Court Weakens NJ Immunity Shield For Charities

Associated Press
August 8, 2006

TRENTON, N.J. -- A state law protecting nonprofit organizations from negligence lawsuits does not apply to all sex abuse cases, the New Jersey Supreme Court ruled Tuesday, dealing a blow to a music school being sued by a former student who claimed he was sexually abused.

The high court's decision stems from sex abuse claims involving administrators at the prestigious American Boychoir School in Princeton.

The ruling allows John W. Hardwicke Jr. to continue suing the music school. Hardwicke alleges that he was repeatedly molested by the school's music director and three other employees from 1969 to 1971, when he attended the school.

The decision also said that employers can be held responsible for claims against their employees even if workers' actions are outside the scope of their employment, a ruling that may have far-reaching effects for employers statewide.

Since January 2001, Hardwicke has been fighting for the right to sue the school, contending that a state law protecting nonprofits from negligence lawsuits doesn't apply to sex abuse cases.

"The rule before this decision had said that charities weren't responsible for the intentional acts of their employees," said Hardwicke attorney Lawrence Lessig, a professor at Stanford University Law School and himself a Boychoir School alumnus who claims he was sexually abused.

While the case has larger employment law implications, for Hardwicke it was a very personal victory and motivator to continue with his case.

"It's like a light of justice shining from the Supreme Court across the state of New Jersey, uncovering the dark secret the school has been hiding for so long," Hardwicke, who now lives in Maryland, said of the ruling.

In 2004, a state appeals court panel sided with Hardwicke, ruling that his case could move forward, but the school appealed. The Supreme Court's decision means his case can finally go to trial.

In its 5-1 ruling, the court reasoned that the state's Charitable Immunity Act protects charities from simple negligence claims only, not from claims that are based on "willful, wanton or grossly negligent conduct."

The school had argued that the act gave it immunity from Hardwicke's lawsuit. It also denied that it is a "natural person" or an individual standing in for a parent -- two standards indicating legal liability.

But the high court determined that the school was acting as a stand-in parent, and as such, may be "vicariously liable" for their employees actions.

"In effect, the school accepted the responsibility to nurture these young children at a critical and vulnerable stage in their development," Chief Justice Deborah T. Poritz wrote for the court.

Justice Roberto A. Rivera-Soto dissented in part, arguing that the act covers more than basic negligence claims. He also said that he believed Harwicke's lawsuit has passed the statute of limitations for civil cases.

Jay Greenblatt, the school's attorney, called the ruling "a slippery slope" for employers.

"The school may be responsible for (the music director's) abuse of the child even though abusing a child is outside the scope of his employment," he said.

Attorneys for victims of clergy abuse hailed the ruling, saying it puts a stop to charities that try to abuse the act, which was designed to stop frivolous negligence lawsuits.

"The statute was originally designed to protect charitable institutions from slip-and-fall lawsuits. But when your actions are grossly negligent and intentional, you can't hide behind the Charitable Immunity Act for that," said attorney Gregory Gianforcaro, who has represented dozens of clergy-abuse victims in New Jersey.

"What the Supreme Court in New Jersey has done is given a voice to victims of sexual abuse, who in the past were silenced by charitable immunity," he said.

In January, a bill was passed by the Legislature and signed into law by then-Gov. Richard J. Codey making New Jersey the 48th state to allow victims of childhood sex abuse to sue churches, schools and other nonprofits for the actions of their staff.

Hardwicke said he hopes to work with the Legislature to repeal the statute of limitations for sex abuse victims to file civil lawsuits. Such statutes have already been lifted for criminal prosecutions.

"My whole point for doing this was to uncover the darkness of the sex abuse," Hardwicke said. "And the only way to do it was to sing loud about it."

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