On the last day of school in 2011, L.E. was concluding her freshman year in the Plainfield School District. During her scheduled gym period, no teachers or security were present.
L.E., along with two male students, slipped away from the class and entered the school building to use the bathroom; none of the students had hall passes and were unsupervised when they entered the building. One of the boys invited L.E. into the boys’ bathroom. After voluntarily entering the bathroom, L.E. was sexually assaulted.
The following December, L.E. reported the assault to a guidance counselor. The district contacted the local police, the Department of Child Protection and Permanency (formerly known as DYFS), however no criminal charges were filed. Subsequently, L.E. left the school and was hospitalized for a mental illness. She contended that the assault exacerbated her mental condition.
L.E. filed a complaint against the school district and both of the aggressors, alleging that the school district was negligent because the students were left unattended on the last day of school. Although the school district had a policy requiring students to be supervised at all times during regular school hours and requiring all students to obtain a hall pass when traveling in the building during class time, the trial court dismissed L.E.’s complaint.
The trial court reasoned that L.E.’s claim was, in essence, a claim that the school district failed to provide adequate security. Under New Jersey’s Tort Claims Act, a governmental entity is immune from suit for any injuries based on the manner in which it chooses to deploy police protection.
Following the trial court’s dismissal, L.E. appealed to the Appellate Division. That court affirmed the general tort immunity recognized by the trial court, namely that “[t]he immunity provision ‘protect[s]’ the public entity’s essential right and power to allocate its resources”’ and “determine with impunity whether to provide police protection service and, if provided, to what extent.” However, the Appellate Division disagreed with the trial court’s application of the immunity rule in this matter.
In reversing the trial court’s decision, the Appellate Division’s decision noted an important distinction supporting the plaintiff’s claim. This important distinction was the fact that the plaintiff claimed negligent supervision, not a failure to protect.
The Appellate Division also noted that the plaintiff was not questioning the allocation of police or security forces, nor did they question the adequacy of the police presence in the school. The court focused on the fact that the claim related to “the separate duty of a school and its staff to exercise reasonable care in supervising children entrusted to them.”
The court also determined that L.E. was harmed by fellow students that the district failed to supervise. The court determined that the failure to issue hall passes and the absence of teachers or other staff on the grounds during the gym class did not involve a lack of adequate police protection.
The Appellate Division then reinforced this point by citing a number of cases in which New Jersey courts have consistently found that school officials have a duty to supervise children in their care. The court also relied on compulsory attendance laws to support the duty to protect students and because schoolchildren are subject to school rules and discipline, school officials are obligated to take reasonable precautions for the safety of each student.
Clarifying this last point, the Appellate Division held that the supervisory duty extends to “foreseeable dangers…[that] arise from the careless acts or intentional transgressions of others.” In this case of first impression, the court concluded that the duty to protect against foreseeable dangers extends to the prevention of unwanted sexual encounters between students.
For more information on this matter, please contact the New Jersey School Boards Association’s Legal and Labor Relations Department at (609) 278-5254 or your local board attorney.