A New Jersey appeals court has ruled that “extraordinary circumstances” justify allowing a recent high school graduate who claims to have been sexually infected with HIV by his band director to sue the Newark school district, even though he missed a 90-day deadline to file suit after discovering his injury. The August 14 decision by a unanimous Appellate Division panel upheld a ruling by Essex County Superior Court Judge Verna G. Leath.
The court’s opinion, by Judge Jane Grall, identifies the plaintiff only as R.L., but several newspaper accounts have reported that his name is Robert Little. The young man alleged that he first encountered this teacher in the fall of 2000 as a 14-year-old freshman and member of the band. Little complained at that time about the band director fondling him to his aunt, with whom he lived, and she had him transferred to a school in another city. But before his sophomore year, he moved back to Newark to live with his sister and ended up at the same high school, where he was placed in a class taught by the band director.
Little claims that he asked his guidance counselor to transfer him, without initially giving a reason for the request, but then opening up about his earlier experiences when a transfer was not forthcoming. The school, he says, took no action.
During his junior year, Little, then 16 and still a member of the band, fell under the teacher’s sway in a big way. The teacher allegedly flirted with him and invited him to private parties where there were alcohol and marijuana. The two began a sexual relationship, which continued until shortly before Little’s graduation from high school in 2004, by which time he had just turned 18.
Little took an HIV test the following May, in 2005, acting on a friend’s suggestion, and tested positive. Believing he had been infected by the band director, Little promptly notified the school and law enforcement authorities, but apparently fell into quite a funk, crying continuously and essentially unable to function. He did not want to go public about being HIV-positive, but after news reports appeared about his charges, he retained an attorney early last fall, and a lawsuit followed.
Under New Jersey law, negligence claims against public authorities have to be filed within 90 days of the injury, but by the time Little had hired his lawyer, more than 90 days had passed since he had tested positive, and more than a year since he last had sex with the band director, the latest date for his actual injury. State law gives the Superior Court discretion to allow a late filing under “extraordinary circumstances,” and Little’s lawyer pursued that course with Judge Leath.
The school district argued that since Little’s last sexual contact with the band director occurred more than a year before the lawsuit was filed, the plaintiff had exceeded even the time limit allowed for pleading special circumstances. This argument did not get very far—and in fact both the trial judge and the Appellate Division found a variety of reasons why Little should be granted leeway on the timing of his suit.
New Jersey, like many other states, follows the “discovery rule” under which the clock for filing suit begins to run at the time that an injury is discovered. Plus, a minor who suffers an injury has 90 days from the time he or she reaches 18 to make a claim. The trial judge also reasoned that since Little immediately notified the district upon learning of his positive test result, it was not prejudiced by a filing that happened more than 90 days after that date, since officials therre were on notice that they might be sued.
On top of these factors, Leath and the Appellate Division also found extraordinary circumstances in Little’s case.
“R.L. was two months short of his nineteenth birthday when he learned that he had been injured as a consequence of his teacher’s conduct,” wrote Judge Grall, laying out the rationale for a finding of special circumstances. “The unexpected news was that he had a condition that not only can lead to death but also carries a stigma. That stigma has been recognized by our courts and the federal courts. Although R.L. promptly notified the authorities out of concern that other students would be injured in the same manner, he spent his time crying, preoccupied with thoughts of death, and was hesitant about exposing his HIV status. After his name appeared in the newspaper in connection with his oral complaint and HIV status, he promptly sought legal advice.”
One remains unclear why both the court and newspapers have not named the band teacher under suspicion, especially since Little’s name has been reported. The New York Times reported that calls to the teacher’s last known phone number were not returned, so presumably that newspaper has his name and has decided not to report it. Generally, in cases alleging sexual abuse, the courts and the press shield the name of the victim, but not the alleged perpetrator.
As the case proceeds, the school district will likely argue that it cannot be held liable because the band director’s conduct was not work-related or authorized, and indeed violated the rules governing his employment. However, Little’s allegations suggest that the district may be vulnerable to liability for negligent supervision, since he alerted school authorities that the teacher had behaved in a sexually inappropriate manner but they took no action. If that allegation is true, it would not be surprising if the school district decides to settle the case.