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N.J. Schools Sued Over Bullying Can Sue Pupils Responsible, Judge Says

By Charles Toutant

Yolanda CiconaA school district sued under New Jersey’s strict antibullying law may bring contribution claims against the students accused of harassing the plaintiff, a judge has ruled in a case of first impression.

Superior Court Judge Yolanda Ciccone denied a motion to dismiss third-party complaints against 13 students in a suit brought against the Hunterdon Central and FlemingtonRaritan school districts under the AntiBullying Bill of Rights Act, N.J.S.A. 18:37-13.

The 17-year-old plaintiff, known in court papers as V.B., claims the school staff failed to address his complaints about being taunted for being overweight and for his perceived homosexuality.

Ciccone held that a contribution claim is available to the school districts under the Joint Tortfeasor Contribution Law even though the plaintiff brings only statutory claims and no tort claims.

The suit, V.B. v. FlemingtonRaritan Regional Board of Education, includes a claim under the Law Against Discrimination for failure to accommodate the plaintiff’s anorexia.

V.B. claims that while he attended school in the Flemington-Raritan district from 4th until 8th grade, fellow students twice “pantsed” him (pulling down his pants to expose his underwear). They also threw a plate of spaghetti on him in the lunchroom, threw kickballs at his groin in gym class and jabbed him sharply in the side of the abdomen to inflict pain. His mother repeatedly reported the harassment to school administrators but nothing was done, the suit says.

As he entered high school in the Hunterdon Central district, classmates made harassing comments on Facebook, which were removed after he contacted the social media site’s operators. V.B. developed anorexia, for which he was hospitalized for three months as a 10th grader. He alleges high school administrators also took minimal actions to respond to his complaints about harassment At the end of 11th grade, the school district decided to issue his diploma a year early in light of the ongoing harassment.

The suit did not name any of V.B.’s classmates as defendants, although it identified them by initials in a detailed recitation of the incidents of harassment. In bringing third-party complaints against the 11 students, the two school districts claimed that their parents were made aware of their children’s conduct and that any failure to act may be deemed willful or wanton behavior. The school districts do not assert third-party liability under the LAD or the AntiBullying Act but state that the right of contribution exists under the Joint Tortfeasor Contribution Law whenever one party’s injury is caused by the tortious conduct of two or more persons.

Lawyers for the third-party defendants asserted that there can be no contribution because they have not committed any common-law tort. They also asserted parental immunity, claiming the conduct of third-party defendants’ parents did not rise to the level of willful or wanton failure to supervise their children.

Ciccone, the assignment judge for Hunterdon, Somerset and Warren counties, said the principles of joint liability allow school districts to seek contribution from those it failed to supervise when they are both responsible for the same harm.

Absent the school district’s negligence, the third-party defendants’ alleged negligence would not have occurred or would have been significantly limited, she said. “Both acts of negligence were required here for plaintiff to suffer harm,” she noted.

Ciccone also said dismissal on the ground of parental immunity was not warranted because very little discovery has been conducted in the case.

Steven Parness of Methfessel & Werbel in Edison, who represents one of the third-party defendants, says, “While we disagree with the ruling, we respect the court’s decision and look forward to moving for summary judgment for ourclients at the close of discovery.”

Other lawyers for the third-party defendants did not return calls.

Jeffrey Schanaberger of Hill Wallack in Princeton, representing the Flemington-Raritan school district, says he came up with the idea of the thirdparty claims.

“Our pitch to the court was, had the plaintiff used these very same facts and pled a count for negligent supervision, there would be no question that a right of contribution existed,” Schanaberger says. “Our argument was simply that the label the plaintiff chooses to put on this cause of action shouldn’t control.”

Robert GoldThe lawyer for the Hunterdon Central district, Robert Gold of Gold, Albanese & Barletti in Morristown, says bringing the perpetrators into the case is “appropriate when you look at the source of the problem—it’s these children who are allegedly abusing the one child.”

Plaintiff lawyer Brian Cige, a Somerville solo, says the ruling “is going to complicate litigating the case. But beyond the facts of this particular case, I think it’s going to send a positive message to parents and kids to be responsible.”

David Rubin, a Metuchen lawyer who represents school districts andserves as antibullying coordinator for thePiscataway district, says the ruling leaves open the question of what legal standard those students and their parents can be held to.

“It’s a decision, on the face of it, that involves a narrow legal issue, but one that could have widespread practical ramifications in the school community because it exposed the bulliers to potential liability as well,” Rubin says. “And maybe if this decision stands, perhaps in some way it will encourage families to be more vigilant about their own children’s behavior.”

Rubin says the impact of the decision in individual cases would depend on whether an insurance carrier or a school district is calling the shots. Some school districts are reluctant to include children as witnesses in legal proceedings such as tenure hearings, even if it may help the district’s position, he says.

Contact the reporter at ctoutant@alm.com

Alleged drunken driver acquitted in Parsippany fatal

Peggy WrightA Morris County jury on Monday acquitted a Dover resident of recklessly causing the death of a pedestrian on Route 10 in Parsippany by driving while intoxicated.

The jury of seven women and five men who heard the vehicular homicide trial before Superior Court Judge William McGovern in Morristown deliberated about three hours before declaring Fabio Aristizabal, 61, not guilty of recklessly causing the death of Richard Oberst, 64, of Parsippany, on Dec. 22, 2012.

Oberst died about 12 hours after he was struck while walking along Route 10 around 1:54 a.m. while snow flurries swirled. The jury was not told that Oberst had been released a day earlier from a psychiatric facility.

“I’m happy, my client’s happy. The jury did the right thing,” defense lawyer Walter Laufenberg said. His client, who was assisted at trial by a Spanish-to-English interpreter, was surrounded by his wife, son, daughter and a friend after the verdict. No relatives or friends on behalf of the victim attended the one-week trial.

The jury had a difficult task of deciding whether Aristizabal was legally intoxicated and acted in a criminally reckless manner. Aristizabal consented to having his blood drawn at a hospital and the results of a sample drawn about two hours and 20 minutes after the incident showed his blood-alcohol concentration to be 0.073 percent — less than the 0.08 percent BAC at which a driver is considered legally drunk in New Jersey.

Morris County Assistant Prosecutor Peter Foy had presented testimony from a State Police scientist, who extrapolated back to the time of the crash and calculated that Aristizabal’s BAC was actually between 0.09 percent and 0.14 percent.

While the scientist said the BAC could have been over the legal limit at the time of the crash and was in the process of dropping when blood was drawn, the scientist also conceded that the BAC could have been rising when blood was drawn. Laufenberg urged jurors to find that the BAC was below the legal level of intoxication at crash time and argued that Aristizabal was not reckless.

Laufenberg had called the death “an unspeakable act” but said it was an accident and said the victim had stumbled onto the road at the point he was struck.

While acquitted of a crime, Aristizabal was told to appear Tuesday before McGovern, the judge, to resolve an outstanding motor vehicle summons that charges driving while intoxicated for the same incident. He faces a loss of his driver’s license and monetary penalties and the judge can use evidence from the trial in determining the penalties.

Staff Writer Peggy Wright: 973-267-1142973-267-1142 pwright@GannettNJ.com.

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