On March 11, 2026, the New Jersey Supreme Court issued a decision concerning the vicarious liability of public entities, including public school districts, in connection with sexual assault and sexual misconduct allegations that occur outside the scope of employment.
The plaintiffs in four matters – which were consolidated for purposes of the New Jersey Supreme Court’s opinion – independently alleged that they were sexually abused by New Jersey public school teachers when they were high school students in Hornor v. Upper Freehold Reg. Bd. of Ed, and in Simpkins et al. v. South Orange-Maplewood School District, the plaintiffs alleged that the board and the school district were, among other claims, vicariously liable for the actions of the teachers who sexually abused them on and off school grounds, and over a period of time. Vicarious liability is a legal doctrine that, in certain circumstances, can hold an employer liable for the actions of its employee(s) and the resulting damages. Hornor also separately alleged that the board breached a fiduciary duty to him.
In Hornor, the trial court denied the board’s motion to dismiss some of Hornor’s claims, but the New Jersey Superior Court, Appellate Division (Appellate Division), reversed. In reversing, the Appellate Division concluded that, notwithstanding N.J.S.A. 59:2-1.3(a)(1)’s abrogation or elimination of Tort Claim Act immunities for public entities in actions related to sexual abuse, Hornor’s vicarious liability claims for conduct which occurred outside the scope of employment were barred because they were not specifically authorized by N.J.S.A. 59:2-2 or any other provision of the Tort Claims Act. The Appellate Division also rejected Hornor’s argument that the teacher’s alleged “grooming” of him gave rise to a “special relationship” warranting the imposition of a fiduciary duty.
In Simpkins, the trial court granted the school district’s motion to dismiss certain of plaintiffs’ claims, and the Appellate Division affirmed. In affirming, the Appellate Division held, as it did in Hornor, that because the sexual abuser’s conduct occurred outside the scope of her employment, the school district could not be vicariously liable for her actions unless a provision in the Tort Claims Act gave rise to predicate liability.
On appeal, the New Jersey Supreme Court considered whether N.J.S.A. 59:2-1.3(a)(1), which was enacted by the Legislature in 2019 as part of the Child Victims Act and which amended the Tort Claims Act, authorizes the imposition of vicarious liability on a school district for a public school teacher’s sexual abuse of a student outside the scope of the teacher’s employment. After reviewing the applicable case law and legislative history of the Tort Claims Act and the Child Victims Act, the New Jersey Supreme Court held that, contrary to the Appellate Division’s determination, 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. In this way, the New Jersey Supreme Court found, contrary to the determination of the Appellate Division, that it is “unnecessary for a vicarious liability claim brought pursuant to N.J.S.A. 59:2-1.3(a)(1) to fit within a [Tort Claims Act] liability provision such as N.J.S.A. 59:2-2(a).”
In light of its determination that public entities could be vicariously liable, the New Jersey Supreme Court also needed to determine the standard applicable to those claims. More specifically, for a plaintiff to prevail in a vicarious liability claimunderN.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 New Jersey Supreme Court held that a 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.
With regard to the third element of the test/standard (tacit approval), the New Jersey Supreme Court stated that the factfinder’s determination will be “informed by the factors applicable to a given case.” By way of 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 intervene, a factfinder may reasonably find that the school tacitly approved the abuse.” Alternatively, “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.” Per the New Jersey Supreme Court, “These examples are not exclusive; the third factor of the test…may be satisfied in other factual settings.”
In adopting the test/standard set forth above, the New Jersey Supreme Court emphasized that it is a “case-specific inquiry” that must take “into account the totality of the circumstances.” It also noted that relevant considerations include, but are not limited to: (a) any policies, training, or other procedures implemented by the school to prevent or address the sexual abuse of students; (b) whether the school enforced those policies or other procedures; (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.
Finally, with regard to Hornor’s appeal of the decision to dismiss his breach of fiduciary duty claim, the New Jersey Supreme Court held that a public school does not bear a fiduciary duty to a specific student. In this way, it agreed 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.”
Ultimately, the New Jersey Supreme Court remanded Hornor to the trial court for a determination of the board’s motion to dismiss Hornor’s vicarious liability claim pursuant to the test/standard set forth in its opinion, and remanded Simpkins to the trial court for “further proceedings.” With regard to Simpkins, the New Jersey Supreme Court specifically found that “all three plaintiffs have adequately pled vicarious liability claims” under the New Jersey Supreme Court’s test/standard.
What does this decision mean? It means that if a student who has been a victim of sexual abuse or sexual misconduct which was caused by a willful, wanton, or grossly negligent act of a school employee, and they can plead and prove the elements of the test/standard set forth in the New Jersey Supreme Court’s March 11, 2026 decision, a school district can be vicariously liable for those actions even if they occurred beyond or outside the scope of employment.
As always, if your board of education is involved in litigation concerning a similar matter, you should speak with your board attorney for legal advice and guidance.
