A pair of New Jersey Appellate Division judges ruled that Union City High School should not have been found liable under state laws for two sexual assaults allegedly committed at the school by a former physical education teacher over two decades ago. Judges Joseph L. Marcyzk and Lisa A. Puglisi found Monday that a Hudson County trial court erred when it ruled that the high school was liable under New Jersey’s revised Tort Claims Act for alleged sexual assaults committed by ex-teacher Francisco “Mike” Realpe against two female students in 2004. The plaintiffs agreed that the incidents happened outside of the scope of Realpe's employment. In New Jersey, public employers are generally not held liable when their employees commit intentional torts, and such actions are not considered within the scope of employment. According to the appellate division, it needed to consider whether or not amendments made to the Tort Claims Act in 2019 removed the scope of employment liability predicate for claims of sexual abuse. “To impose liability on defendant simply because Realpe was an employee at the time he sexually assaulted plaintiffs—which plaintiffs agree was not within the scope of his employment—would essentially impose strict liability on defendant,” the appellate division’s per curiam ruling stated, in part. “If the Legislature had intended to impose liability on public entities for an employee's sexual assault committed outside the scope of employment, it would have clearly said so.” From 2002 to 2005, Realpe worked at Union City High School as a physical education teacher and softball coach, where plaintiffs Jessica Garcia and Jane Doe were students. In two separate incidents, Realpe sexually assaulted each young woman on school grounds. Realpe was charged with sexual assault in 2020 and later pled guilty to assaulting Garcia in 2004 and another female student from a different school district in 2019. Garcia and Doe both individually filed suit against the school and Realpe in Hudson County Superior Court, bringing claims for negligent supervision, negligent training, vicarious liability and hostile educational environment, in violation of the Law Against Discrimination. The school responded to Garcia’s suit with a motion for summary judgment dismissal, leading Garcia to cross-motion for partial summary judgment on the counts of negligent training, negligent supervision and vicarious liability. On March 5, Hudson County Superior Court Judge Kalimah H. Ahmad granted Garcia’s partial summary judgment motion, notably on the point of vicarious liability, and denied the opposing motion from the school. It found a 2019 amendment to the Tort Claims Act removed the immunity previously granted to public entities for their employees’ sexual assaults, even when committed outside the scope of their employment. The trial court ruled identically in Doe’s case, on Aug. 14. The school appealed, arguing it was wrongfully held liable for Realpe’s alleged assaults under the Tort Claims Act since they occurred outside the scope of his employment, and that other claims brought under the Law Against Discrimination were time-barred under a two-year statute of limitations. The appellate division concurred with the defense on the first point regarding the Tort Claims Act, but disagreed on their second point regarding the Law Against Discrimination and found those claims properly revived. “Although [the Tort Claims Act] disables certain immunities that might otherwise absolve public entities of liability in sexual abuse cases, it does not provide a statutory predicate for the vicarious liability of public entities for sexual assault or abuse committed outside a public employee's scope of employment,” the appellate division wrote. “Plaintiffs' failure here to identify a liability predicate in the Tort Claims Act as to defendant's vicarious liability for Realpe's [alleged] sexual assaults is fatal to their vicarious liability claims.” As for the Law Against Discrimination claims, the appellate court determined that the Child Victims Act amendments passed in 2019 did pave the way for their revival and they will move forward, under the new 37-year statute of limitations that the amendments provide. “We conclude the 2019 Child Victims Act amendments ... reviving the statute of limitations for sexual assault claims, applies to plaintiffs' Law Against Discrimination claims. The plain and unambiguous language of [the Act] provides it applies to 'an action at law’ stemming from ‘an injury resulting from the commission of [a] sexual assault,'” the appellate division said. “The statute contains no limiting language that would exclude claims brought pursuant to the Law Against Discrimination. Had the Legislature intended to limit the claims that could be brought under the statute, it could have done so. Instead, it chose to use broad, unqualified terms.” Todd S. McGarvey of Shah Law Group in Shrewsbury, representing Union City High School, said he was “pleased the appellate division reversed the trial court’s entry of judgment on the vicarious liability claims," and added he was still reviewing other portions of the decision to consider legal options. Oliver T. Barry of Barry, Corrado & Grassi in Wildwood, representing the plaintiffs, did not immediately respond to a request for comment.