Russell Forde Hornor v. Upper Freehold Regional Board of Education

SYLLABUS

This syllabus is not part of the Court’s opinion. It has been prepared by the Office

of the Clerk for the convenience of the reader. It has been neither reviewed nor

approved by the Court and may not summarize all portions of the opinion.

Russell Forde Hornor v. Upper Freehold Regional Board of Education

(A-36-24) (089973)

Ormond Simpkins, Jr. v. South Orange-Maplewood School District

(A-37/38/39-24) (089974)

Argued September 26, 2025 -- Decided March 11, 2026

JUSTICE PATTERSON, writing for the Court.

In these appeals from four matters in which the plaintiffs allege that New

Jersey public school teachers sexually abused them when they were high school

students, the Court considers whether N.J.S.A. 59:2-1.3(a)(1), a provision of the

Child Victims Act enacted by the Legislature in 2019, authorizes the imposition of

vicarious liability on a school district for a teacher’s sexual abuse of a student

outside the scope of the teacher’s employment. One appeal raises a second issue:

whether the Appellate Division properly reversed the trial court’s denial of

defendants’ motion to dismiss plaintiff’s claim for breach of fiduciary duty.

Plaintiff Russell Forde Hornor filed an action asserting in part that the Upper

Freehold Regional Board of Education was vicariously liable for science teacher

Charles Hutler’s alleged sexual abuse of plaintiff at Hutler’s home in 1979, when

plaintiff was fifteen years old, and that the Board breached a fiduciary duty to him.

The trial court denied the Board’s motion to dismiss those claims. The Appellate

Division reversed on appeal. The Court granted Hornor’s motion for leave to

appeal. 260 N.J. 82 (2025).

Plaintiffs’ claims in the three cases brought against the South Orange-

Maplewood School District -- consolidated as Simpkins -- arise from sexual abuse

allegedly committed by English and special education teacher Nicole Dufault. The

three plaintiffs allege that Dufault sexually assaulted them during and after school

hours, including on school grounds. The trial court granted the District’s motions to

dismiss in all three cases. The Appellate Division consolidated the cases and

affirmed. As in Hornor, the appellate court in Simpkins held that N.J.S.A. 59:2-

1.3(a)(1) does not allow vicarious liability for the alleged conduct. The Court

granted the motions for leave to appeal filed by each of the three plaintiffs. 260 N.J.

87 (2025); 260 N.J. 89 (2025); 260 N.J. 93 (2025). The Court consolidated the three

appeals in Simpkins with the appeal in Hornor for purposes of its opinion.

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HELD: N.J.S.A. 59:2-1.3(a)(1) does not categorically bar the imposition of

vicarious liability on a public entity for acts of sexual abuse outside the scope of a

teacher’s employment, and plaintiffs’ vicarious liability claims should not have been

dismissed at the pleading stage. The Court adopts a standard for the determination

of vicarious liability claims asserted against public schools pursuant to the statute.

As to the second issue, a public school does not bear a fiduciary duty to a student.

1. In Hardwicke v. American Boychoir School, the Court considered, in part,

vicarious liability claims asserted against a private boarding school by a former

student who alleged repeated sexual assault by the school’s music director. 188 N.J.

69, 76, 79 (2006). The Court rejected the school’s argument that it could not be held

vicariously liable for the intentional acts of its employees. Id. at 100. The Court did

not, however, prescribe a specific standard for claims premised on a nonprofit

boarding school’s vicarious liability for common-law claims arising from sexual

abuse outside the scope of employment. See id. at 100-02. Instead, the Court

reiterated the vicarious liability standard it had imposed in the employment settings

of Lehmann v. Toys ‘R’ Us, 132 N.J. 587, 619-20 (1993) and Abbamont v.

Piscataway Township Board of Education, 138 N.J. 405, 429-32 (1994). (pp. 22-28)

2. When it enacted the Tort Claims Act (TCA) in 1972, the Legislature determined

that “[e]xcept as otherwise provided by [the TCA], a public entity is not liable for an

injury, whether such injury arises out of an act or omission of the public entity or a

public employee or any other person.” N.J.S.A. 59:2-1(a). In N.J.S.A. 59:2-2(a),

the Legislature prescribed an exception to its broad grant of immunity for vicarious

liability for “an act or omission of a public employee within the scope of his

employment.” But the Legislature expressly immunized public entities from

vicarious liability “for the acts or omissions of a public employee constituting a

crime, actual fraud, actual malice, or willful misconduct.” N.J.S.A. 59:2-10.

Accordingly, prior to the enactment of the Child Victims Act in 2019, the TCA

barred virtually all claims for public entity vicarious liability arising from public

employees’ sexual assaults of children. The Child Victims Act fundamentally

altered the law governing civil claims against public entities and certain private

entities arising from sexual abuse. In the provision at the center of these appeals,

now codified at N.J.S.A. 59:2-1.3(a), the Legislature abrogated TCA immunities that

would otherwise bar claims against certain public entities in “an action at law for

damages as a result of a sexual assault . . . or sexual abuse . . . being committed

against a person which was caused by a willful, wanton, or grossly negligent act of

the public entity or public employee.” (pp. 29-35)

3. In the wake of the Child Victims Act, neither the TCA’s broad general rule of

immunity in N.J.S.A. 59:2-1(a), nor any TCA provisions that confer immunity in

specific settings -- including, as relevant here, N.J.S.A. 59:2-10 -- apply to claims

premised on sexual assault and other sexual misconduct as described in N.J.S.A.

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59:2-1.3(a). That conclusion is underscored by N.J.S.A. 59:2-1.3(a)’s legislative

history. By virtue of N.J.S.A. 59:2-1.3(a)(1), the Legislature has eliminated the

immunities to which the public entities in these appeals would otherwise be entitled,

and vicarious liability claims against a public entity for a public employee’s sexual

misconduct under N.J.S.A. 59:2-1.3(a)(1) are not categorically barred solely on the

basis that the sexual misconduct alleged is beyond the scope of employment. The

TCA does not immunize the defendant school districts in these appeals. (pp. 36-39)

4. The Court considers the standard a plaintiff must satisfy to establish the vicarious

liability of a public school under N.J.S.A. 59:2-1.3(a) for a claim based on a

teacher’s sexual assault of, or sexual misconduct against, a student. The Legislature

cited Hardwicke in statements about the Child Victims Act, suggesting that it

envisioned a fact-specific analysis of school officials’ acts and omissions as they

relate to a school employee’s sexual abuse of a student. Moreover, the Lehmann and

Abbamont decisions on which Hardwicke relied stress the importance of

incentivizing employers to implement and enforce meaningful policies against

sexual harassment in the workplace. Accordingly, any standard imposed for claims

asserted under N.J.S.A. 59:2-1.3(a)(1) should incentivize school officials to

vigilantly guard against the sexual abuse of students through the implementation and

enforcement of appropriate policies. The presence or absence of such policies

should be a factor in the analysis. But the Lehmann standard cited in Hardwicke

was designed for sexual harassment claims brought by employees in the workplace,

not claims based on the sexual abuse of students in a public school, and so not all

elements of that standard are relevant in the school context. (pp. 39-46)

5. The Court holds that in order for a plaintiff to prevail in a vicarious liability

claim in an action at law for damages under N.J.S.A. 59:2-1.3(a)(1) against a public

school arising from a school employee’s sexual abuse of or sexual misconduct

against a student caused by a willful, wanton, or grossly negligent act of the school

employee, the factfinder must determine that:

(1) The school gave the employee who allegedly committed sexual abuse or

other sexual misconduct described in N.J.S.A. 59:2-1.3(a)(1) the authority to

control the student’s educational environment;

(2) the school employee’s exercise of that authority resulted in the sexual

abuse or sexual misconduct; and

(3) it reasonably appeared that the school employee’s sexual abuse of or

sexual misconduct against the student was tacitly approved by the school.

Application of the standard involves a case-specific inquiry, taking into account the

totality of the circumstances. The Court provides guidance for applying the standard

it adopts, including a non-exhaustive list of relevant considerations. (pp. 46-48)

3

6. The Court responds to the dissent. (pp. 48-54)

7. A fiduciary relationship arises when one person is under a duty to act for or give

advice for the benefit of another on matters within the scope of their relationship. A

fiduciary’s obligations to the dependent party include a duty of loyalty and a duty to

exercise reasonable skill and care. The Court agrees with the Appellate Division’s

determination that a public school district “owes obligations to multiple stakeholders

involved in educating the district’s children, often with conflicting interests,” and

that the imposition of a fiduciary duty to a specific student would be incompatible

with “the duty’s defining characteristic of undivided loyalty to a particular person or

interest.” The Court therefore affirms the Appellate Division’s judgment that

Hornor’s breach of fiduciary duty claim should be dismissed. (pp. 55-57)

8. In light of Hornor’s allegations that Hutler sexually assaulted him at Hutler’s

residence outside of school hours, the Court remands the Hornor matter to the trial

court for determination of the Board’s motion to dismiss Hornor’s vicarious liability

claim pursuant to the standard set forth in the Court’s opinion. All three plaintiffs in

Simpkins have adequately pled vicarious liability claims under that standard, and the

Court remands the three matters to the trial court for further proceedings in

accordance with its opinion. The judgment of the Appellate Division in Hornor is

affirmed in part and reversed in part. The judgment of the Appellate Division in the

three matters in Simpkins is reversed. (pp. 57-58)

AFFIRMED IN PART and REVERSED IN PART.

JUSTICE FASCIALE, dissenting, explains that neither N.J.S.A. 59:2-1.3(a)

nor its legislative history support extending vicarious liability to acts committed

outside the scope of employment or the adoption of a “tacit approval” standard as a

guardrail on such liability. Justice Fasciale would instead hold that public school

districts may only be vicariously liable for their employees’ tortious sexual acts

committed within the scope of their employment, and that such acts fall within the

scope of employment in a specific context if: (1) the employee possessed an

official, entity-granted in loco parentis relationship to the victim, by which they

were given authority and control over the victim; and (2) the employee engaged in

the tortious acts during the exercise of that authority in performing entity-assigned

duties, or otherwise engaging in a course of conduct subject to the entity’s control.

Justice Fasciale finds that the vicarious liability claims in Hornor do not meet that

standard and should be dismissed but that those in Simpkins do and should be

allowed to proceed, though for substantially different reasons than the majority.

CHIEF JUSTICE RABNER and JUSTICES PIERRE-LOUIS, WAINER

APTER, NORIEGA, and HOFFMAN join in JUSTICE PATTERSON’s opinion.

JUSTICE FASCIALE filed a dissent.

4

SUPREME COURT OF NEW JERSEY

A-36 September Term 2024

A-37/38/39 September Term 2024

089973 and 089974

Russell Forde Hornor,

Plaintiff-Appellant,

v.

Upper Freehold Regional

Board of Education, d/b/a

Upper Freehold Regional

School District, and

Allentown High School,

Defendant-Respondents,

and

New Jersey Future Farmers

of America,

Defendant,

and

Allentown Future Farmers

of America and Charles

Hutler, III,

Defendants.

Ormond Simpkins, Jr.,

Plaintiff-Appellant,

1

v.

South Orange-Maplewood

School District, Columbia

High School, and Maplewood

Middle School,

Defendants-Respondents,

and

New Jersey Department

of Children and Families,

Division of Child Protection

and Permanency, Family

Connections, Inc., and Nicole

Dufault,

Defendants.

Frankie Jerome,

Plaintiff-Appellant,

v.

South Orange-Maplewood

School District and

Columbia High School,

Defendants-Respondents,

and

Nicole Dufault,

Defendant.

2

Brandon Hayes,

Plaintiff-Appellant,

v.

South Orange-Maplewood

School District, Columbia

High School, and Maplewood

Middle School,

Defendants-Respondents,

and

New Jersey Department

of Children and Families,

Division of Child Protection

and Permanency, Family

Connections, Inc., and Nicole

Dufault,

Defendants.

On appeal from the Superior Court,

Appellate Division.

Argued Decided

September 26, 2025 March 11, 2026

Gabriel C. Magee argued the cause for appellant in A-36-

24 (Baldante & Rubenstein, attorneys; Gabriel C. Magee,

John W. Baldante, Mark R. Cohen, and Jamie L.

Hutchinson, on the briefs).

Cherylee O. Melcher argued the cause for respondents in

A-36-24 (Hill Wallack, attorneys; Cherylee O. Melcher,

on the briefs).

3

John W. Baldante argued the cause for appellants in A-

37/38/39-24 (Baldante & Rubenstein, attorneys; John W.

Baldante, Gabriel C. Magee, Mark R. Cohen, and Jamie

L. Hutchinson, on the briefs).

Roshan D. Shah argued the cause for respondents in A-

37/38/39-24 (Shah Law Group, attorneys; Roshan D.

Shah, of counsel and on the briefs, and Christopher

Khatami, Todd S. McGarvey, Valentina Recchia, and

Nina Swinarsky, on the briefs).

Viviana Hanley, Deputy Attorney General, argued the

cause for amicus curiae Attorney General of New Jersey

in A-36-24 and A-37/38/39-24 (Matthew J. Platkin,

Attorney General, attorney; Jeremy M. Feigenbaum,

Solicitor General, and Stephen Ehrlich, Deputy Solicitor

General, of counsel and on the brief, and Viviana Hanley

and Marie Cepeda Mekosh, Deputy Attorneys General,

on the brief).

Amber R. Long argued the cause for amicus curiae New

Jersey Coalition Against Sexual Assault in A-36-24 and

A-37/38/39-24 (Levy Konigsberg, attorneys; Amber R.

Long, on the brief).

Robert F. Renaud argued the cause for amici curiae New

Jersey State League of Municipalities and New Jersey

Institute of Local Government Attorneys in A-36-24 and

A-37/38/39-24 (Renaud Colicchio, attorneys; Robert F.

Renaud, on the briefs).

Robert E. Levy submitted a brief on behalf of amici

curiae Northfield Board of Education, Northfield School

District, Northfield Community School, Lincoln Park

Board of Education, Lincoln Park School District, and

Lincoln Park Elementary School in A-36-24 and A-

37/38/39-24 (Scarinci Hollenbeck, attorneys; Robert E.

Levy, of counsel and on the briefs, and Seraphema

Menna, on the briefs).

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Jerald J. Howarth submitted a brief on behalf of amicus

curiae New Jersey Defense Association in A-36-24

(Howarth & Associates, attorneys; Jerald J. Howarth, on

the brief).

Hillary Nappi submitted a brief on behalf of amicus

curiae CHILD USA in A-36-24 and A-37/38/39-24 (Hach

Rose Schirripa & Cheverie, attorneys; Hillary Nappi, on

the brief).

JUSTICE PATTERSON delivered the opinion of the Court.

These appeals arise from four matters in which the plaintiffs allege that

New Jersey public school teachers sexually abused them when they were high

school students. The issue common to all the matters is whether N.J.S.A.

59:2-1.3(a)(1), a provision of the Child Victims Act enacted by the Legislature

in 2019, authorizes the imposition of vicarious liability on a school district for

a teacher’s sexual abuse of a student outside the scope of the teacher’s

employment.

When it enacted the Child Victims Act, the Legislature expanded the

rights of child victims of sexual abuse under three existing statutes: the Tort

Claims Act (TCA), N.J.S.A. 59:1-1 to :12-3; the Charitable Immunity Act

(CIA), N.J.S.A. 2A:53-7 to -11; and the Child Sexual Abuse Act (CSAA),

N.J.S.A. 2A:61B-1. In N.J.S.A. 59:2-1.3(a)(1), the Legislature abrogated TCA

immunities that would otherwise bar claims against certain public entities in

5

“an action at law for damages as a result of a sexual assault . . . or sexual abuse

. . . being committed against a person which was caused by a willful, wanton,

or grossly negligent act of the public entity or public employee.” N.J.S.A.

59:2-1.3(a)(1)’s legislative history demonstrates that the Legislature intended

that public entity vicarious liability for employees’ sexual abuse of children

under that statute be subject to the same standard as nonprofit entity vicarious

liability for employee child sexual abuse under the CIA, as amended by the

Child Victims Act. The Legislature identified this Court’s decision in

Hardwicke v. American Boychoir School, 188 N.J. 69, 100-02 (2006), as the

governing authority for vicarious liability under the CIA.

In the two appeals before us -- Hornor v. Upper Freehold Regional

Board of Education and Simpkins v. South Orange-Maplewood School District

(in which three matters were consolidated) -- the Appellate Division held that

N.J.S.A. 59:2-1.3(a)(1) does not allow vicarious liability in such settings and

ruled that the plaintiffs’ vicarious liability claims should be dismissed.

We disagree with the Appellate Division’s interpretation of N.J.S.A.

59:2-1.3(a)(1). We conclude that the provision does not categorically bar the

imposition of vicarious liability on a public entity for acts of sexual abuse

outside the scope of a teacher’s employment, and we therefore reverse the

Appellate Division’s determination that plaintiffs’ vicarious liability claims

6

should be dismissed at the pleading stage. Based upon N.J.S.A. 59:2-

1.3(a)(1)’s plain language and legislative history, other legislative action

addressing child sexual abuse, this Court’s decision in Hardwicke, and the

authority on which the Court relied in that decision, we adopt a standard for

the determination of vicarious liability claims asserted against public schools

pursuant to the statute.

In Hornor, plaintiff raises a second issue: whether the Appellate

Division properly reversed the trial court’s denial of defendants’ motion to

dismiss plaintiff’s claim for breach of fiduciary duty. We concur with the

Appellate Division that a public school does not bear a fiduciary duty to a

student and thus affirm the appellate court’s judgment on that issue.

We affirm in part and reverse in part the Appellate Division’s judgment

in Hornor, reverse the Appellate Division’s judgment in Simpkins, and remand

the four cases to the trial courts for further proceedings in accordance with the

vicarious liability standard set forth in this opinion.

I.

We summarize plaintiffs’ factual assertions based on the allegations of

their complaints.

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A.

1.

Plaintiff’s claims in Hornor arise from sexual abuse allegedly committed

by Charles Hutler, who died before the action was filed. During the period

relevant to the case, Hutler was employed by the Upper Freehold Regional

School District as a science teacher at Allentown High School. He also served

as an advisor and team coach for the high school’s chapter of New Jersey

Future Farmers of America (FFA).

In April 1979, plaintiff Russell Forde Hornor was a fifteen-year-old

freshman at Allentown High School. He was a student in Hutler’s biology

class and a member of the FFA chapter Hutler advised.

Hornor alleges that after he told Hutler that he had difficulty finding

transportation to his job at a landscaping company, Hutler assisted him by

driving him to his job. Hornor further contends that Hutler gained his “trust

and friendship” by driving him to FFA events. He asserts that Hutler took him

and two friends to movies and to a bowling alley and that Hutler supplied him

with alcohol during these outings.

Hornor alleges that in April 1979, Hutler encouraged him to participate

in an FFA landscaping contest at Rutgers University, and that he won fourth

place in the contest. He states that after the contest, Hutler took him and two

8

friends to a movie and then dropped the friends off at their homes. Hornor

asserts that Hutler then took him to his apartment, sexually assaulted him, and

instructed him not to say anything about the incident. According to Hornor, he

believes that he was abused “in additional ways or on additional occasions,”

but has “emotionally suppressed partially and/or in whole these additional

details and episodes of abuse.”

2.

On November 19, 2021, Hornor filed an action against the Upper

Freehold Regional Board of Education, Allentown High School, FFA, and

Hutler’s estate. 1 Hornor alleged that Hutler was a “serial molester and sexual

abuser of children,” and that school and FFA officials knew or should have

known that Hutler had abused or was abusing other students. He claimed that

the Upper Freehold Regional Board of Education was vicariously liable for

Hutler’s sexual abuse and for the actions or inactions of its supervisory

employees.

Hornor also asserted direct claims for negligence based on the Upper

Freehold Regional Board of Education’s alleged failure to properly screen

1

In the Child Victims Act, the Legislature expanded the statute of limitations

in civil actions for sexual abuse, prescribing a two-year window for the

assertion of certain claims that would otherwise be time-barred. N.J.S.A.

2A:14-2b(a). Plaintiffs in these appeals filed their complaints during that two-

year period.

9

teachers, its alleged failure to properly investigate complaints of sexual abuse

and other inappropriate and abusive behavior, and other categories of alleged

acts and omissions, as well as negligent hiring, retention, and supervision;

gross negligence; intentional infliction of emotional distress; breach of

fiduciary duty; and violations of the Law Against Discrimination (LAD),

N.J.S.A. 10:5-1. Hornor sought compensatory damages, punitive damages,

and other relief.

The Upper Freehold Board of Education moved to dismiss in part the

complaint pursuant to Rule 4:6-2(e), asserting, among other arguments, that

Hornor’s vicarious liability claims were barred by the TCA and that his breach

of fiduciary duty claims failed because a public school district bears no

fiduciary duty to a student.

The trial court denied the motion to dismiss. The court viewed N.J.S.A.

59:2-2(a) to authorize Hornor’s vicarious liability claims against the Upper

Freehold Regional Board of Education for claims of “sexual abuse inflicted

by” its employee’s “willful, wanton, or grossly negligent act” occurring within

the scope of employment. The trial court construed N.J.S.A. 59:2-1.3(a)(1) to

authorize certain vicarious liability claims against public entities based on

public employees’ conduct outside the scope of employment, including claims

based on a public school’s “limited in loco parentis authority” to shield

10

students in its care from sexual abuse. Applying Rule 4:6-2(e)’s motion to

dismiss standard, the trial court found that Hornor had pled, at a minimum, “a

prima facie demonstration of an in loco parentis relationship between abused

and abuser” warranting denial of the motion to dismiss his vicarious liability

claims.

The trial court also found that Hornor had presented prima facie

evidence supporting his claim for breach of fiduciary duty. It viewed the

fiduciary duty between a priest and parishioner that this Court recognized in

F.G. v. MacDonell, 150 N.J. 550, 563-65 (1997), to extend to the relationship

between a teacher and a student if the teacher “takes affirmative steps beyond

the classroom, as Hutler did here, to earn a child’s trust and provide counseling

beyond mere reading, writing, and arithmetic,” and the teacher engages in

“grooming” the child in order to sexually abuse him. The trial court therefore

denied the motion to dismiss with respect to Hornor’s breach of fiduciary duty

claim.

3.

The Appellate Division granted the Upper Freehold Board of

Education’s motion for leave to appeal. It reversed the trial court’s

determination with respect to plaintiff’s vicarious liability claims. The

appellate court concluded that because Hutler’s alleged sexual abuse was

11

outside the scope of his employment, Hornor could not establish a basis for

liability under N.J.S.A. 59:2-2. The court reasoned that Hornor’s claims were

therefore barred by N.J.S.A. 59:2-1(a), which provides that “[e]xcept as

otherwise provided by this act, a public entity is not liable for an injury.”

The Appellate Division then analyzed the legislative history of the Child

Victims Act, concluding that although that Act stripped public entities of the

TCA immunities that might otherwise have shielded them in sexual abuse

cases, no TCA liability provision authorizes vicarious liability for sexual

assault or sexual abuse committed outside the scope of employment.

Accordingly, the appellate court found that Hornor lacked a statutory predicate

for his vicarious liability claims.

The Appellate Division also reversed the trial court’s decision regarding

Hornor’s claim for breach of fiduciary duty. It rejected Hornor’s argument

that under this Court’s decision in F.G., Hutler’s alleged “grooming” of

Hornor gave rise to a “special relationship” warranting the imposition of a

fiduciary duty.

4.

We granted Hornor’s motion for leave to appeal. 260 N.J. 82 (2025).

We also granted amicus curiae status to the Attorney General; the New Jersey

Coalition Against Sexual Assault (NJCASA); the New Jersey State League of

12

Municipalities (NJSLM) and New Jersey Institute of Local Government

Attorneys (NJILGA) (jointly represented); the Northfield Board of Education,

Northfield School District, Northfield Community School (Northfield),

Lincoln Park Board of Education, Lincoln Park School District, and Lincoln

Park Elementary School (Lincoln Park) (jointly represented); the New Jersey

Defense Association (NJDA); and CHILD USA.

B.

1.

Plaintiffs’ claims in the three cases brought against the South Orange-

Maplewood School District arise from sexual abuse allegedly committed by

Nicole Dufault. During the relevant period, Dufault taught English and special

education at Columbia High School and participated in a summer educational

program operated at the school by Family Connections, Inc. and the New

Jersey Division of Child Protection and Permanency (DCPP).

Plaintiff Ormond Simpkins, Jr. alleges that in 2013, when he was a

fourteen-year-old student at that summer educational program and then a

freshman at Columbia High School, Dufault sexually abused him on over two

hundred occasions. Simpkins asserts that some of the incidents in which he

was abused occurred when he was alone with Dufault in her classroom during

the school day after she sent his classmates to the library, and that on other

13

occasions she sexually abused him in her car in the school parking lot during

lunch periods and after school, or at a park near the high school.

Plaintiff Frankie Jerome alleges that Dufault sexually abused him eight

or nine times during the 2013-2014 school year, when he was a fourteen-year-

old freshman at Columbia High School. He claims that Dufault compelled him

to give her his cellphone number and texted him sexually explicit messages

and photographs. Jerome asserts that Dufault sexually abused him in her

classroom during the lunch period and in her car, which was on at least one

occasion parked on school property when the abuse occurred.

Plaintiff Brandon Hayes alleges that Dufault initiated sexually explicit

conversations and contact with him in the summer of 2011, when he was a

fourteen-year-old student at the summer educational program, and that Dufault

sexually abused him when she was his freshman English teacher at Columbia

High School. He also alleges that Dufault sexually assaulted him in June

2014, when he was a junior at Columbia High School, in her car parked in the

parking lot of an apartment complex near the school.

2.

Simpkins, Jerome, and Hayes filed separate complaints. Simpkins and

Hayes named as defendants the South Orange-Maplewood School District,

Columbia High School, Maplewood Middle School, Family Connections,

14

Dufault, and DCPP; Jerome named as defendants the South Orange-

Maplewood School District and Columbia High School.

Simpkins, Jerome, and Hayes asserted claims against the South Orange-

Maplewood School District and the two schools for negligence per se under

the CSAA; gross negligence; intentional infliction of emotional distress;

violations of the LAD; and negligent hiring, retention, and supervision. They

asserted claims for breach of fiduciary duty against the schools and a claim for

assault and battery against Dufault. They sought compensatory damages,

punitive damages, and other relief.

Pursuant to Rule 4:6-2(e), the South Orange-Maplewood School District

moved to dismiss plaintiffs’ CSAA claims; plaintiffs’ vicarious liability

claims; “the aspects of all other common law claims seeking to hold [the

School District] vicariously liable for Nicole Dufault’s alleged misconduct”;

and plaintiffs’ “stand-alone claim for punitive damages.”

The trial court granted the South Orange-Maplewood School District’s

motion to dismiss. It concluded that as the operator of a public school in

which students were present only during the day, the School District did not

constitute a “passive abuser” under N.J.S.A. 2A:61B-1(a)(1) and was therefore

not liable under the CSAA. The trial court also held that Dufault’s alleged

sexual abuse of plaintiffs went beyond the scope of her employment because

15

Dufault was neither authorized by the South Orange-Maplewood School

District nor acting to serve her employer when she sexually abused the

students.

The trial court accordingly dismissed the claims premised on the CSAA

and the common law claims in which plaintiffs sought to impose vicarious

liability on the South Orange-Maplewood School District. The court also

dismissed plaintiffs’ stand-alone claim for punitive damages; by stipulation of

the parties, the complaints were deemed amended so that the counts that the

court did not dismiss were deemed to include a demand for punitive damages.

3.

The Appellate Division granted motions for leave to appeal filed by

Simpkins, Jerome, and Hayes, and consolidated the three cases for purposes of

appeal. In an opinion issued on the same day as its opinion in Hornor, the

appellate court affirmed the trial court’s judgment.

As it did in Hornor, the Appellate Division found in Simpkins that the

alleged sexual abuser’s conduct was outside the scope of her employment, and

that vicarious liability could not be imposed absent a provision in the TCA

giving rise to predicate liability. The court reasoned that in N.J.S.A. 59:2-2(a),

the Legislature waived sovereign immunity only for acts committed within the

scope of employment and that “the 2019 Amendments to the [TCA],

16

specifically N.J.S.A. 59:2-1.3, did not change that.” The Appellate Division

accordingly held that the trial court had properly dismissed plaintiffs’

vicarious liability claims.

4.

We granted the motions for leave to appeal filed by Simpkins, Jerome,

and Hayes, in which they challenged the Appellate Division’s decision

affirming the trial court’s dismissal of their vicarious liability claims. 260 N.J.

87 (2025); 260 N.J. 89 (2025); 260 N.J. 93 (2025). We also granted the

applications of the Attorney General; NJCASA; NJSLM and NJILGA (jointly

represented); Northfield and Lincoln Park (jointly represented); and CHILD

USA to participate as amici curiae.

II.

Hornor argues that when the Legislature enacted the Child Victims Act,

it clearly intended to impose vicarious liability on public entities for sexual

assault, regardless of whether a TCA liability provision expressly imposes

liability on the public entity. Relying on the Legislature’s direction that public

entities should be liable for sexual abuse in the same manner as nonprofit and

educational entities, he contends that the TCA does not bar or limit his

vicarious liability claims. Hornor asserts that he pled facts sufficient to

support his claim for breach of fiduciary duty.

17

Simpkins, Jerome, and Hayes also contend that when the Legislature

enacted the Child Victims Act, it intended to impose on public entities

vicarious liability for sexual assault. They argue that the Appellate Division

mistakenly held that a public entity may only be held liable if a TCA provision

expressly provides for liability. Simpkins, Jerome, and Hayes view the Child

Victims Act to be remedial legislation exempt from the limitations of the TCA.

The Upper Freehold Regional Board of Education argues that the TCA

bars Hornor’s vicarious liability claims notwithstanding the Legislature’s

amendments to that statute in the Child Victims Act. It states that the TCA

restricts vicarious liability claims against public entities to settings in which

employees have acted within the scope of their employment, as the Appellate

Division held. The Upper Freehold Regional Board of Education asserts that

boards of education and public schools owe no fiduciary duty to their students.

The South Orange-Maplewood Board of Education concurs with the

Appellate Division that although the Child Victims Act disabled TCA

immunities in sexual abuse claims, N.J.S.A. 59:2-2 limits public entity

vicarious liability to claims arising from public employee acts and omissions

within the scope of employment.

The Attorney General asserts that because N.J.S.A. 59:2-1.3(a)(1)

plainly disables all TCA immunities in public school sexual abuse cases, a

18

plaintiff need not identify an express legislative grant of liability in the TCA in

order to assert a claim for vicarious liability. The Attorney General proposes a

standard under which a school should incur common law liability if a school

official sexually abuses a minor and either (1) the school has been negligent in

the hiring, supervision, or retention of the tortfeasor, or (2) the tortfeasor was a

supervisor exercising authority delegated to the supervisor by the school and,

under the totality of the circumstances, it reasonably appears that the

supervisor’s misconduct was tacitly approved by the school. In the Attorney

General’s view, a school district should not be vicariously liable for sexual

abuse committed by a teacher who lacks supervisory authority over other

school employees.

NJCASA states that the Appellate Division incorrectly construed the

Child Victims Act, and that the Legislature’s paramount goals of protecting

children and identifying abusers are served by the imposition of vicarious

liability in cases such as these.

NJSLM and NJILGA assert that under the TCA, public entities can be

held vicariously liable for acts of their employees only if the conduct is within

the scope of employment and that the sexual abuse at issue in these appeals is

outside the teachers’ scope of employment.

19

Northfield and Lincoln Park contend that the Appellate Division’s

rulings in these matters are consistent with the intent and language of the TCA,

and that those rulings leave intact plaintiffs’ claims for negligent hiring,

supervision, and retention and other related claims based on the employers’

conduct.

NJDA argues that vicarious liability cannot be imposed on a public

entity for acts outside the employee’s scope of employment, and that Hutler’s

alleged sexual abuse of Hornor was clearly beyond the scope of his job duties.

III.

A.

We review de novo a trial court’s determination of a motion to dismiss a

complaint for failure to state a claim pursuant to Rule 4:6-2(e). W.S. v.

Hildreth, 252 N.J. 506, 518 (2023). “[L]imiting [our] review to the pleadings

themselves,” we examine “the legal sufficiency of the facts alleged on the face

of the complaint.” Dimitrakopoulos v. Borrus, Goldin, Foley, Vignuolo,

Hyman & Stahl, P.C., 237 N.J. 91, 107 (2019) (first quoting Roa v. Roa, 200

N.J. 555, 562 (2010); and then quoting Printing Mart-Morristown v. Sharp

Elecs. Corp., 116 N.J. 739, 746 (1989)). In that inquiry, a plaintiff is entitled

to “every reasonable inference of fact.” Printing Mart, 116 N.J. at 746.

20

We also review de novo the trial court’s and Appellate Division’s

interpretation of statutes. Hildreth, 252 N.J. at 518. We conduct that analysis

in accordance with familiar principles of statutory construction. Our objective

is to “effectuate the Legislature’s intent.” Ibid. “[T]he best indicator of that

intent is the statutory language.” DiProspero v. Penn, 183 N.J. 477, 492

(2005). “We ascribe to the statutory words their ordinary meaning and

significance and read them in context with related provisions so as to give

sense to the legislation as a whole.” Ibid. (citations omitted).

“If, based on a plain and ordinary reading of the statute, the statutory

terms are clear and unambiguous, then the interpretative process ends, and we

‘apply the law as written.’” State v. J.V., 242 N.J. 432, 443 (2020) (quoting

Murray v. Plainfield Rescue Squad, 210 N.J. 581, 592 (2012)). “If, however,

the statutory text is ambiguous, we may resort to ‘extrinsic interpretative aids,

including legislative history,’ to determine the statute’s meaning.” Ibid.

(quoting State v. S.B., 230 N.J. 62, 68 (2017)).

“[E]ach part or section” of a statute is “construed in connection with

every other part or section to provide a harmonious whole.’” Hildreth, 252

N.J. at 518 (quoting In re Civil Commitment of W.W., 245 N.J. 428, 449

(2021)). “Additionally, when amendments are passed jointly or as part of a

legislative scheme, we must construe them together to make sense of the

21

legislative intent.” Id. at 518-19. We “presume that the Legislature is familiar

with existing case law” when interpreting statutory language. State v.

McCray, 243 N.J. 196, 217 (2020) (quoting Great Atl. & Pac. Tea Co. v.

Borough of Point Pleasant, 137 N.J. 136, 148 (1994)).

B.

1.

We first consider the Appellate Division’s holding that notwithstanding

the Legislature’s enactment of N.J.S.A. 59:2-1.3(a)(1), the TCA bars

plaintiffs’ vicarious liability claims in these appeals. In that inquiry, our task

is to determine the Legislature’s intent when it amended the TCA through the

Child Victims Act.

We begin by reviewing this Court’s 2006 decision in Hardwicke, cited in

N.J.S.A. 59:2-1.3(a)’s legislative history, and two employment law opinions

on which Hardwicke relied in its discussion of vicarious liability: Lehmann v.

Toys ‘R’ Us, 132 N.J. 587, 619-20 (1993) and Abbamont v. Piscataway

Township Board of Education, 138 N.J. 405, 429-32 (1994).

This Court’s Hardwicke decision arose from the claims of John

Hardwicke, a former student at a private boarding school who alleged that the

school’s music director sexually assaulted him “on an almost daily basis and

sometimes several times a day” over a six-month period between October 1970

22

and April 1971, and during a two-week period the following summer. 188 N.J.

at 76. The Court viewed the record to demonstrate that the music director

controlled several core school functions, including student admissions, the

hiring and firing of staff, and the daily life of boarding students who lived at

the school seven days a week during the school year. Id. at 75-76.

Hardwicke and his wife asserted claims against the boarding school and

the music director for violations of the CSAA, common law claims that

included a claim for vicarious liability, and constitutional challenges to the

version of the CIA then in effect. Id. at 79.

The trial court dismissed the Hardwickes’ claims based on the CSAA.

Id. at 80-81. That statute then prescribed a cause of action against “those

persons who inflict the abuse (active abusers), and those persons who stand in

loco parentis within the household who know of the abuse and who fail to

protect the child (passive abusers),” who could “claim an affirmative defense

based on a ‘reasonable fear’ of the active abuser as described by the statute.’”

N.J.S.A. 2A:61B-1; see also Hardwicke, 188 N.J. at 86. 2

2

In the Child Victims Act, the Legislature eliminated the phrase “within the

household” from the CSAA. L. 2019, c. 120, § 4.

23

In Hardwicke, the trial court found that the boarding school was not a

“person” within the meaning of the CSAA, and it later dismissed the plaintiffs’

remaining claims based on the CIA’s immunities. See 188 N.J. at 80.

The Appellate Division reversed the trial court’s dismissal of plaintiffs’

CSAA claims, concluding that the CIA barred only common law claims based

on negligence, not claims of intentional misconduct. Hardwicke v. Am.

Boychoir Sch., 368 N.J. Super. 72, 86-102 (App. Div. 2004).

Affirming as modified the Appellate Division’s judgment, this Court

held in Hardwicke that the defendant boarding school constituted a “person”

standing “in loco parentis within the household” with respect to the students

and therefore could be a “passive abuser” under the CSAA. 188 N.J. at 87-94.

It also ruled that the CIA “immunizes simple negligence only, and not ‘other

forms of aggravated wrongful conduct, such as malice or fraud, or intentional,

reckless and wanton, or even grossly negligent behavior,’” and therefore did

not bar the claims against the school based on the music director’s sexual

abuse of the plaintiff. Id. at 97 (quoting Schultz v. Roman Cath. Archdiocese

of Newark, 95 N.J. 530, 543 (1984) (Handler, J., dissenting)).

At the conclusion of the Hardwicke opinion, this Court briefly addressed

the issue of vicarious liability. Id. at 100-02. It rejected the school’s argument

that “plaintiff’s common-law claims against it must fail because the [s]chool

24

cannot be held vicariously liable for the intentional acts of its employees.” Id.

at 100. The Court did not, however, prescribe a specific standard for claims

premised on a nonprofit boarding school’s vicarious liability for common-law

claims arising from sexual abuse outside the scope of employment. See id. at

100-02. Instead, the Court reiterated the vicarious liability standard it had

imposed in the employment settings of Lehmann and Abbamont. Ibid.

In Lehmann, the Court considered an employer’s vicarious liability in a

workplace sexual harassment case under the LAD. It applied principles from

section 219 of the Second Restatement of Agency, which then provided:

(1) A master is subject to liability for the torts of his

servants committed while acting in the scope of their

employment.

(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 speak on

behalf of the principal and there was reliance on

apparent authority, or he was aided in

accomplishing the tort by the existence of the

agency relation.

25

[Restatement (Second) of Agency § 219 (Am. L. Inst.

1958) (section 219).] 3

3

Because the Legislature referred to Hardwicke -- which relied on

Lehmann and Abbamont, which, in turn, relied on the Second Restatement of

Agency -- we discuss the principles announced in that Restatement. We note,

however, that the year before Hardwicke was decided, the American Law

Institute adopted the Third Restatement of Agency. Section 7.03(2) of the

Third Restatement provides that

[a] principal is subject to vicarious liability to a third

party harmed by an agent’s conduct when

(a) as stated in § 7.07, the agent is an employee

who commits a tort while acting within the scope

of employment; or

(b) as stated in § 7.08, the agent commits a tort

when acting with apparent authority in dealing

with a third party on or purportedly on behalf of

the principal.

Under § 7.08 of the Third Restatement,

[a] principal is subject to vicarious liability for a tort

committed by an agent in dealing or communicating

with a third party on or purportedly on behalf of the

principal when actions taken by the agent with apparent

authority constitute the tort or enable the agent to

conceal its commission.

Given the Legislature’s references to Hardwicke, in which the Court

relied on the agency principles of section 219 of the Second Restatement rather

than those of the Third Restatement, we do not here reach the question whether

to adopt agency principles stated in the Third Restatement.

26

Addressing the “aided-by-agency” concept set forth in section 219(2)(d),

this Court held in Lehmann that in cases “in which the supervisor is acting

outside the scope of [the supervisor’s] employment,” the employer will be

liable for the supervisor’s behavior if the exceptions set forth in section 219(2)

are met. 132 N.J. at 619-20. It noted that “if an employer delegates the

authority to control the work environment to a supervisor and that supervisor

abuses that delegated authority, then vicarious liability under § 219(2)(d) will

follow.” Ibid. 4

The Court prescribed factors in Lehmann to guide “[t]he determination

of whether a supervisor who creates a hostile work environment was aided in

accomplishing that tort by the power delegated to him or her to control the

day-to-day working environment,” explaining that the factfinder must conduct

a fact-specific analysis to decide (1) whether the employer delegated the

authority to the supervisor to control the situation of which the plaintiff

4

In Aguas v. State, decided after Hardwicke, the Court held that “[i]n a

hostile work environment sexual harassment case under the LAD in which the

plaintiff alleges employer vicarious liability under Restatement § 219(2)(d)”

and “no tangible employment action has been taken against the plaintiff,” the

defendant employer may assert, as an affirmative defense, “that the employer

exercised reasonable care to prevent and to correct promptly sexually

harassing behavior; and . . . that the plaintiff employee unreasonably failed to

take advantage of preventive or corrective opportunities provided by the

employer or to otherwise avoid harm.” 220 N.J. 494, 524 (2015) (citing

Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998); Burlington Indus.,

Inc. v. Ellerth, 524 U.S. 742, 746 (1998)).

27

complains; (2) whether the supervisor exercised that authority; (3) whether the

exercise of authority resulted in a violation of the LAD; and (4) whether the

authority delegated by the employer to the supervisor aided the supervisor in

injuring the plaintiff. Ibid.

In Hardwicke, the Court noted that in Abbamont, it had applied the

Lehmann standard to cases brought under the Conscientious Employee

Protection Act (CEPA), N.J.S.A. 34:19-1 to -8. 188 N.J. at 102. The Court

found the standard applicable because, like the LAD, CEPA effectuates

important public policies to protect workplace victims “‘from the improper or

unlawful exercise of authority by employers.’” Id. at 102 (quoting Abbamont,

138 N.J. at 418). In Hardwicke, in turn, the Court held that “[t]he

considerations that informed our analyses in Lehmann and Abbamont apply

equally to claims predicated on facts indicating child abuse.” Id. at 102.

In Hardwicke, the Court also identified the CSAA as relevant to the

question of vicarious liability, observing that the CSAA “imposes

responsibility on those in the best position to know of the abuse and stop it.”

Ibid. It concluded that “application of section 219 of the Restatement to

plaintiff’s common-law claims advances those goals.” Ibid.

28

2.

The case law discussed above provides important context to the

Legislature’s 2019 amendment of the TCA in the Child Victims Act.

When it enacted the TCA in 1972, the Legislature followed the “‘guiding

principle’ . . . that ‘immunity from tort liability is the general rule and liability

is the exception.’” Jones v. Morey’s Pier, Inc., 230 N.J. 142, 154 (2017)

(quoting D.D. v. Univ. of Med. & Dentistry of N.J., 213 N.J. 130, 134 (2013)).

The Legislature “declared [it] to be the public policy of this State that public

entities shall only be liable for their negligence within the limitations of [the

TCA].” N.J.S.A. 59:1-2. To that end, the Legislature determined that

“[e]xcept as otherwise provided by [the TCA], a public entity is not liable for

an injury, whether such injury arises out of an act or omission of the public

entity or a public employee or any other person.” N.J.S.A. 59:2-1(a).

In N.J.S.A. 59:2-2(a), the Legislature prescribed an exception to its

broad grant of immunity for vicarious liability, providing that “[a] public

entity is liable for injury proximately caused by an act or omission of a public

employee within the scope of his employment in the same manner and to the

same extent as a private individual under like circumstances.” It enacted no

provision, however, authorizing the imposition of vicarious liability on public

entities for acts and omissions of public employees outside the scope of

29

employment. See generally N.J.S.A. 59:2-1 to -11. That omission was

significant; as we have noted, “[o]nly rarely will intentional torts fall within

the scope of employment.” Davis v. Devereux Found., 209 N.J. 269, 303

(2012). Indeed, in the TCA, the Legislature expressly immunized public

entities from vicarious liability “for the acts or omissions of a public employee

constituting a crime, actual fraud, actual malice, or willful misconduct.”

N.J.S.A. 59:2-10.

Accordingly, prior to the enactment of the Child Victims Act in 2019,

the TCA barred virtually all claims for public entity vicarious liability arising

from public employees’ sexual assaults of children. See N.J.S.A. 59:2-

1, -2(a), -10.

The Child Victims Act fundamentally altered the law governing civil

claims against public entities and certain private entities arising from sexual

abuse. Among other statutory revisions, the Legislature amended the CIA as

applied to actions for the sexual abuse of children. See L. 2019, c. 120, § 5. It

revised N.J.S.A. 2A:53A-7(c) to provide in part that

[n]othing in this section shall be deemed to grant

immunity to . . . any nonprofit corporation, society or

association organized exclusively for religious,

charitable, educational or hospital purposes, or its

trustee, director, officer, employee, agent, servant or

volunteer, causing damage by a willful, wanton or

grossly negligent act of commission or omission,

including sexual assault, any other crime of a sexual

30

nature, a prohibited sexual act as defined in [N.J.S.A.

2A:30B-2], or sexual abuse as defined in [N.J.S.A.

2A:61B-1].

The Senate Judiciary Committee explained that another provision of the

Child Victims Act, L. 2019, c. 120, § 2, which addressed the statute of

limitations for claims governed by the CIA,

would establish retroactive application of the standard

of liability set forth in [N.J.S.A. 2A:53A-7], as

amended by the bill in section 5. This could create, for

child victim lawsuits filed under the new, extended

statute of limitations, additional retroactive liability for

non-profit organizations organized exclusively for

religious, charitable, educational, or hospital purposes

concerning willful, wanton or grossly negligent acts

resulting in abuse that occurred prior to August 8, 2006.

That date is when the New Jersey Supreme Court

decided the case of Hardwicke v. American Boychoir

School, 188 N.J. 69 (2006), and found for the first time

that the Charitable Immunity Act does not bar lawsuits

against organizations based on such aggravated forms

of wrongful conduct; it only bars suits based on

“simple” or “standard” negligent conduct (with some

statutorily carved out exceptions). . . . The bill’s

amendment to the Charitable Immunity Act, to be

applied retroactively, recognizes the current

interpretation and scope of organizational liability

based on Hardwicke.

[S. Judiciary Comm. Statement to S. Comm. Sub. for S.

477 2 (Mar. 7, 2019).]

Accordingly, N.J.S.A. 2A:53A-7, as amended by the Child Victims Act,

“codifie[d] what was already understood via case law since August 8, 2006 --

that organizational charitable immunity only applies to protect organizations

31

from lawsuits claiming injury based on merely negligent acts, not more

aggravated forms of wrongful conduct, such as willful, wanton or grossly

negligent acts.” Id. at 6.

In the Child Victims Act provision at the center of these appeals, now

codified at N.J.S.A. 59:2-1.3(a), the Legislature amended the TCA as it

applied to certain civil claims arising from sexual abuse. The first version of

that provision, passed by the Legislature and submitted to Governor Philip D.

Murphy, provided only that

[n]otwithstanding any other provision of law to the

contrary, including but not limited to the [TCA], a

public entity is liable in an action at law for an injury

resulting from the commission of sexual assault, any

other crime of a sexual nature, a prohibited sexual act

as defined in [N.J.S.A. 2A:30B-2], or sexual abuse as

defined in [N.J.S.A. 2A:61B-1].

[L. 2019, c. 120, § 7.]

On May 13, 2019, Governor Murphy signed L. 2019, c. 120 into law.

The Governor noted, however, that he signed the bill “based on a commitment

from the bill’s sponsors to introduce and swiftly pass a bill that will correct an

error in the section of the bill relating to the liability of public entities.”

Governor’s Statement on Signing S. Comm. Sub. for S. 477 (May 13, 2019)

(Governor’s Signing Statement). Governor Murphy explained that the section

of the bill regarding public entity liability “inadvertently fails to establish a

32

standard of proof for cases involving claims filed against public entities” and

that, “[i]f unaddressed, the lack of clarity would create uncertainty and likely

lead to additional litigation.” Ibid. Governor Murphy stated that he had

“received assurances that the Legislature will correct this omission by

clarifying that public entities should be held to the same standard of liability

that is applied to religious and nonprofit organizations. Applying a different

standard would be unjustified.” Ibid.

The Legislature then enacted L. 2019, c. 239, signed into law on August

9, 2019 and codified at N.J.S.A. 59:2-1.3(a). It provides that

[n]otwithstanding any provision of the [TCA] to the

contrary:

(1) immunity from civil liability granted by that

act to a public entity or public employee shall not

apply to an action at law for damages as a result

of a sexual assault, any other crime of a sexual

nature, a prohibited sexual act as defined in

[N.J.S.A. 2A:30B-2], or sexual abuse as defined

in [N.J.S.A. 2A:61B-1] being committed against

a person, which was caused by a willful, wanton

or grossly negligent act of the public entity or

public employee; and

(2) immunity from civil liability granted by that

act to a public entity shall not apply to an action

at law for damages as a result of a sexual assault,

any other crime of a sexual nature, a prohibited

sexual act as defined in [N.J.S.A. 2A:30B-2], or

sexual abuse as defined in [N.J.S.A. 2A:61B-1]

being committed against a minor under the age of

33

18, which was caused by the negligent hiring,

supervision or retention of any public employee.

[N.J.S.A. 59:2-1.3(a).]

The Sponsor’s Statement to the bill enacted as L. 2019, c. 239 explained

that the “bill establishes new liability standards in sexual abuse lawsuits filed

against public entities and public employees” that “are identical to the liability

standards applied to non-profit organizations, and their officers, employees

and other agents, based on exceptions to the immunity granted to such

organizations and agents under the [CIA].” Sponsor’s Statement to A. 5392 2-

3 (May 13, 2019). In its Statement to the bill, the Assembly Budget

Committee characterized the two categories of actions identified in N.J.S.A.

59:2-1.3(a)(1) and (2) to be, for public entity and public employee cases, “the

same types of lawsuits for which the general statutory immunity of the [CIA]

does not apply, thereby permitting such lawsuits to proceed against non-profit

organizations organized exclusively for religious, charitable, educational, or

hospital purposes, and their trustees, directors, officers, employees, agents,

servants and volunteers.” Assemb. Budget Comm. Statement to A. 5352 (June

17, 2019).

The Child Victims Act -- including the revised version of N.J.S.A. 59:2-

1.3(a) enacted as L. 2019, c. 239 -- became effective on December 19, 2019.

34

More than five years later, the Legislature amended N.J.S.A. 59:2-1.3 to

address only a narrow question of damages in sexual abuse claims under that

provision, adding a subsection stating that “[t]he recovery limits set forth

under subparagraph (a) of paragraph (2) of subsection d. of N.J.S.A. 59:9-2

shall not apply to an action at law filed pursuant to this section.” See L. 2025,

c. 29 (codified at N.J.S.A. 59:2-1.3(c)). In the legislative history of that

amendment, however, the Senate Judiciary Committee reaffirmed the intent of

the TCA amendments enacted in 2019. Citing L. 2019, c. 120 and L. 2019, c.

239, the Committee stated that “[t]he list of acts for which pain and suffering

damages may be awarded against a public entity or public employee” was

based on

the list of acts of abuse for which the Legislature

previously eliminated immunity from civil liability for

governmental actors under the [TCA], applied new,

extended statute of limitations periods for victims to

file civil actions against such public actors, and made

them generally liable in any such action in the same

manner as private parties.

[S. Judiciary Comm. Statement to S. 3564 (Oct. 24,

2024).]

3.

Against that backdrop, we review the Appellate Division’s determination

that notwithstanding N.J.S.A. 59:2-1.3(a)(1)’s abrogation of TCA immunities,

plaintiffs’ claims in these cases are barred by the TCA because they do not fall

35

within N.J.S.A. 59:2-2(a) or another TCA provision expressly providing for

public entity or public employee liability. For the reasons explained below,

we do not concur with the Appellate Division’s construction of N.J.S.A. 59:2-

1.3(a)(1) and the other TCA provisions on which the court relied.

In the many matters in which the TCA confers broad immunities on

public entities, the statute’s liability provisions define exceptions to the

general rule of immunity. See N.J.S.A. 59:2-1(a) (providing immunity to

public entities “[e]xcept as otherwise provided by this act”); Tice v. Cramer,

133 N.J. 347, 355 (1993) (“Public entities are not liable for an injury, except as

such liability may be provided for in the Act.”); accord Polzo v. County of

Essex, 196 N.J. 569, 578 (2008); Rochinsky v. Dep’t of Transp., 110 N.J. 399,

407-08 (1988). N.J.S.A. 59:2-2(a), which authorizes the imposition of liability

on a public entity “for injury proximately caused by an act or omission of a

public employee within the scope of his employment in the same manner and

to the same extent as a private individual under like circumstances,”

constitutes one such exception to the general rule of public entity immunity

under the TCA.

In the wake of the Child Victims Act, however, that broad general rule

of immunity no longer applies to claims premised on sexual assault and other

sexual misconduct as described in N.J.S.A. 59:2-1.3(a)(1). The provision’s

36

plain language makes clear that for cases governed by that statute, the

Legislature intended to eliminate all immunities that the TCA otherwise

confers on public entities and public employees in civil actions. N.J.S.A. 59:2-

1.3(a)’s opening clause -- “[n]othwithstanding any provision of the [TCA] to

the contrary” -- reflects that any TCA provision that confers immunity in other

settings simply does not apply to sexual assault and sexual misconduct claims

within the scope of that statute. See Cisneros v. Alpine Ridge Grp., 508 U.S.

10, 18 (1993) (“[I]n construing statutes, the use of such a ‘notwithstanding’

clause clearly signals the drafter’s intention that the provisions of the

‘notwithstanding’ section override conflicting provisions of any other

section.”); accord Kennedy v. Weichert Co., 257 N.J. 290, 310 (2024). The

statutory text that follows the “notwithstanding” clause in N.J.S.A. 59:2-

1.3(a)(1) similarly conveys the provision’s intentionally broad reach. 5

The Legislature’s plain language -- its abrogation of TCA immunities in

sexual assault cases within N.J.S.A. 59:2-1.3(a)(1) -- constitutes the “‘clear

and unequivocal statement of the Legislature’” necessary for an effective

5

N.J.S.A. 59:2-1.3(a) makes clear that it abrogates only TCA immunities, not

immunities conferred by another source of law. See A. Budget Comm.

Statement to A. 5392 (June 17, 2019) (noting that “any available immunity for

public entities and public employees from some source of law” other than the

TCA may be raised by “public entities and public employees as a defense” to a

sexual abuse lawsuit in any of the categories of actions covered by the statute).

37

waiver of sovereign immunity. Royster v. State Police, 227 N.J. 482, 494

(2017) (quoting Allen v. Fauver, 167 N.J. 69, 77 (2001)). The Legislature

plainly intended that in the discrete category of sexual assault and sexual

misconduct claims governed by that provision, no TCA immunity will apply.

See S. Jud. Comm. Statement to S. 3564.

Accordingly, since the Child Victims Act’s effective date, no TCA

immunities protect public entities and public employees in sexual assault and

sexual misconduct civil actions governed by N.J.S.A. 59:2-1.3(a)(1). That

includes two immunities directly relevant here: N.J.S.A. 59:2-1(a)’s general

immunity for public entities, and N.J.S.A. 59:2-10’s specific immunity for a

public entity sued for a public employee’s acts or omissions “constituting a

crime, actual fraud, actual malice, or willful misconduct.” Although liability

provisions such as N.J.S.A. 59:2-2(a) continue to define the discrete settings in

which claims may be brought against public entities or public employees in

TCA cases not governed by N.J.S.A. 59:2-1.3(a), they no longer prescribe

exceptions to those immunities for the claims at issue here. It is therefore

unnecessary for a vicarious liability claim brought pursuant to N.J.S.A. 59:2-

1.3(a)(1) to fit within a TCA liability provision such as N.J.S.A. 59:2-2(a).

That conclusion is underscored by N.J.S.A. 59:2-1.3(a)’s legislative

history, which makes clear that under the bill passed by the Legislature, the

38

TCA’s immunities are eliminated in actions governed by the new statute. S.

Jud. Comm. Statement 1-2 (Mar. 7, 2019); Governor’s Signing Statement;

Sponsor’s Statement to A. 5392 at 2-3 (L. 2019, c. 239). The Legislature,

moreover, clearly intended that public entities subject to N.J.S.A. 59:2-1.3 and

nonprofit organizations subject to the CIA face equivalent liability standards.

Ibid. If the Appellate Division were correct that public entities cannot be held

vicariously liable under N.J.S.A. 59:2-1.3(a)(1) unless a TCA provision

expressly authorizes that liability, the standards applied to nonprofit entities

and public entities could not be the same.

We therefore hold that, by virtue of N.J.S.A. 59:2-1.3(a)(1), the

Legislature has eliminated the immunities to which the public entities in these

appeals would otherwise be entitled, and vicarious liability claims against a

public entity for a public employee’s sexual misconduct under N.J.S.A. 59:2-

1.3(a)(1) are not categorically barred if the sexual misconduct alleged is

beyond the scope of employment. We do not view the TCA to immunize the

defendant school districts in these appeals.

4.

Accordingly, we must determine the standard a plaintiff must satisfy to

establish the vicarious liability of a public school under N.J.S.A. 59:2-1.3(a)

39

for a claim based on a teacher’s sexual assault of, or sexual misconduct

against, a student.

As the Legislature made clear, a plaintiff may assert a direct claim

against a school district under N.J.S.A. 59:2-1.3(a)(2) for “negligent hiring,

supervision, or retention of any public employee,” limited to cases in which

damages to a minor victim resulted from sexual assault and other sexual

misconduct as defined in that provision. That direct claim is subject to a

negligence standard as the statute prescribes. N.J.S.A. 59:2-1.3(a)(2).

With respect to a vicarious liability claim against a public entity under

N.J.S.A. 59:2-1.3(a)(1), we adopt a standard that includes some of the factors

recommended by the Attorney General in these appeals, with modifications as

explained below. We base that standard on N.J.S.A. 59:2-1.3(a)’s statutory

text and legislative history, the Legislature’s approach to “passive abuser”

liability under the CSAA, this Court’s decision in Hardwicke, and the

Lehmann and Abbamont decisions on which Hardwicke relied.

First, with respect to vicarious liability, the Legislature clearly did not

intend that a public entity sued pursuant to N.J.S.A. 59:2-1.3(a)(1) should be

subject to a standard akin to strict liability in a sexual assault claim, but chose

instead to impose meaningful parameters on such a claim. See Governor’s

Signing Statement; Sponsor’s Statement to A-5392 at 2-3.

40

The Legislature’s caution is not surprising, given that vicarious liability

claims under N.J.S.A. 59:2-1.3 constitute a rare exception to the general rule

that employers are vicariously liable only for their employees’ acts and

omissions within the scope of employment. See G.A.-H. v. K.G.G., 238 N.J.

401, 415 (2019) (“For liability to attach to an employer under the doctrine of

respondeat superior, the plaintiff must prove the existence of an employer-

employee relationship and that the employee’s tortious actions ‘occurred

within the scope of that employment.’” (quoting Carter v. Reynolds, 175 N.J.

402, 409 (2003))). That exception must be carefully defined, lest it swallow

the general rule.

Second, limiting the circumstances in which a public entity may be

subject to vicarious liability comports with the Legislature’s nuanced approach

when it enacted the CSAA, the statute that was the primary basis for the claims

in Hardwicke. See N.J.S.A. 2A:61B-1; Hardwicke, 188 N.J. at 84-99. The

Legislature expressly limits “passive abuser” liability under the CSAA to

persons standing in loco parentis who know of the sexual abuse of a child but

fail to protect the child. N.J.S.A. 2A:61B-1. It thus focuses the inquiry on

such persons’ knowledge of the abuse and failure to act to prevent it, not on

their status alone. Ibid.

41

Third, we find no evidence that the Legislature sought to predicate

vicarious liability solely on an alleged sexual abuser’s employment as a

teacher in a given school district. As the United States Supreme Court has

observed, vicarious liability for an employee’s intentional acts outside the

scope of employment under Restatement (Second) § 219(2)(d) “requires the

existence of something more than the employment relation itself.” Ellerth, 524

U.S. at 760. Any standard that would make a public school liable for sexual

abuse and sexual misconduct committed by their employees in cases subject to

N.J.S.A. 59:2-1.3(a) based solely on the employment relationship would

expand vicarious liability under that statute far beyond its intended bounds.

Fourth, the Legislature’s reliance on Hardwicke, in which this Court

invoked the Lehmann standard of vicarious liability under the LAD, suggests

that it instead envisioned a fact-specific analysis of school officials’ acts and

omissions as they relate to a school employee’s sexual abuse of a student. See

Hardwicke, 188 N.J. at 100-02; Lehmann, 132 N.J. at 620. In Hardwicke, the

Court stressed the boarding school’s alleged grant of unfettered authority to

the music director to oversee virtually all aspects of student life, the claims

that other school officials knew and approved of the sexual abuse of students,

and the school’s alleged concealment of the abuse from parents and

authorities. 188 N.J. at 75-79.

42

Moreover, the Lehmann and Abbamont decisions on which Hardwicke

relied stress the importance of incentivizing employers to implement and

enforce meaningful policies against sexual harassment in the workplace. See

Lehmann, 132 N.J. at 621 (“[T]he existence of effective preventative

mechanisms provides some evidence of due care on the part of the

employer.”); Abbamont, 138 N.J. at 418 (noting that in LAD and CEPA cases,

“employers are best situated to avoid or eliminate impermissible vindictive

employment practices, to implement corrective measures, and to adopt and

enforce employment policies that will serve to achieve the salutary purposes of

the respective legislative mandates”). Accordingly, any standard imposed for

claims asserted under N.J.S.A. 59:2-1.3(a)(1) should incentivize school

officials to vigilantly guard against the sexual abuse of students through the

implementation and enforcement of effective policies against sexual abuse,

training of employees, age-appropriate instruction of students, or other

measures that may be appropriate to a specific school setting. The presence or

absence of such policies should be a factor in the analysis.

In light of the Legislature’s reliance on Hardwicke, our analysis is

informed by the four-part Lehmann standard for LAD sexual harassment

claims that the Court cited in Hardwicke. See Hardwicke, 188 N.J. at 100-02

(citing Lehmann, 132 N.J. at 619-20). That standard, however, was designed

43

for sexual harassment claims brought by employees in the workplace, not

claims based on the sexual abuse of students in a public school. See ibid. We

do not consider certain elements of that standard to be appropriate to the public

school setting in which these appeals arose.

In a sexual harassment hostile work environment case, the question

whether the alleged harasser is a “supervisor” for purposes of the LAD is a

core consideration when a court applies the agency principles set forth in

section 219(2)(d) of the Second Restatement. Aguas v. State, 220 N.J. 494,

525 (2015); Lehmann, 132 N.J. at 620. In the LAD context, a supervisor is

defined “to include not only employees granted the authority to make tangible

employment decisions, but also those placed in charge of the complainant’s

daily work activities,” consistent with the “the two different settings

envisioned by [section 219(2)(d) of the Second Restatement].” Aguas, 220

N.J. at 528. In a public school, however, a teacher, coach, or other school

employee who lacks supervisory authority over other employees may

nonetheless exercise substantial control over the educational environment of

students in the classroom, school sports, or other school-related activities.

We therefore decline the Attorney General’s invitation to limit public

school vicarious liability claims under N.J.S.A. 59:2-1.3(a)(1) to settings in

which the sexual abuse or sexual misconduct is alleged to have been

44

committed by a “supervisor” as that term is used in Lehmann, which could

exclude most teachers and coaches notwithstanding their broad authority over

students. Instead, the authority that the school has delegated to a particular

teacher or other school employee to control students’ educational environment

should be assessed on a case-by-case basis.

In addition, Lehmann’s third requirement -- that the supervisor’s

exercise of authority resulted in a LAD violation -- is clearly irrelevant to a

claim premised on N.J.S.A. 59:2-1.3(a)(1). Instead, under the standard

governing claims under N.J.S.A. 59:2-1.3(a)(1), a court should consider

whether the teacher’s or coach’s exercise of the authority to control the

student’s educational environment resulted in the sexual abuse and sexual

misconduct giving rise to such claims.

We also view Lehmann’s fourth requirement -- that the authority

delegated by the employer to the supervisor aided the supervisor in injuring the

plaintiff -- to potentially authorize a vicarious liability claim against a school

premised on nothing more than the alleged sexual abuser’s employment status

as a teacher. Instead, we tether vicarious liability to a determination that,

under the totality of the circumstances, it reasonably appeared that the school

employee’s sexual abuse or other sexual misconduct involving the student was

tacitly approved by the school. That requirement focuses the inquiry on the

45

knowledge and culpability of school officials and other school employees in a

position to prevent or stop the abuse. See N.J.S.A. 2A:61B-1; Hardwicke, 188

N.J. at 100-02; Lehmann, 138 N.J. at 619-20; accord Abbamont, 138 N.J. at

417.

For those reasons, deciding only the questions raised in the cases before

us, we hold that in order for a plaintiff to prevail in a vicarious liability claim

in an action at law for damages under N.J.S.A. 59:2-1.3(a)(1) against a public

school arising from a school employee’s sexual abuse of or sexual misconduct

against a student caused by a willful, wanton, or grossly negligent act of the

school employee, the factfinder must determine that:

(1) The school gave the employee who allegedly

committed sexual abuse or other sexual misconduct

described in N.J.S.A. 59:2-1.3(a)(1) the authority to

control the student’s educational environment;

(2) the school employee’s exercise of that authority

resulted in the sexual abuse or sexual misconduct; and

(3) it reasonably appeared that the school employee’s

sexual abuse of or sexual misconduct against the

student was tacitly approved by the school.

Application of the standard involves a case-specific inquiry, taking into

account the totality of the circumstances. 6 Relevant considerations may

6

To the extent that there is any suggestion that this standard imposes strict

liability on public schools in N.J.S.A. 59:2-1.3(a) claims for sexual assault and

sexual misconduct, we emphasize that it does not. The test set forth in this

46

include (a) any policies, training, or other procedures implemented by the

school to prevent or address the sexual abuse of students; (b) whether those

policies or other procedures were enforced by the school; (c) the circumstances

under which the sexual abuse or other sexual misconduct commenced and

continued; (d) whether the abuse took place on school property, at school-

related events at off-campus locations, or in settings unconnected to the

school; (e) whether the sexual abuse or other sexual misconduct took place

during school hours; and (f) whether the abuse was reported to school officials

or other school employees, and if so, how and when those officials or

employees responded to such a report. The list of factors is not exclusive;

additional considerations may be pertinent to a particular case.

The factfinder’s determination whether it reasonably appeared that the

school employee’s sexual abuse of or sexual misconduct against a student was

tacitly approved by the school is informed by the factors applicable to a given

case. For example, if a teacher committed sexual abuse or misconduct under

N.J.S.A. 59:2-1.3(a)(1) against a student, and the conduct occurred in the

teacher’s classroom over a period of days or weeks and school officials in the

vicinity who reasonably should have been aware of the abuse did not

opinion is premised on a careful inquiry into the acts and omissions of a

defendant school in the factual setting of a given case. It is by no means a

strict liability standard.

47

intervene, a factfinder may reasonably find that the school tacitly approved the

abuse. Similarly, if a student reported such sexual abuse or misconduct by a

teacher and the school failed to investigate the allegation, a factfinder may

reasonably conclude that the school tacitly approved the abuse. These

examples are not exclusive; the third factor of the test we announce today may

be satisfied in other factual settings.

5.

Our dissenting colleague’s analysis derives from two contentions about

the Legislature’s intent when it enacted the Child Victims Act. For the reasons

that follow, we respectfully disagree with both contentions.

First, the dissent concludes that notwithstanding the Legislature’s

enactment of N.J.S.A. 59:2-1.3(a), claims under that statute are subject to

N.J.S.A. 59:2-2(a)’s limitation of public entity vicarious liability to “injury

proximately caused by an act or omission of a public employee within the

scope of his employment in the same manner and to the same extent as a

private individual in like circumstances.” Post at ___ (slip op. at 4-5, 11-21).

The dissent therefore views N.J.S.A. 59:2-1.3(a) to lack “a predicate for

holding entities liable for employee acts committed outside their scope of

employment.” Post at ___ (slip op. at 18).

48

We disagree. We do not view N.J.S.A. 59:2-2(a) to limit N.J.S.A. 59:2-

1.3(a) vicarious liability claims against public schools for teachers’ sexual

abuse of or sexual misconduct against their students.

For cases governed by the TCA’s broad immunities, the Legislature

enacted N.J.S.A. 59:2-2(a) to create a discrete exception to those immunities,

authorizing the imposition of vicarious liability on public entities for public

employee acts and omissions within the scope of employment as defined by

that provision. By virtue of the Child Victims Act, however, TCA immunities

no longer protect public entities in certain sexual assault and sexual

misconduct cases. See N.J.S.A. 59:2-1.3(a)(1). In the limited category of

claims governed by N.J.S.A. 59:2-1.3(a), a public entity is no longer entitled to

any TCA immunity, and N.J.S.A. 59:2-2(a) no longer prescribes an exception

to such an immunity.

The dissent’s interpretation of N.J.S.A. 59:2-1.3(a) would defeat the

fundamental goal of the Child Victims Act. When it enacted that statute, the

Legislature expressly sought to expand the rights of sexual assault and sexual

misconduct victims in the specific settings it addressed. See S. Judiciary

Comm. Statement to S. Comm. Sub. for S. 477 2 (Mar. 7, 2019) (noting the

Legislature’s intent to “expand the categories of potential defendants in civil

actions” within the statute’s scope); Governor’s Signing Statement

49

(commenting that “supporters of the bill rightly note that it greatly increases

the ability of victims of sexual abuse to pursue justice through the court

system”); Assemb. Budget Comm. Statement to A. 5352 (June 17, 2019)

(stating that the Act “establishes new liability standards in sexual abuse

lawsuits filed against public entities and public employees”).

If N.J.S.A. 59:2-2(a)’s scope-of-employment constraint in sexual assault

and sexual misconduct cases were deemed to govern claims brought under

N.J.S.A. 59:2-1.3(a), the Legislature’s goal of expanding public entity liability

for public employee sexual assault and sexual misconduct could not be

achieved.

For decades, New Jersey courts have applied the “purpose to serve”

standard set forth in Restatement (Second) of Agency § 228 to determine

whether an employee’s act or omission is within the scope of employment.

See Davis, 209 N.J. at 303 (applying the Restatement standard); accord

Cosgrove v. Lawrence, 215 N.J. Super. 561, 562-63 (App. Div. 1987);

DiCosala v. Kay, 91 N.J. 159, 169 (1982); see also Rogers v. Jordan, 339 N.J.

Super. 581, 586 (App. Div. 2001) (noting, in a case applying N.J.S.A. 59:2-

2(a), that this Court “has turned to the Restatement when the issue is whether

an employee has acted within the scope of . . . employment”) (citing DiCosala,

91 N.J. at 169).

50

As this Court explained more than forty years ago, under the

Restatement test, “[c]onduct is generally considered to be within the scope of

employment if[] ‘it is of the kind [that the employee] is employed to perform;

it occurs substantially within the authorized time and space limits; [and] it is

actuated, at least in part, by a purpose to serve the’” employer. DiCosala, 91

N.J. at 169 (fourth alteration in original) (quoting Restatement (Second) of

Agency § 228). As our dissenting colleague notes, “‘[t]his purpose to serve’

standard virtually always excludes an employee’s sexual misconduct because

such conduct cannot be thought, in any way, to further an employer’s

interests.” Post at ___ (slip op. at 38). Under that test, a teacher’s sexual

abuse of or sexual misconduct involving a student simply cannot be construed

to be within the scope of the teacher’s employment; to the contrary, such abuse

or misconduct is antithetical to a teacher’s educational mission. Thus, if

claims under N.J.S.A. 59:2-1.3(a) for such abuse or misconduct were subject

to N.J.S.A. 59:2-2(a), they would necessarily fail.

When we interpret statutes, we presume that the Legislature is aware of

existing case law. McCray, 243 N.J. at 217. The Legislature is presumed to

have known, when it enacted the Child Victims Act, that if N.J.S.A. 59:2-2(a)

were to apply to sexual assault and sexual misconduct cases governed by

N.J.S.A. 59:2-1.3(a), the “purpose to serve” standard would categorically bar

51

child sexual abuse and misconduct victims from asserting vicarious liability

claims against public entities in such cases. It is inconceivable that the

Legislature, having enacted N.J.S.A. 59:2-1.3(a) to create a new category of

claims, would then eliminate precisely the same claims by virtue of N.J.S.A.

59:2-2(a).

As a general rule, we avoid interpreting “a statute in a way that ‘leads to

an absurd result.’” State v. Williams, 218 N.J. 576, 586 (2014) (quoting

DiProspero, 183 N.J. at 493). We decline to do so here.

The Legislature’s identification of Hardwicke as a model for the

standard governing claims under N.J.S.A. 59:2-1.3(a) underscores its intent not

to limit public entity vicarious liability in these cases to public employee acts

and omissions within the scope of employment. As our dissenting colleague

observes, N.J.S.A. 59:2-2(a) has no analogue in the CIA, which governs the

claims asserted in Hardwicke. Post at ___ (slip op. at 25-27). If the

Legislature intended to retain N.J.S.A. 59:2-2(a)’s scope-of-employment

restriction for N.J.S.A. 59:2-1.3(a) claims, the standards governing public

employees and the standards governing charitable entities under Hardwicke

could not be reconciled.

52

We therefore do not share the dissent’s view that N.J.S.A. 59:2-2(a)

governs public entity vicarious liability claims asserted under N.J.S.A. 59:2-

1.3(a).

Second, the dissent faults our analysis because it “begins and ends with

Hardwicke,” post at ___ (slip op. at 15), a decision it views to have “nothing to

do with the TCA,” post at ___ (slip op. at 25). The dissent speculates that the

Legislature’s references to Hardwicke were unrelated to the Court’s holding on

vicarious liability, see Hardwicke, 188 N.J. at 100-02, but instead apply solely

to Hardwicke’s observation that, by its plain language, the CIA immunized

charitable entities only for “simple negligence,” not for other forms of tortious

conduct, id. at 97, 99. Post at ___ (slip op. at 23-25).

We rely on Hardwicke in these appeals because the Legislature

identified that decision -- and no other -- for the standard of liability to be

imposed on charitable organizations for sexual assault and sexual misconduct

cases under the CIA, and directed that claims against public entities for their

employees’ sexual abuse and sexual misconduct be governed by an analogous

standard. See S. Judiciary Comm. Statement 2. By virtue of the Legislature’s

references to Hardwicke, this Court’s vicarious liability discussion in that

decision is clearly relevant to the vicarious liability question at the heart of

these appeals. We do not share the dissent’s view that in our determination of

53

a vicarious liability standard under N.J.S.A. 59:2-1.3, Hardwicke should be

dismissed as irrelevant to this case.

Accordingly, we respectfully disagree with our dissenting colleague’s

interpretation of N.J.S.A. 59:2-1.3(a) and N.J.S.A. 59:2-2(a). See post at ___

(slip op. at 4-5, 11-21).

Finally, we note the dissent’s proposal of a novel standard for

determining whether “a public school employee’s willful, wanton, or grossly

negligent sexual acts fall within their scope of employment,” and the dissent’s

detailed explanation of the basis for and contours of such a standard. Post at

___ (slip op. at 7-10, 28-60). No party to these appeals has asked us to decide

whether New Jersey’s longstanding “purpose to serve” test for determining

scope-of-employment questions should be abandoned or altered. That issue

has not been briefed or argued by the parties or amici at any stage. It has not

been considered by the trial courts or the Appellate Division panel that ruled

on these cases. We respectfully decline to address in these appeals the

dissent’s proposed new scope-of-employment test. 7

7

The dissent contends that the standard adopted here for vicarious liability

claims under N.J.S.A. 59:2-1.3 addresses a question “not briefed by the

parties.” Post at ___ n. 5 (slip op. at 9 n.5). That is inaccurate; in their briefs

and arguments before this Court, the parties vigorously disputed the standard

that should govern such claims in the wake of the Child Victims Act, and that

standard was a central issue in this appeal. In contrast, the “purpose to serve”

test that has long governed scope-of-employment questions was not discussed

54

6.

We view the standard set forth in this opinion to comport with the

Legislature’s intent as reflected in the statutory text and legislative history of

the Child Victims Act. See N.J.S.A. 59:2-1.3(a)(1); Hardwicke, 188 N.J. at

100-02; Lehmann, 138 N.J. at 619-20; accord Abbamont, 138 N.J. at 417. The

Legislature, of course, has the authority to amend its statutes to clarify its

intent. Johnson v. Wilkerson, 262 N.J. 75, 89 (2025).

D.

Finally, we consider Hornor’s challenge to the Appellate Division’s

decision reversing the trial court’s denial of defendants’ motion to dismiss his

claim for breach of fiduciary duty.

We concur with the Appellate Division’s ruling that a school district has

no fiduciary duty to a student. A fiduciary relationship “arises between two

persons when one person is under a duty to act for or give advice for the

benefit of another on matters within the scope of their relationship.” F.G., 150

N.J. at 563 (citing Restatement (Second) of Torts § 874 cmt. a (Am. L. Inst.

-- let alone contested -- in the parties’ briefs or arguments. Indeed, nothing in

the TCA suggests that the scope-of-employment test under N.J.S.A. 59:2-2

should be different in public school employee sexual assault claims from the

scope-of-employment standard that governs any other claim. In advocating a

new scope-of-employment standard in such cases, the dissent ventures far from

the TCA’s language and intent.

55

1979)). “The fiduciary’s obligations to the dependent party include a duty of

loyalty and a duty to exercise reasonable skill and care.” Id. at 564 (citing

Restatement (Second) of Trusts §§ 170, 174 (Am. L. Inst. 1959)).

“Accordingly, the fiduciary is liable for harm resulting from a breach of the

duties imposed by the existence of such a relationship.” Ibid. (citing

Restatement (Second) of Torts § 874).

As the Appellate Division noted, quoting In re Estate of Carter, 6 N.J.

426, 436 (1951), “undivided loyalty is of the very essence of a trust

relationship.” In contrast, the appellate court observed, a public school district

“owes obligations to multiple stakeholders involved in educating the district’s

children, often with conflicting interests,” and the imposition of a fiduciary

duty to a specific student would be incompatible with “the duty’s defining

characteristic of undivided loyalty to a particular person or interest.” This

Court has previously held that the duty of care that school personnel owe to

the school’s students is not a fiduciary obligation but a duty “to exercise

reasonable care for the safety of students entrusted to them.” Frugis v.

Bracigliano, 177 N.J. 250, 270 (2003) (quotation omitted). In short, a public

school district bears no fiduciary duty to a student in the setting of the Hornor

appeal.

56

We agree with the Appellate Division that this Court’s decision in F.G.

provides no support for the imposition of a fiduciary duty on a board of

education to a student in the district, given the stark distinction between the

setting of that decision and the circumstances here. We concur with the

Appellate Division’s rejection of the notion that a teacher’s “long-term,

methodical grooming” of a student could give rise to a fiduciary relationship,

because the trust and confidence that characterize a fiduciary relationship and

“[g]rooming a student for sexual abuse” are “antithetical to one another.”

We therefore agree with the Appellate Division that the trial court erred

when it declined to dismiss Hornor’s breach of fiduciary duty claim pursuant

to Rule 4:6-2(e).

IV.

We afford to plaintiffs in both appeals every reasonable inference of fact

in accordance with Printing Mart. In light of Hornor’s allegations that Hutler

sexually assaulted him at Hutler’s residence outside of school hours, we

remand the Hornor matter to the trial court for determination of the Upper

Freehold Board of Education’s Rule 4:6-2(e) motion to dismiss Hornor’s

vicarious liability claim pursuant to the standard set forth in the opinion. We

hold that in Simpkins, in which plaintiffs allege that Dufault sexually assaulted

plaintiffs on school grounds during the school day, all three plaintiffs have

57

adequately pled vicarious liability claims under that standard in accordance

with Rule 4:6-2(e). We remand the three matters in Simpkins to the trial court

for further proceedings in accordance with this opinion.

We make no determination as to whether any of the claims in the four

cases should be dismissed on summary judgment under Rule 4:46-2 following

discovery; that determination is for the trial courts assigned to these matters,

applying the standard set forth in this opinion.

The judgment of the Appellate Division in Hornor is affirmed in part and

reversed in part. The judgment of the Appellate Division in Simpkins, which

includes the judgments in the Simpkins, Jerome and Hayes cases, is reversed.

All four matters are remanded to the trial courts for further proceedings in

accordance with this opinion.

CHIEF JUSTICE RABNER and JUSTICES PIERRE-LOUIS, WAINER

APTER, NORIEGA, and HOFFMAN join in JUSTICE PATTERSON’s opinion.

JUSTICE FASCIALE filed a dissent.

58

Russell Forde Hornor,

Plaintiff-Appellant,

v.

Upper Freehold Regional

Board of Education, d/b/a

Upper Freehold Regional

School District, and

Allentown High School,

Defendant-Respondents,

and

New Jersey Future Farmers

of America,

Defendant,

and

Allentown Future Farmers

of America and Charles

Hutler, III,

Defendants.

Ormond Simpkins, Jr.,

Plaintiff-Appellant,

v.

South Orange-Maplewood

School District, Columbia

High School, and Maplewood

Middle School,

Defendants-Respondents,

and

New Jersey Department

of Children and Families,

Division of Child Protection

and Permanency, Family

Connections, Inc., and Nicole

Dufault,

Defendants.

Frankie Jerome,

Plaintiff-Appellant,

v.

South Orange-Maplewood

School District and

Columbia High School,

Defendants-Respondents,

and

Nicole Dufault,

Defendant.

Brandon Hayes,

Plaintiff-Appellant,

v.

2

South Orange-Maplewood

School District, Columbia

High School, and Maplewood

Middle School,

Defendants-Respondents,

and

New Jersey Department

of Children and Families,

Division of Child Protection

and Permanency, Family

Connections, Inc., and Nicole

Dufault,

Defendants.

JUSTICE FASCIALE, dissenting.

It is nearly impossible to imagine a cause more compelling, and a

concern more warranting of redress, than that of protecting students from

sexual abuse perpetrated by public school employees entrusted with their care

and well-being. The challenge in these appeals, which deal solely with public

school districts’ vicarious liability for willful, wanton, or grossly negligent

acts of a sexual nature by their employees, is to articulate workable standards

applicable to public school districts for those acts. Meeting that task requires

adherence to longstanding principles of statutory interpretation and vicarious

3

liability. I write separately because I disagree with the majority for two

reasons.

First, the majority misinterprets the 2019 amendment to the Tort Claims

Act (TCA) -- N.J.S.A. 59:2-1.3(a) -- by making public entities vicariously

liable for willful, wanton, or grossly negligent acts of a sexual nature

committed by their employees outside the scope of their employment. Unlike

the majority, I would hold that public school districts may only be vicariously

liable for their employees’ tortious sexual acts committed within the scope of

their employment. The 2019 amendment strips public employees and entities

of immunity provided by the TCA, such as N.J.S.A. 59:2-10’s immunity for

intentional conduct, so that public entities may now be liable for willful,

wanton, or grossly negligent sexually abusive acts committed by their

employees. But because it does not abrogate the TCA’s key “scope of

employment” limit on public entity liability -- N.J.S.A. 59:2-2(a) -- that

limiting provision remains in effect.

Put together, following the 2019 amendment, a public school district

may be vicariously liable only for their employees’ willful, wanton, or grossly

negligent sexual acts committed within the scope of their employment. The

majority’s conclusion that N.J.S.A. 59:2-1.3(a) makes public entities

vicariously liable for willful, wanton, or grossly negligent acts of a sexual

4

nature committed by their employees outside the scope of their employment is

not supported by the plain text of N.J.S.A. 59:2-1.3(a) or its legislative history

-- which, in any event, need not be relied upon to interpret this unambiguous

provision. Moreover, such a reading would impose strict liability on public

entities, an absurd result the Legislature “clearly did not intend.” Ante at ___

(slip op. at 40).

To avoid strict liability, the majority must also conclude that the

Legislature additionally intended for this Court to remedy an incomplete

statute by crafting novel guardrails on that liability. The majority’s two

conclusions are inconsistent: It is odd to assume that the Legislature intended

to create vicarious liability for acts outside the scope of employment but

simultaneously intended for this Court to curb that exposure by announcing

new limitations on that liability. That reading obligates the Court to establish

atextual guardrails to address the problems created by interpreting N.J.S.A.

59:2-1.3(a) in a way that provides vicarious liability for willful, wanton, or

grossly negligent acts of a sexual nature committed by their employees outside

the scope of their employment, which highlights my next point of

disagreement with the majority. 1

1

The majority emphasizes, “[t]o the extent that there is any suggestion” to

the contrary, that they have not imposed strict liability as to school districts.

5

Second, resultingly, the majority’s “tacit approval” requirement misses

the mark. By conflating direct and vicarious liability causes of action, the

requirement eschews hornbook principles of vicarious liability. Such a “tacit

approval” requirement predicates public entity vicarious liability on a “careful

inquiry into the acts and omissions of a” public entity, ante at ___ n.6 (slip op.

at 46 n.6), rather than on the acts and omissions of a public entity’s employee.

These appeals concern only vicarious liability claims. Predicating liability on

a public entity’s conduct is direct liability, not vicarious liability. The

Legislature already provided for such direct liability claims against public

entities. See N.J.S.A. 59:2-1.3(a)(2). Moreover, the majority’s “tacit

approval” requirement is prone to uneven application and avoidance of

Ante at ___ n.6 (slip op. at 46 n.6). To avoid any confusion as to my point of

disagreement with the majority, my dissenting view is as follows: The

majority errs in making two conflicting and unsupported assumptions as to the

Legislature’s intent. The majority first finds the Legislature intended for the

“scope of employment” limit to be disabled in this context, which would

necessarily lead to strict liability -- an outcome we both agree would be absurd

-- but then finds the Legislature must have also intended that this Court would

establish guardrails to remedy such a problematic result.

From this view, it is true by necessity that the limiting standard the

majority sets forth today -- created solely to prevent strict liability -- is itself

“by no means a strict liability standard.” Ante at ___ n.6 (slip op. at 46 n.6).

That is undisputed. Again, I write separately because the majority makes

conflicting and unsupported assumptions as to the Legislature’s intent, among

other reasons.

6

accountability since it incentivizes public entities to escape “vicarious”

liability on lack of knowledge grounds. Ultimately, for future sexual abuse-

related vicarious liability claims against public entities beyond the school

context, the majority leaves us to wonder what new guardrails it might find the

Legislature “intended” for those contexts. 2 For now, however, schools and

other public entities alike are left with insufficient guidance for risk

management. 3

Because I read N.J.S.A. 59:2-1.3(a) and N.J.S.A. 59:2-2(a) together to

mean a public school district is vicariously liable only for their employees’

tortious sexual acts that are committed within the scope of their employment,

the question becomes whether such acts may fall within the scope of

employment in this specific context. To answer that question, I analyze the

2

The majority’s opinion leaves all public entities other than school districts in

a quandary. That is because the majority holds that N.J.S.A. 59:2-1.3(a)

abrogates N.J.S.A. 59:2-2(a)’s “scope of employment” liability limitation for

sexual abuse claims generally, but only creates guardrails on that liability for

school districts. Therefore, other public entities face vicarious liability for

their employees’ sexual acts without any limiting standard. This new liability

exposure results in strict liability to those other public entities until the Court

announces new guardrails in future cases.

3

Not even plaintiff Hornor has the benefit of learning how this brand new

standard should operate at the pleadings stage, since the majority opted to

remand the Hornor matter to the trial court for disposition of defendant Upper

Freehold Board of Education’s Rule 4:6-2(e) motion to dismiss Hornor’s

vicarious liability claim.

7

doctrine of respondeat superior, adhere to N.J.S.A. 59:2-2(a)’s “scope of

employment” limitation, and very importantly, propose a context-dependent

definition of the judicial concept of respondeat superior that accounts for the

unique nature of the employer-employee relationship within the school context

while remaining rooted in longstanding common law principles of vicarious

liability. 4

I would therefore hold that a public school employee’s willful, wanton,

or grossly negligent sexual acts fall within their scope of employment if:

4

The majority notes that “nothing in the TCA suggests that the scope-of-

employment test under N.J.S.A. 59:2-2 should be different in public school

employee sexual assault claims from the scope-of-employment standard that

governs any other claim.” Ante at ___ n.7 (slip op. at 54 n.7). That is correct,

though I must clarify that this uncontested proposition is of no consequence to

my analysis. The TCA unequivocally “contemplates a symmetry of treatment

between government actors and private actors.” Maison v. N.J. Transit Corp.,

245 N.J. 270, 289 (2021). And in particular, as to N.J.S.A. 59:2-2(a)’s

reliance on respondeat superior, the Legislature accomplished that symmetry

by invoking the “scope of employment” standard, which was specifically

intended to “provide[] a flexible liability provision [that] permit[s] the courts

to adapt the principles established in this act to the particular circumstances of

the cases coming before them.” Task Force, cmt. on N.J.S.A. 59:2-2. For

those reasons, I do not define the judicial concept of “scope of employment”

distinctly here based on the TCA’s text. And it is unclear why I would.

Rather, just like in any other respondeat superior inquiry, my analysis of

“scope of employment” turns on consideration of the unique employment

context at issue, see Davis v. Devereux Found., 209 N.J. 269, 288 (2012), as I

later discuss in great detail. Ultimately, the nature and relevance of the TCA’s

“language and intent” that the majority suggests my analysis “ventures far

from” remains a mystery. Ante at ___ n.7 (slip op. at 54 n.7).

8

(1) the employee possessed an official, entity-granted in loco parentis

relationship to the victim, by which they were given authority and control over

the victim; and (2) the employee engaged in the tortious acts during the

exercise of that authority in performing entity-assigned duties, or otherwise

engaging in a course of conduct subject to the entity’s control. 5 In my view,

this holding provides for workable and even application and accounts for the

twin aims of tort liability -- fairness and deterrence.

5

The majority critiques my “scope of employment” standard as “novel”

and asserts that the “issue has not been briefed or argued by the parties or

amici at any stage.” Ante at ___ (slip op. at 54). This criticism is surprising

given that the standard the majority adopts is itself both novel and not briefed

by the parties. Their standard does not appear in Hardwicke, Lehmann, or any

other caselaw, but instead was adapted -- with significant modifications --

from the Attorney General’s amicus brief submitted to this Court on appeal.

Not only did no party argue for that standard, all parties -- plaintiffs and

defendants alike -- expressly argued against the Attorney General’s form of it,

with plaintiffs specifically contending that adopting such a test would be

“procedurally and legally improper” because “no party to this Appeal raised or

briefed the issue” and this appeal is “devoid of a factual record that would

even permit such an [i]nquiry.”

To be sure, I do not “contend[] that the standard adopted here for

vicarious liability claims under N.J.S.A. 59:2-1.3 addresses a question ‘not

briefed by the parties.’” Ante at ___ (slip op. at 54 n.7) (emphasis added).

There is no dispute that the question of determining the controlling standard

for vicarious liability claims is squarely before this Court. But the standard

the majority creates to answer that question -- a standard that is not found in

the parties’ or amici’s briefing, not found in our caselaw, and which has never

been articulated before -- cannot be viewed as anything but novel.

9

Applying my holding, the complaint in Hornor v. Upper Freehold

Regional Board of Education does not allege sexual acts within the scope of

employment. Like the Appellate Division, I agree the trial judge erroneously

denied the school district’s Rule 4:6-2(e) motion to dismiss Hornor’s vicarious

liability claims. But the complaints in Simpkins v. South Orange-Maplewood

School District allege sexual acts committed within the scope of employment.

Unlike the Appellate Division, I would therefore reverse the order that granted

the school district’s Rule 4:6-2(e) motion to dismiss those vicarious liability

claims, though for substantially different reasons than the majority.

I.

Consistent with our longstanding TCA jurisprudence, I agree with the

Appellate Division’s conclusion in Hornor that the 2019 amendment to the

TCA -- N.J.S.A. 59:2-1.3(a) -- does not provide a basis for holding public

entities vicariously liable for acts outside the scope of employment. Instead,

N.J.S.A. 59:2-1.3(a) strips public entities of TCA-granted immunities that

would otherwise absolve them of liability in sexual abuse cases. Because

N.J.S.A. 59:2-2(a)’s “scope of employment” limitation is not a TCA-granted

immunity, the 2019 amendment does not impact it, and the amendment

therefore does not permit public entity vicarious liability for an employee’s

acts outside the scope of their employment, even in sexual abuse cases.

10

A.

To understand whether the 2019 amendment expanded the extent of a

public entity’s vicarious liability, I must first consider the TCA’s operation

prior to the 2019 amendment.

Before the TCA was enacted, “sovereign immunity had been the general

rule in New Jersey,” with exceptions carved out in case law. Feinberg v. Dep’t

of Envtl. Prot., 137 N.J. 126, 133 (1994). In Willis v. Department of

Conservation & Economic Development, 55 N.J. 534 (1970), this Court

abrogated the doctrine in tort. Two years later, the Legislature responded by

“adopting the [TCA] and reestablishing sovereign immunity.” Velez v. City of

Jersey City, 180 N.J. 284, 289 (2004).

“One purpose of the [TCA] was to avoid the ‘somewhat haphazard and

even arbitrary’ erosion of sovereign immunity in the judicial decisions.”

Feinberg, 137 N.J. at 134 (quoting S.E.W. Friel Co. v. N.J. Tpk. Auth., 73 N.J.

107, 113 (1977)); accord D.D. v. Univ. of Med. & Dentistry of N.J., 213 N.J.

130, 134 (2013) (“Far from a broad waiver of sovereign immunity, the [TCA]

was the response of the legislative and executive branches to this Court’s

abrogation of that traditional common law doctrine.”). “The [TCA] modifie[d]

the doctrine of sovereign immunity and create[d] limited situations in which

11

parties may assert tort claims against public entities.” Id. at 133; accord

O’Donnell v. N.J. Tpk. Auth., 236 N.J. 335, 344-45 (2019).

Under the TCA, sovereign immunity exists unless “there is a statutory

declaration of liability.” Bell v. Bell, 83 N.J. 417, 423 (1980); N.J.S.A. 59:2-

1(a) (“Except as otherwise provided by this act, a public entity is not liable for

an injury, whether such injury arises out of an act or omission of the public

entity or a public employee or any other person.”). Within this framework, the

statutory provisions declaring the bounds of liability function as the “clear and

unequivocal” legislative waivers that would be required at common law to

abrogate sovereign immunity in tort. See Royster v. State Police, 227 N.J.

482, 494 (2017) (quoting Allen v. Fauver, 167 N.J. 69, 77 (2001)). Because in

passing the TCA the Legislature “made clear that its waiver of sovereign

immunity was strictly limited by the terms of the statute itself,” its liability

provisions are “not subject to expansion by case law.” Maison v. N.J. Transit

Corp., 245 N.J. 270, 310 (2021) (Patterson, J., concurring in part and

dissenting in part).

N.J.S.A. 59:2-2(a) is one such provision, and it is the “primary source of

public entity liability.” Att’y Gen.’s Task Force on Sovereign Immunity,

Report, cmt. on N.J.S.A. 59:2-2 (1972). That provision provides that “[a]

public entity is liable for injury proximately caused by an act or omission of a

12

public employee within the scope of his employment in the same manner and

to the same extent as a private individual under like circumstances.” N.J.S.A.

59:2-2(a) (emphasis added). Because the provision waives immunity as to acts

within the scope of employment, the TCA does not permit plaintiffs to hold

public entities vicariously liable for employee acts outside the scope of

employment. In other words, N.J.S.A. 59:2-2(a) serves as a key limitation on

the extent of public entity liability.

Beyond the wholesale assertion of sovereign immunity and the limited

waiver of that immunity for acts within the scope of employment, the TCA

contains specific provisions that wholly exempt a public entity from liability it

would otherwise face for acts within the scope of employment. See N.J.S.A.

59:2-1(b) (“Any liability of a public entity established by this act is subject to

any immunity of the public entity . . . .”); see also Tice v. Cramer, 133 N.J.

347, 356 (1993) (“When both liability and immunity appear to exist, the latter

trumps the former.”).

One of the immunity provisions is N.J.S.A. 59:2-10, which immunizes

public entities from liability “for the acts or omissions of a public employee

constituting a crime, actual fraud, actual malice, or willful misconduct.”

Because of N.J.S.A. 59:2-10, even if a public employee’s sexual abuse fell

within the scope of their employment -- and therefore within the limitations

13

imposed by N.J.S.A. 59:2-2(a) -- the public entity would nonetheless be

immunized so long as that sexual abuse amounted to “a crime” or “willful

misconduct.” Thus, prior to the 2019 amendment, public entities could never

be vicariously liable for sexual misconduct -- even if committed within the

scope of employment -- because N.J.S.A. 59:2-10 immunized public entities

from liability “for the acts or omissions of a public employee constituting a

crime, actual fraud, actual malice, or willful misconduct.” See Margolis &

Novack, Title 59: Claims Against Public Entities, cmt. 1 on N.J.S.A. 59:2-10

(2025) (“This section establishes a basis for employer immunity once a ground

is established for the employer’s vicarious liability under 59:2-2(a).”

(emphasis added)).

B.

In 2019, as part of the Child Victims Act (CVA), the Legislature

amended the TCA, adding N.J.S.A. 59:2-1.3 to the Act. See L. 2019, c. 120,

§ 7. Subsection (a)(1) of that statute reads:

Notwithstanding any provision of the [TCA] to the

contrary:

(1) immunity from civil liability granted by that

act to a public entity or public employee shall not

apply to an action at law for damages as a result

of a sexual assault, any other crime of a sexual

nature, a prohibited sexual act as defined in

[N.J.S.A. 2A:30B-2], or sexual abuse as defined

in [N.J.S.A. 2A:61B-1] being committed against

14

a person, which was caused by a willful, wanton,

or grossly negligent act of the public entity or

public employee[.]

[N.J.S.A. 59:2-1.3(a)(1) (emphases added).]

The effect of N.J.S.A. 59:2-1.3(a) on the immunity granted in N.J.S.A.

59:2-10 is evident: Because N.J.S.A. 59:2-10 would have immunized public

entities from liability for an employee’s willful misconduct within the scope of

their employment, so long as that sexual abuse was willful, that grant of

immunity “is disabled in [sexual abuse cases] by 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).

Accordingly, the 2019 amendment expanded public entity liability because a

public entity may now be vicariously liable for willful, wanton, or grossly

negligent sexual acts committed by its employees within the scope of their

employment.

The majority and I disagree as to whether the 2019 provision also

impacts the “scope of employment” limit established in N.J.S.A. 59:2-2(a).

The majority’s analysis begins and ends with Hardwicke v. American Boychair

School, 188 N.J. 69 (2006), a Charitable Immunity Act case referenced in the

CVA’s legislative history. For this reason, the majority finds that because

N.J.S.A. 59:2-1.3(a) disables the TCA’s “general immunity” at N.J.S.A. 59:2-

1(a), adherence to the TCA’s clear boundaries on the scope of public entity

15

liability has become “unnecessary” in this context. Ante at ___ (slip op. at

38). Practically speaking, this infinitely expands N.J.S.A. 59:2-2(a), a

carefully defined liability provision. That critical “scope of employment” limit

is not surplusage, and should not be discarded by inference. I do not view the

2019 provision to support such a reading, neither by its plain text nor by its

legislative history.

1.

To interpret a statute, “we look to the Legislature’s intent as expressed

in the statute’s plain terms.” Wiggins v. Hackensack Meridian Health, 259

N.J. 562, 574 (2025). “We ascribe to the statutory words their ordinary

meaning and significance and read them in context with related provisions so

as to give sense to the legislation as a whole.” DiProspero v. Penn, 183 N.J.

477, 492 (2005) (citations omitted). “If the language is clear, the court’s job is

complete.” In re DiGuglielmo, 252 N.J. 350, 360 (2022) (quoting In re

Expungement Application of D.J.B., 216 N.J. 433, 440 (2014)). “Only if the

statutory language is ambiguous do courts look beyond it to extrinsic evidence,

such as legislative history, for guidance.” In re Plan for Abolition of Council

on Affordable Hous., 214 N.J. 444, 468 (2013).

16

2.

It must be reiterated that the TCA statutorily “reestablishes sovereign

immunity for public entities,” Chatman v. Hall, 128 N.J. 394, 402 (1992), by

imposing a statutory scheme that functions as a reimposed version of the

common law doctrine from which it arose, a doctrine which itself requires a

“clear and unequivocal” expression of legislative intent to override, see

Borough of Englewood Cliffs v. Trautner, 260 N.J. 410, 428 (2025) (quoting

Royster, 277 N.J. at 494)). Against this unique statutory backdrop, I am

hesitant to take a provision that makes no reference to vicarious liability nor

any express indication of what it intended to disable and assume -- based

largely on contestable inferences from a vague legislative record -- that the

Legislature really intended to impose expansive and potentially limitless

vicarious liability on public entities.

Rather, to determine whether the Legislature intended for this

amendment to abrogate the TCA’s “scope of employment” limitation, my

analysis begins with the plain text of the provision. DiProspero, 183 N.J. at

492 (“[T]he best indicator of that intent is the statutory language.”). From this

view, I believe the terms “immunity” and “shall not apply” as used in N.J.S.A.

59:2-1.3(a)(1) can be understood to do no such thing, so long as we “ascribe to

the statutory words their ordinary meaning” and “read them in context with

17

related provisions so as to give sense to the legislation as a whole.” Ibid.

(emphases added).

First, N.J.S.A. 59:2-1.3(a) clearly does not provide a predicate for

holding entities liable for employee acts committed outside their scope of

employment: It does not, by its plain terms, expressly create a new basis for

public entity liability. And second, to understand what it does do, I would

“proceed by assuming the phrase ‘immunity from civil liability’ was intended

by the Legislature to mean exactly what it suggests: an ‘exemption from a

duty or liability.’” E.C. by D.C., 470 N.J. Super. at 54 (emphases added)

(quoting Black’s Law Dictionary 898 (11th ed. 2019)). “This view comports

not only with common usage and dictionary definitions but also with how the

word ‘immunity’ has been historically understood by courts.” Ibid. (citing

McDonald v. City of Chicago, 561 U.S. 742, 813-15 (2010) (Thomas, J.,

concurring in part) (explaining that, historically, immunity is defined as

“freedom from an obligation”)).

Accordingly, by the amendment’s plain terms, N.J.S.A. 59:2-1.3(a)

disables any TCA-provided exemptions from liability that may apply to sexual

abuse claims; it in no way indicates that the Legislature intended that all other

TCA provisions, such as preexisting limitations on liability, must be

disregarded. A limitation on liability is, by definition, not an immunity from

18

liability because a “limitation” is not a wholesale exemption; rather, a limit is

“something that bounds, restrains, or confines.” Merriam-Webster Dictionary,

https://www.merriam-webster.com/dictionary/limits; see also E.C. by D.C.,

470 N.J. Super. at 54 (“[A]n immunity is an exemption from liability, and not

a limitation of liability . . . .”).

N.J.S.A. 59:2-2(a)’s text clearly frames “scope of employment” as a

boundary or guardrail on vicarious liability, rather than as an “absolution” or

“exemption” from liability intended to explicitly immunize entities from

certain claims. It reads: “A public entity is liable for injury proximately

caused by an act or omission of a public employee within the scope of his

employment in the same manner and to the same extent as a private individual

under like circumstances.” N.J.S.A. 59:2-2(a) (emphasis added). In other

words, the Legislature invoked respondeat superior to demarcate the “within”

parameters of liability, not to wholly absolve public entities from liability in a

particular circumstance. Accordingly, the 2019 amendment does not provide a

sufficiently clear textual basis to assume the Legislature intended to abrogate

this essential, longstanding constraint on public entity vicarious liability.

If the Legislature had a contrary intent in passing the 2019 amendment,

it is clearly capable of expressly removing TCA-imposed limitations by

amendment, as evidenced by the Legislature’s actions in this very statute. For

19

example, in 2025, the Legislature amended N.J.S.A. 59:2-1.3 to expressly

disable in sexual abuse cases a TCA-imposed damages limitation. The TCA

limits the recovery of damages against public entities and public employers for

injuries to exclude those resulting in pain and suffering. See N.J.S.A. 59:9-

2(d). That limitation was not altered by the 2019 amendment. To remove that

limitation in sexual abuse cases, the Legislature subsequently amended

N.J.S.A. 59:2-1.3 to expressly state that: “The recovery limits set forth under

subparagraph (a) of paragraph (2) of subsection d. of [N.J.S.A. 59:9-2] shall

not apply to an action at law filed pursuant to this section.” N.J.S.A. 59:2-

1.3(c) (emphases added). The Legislature’s explicit addition of this text

supports that it did not intend for N.J.S.A. 59:2-1.3(a) to implicitly bypass all

TCA-imposed limitations in the sexual abuse context.

Further, it is true that “[i]n construing statutes, the use of . . . a

‘notwithstanding’ clause clearly signals the drafter’s intention that the

provisions of the ‘notwithstanding’ section override conflicting provisions of

any other section.” Kennedy v. Weichert Co., 257 N.J. 290, 310 (2024)

(alteration in original) (quoting Cisneros v. Alpine Ridge Grp., 508 U.S. 10, 18

(1993)). But N.J.S.A. 59:2-1.3’s “notwithstanding” clause does not mean that

this Court must construe the provision’s terms in a manner that forces a

conflict with as many provisions as possible. Properly read, the inclusion of

20

“notwithstanding” allows N.J.S.A. 59:2-1.3(a) to supersede and disable any

and all otherwise-applicable TCA-granted immunities; it does not apply to

limitations established within the Act.

3.

Any contrary reading forces an unwarranted, supra-textual interpretive

conflict between N.J.S.A. 59:2-1.3(a) and N.J.S.A. 59:2-2(a). In finding that

N.J.S.A. 59:2-1.3(a) disables the TCA’s “general immunity,” the majority

holds that the Act’s liability provisions -- like N.J.S.A. 59:2-2(a) -- must

become superfluous and dispensable in this context. N.J.S.A. 59:2-2(a) was

not intended merely to provide plaintiffs with a predicate for liability, but also

to provide clear, unequivocal, and meaningful boundaries on the scope of a

defendant’s liability. Concluding otherwise overly broadens the scope of

disabled TCA provisions in this context far beyond the plain meaning of the

word “immunity.”

Such a finding also conflicts with our typical TCA interpretive

principles. Those principles instruct that the TCA’s overall language is

“unmistakably clear in providing that liability on the part of the State cannot

be imposed unless consistent with the entire Act itself.” Kolitch v. Lindedahl,

100 N.J. 485, 492 (1985) (emphasis added); see also DiProspero, 183 N.J. at

498 (“We will not labor . . . to find a conflict between the Legislature’s

21

findings and declarations in [the statute’s preamble] and the text of [the

statute].”). In particular, upon passing the TCA, the Legislature “declared to

be the public policy of this State that public entities shall only be liable for

their negligence within the limitations of this act,” and that “[a]ll of the

provisions of [the TCA] should be construed with a view to carry out [this]

legislative declaration.” N.J.S.A. 59:1-2 (emphases added). To this end, the

better we interpret the plain meaning of the TCA’s provisions to operate

harmoniously, in concert with one another, the closer we are to the

Legislature’s true intent.

Crucially, forcing a conflict between N.J.S.A. 59:2-1.3(a) and N.J.S.A.

59:2-2(a) requires making two conflicting assumptions as to the Legislature’s

intent. First, the majority states that “[t]he Legislature’s identification of

Hardwicke as a model for the standard governing claims under N.J.S.A. 59:2-

1.3(a) underscores its intent” to abrogate N.J.S.A. 59:2-2(a)’s “scope of

employment” limit in this context, because otherwise, “the standards

governing public employees and the standards governing charitable entities

under Hardwicke could not be reconciled.” Ante at ___ (slip op. at 52). But

second, because the resulting strict liability would lead to an unworkable

outcome that the Legislature “clearly did not intend,” ante at ___ (slip op. at

40), the majority concludes the Legislature also intended courts would fix this

22

outcome by imposing vicarious liability on public entities subject to some

unknown, unspecified limiting parameters. This is especially so since

Hardwicke provides no such standard that can be “reconciled” in this context.

Put together, the majority’s holding requires assuming not only that the

Legislature intended to disable the “scope of employment” limit -- despite the

statute’s plain text -- but also that the Legislature intended for courts to

remedy the inevitable, absurd result of such an interpretation by creating

novel, atextual guardrails that fix its incomplete statute. As a general rule, this

Court avoids interpreting “a statute in a way that ‘leads to an absurd result.’”

State v. Williams, 218 N.J. 576, 586 (2014) (quoting DiProspero, 183 N.J. at

493). I would decline to do so here.

4.

Because the text of the statute is clear, I would end my inquiry there and

would not resort to legislative history to interpret the statutory language. But

even considering the legislative history, it does not provide a basis for

extending vicarious liability outside the scope of employment. The legislative

history does not make any reference to vicarious liability, and any additional

clarity provided by the Legislature’s reference to entity liability or

harmonizing charitable and public entity liability supports a reading consistent

with this dissent.

23

Throughout the enactment of the CVA, which included the TCA

amendment that is the subject of this appeal, the Legislature made clear that its

primary purpose was to extend the statute of limitations and the recovery

window for sexual abuse claims and to “codify the liability of public entities.”

See Sponsor’s Statement to S. 477 7. The first version of the CVA failed to

include a liability standard for sexually abusive acts. Governor’s Statement on

Signing S. Comm. Sub. for S. 477 (May 13, 2019) (Governor’s Signing

Statement); L. 2019, c. 120, § 7. The Legislature subsequently amended the

statute to specify a liability standard of “willful, wanton or grossly negligent.”

L. 2019, c. 239 (codified at N.J.S.A. 59:2-1.3(a)). Neither version of the

statute addresses vicarious liability.

The Sponsor’s Statement makes clear that the intent regarding public

entity liability was to establish liability standards “identical to the liability

standards applied to non-profit organizations . . . . Thus, a public entity or

public employee could be held liable for willful, wanton or grossly negligent

acts resulting in a ‘sexual assault.’” Sponsor’s Statement to A. 5392 2-3 (May

13, 2019). Of note for interpretive purposes, the Sponsor’s Statement carries

limited weight due to the existence of multiple versions of the bill. See State

v. State Supervisory Emps. Ass’n, 78 N.J. 54, 69-70 (1978) (noting that a

Sponsor’s Statement for a statute that is “changed several times prior to

24

passage” is “a less than definitive guide to the intended effect of the

amendment of that section as it finally emerged”). Any guidance provided by

the Sponsor’s Statement clarifies only the Legislature’s intent to impose

liability for willful, wanton, or grossly negligent acts of sexual abuse and

provides no clarity on legislative intent regarding vicarious liability.

This liability standard is exactly why the Legislature referenced

Hardwicke: In considering charitable immunity under the Charitable

Immunity Act (CIA), this Court held in Hardwicke that charitable entities had

immunity only for “simple negligence” and not for other forms of tortious

conduct, so the CIA did not immunize “willful, wanton or grossly negligent

conduct.” 188 N.J. at 97, 99. Charitable entities thus could be vicariously

liable for common law claims based on such acts committed by their

employees. Id. at 102.

Hardwicke is not instructive beyond this standard. The central question

in Hardwicke was whether a boarding school was a “person” standing in loco

parentis and therefore qualified as a “passive abuser” within the meaning of

the Child Sexual Abuse Act. Id. at 87. Hardwicke had nothing to do with the

TCA. Common law vicarious liability for acts outside the scope of

employment was only briefly noted in that opinion because the CIA did not

statutorily “bar Hardwicke’s claims for intentional conduct.” Id. at 102. The

25

CIA does not have a “scope of employment” limitation. The TCA is a distinct

statute, and we cannot be wholly blind to that difference merely because the

Legislature referenced Hardwicke.

The legislative reference to Hardwicke illustrates only an intent to apply

its articulated liability standard -- that entities may be liable for “willful,

wanton or grossly negligent acts resulting in abuse.” S. Judiciary Comm.

Statement to S. Comm. Sub. for S. 477 2 (Mar. 7, 2019) (Judiciary Comm.

Statement). That is precisely what the Legislature achieved: Following the

2019 amendment, public entities may now be vicariously liable for acts of

sexual abuse that are committed willfully, wantonly, or grossly negligently --

acts that previously were immunized under N.J.S.A. 59:2-10. Accordingly,

following the 2019 amendment, both charitable and public entities are “held to

the same standard of liability,” Governor’s Signing Statement, a standard that

permits liability for sexual abuse committed willfully, wantonly, or grossly

negligently. But nothing -- nothing in the text of the amendment, nothing in

its legislative history, and nothing in the text of the TCA elsewhere -- provides

a basis for finding liability for such acts outside the scope of employment.

Reading intent to render public entities liable for employee sexual abuse

outside the scope of employment leads to the implausible conclusion that the

Legislature intended to impose strict liability on public entities for public

26

employees’ sexual assaults. That inference is unwarranted: Assuming the

Legislature intended to do away with the respondeat superior principles of

agency law embodied in N.J.S.A. 59:2-2(a) requires assuming the Legislature

intended to negate N.J.S.A. 59:9-2(b), a key TCA provision that plainly states

“[n]o judgment shall be granted against a public entity or public employee on

the basis of strict liability.”

The Senate Judiciary Committee’s statement to the 2019 amendment

contradicts the assumption that the Legislature intended to impose strict

liability. It clarifies that the Legislature passed the 2019 amendment so that “a

public entity, as defined in the [TCA], may be held liable [in sexual abuse

suits] in the same manner as a private organization.” Judiciary Comm.

Statement 4. Private entities are not subject to strict liability for employees’

sexual abuse outside the scope of employment. See Maison, 245 N.J. at 289

(“The TCA, . . . in the absence of an applicable immunity, generally

contemplates a symmetry of treatment between government actors and private

actors.”). Thus, I cannot infer the Legislature clearly intended to impose this

new obligation on public entities. Had the Legislature intended for such an

extraordinary result, it would have expressly said so.

27

5.

The majority agrees that, absent guardrails, allowing for vicarious

liability outside the scope of employment would result in strict liability on

public entities. To avoid that result, the majority finds -- without any textual

basis -- that the Legislature “envisioned a fact-specific analysis of school

officials’ acts and omissions as they relate to a school employee’s sexual abuse

of a student.” Ante at ___ (slip op. at 42). The majority concludes that the

standard it articulates “comport[s] with the Legislature’s intent as reflected in

the statutory text and legislative history of the Child Victims Act.” Ante at

___ (slip op. at 55). But the test the majority crafts is not found in the

statutory text, its legislative history, or in Hardwicke, and although the test is

purportedly derived from Lehmann v. Toys ‘R’ Us, Inc., 132 N.J. 587 (1993),

it is a significant departure from that standard, consisting of new elements and

considerations. I cannot conclude the Legislature intended a test so removed

from the statutory text, legislative history, and applicable caselaw.

Moreover, the “tacit approval” requirement, focused on “the knowledge

and culpability of school officials and other school employees in a position to

prevent or stop the abuse,” ante at ___ (slip op. at 45), is at odds with both

principles of agency law and the purpose of the CVA. Under this standard,

public entities might escape liability by claiming lack of knowledge. See

28

Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 300-01 (Stevens, J.,

dissenting) (“As long as school boards can insulate themselves from

knowledge about [sexually abusive] conduct, they can claim immunity from

damages liability.”). Such a result fails to “impose[] responsibility on those in

the best position to know of the abuse and stop it,” Hardwicke, 188 N.J. at

102, and fails to effectuate the Legislature’s goals of deterring sexual abuse

and compensating victims for abuse that occurs, see Governor’s Signing

Statement. It could also lead to a result where a public entity is not liable,

even if a school employee had knowledge of sexual abuse, because the

employee is not “in a position to prevent or stop the abuse.” Ante at ___ (slip

op. at 45); see also Gebser, 524 U.S. at 301.

Critically, the majority’s test, although framed as a form of vicarious

liability, is in effect a new direct liability cause of action. Direct and vicarious

liability claims are fundamentally distinct; the former imposes liability based

on “direct fault” while the latter “imposes . . . liability, without ‘personal

fault,’ upon employers for certain acts of an employee.” G.A.-H. v. K.G.G.,

238 N.J. 401, 415-16 (2019). An inquiry “focuse[d] . . . on the knowledge and

culpability of school officials,” ante at ___ (slip op. at 45), is an inquiry

focused on employer fault, i.e., direct liability. The Legislature has already

provided for direct liability against public entities. N.J.S.A. 59:2-1.3(a)(2)

29

(negligent hiring, supervision, or retention). Those claims all focus on the

employer’s knowledge and degree of fault in causing plaintiffs’ harm. See

G.A.-H., 238 N.J. at 416. I cannot conclude that the Legislature intended for

this Court to impose a new direct liability standard, untethered to the statutory

text and independent from our well-recognized direct liability claims against

employers.

In the absence of an express statutory grant of liability outside the scope

of employment, the majority attempts to create one, grounded in extrinsic

sources. But this attempt results in an unharmonious reading of the TCA,

distorts the legislative history, and leads to a result the Legislature neither

articulated nor intended. It is more reasonable to conclude that the Legislature

intended the “scope of employment” limit to be the guardrail on public entity

liability -- a guardrail that is expressly provided for in the text of the TCA.

C.

In sum, there is no clear basis to assume the Legislature intended by the

2019 amendment to set aside in the sexual abuse context all otherwise-

applicable provisions within the TCA. Thus, because the text and legislative

history surrounding N.J.S.A. 59:2-1.3(a) do not indicate the Legislature

intended to bypass N.J.S.A. 59:2-2(a)’s “scope of employment” boundary in

30

this context, that provision remains operative, and continues to restrict public

entity vicarious liability for employee acts outside the scope of employment.

It is true that “N.J.S.A. 59:2-1.3(a) could have been drawn with greater

precision.” E.C. by D.C., 470 N.J. Super. at 56. But “[t]he Legislature’s

waiver of sovereign immunity remains a limited one and we are not free to

expand that waiver beyond its statutorily established boundaries. Nor can we

permit sympathy for a particular plaintiff to obscure the statutory standard to

the point of obliterating it.” Univ. of Med. & Dentistry of N.J., 213 N.J. at

157-58 (rejecting an “unlimited and unbounded approach” to TCA liability that

would not be “consistent with the Act’s limited waiver of sovereign immunity

and our usual strict construction of its requirements”).

Rather, I would “take comfort in the knowledge that if we have

misconstrued its intent, the Legislature has the power to clarify its intent by

amendatory enactments.” E.C. by D.C., 470 N.J. Super. at 56; see also Task

Force, cmt. on N.J.S.A. 59:2-1 (“Should further study in future years

demonstrate that additional liability of public entities is justified, such liability

may then be imposed by the Legislature within carefully drafted limits.”). For

now, however, I would hold that the TCA does not authorize public entity

vicarious liability for employee acts committed outside the scope of

employment.

31

II.

Concluding that public schools are only vicariously liable for employee

acts committed within the scope of employment does not end the inquiry.

Although the Court must respect both the Legislature’s intent behind the Tort

Claims Act and the intricate structure it established therein, defining judicially

created, common law phrases and standards is well within the judiciary’s

purview. See Task Force, cmt. on N.J.S.A. 59:2-2 (“[T]his section provides a

flexible liability provision which will permit courts to adapt the principles

established in this act to the particular circumstances of the cases coming

before them.”). To that end, because N.J.S.A. 59:2-2(a) remains in effect and

limits public entity vicarious liability to injuries caused by an employee’s acts

within the scope of their employment, the operative question becomes whether

an employee’s sexually abusive acts fall within an employee’s “scope of

employment” in this context.

As an initial matter, the majority notes that the meaning of “scope of

employment” in this context has “not been briefed or argued by the parties or

amici at any stage.” Ante at ___ (slip op. at 54). It must be reiterated that the

issue on appeal is whether plaintiffs adequately pled vicarious liability claims

against public entities. In litigating that issue, the discrete terms “scope of

employment” and “respondeat superior” appear no less than 530 times

32

throughout the merits briefs submitted in this case. Because resolution of the

present issue requires understanding what those common law, judicially

created terms mean in this context, I disagree with the notion that this Court

need not define them as applied to the matters before us.

Indeed, defining those terms can only be done in light of recent

developments identified by the parties and amici in this matter. Prior to oral

argument, plaintiff Hornor advised this Court that the American Law Institute

(ALI) recently adopted a “Special Rule on Vicarious Liability for Sexual

Assault” as part of the Restatement (Third) of Torts. 6 The ALI’s “Special

Rule,” discussed more fully below, expands employer vicarious liability for

employee sexual assault of particularly vulnerable victims. The rule functions

as a miscellaneous exception to the ALI’s respondeat superior standard. The

ALI adopted this new rule in recognition of the fact that courts across the

country, for decades, have struggled to create fair, workable standards for

entity vicarious liability in the difficult sex-abuse context.

In another, earlier development, the ALI abandoned the aided-by-agency

theory upon which the majority relies. Restatement (Third) of Agency § 7.08

6

In addition, the Attorney General, amicus curiae, noted in his brief that this

Court may wish to consider adoption of the Restatement (Third)’s approach to

vicarious liability within the sexual-assault context in an appropriate case.

33

cmt. b (Am. L. Inst. 2006) (“This Restatement does not include ‘aided in

accomplishing’ as a distinct basis for an employer’s (or principal’s) vicarious

liability.”); see also Pearce v. Werner Enters., Inc., 116 F. Supp. 3d 948, 957

(D. Neb. 2015) (“Section 219(2)(d) has proven contentious and difficult to

apply, and has been disavowed by its creators.”). 7

Those developments underscore that vicarious liability and respondeat

superior are uniquely challenging concepts to apply in the sexual abuse context

and therefore demand a particularly careful, context-sensitive review,

especially in the in loco parentis setting. Upon this review, I would hold that a

public school employee’s willful, wanton, or grossly negligent sexual acts fall

within the scope of their employment if: (1) the employee possessed an

official, entity-granted in loco parentis relationship to the victim, by which

they were given authority and control over the victim; and (2) the employee

engaged in the tortious acts during the exercise of that authority in performing

entity-assigned duties, or otherwise engaging in a course of conduct subject to

the entity’s control.

7

It is debatable if the aided-by-agency theory is still recognized in the

Restatement (Second) of Agency as, in 2023, the ALI added the following

disclaimer to § 219: “The second part of § 219(2)(3), regarding the “aided-by-

agency” theory of vicarious liability, was not approved by the ALI

membership and thus did not represent the position of the ALI. It has since

been superseded by the Restatement of the Law Third, Agency.”

34

To arrive at that holding, I (A) examine the historical backdrop of the

“scope of employment” standard and the context-specific evolution of

vicarious liability in contemporary jurisprudence and scholarship; (B) reflect

on the jurisprudential goals underlying application of respondeat superior; and

(C) consider the particular, unique nature of the employment relationship in

the school setting.

A.

My analysis begins with a review of the origins and evolution of

respondeat superior in our jurisprudence as well as in comparative

jurisdictions. “Although as a general rule of tort law, liability must be based

on personal fault, the doctrine of respondeat superior recognizes a vicarious

liability principle pursuant to which a master will be held liable in certain

cases for the wrongful acts of his servants or employees.” Carter v. Reynolds,

175 N.J. 402, 408 (2003) (citing Prosser & Keeton on Torts §§ 4, 69 (5th ed.

1984)). Under the doctrine of respondeat superior, “[a] master is subject to

liability for the torts of his servants committed while acting in the scope of

their employment.” Restatement (Second) of Agency § 219 (Am. L. Inst.

1958).

“The doctrine of respondeat superior (‘let the superior make answer’)

originated in the seventeenth-century common law of England, based upon the

35

concept ‘that one who would manage his or her affairs through others is

obligated to third persons damaged by such others acting in the course of their

employment.” Davis v. Devereux Found., 209 N.J. 269, 287 (2012) (citation

omitted) (quoting 1 J.D. Lee & Barry A. Lindahl, Modern Tort Law: Liability

and Litigation § 7.2 (2000)). The “scope of employment” inquiry “thus

focuses the Court on the relationship between the employee’s job

responsibilities and his or her tortious conduct.” Ibid.

The nature of the employment relationship, however, varies greatly

depending on context. That cannot be overemphasized. This variance has

inherently made imposing a universal “scope of employment” test difficult.

For decades, we have acknowledged that although “‘[s]cope of employment’ is

a commonly cited principle,” its meaning is “concededly imprecise” and its

application highly fact-specific. Carter, 175 N.J. at 411 (“This highly

indefinite phrase . . . is so devoid of meaning in itself that its very vagueness

has been of value in permitting a desirable degree of flexibility in decisions.”

(quoting Prosser on Torts § 70)); accord Di Cosala v. Kay, 91 N.J. 159, 169

(1982); Davis, 209 N.J. at 302.

In an effort for clarity, notwithstanding the difficulties posed by

evolving historical and economic considerations, “the courts of today have

worked out tests which are helpful in predicting whether there is such a

36

relation between the parties that liability will be imposed upon the employer

for the employee’s conduct within the scope of employment.” Restatement

(Second) of Agency § 219 cmt. a. Those judicially created tests present both

useful guidance and notable shortcomings in determining when liability

attaches. To adequately present the challenges unique to applying respondeat

superior in the present context, I will review (1) the typical “purpose-to-serve”

standard for “scope of employment” that most jurisdictions, including New

Jersey, have adopted; (2) alternative foreseeability-based approaches to “scope

of employment”; (3) additional approaches to vicarious liability proposed in

scholarship and adopted by other common law jurisdictions; and (4)

approaches to vicarious liability for acts outside the scope of employment

proposed by the ALI.

1.

Like most jurisdictions, this Court has adopted the Restatement (Second)

of Agency’s approach to “scope of employment” whereby “[c]onduct is

generally considered to be within the scope of employment if, ‘[(a)] it is one of

the kind [that the servant] is employed to perform; [(b)] it occurs substantially

within the authorized time and space limits; [and] [(c)] it is actuated, at least in

part, by a purpose to serve the master.’” Di Cosala, 91 N.J. at 169 (third and

fifth alterations in original) (emphasis added) (quoting Restatement (Second)

37

of Agency § 228). The “most important part of this test” is part (c), the

“requirement that there be a ‘purpose to serve’ the master.” See Paula J.

Dalley, All in a Day’s Work: Employers’ Vicarious Liability for Sexual

Harassment, 104 W. Va. L. Rev. 517, 545 (2002) (collecting cases).

In Davis v. Devereux Foundation, we observed how this requirement

operates in practice: “When the employee’s conduct -- however aggressive

and misguided -- originated in [the employee’s] effort to fulfill an assigned

task, the act has been held to be within the scope of employment.” 209 N.J. at

303 (emphasis added) (reviewing cases). This requirement maps quite well

onto the traditional context where the employer-employee relationship is

fundamentally commercial in nature: Because the purpose of the relationship

is to profit the employer, it seems fair to establish as a guardrail that when an

employee’s conduct cannot, even in the slightest way, be understood to benefit

the employer’s interests, and thereby further the purpose of that relationship, it

must be outside the scope of employment.

But the limitation of this standard becomes apparent in the sexual assault

context. This “purpose-to-serve” standard virtually always excludes an

employee’s sexual misconduct because such conduct cannot be thought, in any

way, to further an employer’s interests. See id. at 305-06; see, e.g., Cosgrove

v. Lawrence, 215 N.J. Super. 561, 563 n.1 (App. Div. 1987) (explaining that a

38

social worker therapist’s sexual abuse of a patient could only fall within the

scope of employment “upon a showing that sexual relations met prevailing

professional standards as an acceptable method of therapy and that the

employee therapist intended them to combat depression”); Piedmont Hosp.,

Inc. v. Palladino, 580 S.E.2d 215, 218-19 (Ga. 2003) (“While [the defendant’s]

employment did authorize him to inspect and clean the incision in [the

plaintiff’s] groin, in no way did it permit him to sexually manipulate [the

plaintiff’s] genitals. . . . [T]here can be no serious argument that [the

defendant’s] alleged manipulation of [the plaintiff’s] genitals furthered

Piedmont Hospital’s business,” and the abuse was therefore “obviously and

irrefutably outside the scope of his employment”); Buck v. Blum, 130 S.W.3d

285, 290-91 (Tex. App. 2004) (“[The plaintiff] pleaded that during a

neurological examination, [the defendant] placed his penis in her hand instead

of using the metal weight he had used previously. . . . While it is undisputed

[the defendant’s] alleged action was inappropriate, it cannot be fathomed that

the action was in furtherance of the employer’s business or for the

accomplishment of an object for which he was employed. At the very moment

[the defendant] placed his body part in her hand (assuming he did), he was

acting in his own prurient interest and ceased to be acting for the employer.

The neurological examination at that point was only a pretense or a means for

39

[the defendant’s] inappropriate personal gratification . . . and thus, [the

defendant’s] employers cannot be held liable under respondeat superior.”

(emphasis added) (citation omitted)).

By arbitrarily excluding conduct that is not considered to serve the

employer’s interest, this test leaves a notable gap in recovery for victims who

were harmed by a misuse of employer-granted authority. This gap is most

apparent in the school or law enforcement context where the authority

employers confer on employees and the trust individuals place in those

employees renders those individuals particularly vulnerable to abuse. For

example, in J.H. ex rel. D.H. v. West Valley City, the Supreme Court of Utah

held that a city was not liable for sexual abuse committed by a police officer

that occurred during a city-sanctioned youth outreach program. 840 P.2d 115,

122-23 (Utah 1992). Even though the officer was undisputedly entrusted with

the care and supervision of the youth, and the abuse occurred in the officer’s

patrol car, the court reasoned that the city could not be liable because the

officer committed the molestation “for his own personal gratification,” such

that “[the city] received no benefit from the acts, and [the defendant] did not

intend [the city] to benefit from his acts.” Id. at 123.

The perfunctory outcomes produced by the “purpose-to-serve” approach

in sex-abuse cases like those above illustrate the rigidity of this test -- a

40

rigidity that undermines the intended flexible, fact-specific application of

respondeat superior and fails to protect particularly vulnerable victims. The

approach’s inflexibility reflects what jurists have long recognized as the

“inadequacy of the motive test.” See Ira S. Bushey & Sons, Inc. v. United

States, 398 F.2d 167, 170 (2d Cir. 1968) (noting the “highly artificial way in

which the motive test has been applied”); see also Lange v. Nat’l Biscuit Co.,

211 N.W.2d 783, 785 (Minn. 1973) (“We reject as the basis for imposing

[vicarious] liability the arbitrary determination of when, and at what point, the

argument and assault leave the sphere of the employer’s business and become

motivated by personal animosity.”).

2.

The Second Circuit’s eminent decision in Ira S. Bushey & Sons remains

a leading example of respondeat superior and a foreseeability-based approach

to “scope of employment.” In that case, the court imposed vicarious liability

on the Government for property damage caused by its employee -- a sailor

who, following a night of drinking, opened valves and flooded the drydock,

thereby damaging both the drydock and the ship. 398 F.2d at 168. Although

the court observed that the sailor’s

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