Hornor v. Upper Freehold Reg'l Bd. of Educ.

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RUSSELL FORDE HORNOR, Plaintiff-Respondent, v. UPPER FREEHOLD REGIONAL BOARD OF EDUCATION, d/b/a UPPER FREEHOLD REGIONAL SCHOOL DISTRICT, and ALLENTOWN HIGH SCHOOL, Defendants-Appellants, and NEW JERSEY FUTURE FARMERS OF AMERICA, Defendant-Respondent, and ALLENTOWN FUTURE FARMERS OF AMERICA and CHARLES HUTLER, III, Defendants.

No. A-0366-22

Superior Court of New Jersey, Appellate Division

October 8, 2024

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

Argued March 1, 2023

On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Monmouth County, Docket No L-3887-21.

Cherylee O. Melcher argued the cause for appellants (Hill Wallack, LLP, attorneys; Cherylee O. Melcher, on the briefs).

Gabriel C. Magee argued the cause for respondent Russell Forde Hornor (Levy Baldante Finney &Rubenstein, PC, attorneys; Gabriel C. Magee and Mark R. Cohen, on the brief).

Zachary J. Styczynski argued the cause for respondent New Jersey Future Farmers of America (Davison, Eastman, Munoz, Paone, PA, attorneys; Zachary J. Styczynski, on the brief).

Before Judges Accurso, Vernoia and Natali.

OPINION

ACCURSO, P.J.A.D.

The Upper Freehold Regional Board of Education appeals on our leave from the trial court's denial of its motion to dismiss those counts of plaintiff Russell Forde Hornor's complaint asserting claims for breach of fiduciary duty and vicarious liability arising out of his alleged sexual abuse at age fifteen by his former teacher Charles Hutler. We reverse. New Jersey does not recognize a fiduciary duty in teachers, school administrators and boards of education to their students, and the 2019 amendments to the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3, do not make the Board vicariously liable under N.J.S.A. 59:2-2(a) for the sexual assault Hornor concedes was outside the scope of Hutler's employment.

In November 2021, Hornor, then fifty-eight-years-old, filed a sevencount complaint against the Board, New Jersey Future Farmers of America, Allentown Future Farmers of America, Hutler's estate and both individual and institutional fictitious defendants alleging Hutler, Hornor's freshman science teacher in 1978-79, sexually abused him.

Specifically, Hornor claims Hutler, who was also the chapter adviser and team coach for the Allentown Chapter of New Jersey Future Farmers of America, in which Hornor was enrolled by virtue of his participation in his school's agricultural science program, assisted him with daily transportation to his after-school job at a local nursery, and further gained his trust and friendship by taking him to Future Farmers of America basketball games and events. Hutler would also take Hornor, who describes himself as having had "a troubled and dysfunctional home life," bowling and to the movies with two of Hornor's friends. Hornor claims that after those outings, Hutler, who died in 2011, would buy the boys alcohol and drink with them.

After a Future Farmers of America plant and landscaping competition at Rutgers in April 1979, in which Hornor had placed fourth, Hutler took Hornor and his friends out to celebrate, driving them to a liquor store and purchasing wine for the group. After taking the other boys home, Hutler drove Hornor to Hutler's apartment on a ruse, where he sexually assaulted him. Hutler instructed Hornor not to tell anyone about the assault as no one would believe him. Hornor believes Hutler sexually abused him in other ways or on other occasions, and abused other boys as well, but is convinced he has emotionally suppressed additional details or episodes of abuse.

Hornor's complaint, as to the Board, contained counts alleging negligence, negligent supervision, negligent hiring and retention, gross negligence, intentional infliction of emotional distress, breach of fiduciary duty, a sexually hostile environment under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -50, and his entitlement to punitive damages. The Board promptly moved to dismiss, with prejudice, the counts for breach of fiduciary duty, punitive damages and any claims asserting vicarious liability for Hutler's sexual abuse of plaintiff pursuant to Rule 4:6-2(e) for failure to state a claim upon which relief can be granted.^[1]

Hornor opposed the motion, and after extensive briefing and oral argument, the court denied it and endorsed the parties' agreement to permit Hornor to file an amended complaint removing the count for punitive damages. The trial court acknowledged Hornor's claim that Hutler and the Board owed him a fiduciary duty is not one recognized in New Jersey. It, nevertheless, found such a duty by extending the Supreme Court's holding in F.G. v. MacDonell, 150 N.J. 550, 556 (1997), where the Court recognized a fiduciary duty in a clergyman to a parishioner to whom the clergyman is providing pastoral counseling, to Hutler's "successful campaign to earn" Hornor's "trust and confidence," which "extended beyond the [school] bell" and ultimately resulted in his sexual abuse.^[2] As to Hornor's claim for vicarious liability, the court held that after the 2019 amendments to the Tort Claims Act, "a public entity, such as the Board, may be vicariously liable for the sexual abuse inflicted by its employee's willful, wanton, or grossly negligent act occurring within the scope of his or her employment." See N.J.S.A. 59:2-1.3(a)(1); E.C. by D.C. v. Inglima-Donaldson, 470 N.J.Super. 41, 56 (App. Div. 2021).

Hornor acknowledges Hutler's abuse of him was outside the scope of Hutler's employment. But the trial court relied on Hardwicke v. American Boychoir School, 188 N.J. 69, 101-02 (2006) - in which the Supreme Court held a private boarding school could be held liable as a passive abuser under the Child Sexual Abuse Act, N.J.S.A. 2A:61B-1(a)(1), allowing Hardwicke to also pursue his related common law claims based on willful, wanton or negligent conduct falling within the Act's definition of sexual abuse committed by a school administrator acting outside the scope of his employment under section 219(2)(d) of the Restatement (Second) of Agency (Am. Law Inst. 1958), when the school had delegated specific authority to the abuser and the delegation aided him in committing the sexual abuse - to find the Board could be held vicariously liable for Hutler's sexual abuse of Hornor.

The Board moved for reconsideration, which the court granted, in part. The court struck all claims for punitive damages but for those arising from the Board's alleged violation of the Law Against Discrimination and denied reconsideration with respect to its rulings on fiduciary duty and vicarious liability. We granted the Board's motion for leave to appeal the court's rulings on those two claims.

We review a trial court's decision on a motion to dismiss a complaint for failure to state a claim under Rule 4:6-2(e) using the same standard as applied in that court. Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989). Our review is de novo, and we owe no deference to legal conclusions we deem mistaken. Dimitrakopoulos v. Borrus, Goldin, Foley, Vignuolo, Hyman & Stahl, P.C., 237 N.J. 91, 108 (2019). The same is true of our review of the trial court's interpretation of statutes. Aronberg v. Tolbert, 207 N.J. 587, 597 (2011). "Because the appeal arises on defendants' motion for judgment on the pleadings[,] . . . we assume the truth of the allegations of the complaint, giving plaintiff the benefit of all reasonable factual inferences that those allegations support." F.G., 150 N.J. at 556.

Plaintiff's claim of breach of fiduciary duty

The Board claims the trial court ignored controlling Supreme Court precedent defining the duty owed by public school teachers, administrators and boards of education to their students and overread and misapplied F.G. in creating a new fiduciary duty in the Board to students in the district. Specifically, the Board argues the pastoral counseling relationship between the priest and his parishioner in F.G. bears no resemblance to Hutler taking Hornor to basketball games and helping him get to an afterschool job, even if Hornor regarded Hutler as a mentor. It also notes Hornor failed to plead any similar allegations of a confidential relationship between Hornor and the Board.

The Board contends Hornor's complaint includes only conclusory allegations that the Board breached its "fiduciary duties to avoid harming children and to protect them from harm at the hands of [its] employees" in the same manner he claims it breached its duties in the negligence counts, all of which resulted in the same harm, making the fiduciary duty claim simply duplicative of recognized tort duties already pled. Finally, the Board argues "[a] fiduciary relationship between [a] K-12 school and its personnel and their students is contrary to both the duty of undivided loyalty owed by fiduciaries to their beneficiaries and the prohibition on conflicts of interest that govern fiduciaries' conduct."

Hornor counters that he is not contending "all student-teacher relationships result in a fiduciary duty" only those in which a teacher, like Hutler, uses a "grooming process" to create a confidential relationship of dominance over a student like Hornor, which confidential relationship he claims "establishes a fiduciary duty." Hornor claims the Court "already recognized [in F.G.] that the creation of the type of 'special relationship' alleged here creates a fiduciary duty, albeit in a somewhat different, but analogous, context." Hornor contends Hutler's "'grooming activities' created a narrowly tailored fiduciary...