United States District Court, D. New Jersey
TASIA LOCKHART, ROBBIE LOCKHART, and JAMES LOCKHART Plaintiffs,
WILLINGBORO HIGH SCHOOL, WILLINGBORO BOARD OF EDUCATION, NYTHON CARTER, COUNTY OF BURLINGTON, MS. CAR, CHRIS and/or JOHN DOE 1 through 50 and XYZ CORPORATION 1 through 30. Defendants.
H. Zamost, Esq. PELLETTIERI RABSTEIN & ALTMAN Attorney
for Plaintiffs Tasia Lockhart, Robbie Lockhart, and James
Jeffrey L. Shanaberger, Esq. HILL WALLACK, LLP Attorney for
Defendants Willingboro Board of Education, Nython Carter, and
HONORABLE JEROME B. SIMANDLE, DISTRICT JUDGE.
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.
before the Court is the motion of Defendants Willingboro
Board of Education, Nython Carter, and Ms. Kaur for summary
judgment on Plaintiffs' remaining claims, which consist
of Plaintiffs' common law negligence claims (Counts One
and Four), including the per quod damages claims of
Plaintiffs Robbie and James Lockhart (Count Three), and a
claim of under Title IX, 42 U.S.C. § 1983 (Count Two).
Moreover, the parties have agreed to dismiss all claims
against Defendant Nython Carter.
reasons set forth below, Defendants' motion for summary
judgment will be granted in part and denied in part. With
respect to Plaintiffs' state law claims under the New
Jersey Tort Claims Act (Counts One and Four) and
Plaintiffs' Robbie and James Lockhart's per
quod damages claim (Count Three), summary judgment will
be granted. However, with respect to Plaintiff Tasia
Lockhart's claim under Title IX against Defendant
Willingboro Board of Education (Count Two) summary judgment
Tasia Lockhart, 23 years old, attended Willingboro High
School for ninth through the twelfth grade (September 2008
through June 2012), and graduated in June 2012. (Def.
Statement of Material Facts at ¶ 1.) Plaintiffs Robbie
Lockhart and James Lockhart are Tasia's grandparents and
were her guardians since she was a minor. (Id. at
¶ 2.) For the ninth grade year, the 2008-2009 academic
year, Tasia was placed in a self-contained classroom in the
school's Workforce Readiness Program. (Id. at
Friday, March 20, 2009, while in an empty and unsupervised
classroom, Tasia's friend, Shawn Midgette (Midgette) (age
17), suggested that Tasia perform oral sex on him, and she
complied with this request. (Pl. Br. at 4.) A teacher,
Jessica Kochis (Kochis), learned of the incident on March 25,
2009, and she reported it to the Assistant Principal, Nython
Carter, who in turn reported it to the Principal, Teresea
Lucas, who then reported it to Patrolman Walter Harvey of the
Willingboro Police Department. (Def. Br., Ex. E and F.)
Patrolman Harvey prepared a report which stated, inter alia,
that “[b]ased upon what Tasia reports, this incident
appears to be consensual and force or threats does not appear
to be involved.” (Def. Br., Ex. E.) The report also
indicated that Patrolman Harvey had contacted Assistant
Prosecutor Doug Bligh of the Burlington County
Prosecutor's Office with regard to the incident between
the two students and a possible attempt to cover it up by
staff members of the high school. (Id.)
March 31, 2009, in response to an email from Assistant
Superintendent JoAnn Manning requesting an update on the
investigation, Principal Lucas sent an email to Manning,
stating that “all appropriate agencies, DYFS, the
Prosecutor, Mr. Perry, Mr. Sullivan and WHS-SRO were notified
of the incident as required.” (Def. Br., Ex. G.) The
email further stated that “Mr. Carter met with the
guardian of Tasia Lockhart” and that both students were
suspended in accordance to the Board's discipline policy.
(Id.) The last paragraph of the email reads as
Mr. Carter and I both met with each of the staff members that
are assigned to classroom 302, along with their WEA
Representative. It was apparent that certain members of the
staff failed to report the incident in a timely fashion. I
spoke with Mr. Sullivan regarding the outcome of each
meeting. He is going to ask Carol Marcellus to meet with Mr.
Carter and myself regarding the reassignment of staff for
that program and any recommendations for disciplinary
(Id.) Assistant Superintendent Manning, then
directed Norman Perry (Perry), Director of Safety, to conduct
an investigation “to determine if there was an
attempted cover up.” (Def. Br., Ex. F.) 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.
(Id.) Kochis disregarded Lightsey's suggestion
and told the administration anyway. Lightsey denied that this
happened. (Id. at 2-3.) Ultimately, Perry's
investigation concluded that “[b]ased on the
interviews, there [was] no way to prove that there was an
attempt to cover up the incident.” (Id.)
notice of claim pursuant to the New Jersey Tort Claims Act
was served upon the Board and Carter on April 17, 2009,
providing Defendants notice that Plaintiffs were alleging
that the March 20, 2009 incident was an act of sexual assault
against Tasia Lockhart. (Pl. Br., Ex. 1.) In connection with
that law suit, at the request of her attorney, Tasia appeared
for psychological evaluations with Dr. Victor J. Nitti, who
issued a report dated January 26, 2011. (Pl. Br., Ex. 2.)
This report was never provided to Nython Carter, Ms. Kaur, an
administrator, or anyone employed by the Willingboro Board of
the end of Tasia's 9th grade year, the Individualized
Education Program (IEP) team determined that, for Tasia's
10thgrade year, she would be taken out of the
Workforce Readiness Program and placed in a learning
disability resource classroom. (Mole Dep. 37:7-25.) During
Tasia's tenth grade year, the 2009-2010 academic year,
Tasia was not involved in any sexual incidents at the school.
(Tasia Dep. 77:8-11.) Towards the end of Tasia's
10th grade year, the IEP team determined that
Tasia would remain in the learning disability resource
classroom for her 11th grade year, the 2010-2011
academic year. (Def. Br., Ex. J.)
three months prior to the April 12, 2011 incident, Chris
Gaines (Gaines) brushed up against and/or rubbed Tasia's
buttocks in school, which became more frequent a few weeks
after it began. (Tasia Dep. 116:2-23, 117:8-118:1.) In fact,
in one particular incident, a teacher, “Mr.
Armoro”, observed this behavior and instructed Gaines
to stop. (Id. at 118:16-119:11.) Thereafter, Gaines
did not touch Tasia's buttocks in front of that teacher.
(Id.) On another occasion, another teacher, referred
to as “Coach, ” required that Gaines sit by him
during class and spoke with Gaines about his inappropriate
behavior. (Id. at 119:12-120:11.) Thereafter, Gaines
no longer touched Tasia in front of that teacher.
(Id.) Prior to April 12, 2011, Tasia never
complained to any teacher, assistant principal or principal
about Gaines “smacking her buttocks” or touching
her in any manner. (Id. at 123:7-11.)
April 12, 2011, Gaines “smacked Tasia's
buttocks” in the presence of Ms. Kaur, a substitute
teacher that was covering Tasia's class on that date,
while Ms. Kaur was speaking to another student. Ms. Kaur did
not say anything to Tasia or Gaines about this. (Id.
at 120:12-122:19.) During her lunch period, Tasia exited the
cafeteria and walked unaccompanied to an unoccupied and
unlocked classroom in order to retrieve money from her purse.
(Id. at 106:23-108:4.) She did not pass any school
personnel during this time. (Id. at 114:10-13.)
Moments later, Gaines entered the classroom. (Id. at
114:4.) Gaines obtained something from his desk, approached
Tasia at her desk, and they discussed the cafeteria food.
(Id. at 114:14-115:15.) Then, Gaines stood behind
Tasia and began to rub her buttocks while she demanded that
he stop. (Id. at 124:4-25, 125:23-25.) Despite her
objection, Gaines began kissing Tasia's neck and grabbing
her around her waist while she elbowed him and tried to push
him away. (Id. at 125:5-18.) Gaines, then, went
behind Tasia and tried to pull her pants down while she
repeatedly objected and tried to turn around. (Id.
at 130:9-22, 132:12-133:2.) Nevertheless, Gaines then
proceeded to penetrate Tasia's vagina. (Id. at
134:11-14, 135:3-4.) After about four to five minutes, Ms.
Kaur returned to the classroom and turned on the lights at
which point Gaines stopped his actions, and the two students
pulled up their respective pants. (Id. at 136:3-17,
136:21-23, 137:14-18.) Gaines was in the classroom with Ms.
Kaur for only a matter of seconds before Gaines exited.
(Id. at 138:2.) Tasia approached Ms. Kaur and asked
that she not get Gaines in trouble. (Id. at
the incident, Ms. Kaur made a report to either a security
guard or to the main office. (Kaur Dep. at 19:8-20:4.) At
some point thereafter, Tasia and Robbie Lockhart attended a
meeting with an assistant principal where they discussed the
April 12, 2011 incident involving Chris Gaines. (Tasia Dep.
at 147:25-149:13; Robbie Dep. at 52:7-53:15.) Tasia believes
that Chris Gaines was disciplined and expelled from the
school because she never saw him in school after the April
12, 2011 incident. (Tasia Dep. 153:15-23.) On the same day of
the incident, pursuant to a telephone conference with Robbie,
in order to provide increased supervision, Tasia's IEP
was revised to remove her from the learning disability
classroom and to place her into a self-contained behavior
disabilities setting with a behavioral intervention plan ...