On October 8, 2024, the New Jersey Appellate Division affirmed a ruling that a public school district could not be held vicariously liable for sexual abuse committed by a teacher outside the scope of her employment due to the New Jersey Tort Claims Act’s vicarious liability provision.
In Simpkins v. South Orange-Maplewood School District, three separate plaintiffs sued a public school district (“School District”), asserting that the School District was vicariously liable for alleged sexual abuse committed by their teacher while they were students at a local high school. The plaintiffs alleged that “the abuse took place on multiple occasions in [the teacher]’s classroom during school hours as well as in her car on school grounds and elsewhere.” The plaintiffs also claimed that [the teacher] altered their attendance records to excuse their absences from other classes when they were with her and favorably manipulated their grades.” The School District contended that [the teacher]’s alleged sexual misconduct was outside the scope of employment as it was beyond anything authorized by the School District and did not serve the employer. Davis v. Devereaux Found., 209 N.J. 269, 303 (2012). In all three cases, the trial court granted the School District’s motions to dismiss plaintiffs’ claims, which relied on a theory of vicarious liability. The bases for dismissal was the Court’s reliance on the New Jersey Tort Claims Act’s (“NJTCA”) vicarious liability provision. See N.J.S.A. 59-2-2(a). The NJTCA defines the scope of a public entity’s liability for damages caused by the negligent acts or omissions of its employees. The NJTCA’s vicarious liability provision permits a public entity to be held liable only for the acts of its employees occurring within the scope of their employment. Specifically, “[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.” Id.
The plaintiffs argued on appeal that the School District is vicariously liable for the teacher’s alleged sexual abuse of the plaintiffs based on (1) the Supreme Court’s holding in Hardwicke v. American Boychoir School, 188 N.J. 69 (2006), adopting the aided-by-agency theory of Restatement (Second) of Agency §219(2)(d)1; and (2) the 2019 amendments to the NJTCA disabling immunities in sexual misconduct cases, specifically N.J.S.A. 59:2-1.32. The plaintiffs did not challenge the trial court’s ruling that the teacher’s conduct towards them was outside the scope of her employment.
The Appellate Division affirmed, finding that the School District could not be held vicariously liable under the NJTCA for the teacher’s alleged sexual abuse committed outside the scope of her employment based on the Supreme Court’s ruling in Tice v. Cramer, 133 N.J. 347, 355 (1993). In Tice, the Supreme Court held that “[t]he liability of the public entity must be found in the [Tort Claims] Act,” and that public entities have no liability under the NJTCA for the acts of its employees occurring outside the scope of their employment. Hardwicke found a private entity vicariously liable, and therefore did not control here. Moreover, the Appellate Division emphasized that N.J.S.A 59:2-2(a) is “plainly a liability predicate not an immunity provision as to which the public entity would bear the burden of pleading and proof as an affirmative defense.”3 Therefore, the 2019 Amendment to the NJTCA disabling immunities in sexual misconduct cases does not allow a vicarious liability claim to proceed against the School District, as N.J.S.A. 59-2-2(a) establishes the non-liability for conduct outside the scope of employment.
The Appellate Division’s ruling in Simpkins makes clear for attorneys handling sex abuse matters against public entities that vicarious liability is limited to acts within the scope of employment under N.J.S.A. 59-2-2(a).
1. The Restatement (Second) of Agency § 219(2)(d) provides an exception to a master’s liability for the torts of his servants acting outside the scope of their employment when “the servant purported to act or to speak on behalf of the principal and there was reliance upon apparent authority, or he was aided in accomplishing the tort by the existence of agency relation.” In Hardwicke, a former boarding student sued a private school for alleged sexual abuse by its music director at the school and on school-sponsored trips. The Court recognized the vicarious liability exception to the general rule of respondeat superior and held that the private boarding school qualifying as a passive abuser under the Child Sexual Abuse Act, N.J.S.A. 2A:61B-1(a)(1), could be held vicariously liable for sexual abuse committed by an employee acting outside the scope of his or her employment. ↩
2. In 2019, the New Jersey Legislature amended the NJTCA to disable immunities in sexual misconduct cases. N.J.S.A 59:2-1.3 provides, "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."↩
3. Ellison v. Hous. Auth of City of S. Amboy, 162 N.J. Super. 347, 351 (App. Div. 1978)↩
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