By Sandra L. Jacques, Esq., LL.M., Assistant Director of Legal Education, Foundation for Educational Administration
Many School District employees do not realize that they can be held civilly and/or criminally liable for their inappropriate interactions with students both on and/or off of school grounds. It is also important for School Districts to realize that they may also potentially be held liable for the actions of their staff members, including for activities that are “outside the course and scope of employment” (including sexual activity with a student). This article will provide a summary of the March 2026 New Jersey Supreme Court Decision of the consolidated cases of Russell Forde Hornor v. Upper Freehold Regional Board of Education (A-36-24) (089973) and Ormond Simpkins, Jr. v. South Orange-Maplewood School District (A-37/38/39-24) (089974), which addressed the issue of a School District’s vicarious and or fiduciary liability regarding a staff member’s action(s) involving a student, both on and/or off of school grounds.
Facts/Procedural History
In this consolidated case, four separate allegations (1 against Upper Freehold and 3 against S. Orange-Maplewood) were combined, as they all dealt with the same questions of law regarding vicarious and/or fiduciary liability. A brief summary of the facts and procedural history of the individual cases is as follows:
- #1 v. Upper Freehold – A former High School Student alleged that in 1979, when the student was 15 years old, a science teacher and advisor/team coach to the Future Farmers of America (FFA) club (deceased at the time of the litigation) had sexually abused him. The teacher had given his student many rides to/from work and FFA activities , and took him and others to the movies and a bowling alley. It was also alleged that the teacher supplied this student with alcohol during these outings. There was also an incident where the student was brought to the teacher’s apartment, and was sexually assaulted with the admonition to not “say anything” about the incident. The student claimed that the remainder of the issues were “emotionally suppressed” in some manner at the time that the lawsuit was filed.
- Initially, the Trial Court denied the School District’s Motion to Dismiss. The Appellate Court reversed that Decision, and the case was appealed to the New Jersey Supreme Court.
- #2, #3 and #4 v. S. Orange-Maplewood – There were 3 separate allegations of sexual assault and abuse by an English/Special Education teacher (she also participated in a summer educational program operated by Family Connections, Inc. and the NJ Division of Child Protection and Permanency (DCPP)) both on and off of school grounds.
- #2 Allegations: In 2013, as a 14-year-old student, he was sexually abused on over 200 occasions in the teacher’s classroom during the school day, in her car in the school parking lot during lunch periods and after school, and at a park near the high school.
- #3 Allegations: Another 14-year-old student was sexually abused eight or nine times during the 2013-14 school year in the teacher’s classroom and car. The teacher demanded his cell phone number and then texted “sexually explicit messages and photographs.”
- #4 Allegations: As a 14-year-old student at the summer educational program and in the teacher’s classroom in 2011, the teacher “initiated sexually explicit conversations and contact with him.” He claims that he was sexually assaulted in June of 2014 in the teacher’s car parked in the parking lot of an apartment complex near the school.
- Both the Trial Court and the Appellate Court granted the School District’s Motion to Dismiss, and those Decisions were appealed to the New Jersey Supreme Court, where they were consolidated with #1 against Upper Freehold.
- All of the vicarious liability cases were ultimately remanded by the New Jersey Supreme Court to the Trial Court for further proceedings which aligned with the legal standards set forth in this Decision. The Fiduciary Liability Claim within the Upper Freehold case was dismissed.
Issues
1. Does the Child Victims Act (2019) codified at N.J.S.A. 59:2-1.3(a)(1) impose vicarious liability on a School District for its teacher’s sexual abuse of a student outside the scope of the teacher’s employment?
2. Can a claim of a breach of Fiduciary Duty be pursued against a student’s School District?
Holdings
1. “N.J.S.A. 59:2-1.3(a)(1) does not categorically bar the imposition of vicarious liability on a public school entity for acts of sexual abuse outside the scope of a teacher’s employment and vicarious liability claims should not have been dismissed at the pleading stage (i.e. before discovery had been completed).
2. A public school does not bear a Fiduciary Duty to a student. The Court noted that a 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.”
Vicarious Liability
The State Legislature has previously determined that with exceptions, “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). The exception to this immunity was for “vicarious liability for an act or omission of a public employee within the scope of his employment.” However, in earlier legislation, the “Legislature expressly immunized public entities from vicarious liability for “an act or omission of a public employee constituting a crime, actual fraud, actual malice or willful misconduct.” N.J.S.A. 59:2-10. (Id. at 2, 29-35).
Given this statute, how did the Court determine that a District could be held vicariously liable for the acts of a teacher outside the course of their employment on and/or off of school grounds? The Court explained that the 2019 Child Victims Act “fundamentally altered the law governing civil claims against public entities and certain private entities arising from sexual abuse.” This provision is codified at N.J.S.A. 59:2-1.3(a) (and had also been previously addressed by the Charitable Immunity Act and the Child Sexual Abuse Act), and states that “the Legislature abrogated the Torts Claims Act 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.” (Id. at 2, 36-39)
Accordingly, the Child Victims Act nullified the Torts Claims Act’s (TCA) general rule of immunity and the provisions of immunity in specific settings as noted above. Accordingly, the Court found that “(b)y virtue of N.J.S.A. 59:2-1.3(a)(1), the Legislature had 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.” (Id. at 2, 36-39)
In order to analyze the possible applicability of a claim of vicarious liability regarding claims of sexual assault and/or sexual misconduct against a student, each case must be analyzed on a case by case basis. Cited prior common law claims, the Court noted that “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 sexual abuse of students through the implementation and enforcement of appropriate policies.” (Id. at 3, 39-46).
The Court held “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.” (Id. at 3, 46-48)
Statutory Rape
Although the issue of the criminal offense of Statutory Rape was not a part of this Decision, it is noteworthy that the accused teachers could be prosecuted for their alleged actions. In accordance with sexual assault laws, codified in N.J.S.A. 2C:14-2, a School District staff member (or any adult in a “position of authority”) is prohibited from engaging in a sexual relationship with a student. If such behavior does occur, it is considered “Statutory Rape”, regardless of the age of the student, or whether the student “consented” to the act(s). Generally, sexual activity with a minor under the age of 16 is a crime, as those minors are not considered to have the ability to consent to such a relationship.
The “Romeo and Juliet” Law (Close-in-Age Exception) pertains to 2 minors involved in a sexual relationship. Individuals between the ages of 12 and 16 may lawfully engage in sexual activity with someone no older than four years their senior. Again, this exception does not apply if there is a position of power, authority, or supervision involved, and such actions are illegal regardless of the age of the student.
Avoiding Even the Appearance of “Tacit Approval”
A key element for a plaintiff to prevail in a vicarious liability claim is the determination that it “reasonably appeared that the school employee’s sexual abuse of or sexual misconduct against the student was tacitly approved by the school”. Districts must clearly establish, train staff on, and actively actively enforce appropriate boundaries between students and staff members, to ensure boundary-crossing behavior is never perceived as acceptable or ignored. This includes establishing clear expectations for what is and is not appropriate physical contact between students and staff members that includes considerations related to age (e.g., elementary v. high school), student need (e.g., students with disabilities who may need some physical guidance), and context (e.g. the wrestling coach who needs to physically demonstrate various moves v. the classroom teacher). It also needs to include clear boundaries related to contact on social media and social interactions outside of the school setting, with an emphasis on transparency and prior approval where exceptions may be permissible. Finally, such training needs to stress the importance of mandatory reporting obligations for all staff members, including the duty to report to the Institutional Abuse Investigation Unit if there is reason to believe a school employee has abused a child.
Conclusion
School Districts and their staff must be aware of the potential legal liability for any inappropriate behavior involving a staff member and a student. School Districts may face liability for alleged sexual misconduct by teachers that occurred years or even decades ago. While many of these cases may settle after the student survives a Motion to Dismiss by a District, there would still likely be a substantial financial payment/settlement made by the District, the District’s reputation will probably be tarnished in the community, and of course, the former student victim will have suffered at the hands of a District employee. By proactively establishing and enforcing clear boundaries, school districts reduce their potential legal exposure and the potential for such tragic situations to occur.