In New Jersey, can school districts defending a bullying case seek contribution from the students accused of bullying and their parents? Yes, said a recent New Jersey Superior court decision in V.B. a Minor by his Parent and Guardian v. Flemington-Raritan Regional Board of Ed, et al., Docket No. HNT-L-95-13 (NJ Superior Court, Hunterdon County, March 12, 2014).
The plaintiff alleged that the Hunterdon Central and Flemington-Raritan school districts (School Districts) failed to respond appropriately to the bullying of a student over the course of eight years due to his weight and later his perceived homosexuality. The student alleged that he was subject to verbal taunts, that food and balls were thrown at him and that he was repeatedly punched in the stomach. This verbal and physical harassment allegedly continued from the fourth grade until high school. The suit also alleged that after the schools’ teachers, guidance counselors and principals were informed of the victim’s complaints of bullying, they either did nothing or advised that there was nothing to be done. The suit further alleged that the plaintiff was a victim of cyber bullying, with comments posted on social media sites such as Facebook regarding the plaintiff’s perceived sexual orientation.
The plaintiff sued under two New Jersey statutes – the Anti-Bullying Bill of Rights Act (C.18A:37-13 et seq.) (Anti-Bullying Act) and the Law Against Discrimination (NJSA 10:5-1 to 49) (LAD). Subsequently, the School Districts filed a third-party complaint under the Anti-Bullying Act, LAD and New Jersey Joint Tortfeasors Contribution Law (JTCL) (N.J.S.A, 2A:53A-1, et seq.) seeking contribution from the students accused of bullying and their parents.
The focus of the V.B. decision was on the propriety of the School Districts’ contribution suit against the bullying students and their parents. The Anti-Bullying Act does not explicitly provide a school district with the right to seek contribution from a joint tortfeasor in a bullying case, such as the bullying students and their parents. The question presented in V.B. was whether the absence of an express contribution right in the statute prohibits a school district from seeking contribution. The bullying students and their parents argued in V.B. that the statute’s silence did bar contribution claims, and moved to dismiss the School Districts’ claim.
The court initially agreed with the students accused of bullying and their parents, ruling that there is no independent right of contribution under either the Anti-Bullying Act or the LAD. However, with respect to the JTCL, while the plaintiff had only alleged statutory violations against the School Districts with respect to bullying, the court held that “those violations result from both negligent conduct on [the School Districts’] part and that of Third-Party Defendants. The negligent conduct asserted is [the School Districts’] failure to supervise the various acts of bullying alleged to have been carried out, and the failure to supervise by the Third-Party Defendants’ parents.” The court concluded that the School Districts’ “negligence is only made evident by occurrence of Third-Party Defendants’ negligence” and that “[b]oth acts of negligence were required here for Plaintiff to suffer harm.”
The court noted that dismissal of the third-party complaint was premature because little discovery had been conducted on these issues. It was also noted that the protection under parental immunity for some of the Third-Party Defendants is a fact-sensitive analysis that required further discovery.
This is one of the first cases in which a New Jersey school district has sought contribution from students and their parents regarding an alleged failure to adequately respond to school bullying. The V.B. decision noted that this “matter presents a question of first impression,” and only cited to one matter, a 1967 state court decision that affirmed a fellow student to be equally liable with a school district and its employees for another student’s injuries. Only a few cases nationwide appear to address contribution from parents and none specifically on bullying, with those limited cases focusing on the parental immunity rule or negligent supervision allegation against the injured student’s parents. See e.g., Frederick v. Merrill Area Pub Schs., 985 Wisc. App. Lexis 3655, 9 (Wis. Ct. App. 1985) (holding that because "the parental immunity rule applies, the school has no contribution rights against the parents for [the student]'s damages"); Lampman v. Cairo Cent. School Dist., 81 Misc. 2d 395, 396 (N.Y. Sup. Ct. 1975) (noting that "if the child has no claim against the parent, then it follows that the third party [school] has no right to contribution against the parent"). Therefore, it is unknown whether the court’s decision in V.B. potentially allowing contribution will be part of a trend or more of an outlier.
The court’s decision in V.B. does not address the School Districts’ obligations under the Anti-Bullying Act, which requires school districts not only to establish bullying prevention programs or approaches but also to follow a detailed procedure to investigate incidents of bullying. The Anti-Bullying Act also notes that a school administrator who fails to initiate or conduct an investigation of an incident, or who should have known of an incident and fails to take action, is subject to discipline. As a lesson for other school districts, the decision should not be perceived as a “get out jail free card” with respect to school districts’ obligations under the Anti-Bullying Act, but rather a potential mitigating factor for any alleged damages relating to failure to address issues of bullying.