C.O. VS. PINE HILL SCHOOL DISTRICT BOARD OF EDUCATION VS. D.C.M.(L-4862-13, CAMDEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2617-15T1

C.O., R.O., and G.M.O.,

Plaintiffs-Appellants,

v.

PINE HILL SCHOOL DISTRICT BOARD
OF EDUCATION, DOUG ENDEE, and
PATRICIA ISRAEL,

Defendants-Respondents,

and

C.M., and A.M.,

Defendants,

and

PINE HILL SCHOOL DISTRICT BOARD
OF EDUCATION, DOUG ENDEE and
PATRICIA ISRAEL,

Third-Party Plaintiffs,

v.

D.C.M.,

Third-Party Defendant.
____________________________________________________

Argued September 19, 2017 – Decided October 26, 2017
 Before Judges Fisher and Fasciale.

On appeal from the Superior Court of New
Jersey, Law Division, Camden County, Docket
No. L-4862-13.

Brian D. Kent argued the cause for appellants
(Laffey, Bucci & Kent, LLP, attorneys; Mr.
Kent and Samuel I. Reich (Laffey, Bucci &
Kent, LLP) of the Pennsylvania bar, admitted
pro hac vice, on the briefs).

Cherylee O. Melcher argued the cause for
respondents (Hill Wallack LLP, attorneys; Ms.
Melcher, on the brief).

PER CURIAM

Sometime in or about April through August 2008, when plaintiff

C.O. (Carolyn, a fictitious name) was thirteen years old, she was

sexually abused by D.C.M. (Donald, a fictitious name), the father

of her friend A.M. (Arlene, a fictitious name). Carolyn came

forward in January 2009 and Donald was arrested. During the months

that followed, while out on bail, Donald repeatedly drove up and

down Carolyn's street, causing the judge presiding in the pending

criminal matter to issue a restraining order. Donald later pleaded

guilty to and was sentenced on offenses relating to his abuse of

Carolyn and other girls.

In the Fall of 2009, Carolyn began her high school freshman

year in the Pine Hill School District. Because Arlene attended the

same school, school administrators met with Carolyn's mother to

address concerns naturally arising from the circumstances,

2 A-2617-15T1
including the potential for Donald's appearance on the premises.

Carolyn and her parents allege in their complaint in this civil

action that, despite these recognized concerns, Carolyn and Arlene

were placed in the same homeroom, Arlene would appear at times in

or near some of Carolyn's classes, and they were assigned nearby

lockers. In short, rather than attempt to insulate Carolyn from

the sequelae of her abuser's conduct, plaintiffs' allegations –

if true – suggested the school district went out of its way to

permit an already troublesome situation to fester and devolve.

Plaintiffs allege Carolyn was repeatedly bullied by Arlene and

other students, and that the situation even boiled over into a

physical altercation between the two girls that prompted criminal

proceedings and both girls' suspension. Even then, according to

plaintiffs, the school district took no action to alleviate the

volatile circumstances, and the harassment continued. The school

district also, according to plaintiffs, occasionally allowed

Donald onto school property despite the existing restraining

order. Plaintiffs allege that these and other acts and omissions

caused Carolyn great stress and interfered with her ability to

attend the school.

3 A-2617-15T1
 In 2013, Carolyn, no longer a minor, commenced this action1

against the school district and two of its representatives

(collectively referred to in this opinion as "the school-district

defendants").2 Carolyn and her parents asserted that the school-

district defendants were negligent, grossly negligent, careless

and reckless in failing to, among other things, "promulgate a safe

educational environment meant to prevent and cope with harassment,

bullying or intimidation."

In 2015, after nearly two years of discovery, Carolyn moved

to amend her complaint to include a claim based on the Law Against

Discrimination (LAD), N.J.S.A. 10:5-1 to -49. The motion was

denied, as was a subsequent motion for reconsideration.

The school-district defendants thereafter moved for summary

judgment. The judge granted the motion by concluding the evidence

did not support Carolyn's claim of a permanent injury as required

by N.J.S.A. 59:9-2, and by determining that Carolyn had not

1
Her parents are also plaintiffs.
2
Any pending claims asserted against Donald, his wife, and Arlene,
are not implicated by this appeal. We were advised by way of a
response to earlier inquiries by the Clerk's office, and again at
oral argument, that default was entered against these parties. It
is not clear to us whether judgment has been entered against any
of them, posing a procedural question whether finality has been
achieved in the trial court so as to permit an appeal as of right
of the orders in question. We, however, need not inquire further,
since, even if the orders were not final orders, we grant leave
to appeal out of time.

4 A-2617-15T1
alleged, nor provided sufficient evidence to demonstrate, that the

individual defendants Doug Endee and Patricia Israel engaged in

willful misconduct as the means of avoiding application of N.J.S.A.

59:9-2.

Plaintiffs appeal the October 9, 2015 order denying their

motion to amend to include an LAD claim and the February 5, 2016

order granting summary judgment in favor of the school-district

defendants. We conclude the judge was mistaken in both respects

and, therefore, reverse and remand for further proceedings.

I

The motion to amend need not long detain us. Absent a

demonstration that the amendment would be "futile" because it

would, if permitted, "fail" on its merits "and, hence, allowing

the amendment would be a useless endeavor[,]" Notte v. Merchants

Mut. Ins. Co., 185 N.J. 490, 501 (2006), motions to amend pleadings

are to be liberally granted "even if the ultimate merits of the

amendment are uncertain," Prime Accounting Dep't v. Twp. of

Carney's Point, 212 N.J. 493, 511 (2013). See also Rosario v.

Marco Constr. & Mgmt., Inc., 443 N.J. Super. 345, 352 (App. Div.

2016); Bustamante v. Bor. of Paramus, 413 N.J. Super. 276, 298

(App. Div. 2010).

5 A-2617-15T1
 The judge did not find that the assertion of the nascent LAD

claim would be futile; that is, we do not discern that his oral

decision was driven by a belief that the LAD claim could not

withstand a motion to dismiss.3 Instead, the judge concluded that

it was too late in the game to permit an amendment. The record

reveals, however, and the judge so observed, that the assertion

of this new claim would not require further discovery or the

joinder of additional defendants. Plaintiffs sought only to add

an additional theory of recovery to those already asserted against

these defendants. Because the school-district defendants would not

have been unduly prejudiced by the amendment, and because the

assertion of an LAD claim would not have delayed the proceedings,

we reverse the October 9, 2015 order and turn to the order granting

summary judgment.

II

In seeking summary judgment, the school-district defendants,

which consist of a public entity (the school district) and two

3
In referring to the deposition testimony of the school principal
to which plaintiffs alluded in seeking leave to amend, the judge
suggested only that the principal's conclusory statements were not
evidential. Even if the judge is correct about that, it does not
demonstrate why the available evidence would not support an LAD
claim. In other words, the principal's deposition testimony was
the impetus for the motion; we do not understand plaintiffs'
position as suggesting that the principal's deposition testimony
is all that may be amassed to show an LAD violation.

6 A-2617-15T1
public employees (Endee and Israel), relied on N.J.S.A. 59:9-2(d),

which bars an award of damages for pain and suffering against them

absent proof of a permanent and substantial injury.4 The problem

with applying this verbal threshold is that Carolyn – if we accept,

as we must, the truth of her allegations – was subjected to a

series of separate but arguably overlapping traumatic

circumstances generated by different parties.5 Certainly, the acts

or omissions of the school-district defendants did not cause or

factor into the sexual abuse suffered by Carolyn. Nor did the

school-district defendants participate in the traumatic events

that immediately followed, i.e., Donald's stalking of her in the

months preceding the commencement of her freshman year in high

school. The experts upon whom Carolyn relies to prove her claims

4
The entire provision states: "No damages shall be awarded against
a public entity or public employee for pain and suffering resulting
from any injury; provided, however, that this limitation on the
recovery of damages for pain and suffering shall not apply in
cases of permanent loss of a bodily function, permanent
disfigurement or dismemberment where the medical treatment
expenses are in excess of $3,600." In Brooks v. Odom, 150 N.J.
395, 406 (1997), the Court held that, to meet this statute's
requirements, the alleged loss must be "substantial."
5
Carolyn also argues that Endee and Israel, as public employees,
may not take advantage of the verbal threshold because they acted
willfully, citing N.J.S.A. 59:3-14. In response, the school-
district defendants argue that Carolyn did not allege in her
complaint that the public employees acted "willfully." In light
of our disposition of this appeal, we need not reach these issues.

7 A-2617-15T1
acknowledge that those pre-school events had already caused

psychiatric injuries. Carolyn had, for example, thoughts of

suicide in June 2009 before the start of the school year. But,

because we accept Carolyn's allegations as true, we assume she

arrived for her freshman year in a fragile state, as the school-

district defendants recognized when they held a meeting to discuss

the situation with Carolyn's mother.

We further assume, as the Brill6 standard requires, that the

school-district defendants' response to these circumstances fell

short of what might arguably be expected from such professionals

and, consequently, Carolyn was subjected to bullying and

harassment from Arlene, the daughter of her abuser, as well as

others. And, when this problem repeatedly manifested, it has been

alleged the school-district defendants continued to fail her.

In responding to the school-district defendants' invocation

of the verbal threshold, Carolyn argues that because she was

sexually molested she must be deemed to have vaulted the obstacles

imposed by N.J.S.A. 59:9-2(d). For this proposition, she relies

on the reported trial court opinion in A.C.R. v. Vara, 264 N.J.

Super. 565, 571-72 (Law Div. 1992), where the verbal-threshold

requirements were met – indeed the A.C.R. judge found that a

6
Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

8 A-2617-15T1
presumption arises – upon proof of a child's sexual molestation

even though "the injury only manifests itself in psychological

symptoms." The Supreme Court approved of this concept in Collins

v. Union County Jail, 150 N.J. 407, 420-21 (1997), when it

recognized that a claim of "alleged permanent psychological harm

in the form of post-traumatic stress disorder [PTSD] resulting

from the rape by [a] corrections officer[] constitutes a 'permanent

loss of a bodily function' within the meaning of N.J.S.A. 59:9-

2(d)."

Carolyn's urging of a presumption of compliance with the

verbal threshold because she was sexually molested, however,

represents an oversimplification of the issues before us. But so

too is the school-district defendants' argument that Carolyn

cannot vault the verbal threshold because her experts acknowledged

she suffered PTSD at Donald's hands and the symptoms in question

manifested prior to her attendance at their school. The issue is

more nuanced than either of those positions.

To be sure, the school-district defendants correctly argue

they may be held responsible only for injuries they caused and are

not liable for injuries Donald inflicted. They argue that to the

extent psychiatric injuries occurred, they occurred prior to their

involvement with Carolyn – and those preexisting injuries cannot

be considered in determining whether whatever injuries they

9 A-2617-15T1
allegedly caused are sufficient to vault the statutory verbal

threshold. In short, the record may suggest no more than that the

school-district defendants' involvement with Carolyn – if wrongful

– only aggravated her preexisting PTSD. But that doesn't

necessarily mean that the verbal threshold cannot be vaulted here.

In many ways, the present circumstances, and the trial judge's

disposition of the motion, are reminiscent of the difficulties our

courts encountered in automobile litigation governed by the verbal

threshold contained in automobile no-fault legislation, where a

preexisting injury was aggravated by a subsequent auto accident.

In Polk v. Daconceicao, 268 N.J. Super. 568, 575 (App. Div. 1993),

we held that when a plaintiff claims an auto accident alleged in

a complaint aggravated a preexisting injury, to avoid summary

judgment the plaintiff is required to provide a comparative-

medical analysis so that the plaintiff's residuals prior to the

accident might be correlated with the injuries suffered in the

accident in question. Polk formulated a rule that, "[w]ithout a

comparative analysis, the conclusion that the pre-accident

condition has been aggravated must be deemed insufficient to

overcome" the no-fault verbal threshold. Ibid. In Davidson v.

Slater, 189 N.J. 166, 186-87 (2007), however, our Supreme Court

rejected Polk; the Court found nothing in the then-existing no-

fault verbal threshold statute to impose on a plaintiff an

10 A-2617-15T1
obligation to present a comparative analysis to fend off a summary-

judgment motion.

Although we deal here with a different statutory threshold,

the automobile no-fault statute's purposes and policies – the

reduction of bodily injury claims for non-economic damages in

insubstantial claims – are similar. See Collins, supra, 150 N.J.

at 413 (recognizing that N.J.S.A. 59:9-2(d) was intended to

"preclude recovery for pain and suffering based on subjective

evidence or minor incidents"). Our approach in applying N.J.S.A.

59:9-2 – the Tort Claims Act's verbal threshold – should be

consistent with the automobile no-fault verbal threshold.

For these reasons, we conclude that Carolyn was not required

– at the summary-judgment stage – to delineate between those

psychiatric injuries Donald caused and those caused or aggravated

by the school-district defendants. Carolyn's allegations that her

PTSD was caused or further aggravated by the school-related events

suffices to defeat summary judgment. It will be for the jury to

ascertain the extent to which the injuries inflicted by Donald

were aggravated by the acts or omissions of the school-district

defendants and if that aggravation was sufficient to vault the

threshold contained in N.J.S.A. 59:9-2(d).

In short, as recognized in Davidson, supra, 189 N.J. at 186,

a plaintiff injured by separate torts must ultimately "produce

11 A-2617-15T1
comparative-analysis evidence to establish a prima facie

aggravation of pre-existing injuries" at trial, but, at the

summary-judgment stage, a plaintiff "need only raise a genuine

issue of material fact in respect of causation sufficient to permit

a rational fact-finder to resolve the alleged dispute in her

favor." There was a sufficient assertion of a substantial

aggravation of Carolyn's preexisting conditions contained in her

experts' reports to militate against the entry of summary judgment;

indeed, the expert opinions provided in opposition to the school-

district defendants' summary-judgment motion broadly blame all

defendants for the PTSD from which Carolyn suffered between 2008

and 2013. For example, Dr. Joel B. Glass opined, "with[in]

reasonable medical psychiatric certainty," that between 2008 (when

molested by Donald) and 2013 (years encompassing Carolyn's school

attendance), Carolyn experienced PTSD "characterized by anxiety,

depression, crying spells hypersomnia, social withdrawal, suicidal

thoughts, apathy, poor concentration hyperphagia, anxiety attacks,

nightmares and intrusive thoughts." Dr. Glass asserted that the

PTSD was "the direct result of her sexual abuse at the hands of

[Donald] and the bullying and harassment she endured as well as

feeling unsafe at school and unsupported by school officials"

(emphasis added).

12 A-2617-15T1
 The limited question before us is whether this and the other

similar expert report represented sufficient evidence of a

permanent injury – at the summary judgment stage – to vault the

statutory verbal threshold. Carolyn's experts professed that she

suffered permanent and substantial psychiatric injuries that

conform with the Brooks requirement of a substantial injury. 150

N.J. at 406. In adhering to the principles expressed in Davidson,

which we view as providing the proper framework for applying

N.J.S.A. 59:9-2(d) in similar circumstances, we conclude that the

summary-judgment motion should have been denied.

Both orders under review are reversed and the matter remanded

for trial.

13 A-2617-15T1