E.S. v. Brunswick Investment Limited Partnership, et al.
Docket No.: A-3372-18
Decided August 27, 2021
Submitted by New Jersey Sex Crime Lawyer, Jeffrey Hark
In a recent published decision, the Appellate Division reviewed whether building owner could be held vicariously liable for a property manager who sexually assaulted a tenant.
In E.S., from approximately March 1, 2013 until Spring 2015, plaintiff resided in a two-unit residential structure on Commercial Avenue in New Brunswick with her husband, A.S. (Andy), Gloria, Barbara, and a third child. Defendant Brunswick Investment Limited Partnership (Brunswick) owned the premises. Defendant is a property management company that owns and manages residential rental properties and an industrial park in New Brunswick.
he Commercial Avenue property consisted of two units and a detached garage. Apartment A was on the first floor, and Apartment B, where plaintiff and her family lived, was on the second. Apartment B also provided access to the building’s attic, which contained living and storage space. Defendant F.M. (Fred) lived in Apartment A from approximately December 1, 2009 through October 22, 2013.
Andy had discovered the availability of the apartment through a friend, who provided a phone number to call. Fred answered Andy’s call, set an appointment, and showed Andy the apartment. Neither plaintiff nor Andy knew Fred, who told Andy he was “the maintenance for the house for the company.” Fred brought Andy to defendant’s office, where he spoke with A.E. and signed the lease. A.E. also confirmed that Fred was “in charge of maintenance.” Plaintiff often paid rent at defendant’s office, and Fred was sometimes present.
According to plaintiff, Fred did numerous repairs and improvements to Apartment B and the attic, all approved after Andy spoke with A.E. At times, even when plaintiff or members of the other family were home, Fred used a key he possessed to access Apartment B.
Beginning in August 2014 and continuing through February 2015, Fred sexually assaulted Gloria and Barbara on four occasions. According to plaintiff, the first assault happened when Fred met the girls at the property after school and let them into Apartment B while plaintiff and Andy were at work. On another occasion, Fred assaulted one of the girls in the garage. The third assault happened after Fred arrived to do some work in the attic, and, on a fourth occasion, while Fred was painting the bathroom in plaintiff’s apartment. Plaintiff first became aware of these assaults after attending a parent-teacher conference at school, where Gloria was experiencing problems. Her daughters then disclosed details of the assaults.
Fred was charged and plaintiff filed suit against Defendant Brunswick, alleged defendant: was negligent in the “hiring, retention, training and supervision of [Fred],” and also its “negligence permitted . . . [Fred] access to” the children; negligently inflicted emotional distress on Gloria and Barbara; violated the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -50; violated the Child Sexual Abuse Act (CSAA), N.J.S.A. 2A:61B-1; and was vicariously liable under the doctrine of respondeat superior or “agency principles” for various common law torts.
Plaintiff’s complaint against Defendant Brunswick was dismissed on summary judgment and plaintiff appealed. The Appellate Division affirmed, and found that plaintiff presented no evidence that Defendant Brunswick knew or should have known about Fred’s behavior. What’s more, the undisputed material facts indicate that Fred’s behavior was clearly outside the scope of his employment, therefore voiding any liability on account of Defendant Brunswick without some kind of notice of the behavior.
This case is important to understand liability of employers for employee’s misconduct. In order for employers to be held liable, the employee’s conduct either must be within the scope of employment, or the employer must have known or should have known that the conduct was likely to occur and failed to take steps to prevent such conduct. Without this showing, although the employee will be individually liable for their conduct, the employer will not be held liable.
If you or someone you know has been sexually assaulted, injured in a car accident, truck crash, or slip and fall, call the experienced personal injury attorneys at Hark & Hark today. For personal injury matters, no money is paid up front, and fees are only collected if a recovery is made. At Hark & Hark, we represent clients for any case in any county in New Jersey Atlantic County, Bergen County, Burlington County, Camden County, Cape May County, Cumberland County, Essex County, Gloucester County, Hudson County, Hunterdon County, Mercer County, Middlesex County, Monmouth County, Morris County, Ocean County, Passaic County, Salem County, Somerset County, Sussex County, Union County, and Warren County and any town including Audubon, Gloucester City, Oaklyn, Audubon Park, Gloucester Township, Pennsauken, Barrington ,Haddon Heights ,Pine Hill ,Bellmawr ,Haddon Township , Pine Valley, Berlin Borough, Haddonfield, Runnemede, Berlin Township, Hi-Nella, Somerdale, Brooklawn, Laurel Springs, Stratford, Camden, Lawnside, Voorhees, Cherry Hill, Lindenwold, Waterford, Chesilhurst, Magnolia, Winslow, Clementon, Merchantville, Woodlynne, Collingswood, Mt. Ephraim, and Gibbsboro.