G.A.-H. v. K.G.G., 238 N.J. 401 (2019). As noted here, the Supreme Court granted review in this case to address this issue: “Is an individual subject to tort liability for purportedly failing to alert a victim or alert authorities that a co-worker has engaged in the sexual abuse of a minor, under the circumstances presented?” The Appellate Division’s opinion, reported at 455 N.J. Super. 294 (App. Div. 2018), and discussed here, raised that provocative issue, but found the record insufficient to decide it.
Today, the Supreme Court found that the facts were such that no reasonable trier of fact could find the defendant, or his employer, liable. Thus, the Court determined that it “need not decide whether a co-worker or employer with knowledge or a special reason to know that a co-worker or employee is engaged in a sexual relationship with a minor has a legal duty to report that co-worker or employee.” Justice Fernandez-Vina wrote the Court’s unanimous opinion.
“Kenneth,” a 44-year old man, was engaged in a secret sexual relationship with a 15-year old girl, the plaintiff in this case. “Arthur” worked with Kenneth at defendant GEM Ambulance, LLC, where they were both emergency medical technicians.
Kenneth told co-workers that he was in a relationship, but he never indicated that his partner was underage. At one point, he said that she was 22 years old, though at other times, he claimed that she was of a different age.
Here were the key facts, as stated by Justice Fernandez-Vina, as to what Arthur knew about Kenneth’s relationship:
“Kenneth and Arthur worked together on several Tuesday shifts from December 2010 to February 2011. During those shifts, Kenneth would show Arthur the pictures and videos of a naked female that Kenneth had on his phone. Arthur would quickly look away from Kenneth’s phone when shown the pictures and videos. Kenneth’s phone was a ‘flip phone’ with a small screen. Arthur also tried to shut down any discussion of the pictures and videos.”
The relationship ended in February 2011. Kenneth pled guilty to various criminal offenses.
In 2015, plaintiff sued Arthur, GEM, and others, alleging that Arthur should have reported Kenneth’s misconduct to GEM, and that GEM was vicariously liable for Arthur’s failure, and for negligent retention, training, and supervision of Kenneth and Arthur. On motions for summary judgment, the Law Division found that Arthur had no duty to report Kenneth to GEM, and that GEM thus had no liability. The Appellate Division remanded the case for more discovery. Arthur and GEM sought and were granted Supreme Court review.
Applying de novo review, Justice Fernandez-Vina found no basis for liability as to either Arthur or GEM. Plaintiff had cited certain regulations as a basis for liability, but the Court rejected that argument. “N.J.A.C. 8:40-3.7(a)(4) requires EMTs and others to report “[a]ny instance where a crew member acts outside of his or her approved scope of practice,” but no such conduct was alleged here. And N.J.A.C. 8:40-3.7(a)(5)’s requirement that EMTs and others report,among other things,“any instances of child abuse or neglect” depends on the definition of child abuse set forth in Title 9, which both the trial court and the Appellate Division correctly found to be limited to conduct by the child’s ‘parent, guardian, or other person having . . . custody and control’ of the child.” (Indeed, yesterday, an opinion of the Appellate Division by Judge Mayer noted that same limitation, as discussed here).
Plaintiff fared no better under the common law. The only facts that plaintiff cited as creating a common law duty of care were “(1) Kenneth walked plaintiff to her bus stop while she carried a backpack; (2) Kenneth gave inconsistent accounts of the age of his ‘girlfriend’ when bragging to co-workers about his “girlfriend”; and (3) Kenneth showed Arthur pictures or videos of a naked female on his flip-phone.”
But none of that established that Arthur knew that plaintiff was underage. Justice Fernandez-Vina noted that it is “often difficult to know someone’s age based on appearance alone.” Here, the tiny pictures on Kenneth’s flip phone did not give Arthur the required “special reason to know” that Kenneth’s relationship was with a minor. Besides, it was not even clear that Arthur saw the pictures.
Arthur thus had no common law duty to report Kenneth. GEM too had no liability. The larger question of whether an employee has any duty to report such conduct by a fellow employee, or whether their common employer has any duty, remains for another day.