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Frugis v. Bracigliano3/22/2002
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: January 28, 2002
Reconsideration Granted: May 1, 2002
Decision upon Reconsideration: May 8, 2002
This appeal and cross-appeal arise from a lawsuit filed by two students, B.F. and R.H., and their parents against a former elementary school principal and a board of education, based on theories of intentional tort, negligence, and civil rights violations. In essence, plaintiffs B.F. and R.H. claimed they suffered severe and permanent psychological injuries as a result of being sexually abused by their elementary school principal, defendant Samuel Bracigliano, during 1988 and 1989. Brian and Susan Frugis, B.F.'s parents, and Robert and Jeane Hutzel, R.H.'s parents, claimed they suffered economic losses due to the medical expense and private school education costs that they incurred as a result of what happened to their sons. Plaintiffs asserted claims against the Elmwood Park Board of Education (Board) under theories of vicarious liability, negligent hiring, negligent supervision, and violation of civil rights, pursuant to 42 U.S.C. ยง 1983 (1994). The two complaints were consolidated. Bracigliano did not file an answer or otherwise move as to the complaint. Consequently, a default was entered against him.
Bracigliano was the principal of Gilbert Avenue Elementary School in Elmwood Park from 1982 until his arrest on November 30, 1990. During that time, Bracigliano would call a number of students, mostly boys, to his office each day.
At trial, with the consent of the parties, the deposition of Patricia Showers, Bracigliano's secretary, was read to the jury. She said the window in his office door was covered with paper so that no one could see inside. In addition, the windows to the outside were obscured with hedges and brush. Again, no one could see inside. From her desk near the locked door, Showers could hear the clicking of a camera and the pop of flashbulbs going off.
In November 1990, the Bergen County Prosecutor's Office received reports of young boys being photographed by Bracigliano. A search warrant was issued. In executing the warrant, investigators discovered pornographic photographs, magazines, books, and videotapes in a locked room in Bracigliano's home. The investigators also found a small, black, metal index box located in a desk drawer in an office in Bracigliano's home. It contained 176 photographs of young boys in a "spread-legged pose." In other words, the boys were seated with their legs spread open and hanging over the arms of the chair. It was determined that the photographs had been taken in Bracigliano's school office and that the photographs were of past and present students at the school.
One of the photographs found at Bracigliano's home was of eight-year-old B.F. After Bracigliano was arrested, B.F.'s parents asked him about any involvement he might have had with Bracigliano. Reluctantly, B.F. advised his parents that he had been brought into Bracigliano's office on many occasions and had been photographed by him. He demonstrated to his parents how he had been photographed. He related that he had been asked to sit on Bracigliano's lap many times and, on one occasion, Bracigliano touched him on his penis. He also told his father that when he left the office, Bracigliano would give him a "swat" on his buttocks.
Jeane Hutzel testified that when she told her son, R.H., that Bracigliano had been arrested, he became hysterical but said Bracigliano had not done anything to him. However, she noticed that during the next few days, R.H.'s behavior was "totally off the wall." Ultimate
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