Choir School Can Be Sued for Abuse
In a Wider Sense, the State's Justices Said Employers Could Be Held Liable for Actions beyond a Job's Scope

By Beth DeFalco
The Associated Press, carried in Philadelphia Inquirer
August 9, 2006

Trenton - A New Jersey law that protects nonprofit organizations from negligence lawsuits does not apply to all sex-abuse cases, the state Supreme Court ruled yesterday, dealing a blow to a music school sued by a former student who said he had been sexually abused.

The ruling allows John W. Hardwicke Jr. to continue suing the prestigious American Boychoir School in Princeton Township. Hardwicke, who lives in Maryland, alleges that the school's music director and three other employees repeatedly molested him from 1969 to 1971, when he attended the school.

The 5-1 decision also said employers could be held responsible for child-abuse claims against their employees even if the workers' actions were outside the scope of their employment, a ruling that may have far-reaching effects.

Hardwicke had fought for the right to sue the school since January 2001, contending that the law protecting nonprofits does not 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 Stanford University law professor and a Boychoir School alumnus who says he, too, was sexually abused.

In 2004, a state appeals court panel sided with Hardwicke, ruling that his case could move forward, but the school appealed. Now the case can go to trial.

Hardwicke compared the ruling to "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."

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.

The high court reasoned that the Charitable Immunity Act protects charities only from simple negligence claims, not from claims based on "willful, wanton or grossly negligent conduct."

The school also had denied that it is a "natural person" or an individual standing in for a parent. But the justices determined that the school was acting as a stand-in parent and, as such, may be "vicariously liable" for its 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 and that the statute of limitations for civil cases had passed.

Attorneys for victims of clergy abuse said the ruling would put a stop to charities' attempts to abuse the act.

"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 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, New Jersey enacted a law making it the 48th state to allow victims of childhood sex abuse to sue churches, schools and other nonprofits for the actions of their staff. The law did not apply retroactively to Hardwicke's case.

Hardwicke said he hoped 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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