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Supreme Court Finds That Defendant Employee Was Not Obligated To Report That His Co-Worker Was Engaged In Sexual Relationship With Minor

By on August 9, 2019 in Negligence with 0 Comments

When minor Plaintiff G.A.H. was 15 years old, she began a sexual relationship with the defendant “Kenneth” when he was 44.  During the time period of this illegal relationship, Kenneth worked for defendant GEM Ambulance LLC (“GEM”) as an EMT.  The issue in the New Jersey Supreme Court case of G.A.H. v. K.G.G., 2019 N.J. LEXIS 856 (2019) was whether Kenneth’s co-worker, defendant “Arthur” was obligated to report that his co-worker Kenneth was engaged in this sexual relationship with the minor while in the employ of GEM.

This relationship did not happen during working hours while Kenneth was employed with GEM.  However, while he was working, he would sometimes park a GEM ambulance near plaintiff’s bus stop and, from there, he would walk to her bus stop.  However, no other GEM employee interacted with plaintiff on these occasions. 

According to the facts, Kenneth would often brag to his co-workers that he was in a relationship but he did not identify the person’s real name or age.  Kenneth and Arthur worked together on several shifts, during which time Kenneth would show Arthur pictures and videos of a naked female that Kenneth had on his phone.  Arthur would quickly look away from the phone, which was a flip phone with a small screen.

The sexual relationship lasted for about five months, at which time the minor plaintiff informed her mother about the relationship.  Plaintiff’s mother notified the police and Kenneth thereafter pled guilty to various criminal offenses.

Four years later, the minor plaintiff filed suit against Kenneth, Arthur, and GEM, among others.  Plaintiff claimed that Arthur should have reported Kenneth to his supervisors and that GEM was vicariously liable for Arthur’s failure to report Kenneth’s conduct and also that it was negligent in retaining, training, and supervising Arthur and Kenneth. 

The trial court granted Arthur and GEM summary judgment, holding that Arthur had no duty to report Kenneth and, further, that no facts created a reasonable basis for Arthur to believe that Kenneth was engaged in a sexual relationship with a minor.

The Appellate Division, however, reversed the grants of summary judgment.  In the Appellate Division’s view “the common law does not necessarily preclude the imposition of” a duty to report that a coworker is engaged in a sexual relationship with a minor.  It remanded the matter back to the trial court to further develop the record whether Arthur knew of Kenneth’s illicit sexual relationship with plaintiff.

The Supreme Court reversed the Appellate Division’s decision and reinstated the trial court’s grant of summary judgment.  The Supreme Court found that “no reasonable trier of fact could find that Arthur knew or had special reason to know that Kenneth was engaged in a sexual relationship with a minor.”  Thus, the Supreme Court found that Arthur had no duty to report Kenneth.  As a result, there was no basis for liability to attach to GEM.

Because the record was determinative of Arthur and GEM’s liability, the Court stated that “we 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.”  Thus, this issue was left open for another day.

The Court found that the facts did not support the plaintiff’s claim that Arthur knew Kenneth was engaged in a sexual relationship with a minor, nor that the facts establish a “special reason” for Arthur to know that Kenneth was engaged in such a relationship.  The Court pointed out that it is often difficult to know someone’s age based on appearance alone.  Nothing in the record suggested that Arthur viewed any of the pictures or videos of the plaintiff on Kenneth’s phone.  However, even if he did, the Court found that “in order for Arthur to know that plaintiff was below the age of consent, he would have had to perceive the difference between someone who is above or below age of consent based upon appearance alone and from a small cell phone image.  Viewing a small cell phone image of a naked female, does not give rise to ‘a special reason to know’ that Kenneth was engaged in a sexual relationship with a minor.”

Thus, the Supreme Court found that no further development of the record was needed because, under these facts: “Arthur does not owe a duty of care in this case.”  Further, the Court held that GEM was not liable as well.  Because Arthur did not commit a tort, GEM cannot be held vicariously liable for his alleged conduct.  Further, the record did not adequately support plaintiff’s claim for negligent retention, training or supervision.  The only tort in this case was Kenneth’s off-duty abuse of plaintiff.  Bragging about having a younger girlfriend at work and driving a GEM ambulance to plaintiff’s bus stop did not make GEM negligent in retaining, training or supervising Kenneth or Arthur.            

For these reasons, the Court reversed the Appellate Division’s judgment and reinstated the trial court’s grant of summary judgment.

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Betsy G. Ramos

About the Author

About the Author:

Ms. Ramos is an Executive Committee Member and Co-Chair of the Litigation Department at Capehart Scatchard, P.A. located in Mount Laurel, New Jersey. She is an experienced litigator with over 25 years experience handling diverse matters. Practice areas include tort defense, business litigation, estate litigation, tort claims and civil rights defense, construction litigation, insurance coverage, employment litigation, shareholder disputes, and general litigation.

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