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S.P. v. Monroe Township Board of Education3/11/1999
December 16, 1998, Submitted
Approved for Publication March 11, 1999.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.
We affirm the denial of the application for late filing against the Township and Board of Education. We also affirm the dismissal of the complaint against Collier High on charitable immunity grounds. We reverse the grant of summary judgment to Bock and reinstate his third-party complaint against the Board of Education.
The opinion of the court was delivered by STERN, P.J.A.D.
Following the entry of final judgment, plaintiff appeals from an order of September 15, 1995, denying her motion to file a late notice of claim under the Tort Claims Act against the Township of Monroe and its Board of Education. Plaintiff also appeals from an order of July 16, 1997, granting summary judgment to defendants Collier High School (Collier High) and its principal, Raymond Bock, III.
Defendants Collier High and Bock, as third party plaintiffs, cross appeal from the same order of July 16, 1997, dismissing their third party complaint. The cross-appeal "is made solely for the purpose of restoring the third party complaint in the event plaintiff's appeal is successful." The third party Complaint was filed against the Township of Monroe, the Monroe Township Board of Education ("Board") and H.C. ("C."). C. is alleged to have sexually harassed plaintiff on the school bus they mutually rode to and from Collier High, a private high school for children with special needs. Plaintiff was placed there by the Board which was responsible for the busing of plaintiff to and from school. The third party complaint sought "common law indemnification" and contribution from all three third party defendants and "contractual indemnification" from the Board and Township.
I.
Plaintiff endeavored to sue Monroe Township and the Monroe Township Board of Education as well as Collier High and Bock who, she claims, failed to "protect and care for" her while she was in their "custody." However, the Law Division declined to permit the late filing of the tort claim notice. The motion Judge concluded that there were no "extraordinary circumstances" to warrant the late filing (more than ninety days after, but within a year of, plaintiff's eighteenth birthday). See N.J.S.A. 59:8-1, -8, -9. Vedutis v. Tesi, 135 N.J. Super. 337, 340-41, 343 A.2d 171 (Law Div. 1975), aff'd o.b., Vedutis v. South Plainfield Bd. of Educ., 142 N.J. Super. 492, 362 A.2d 51 (App. Div. 1976)); Rost v. Fair Lawn Bd. of Educ., 137 N.J. Super. 76, 347 A.2d 811 (App. Div. 1975). Plaintiff challenges that order and the order which granted summary judgment to Collier High and Bock on the grounds that they owed "no duty" to plaintiff because she was on the school bus over which they had "no control." Plaintiff contends that "Collier and Bock had an obligation to notify plaintiff's parents of her allegations of criminal sexual contact and abuse on the school bus" and argues that "the fact that the third party defendants were responsible for setting up the transportation of students to and from Collier, has no bearing upon the liability of Collier and Bock in failing to protect the plaintiff when she went to them for help." Under plaintiff's version, she went to Bock several times and he promised to do something about it, but took action which was inadequate and ineffective. Plaintiff alleges that because Bock's efforts were so inadequate and ineffective, the harassment became progressively worse. Under plaintiff's version, Bock, as an agent for Collier High, was advised of the facts and assumed the responsibility as principal to correct the problem.
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