the motion to amend the Complaint is deemed granted, and the allegations therein are addressed in this opinion.
For the reasons set forth below, the Court will grant Defendants' motion to dismiss with respect to all claims except for Plaintiff Tasia Lockhart's claim under Title IX against Defendant Willingboro Board of Education (Count Four), and Plaintiffs' claims of negligence (portion of Count One, Count Five, and Count Seven). It is plausible that Plaintiff can prove a cause of action against the Board for deliberate indifference to a pattern of student-on-student sexual assault on the school premises.
A. Factual Background
The Complaint alleges that on April 12, 2011, Plaintiff Tasia Lockhart, then a 17-year-old student enrolled in a special needs educational program at Defendant Willingboro High School, was sexually assaulted by another student inside an empty classroom at the school while school was in session. (Compl. [Docket Item 1] ¶ 9.) Plaintiff alleges that Defendant "Chris" was her attacker, along with possibly other unidentified John Doe students ("John Doe 1 through 10").
Tasia Lockhart alleges she had previously been sexually assaulted by another student in an empty classroom at the same school two years earlier, on March 20, 2009. (Compl. ¶ 9.) At the time of the sexual assaults, Defendants Nython Carter and "Car" were employed by the school as teachers or administrators. According to the Complaint, the Willingboro Board of Education and its employees, Carter and Car, were in charge of "supervision, oversight, protection, and/or safety of students during school hours." (Compl. ¶ 6.) A notice of claim pursuant to the New Jersey Tort Claims Act was served upon the Board and Carter on April 17, 2009, providing them notice of the first sexual assault. (Compl. ¶¶ 16-17.)
Plaintiffs' proposed Amended Complaint states that on April 12, 2011, Tasia Lockhart was sexually assaulted after she and another special needs student, Defendant Chris, were permitted to return to a classroom unsupervised to retrieve personal items they had left in the room. Plaintiffs allege that one or more teachers, including Defendant Car, opened the classroom door and discovered Tasia and Chris engaged in sexual activity. (Proposed Am. Compl. [Docket Item 8] ¶ 29.) According to the Amended Complaint, "the classroom door was supposed to have been locked to comply with the school's policy, precisely so that students cannot return to classrooms unsupervised." (Proposed Am. Compl. ¶ 30.)
Plaintiff filed a Notice of Claim in response to the 2011 sexual assault. (Proposed Am. Compl. ¶ 18; Ex. 1 to Pl. Opp. to Mot. to Dismiss [Docket Item 7].) In the notice, Plaintiff identified Defendants Nython Carter, the "Willingboro High School assistant principal, " and Mrs. Car, a "substitute teacher, " as two of the parties responsible for Tasia's injury.
Plaintiffs' Amended Complaint introduces new facts related to Defendants' knowledge of the previous sexual assault. Plaintiffs allege that Defendants were aware of two reports after Plaintiff was assaulted in March 2009. The first, a "Memorandum of Investigation" written by the Willingboro Public Schools Director of Safety, Security and Attendance, Norman Perry, recounts an investigation that was done after the 2009 incident. The Memorandum characterized the 2009 incident as one involving "TL committing fellatio (oral sex) on SM" inside an empty classroom. (Proposed Am. Compl. ¶ 23; May 8, 2009 Mem. of Investigation, Ex. 4 to Pl. Opp. to Mot. to Dismiss [Docket item 7].) The memorandum states that based upon interviews with the students involved, the "incident appeared to be consensual and  force or threats did not appear to be involved." (See Mem. of Investigation at 1.) The incident was reported to the Burlington County Prosecutor's Office, which agreed with the school's assessment and agreed that no charges were warranted against either student. The prosecutor's office also did not believe that staff could be charged with official misconduct, but "thought it was a serious enough incident that should be handled by the school administration." (Id.) The Assistant Superintendent, JoAnn Manning, then directed Perry to conduct an investigation "to determine if there was an attempted cover up." (Id.)
Perry interviewed several staff members at the high school. According to Tasia's teacher, Jessica Kochis, another Willingboro teacher, Sharon Lightsey, found out about the incident a few days later after overhearing students talking about it. She told Kochis about the incident but encouraged Kochis not to tell the administration about what happened. Kochis disregarded Lightsey's suggestion and told the administration anyway. Lightsey denied that this happened. (Id. at 2-3.) Perry's investigation concluded, "Based on the interviews, there is no way to prove that there was an attempt to cover up the incident." (Id.)
Plaintiffs now allege that Defendants were also aware of a psychological evaluation report performed by Dr. Victor J. Nitti, Jr., dated January 26, 2011, approximately two months before Plaintiff was assaulted a second time. (Proposed Am. Compl. ¶ 20; Psychological Evaluation Report, Ex. 2 to Pl. Opp. to Mot. to Dismiss [Docket Item 7].) According to Dr. Nitti's report, Tasia stated that there have been "repeated episodes where her peers have touched her private body parts or tried to have sex against her wishes." She also stated that she "had a history of taunting by school peers since age 14." (See Psychological Evaluation Report, at 5.) Dr. Nitti concluded that "[t]here is a great likelihood of future abuse against this young woman." (Id. at 7.)
Plaintiffs also attach printouts from the Department of Education purporting to show data from 2009-2010 on incidents of violence and vandalism at certain schools, including Willingboro High School. (Proposed Am. Compl. ¶ 27; Ex. 5 to Pl. Opp. to Mot. to Dismiss [Docket Item 7].) The printouts indicate the "number of individuals who committed an offense of violence, vandalism, weapons or substance abuse reported on the system, " as well as the number of victims from these incidents and the type of disciplinary action taken. (Id.)
Plaintiff alleges this previous incident should have placed Defendants on notice that Tasia Lockhart "was at a heightened risk to be sexually victimized." (Compl. ¶ 16.) She alleges that at the time of the second attack, Defendants should have known that "allowing unsupervised young students at its school was unsafe" and failed to implement effective supervision or security measures that were available. (Compl. ¶ 18.)
Plaintiff alleges she suffered "irreparable emotional distress and trauma" as a result of the 2011 attack. (Compl. ¶ 27.) Plaintiffs Robbie Lockhart and James Lockhart are Tasia's grandparents and legal guardians; they claim they suffered "extreme mental anguish and emotional distress and economic loss" from witnessing the emotional impact the attack has had on their granddaughter. (Compl. ¶ 32.)
B. Procedural History
Plaintiffs' Complaint was removed to this Court on June 10, 2014. The Complaint asserted claims under 42 U.S.C. § 1983 for violations of the First and Fourteenth Amendment, as well as claims under Title IX; the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101; Section 504 of the Rehabilitation Act, 29 U.S.C. § 794; and the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400. It also alleged violations of the New Jersey Law Against Discrimination ("NJLAD") and the New Jersey Child Sex Abuse Act, N.J.S.A. 2A:61B-1, and claims of negligence and negligent hiring and supervision. Plaintiffs Robbie Lockhart and James Lockart ...