Submitted April 22, 2015.
Case Closed July 8, 2015
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Court Below: Superior Court of the State of Delaware, in and for New Castle County. C.A. No. 09C-06-236 FSS.
Thomas C. Crumplar, Esquire, Raeann Warner, Esquire (argued), Jacobs & Crumplar, P.A., Wilmington, Delaware; Thomas S. Neuberger, Esquire, Stephen J. Neuberger, Esquire, The Neuberger Firm, P.A., Wilmington, Delaware, for Appellant.
Herbert W. Mondros, Esquire, Margolis Edelstein, Wilmington, Delaware, for Appellees.
Before STRINE, Chief Justice; HOLLAND, VALIHURA, VAUGHN, and SEITZ, Justices, constituting the Court en banc. VAUGHN, Justice, dissenting.
STRINE, Chief Justice, for the majority:
This is an appeal from the Superior Court's grant of summary judgment for the defendants, Fairwinds Church and Fairwinds Christian School (collectively, " Fairwinds" ), in an action brought by former student Kimberly Hecksher under the Child Victim's Act. The Act provides plaintiffs who claim to be victims of child sexual abuse a two-year window to bring claims that would otherwise be time-barred. Under the Act, a plaintiff may bring claims against the alleged abuser's employer for gross negligence in failing to prevent the alleged abuse.
Accordingly, Hecksher sued Fairwinds under the Act, arguing that Fairwinds, a small, religious school, was grossly negligent for failing to prevent sexual abuse by Ed Sterling (" Sterling" ), her foster father and her teacher at Fairwinds, that occurred while she was a student. Hecksher alleged that Sterling's wife and fellow-Fairwinds employee, Sandy Sterling (" Sandy" ), observed Sterling abusing Hecksher on school property, and that Sandy's knowledge of and tortious failure to report the abuse should be imputed to Fairwinds. Hecksher also argued that Fairwinds was grossly negligent for failing to have a sexual abuse prevention policy in place and for not responding to red flags that Sterling posed a serious risk to Fairwinds students. By granting summary judgment, the Superior Court found that there was no dispute of material fact that would enable a reasonable finder of fact to conclude that Fairwinds was grossly negligent.
We disagree. On the record presented to the Superior Court, viewed in the light most favorable to Hecksher, a reasonable juror could determine that Fairwinds was grossly negligent. Hecksher's testimony at her deposition that Sandy knew about the alleged abuse and failed to report it was by itself sufficient to defeat Fairwinds' motion for summary judgment. Hecksher brought two related imputation claims to meet her burden to show that Fairwinds acted with gross negligence. First, she contended that Sandy's knowledge of the alleged abuse could be imputed to Fairwinds and thus Fairwinds' failure to act on that knowledge was grossly negligent. Second, Hecksher claimed that Fairwinds could be held vicariously liable for Sandy's grossly negligent failure to report the abuse to the authorities. Because a reasonable
juror could conclude that Sandy was acting within the scope of her employment when she allegedly learned about and concealed Sterling's abuse of Hecksher, there is a basis for trial on both of Hecksher's claims.
The Superior Court erred by assuming, contrary to Sandy's own testimony, that Sandy failed to report her husband's alleged abuse out of loyalty to him, and thus, her knowledge was not within the scope of her employment. But even if Sandy had testified that she concealed the abuse solely for personal reasons, summary judgment should have been denied. We decline to absolve an employer for vicarious liability when an employer has knowingly hired family members or staff with strong personal ties to each other. For similar reasons, we refuse to expand the adverse interest doctrine to prevent the imputation of Sandy's alleged knowledge of Sterling's abuse to Fairwinds. An employer like Fairwinds has a duty to protect the students in its charge, which depends on its staff's willingness to put their duty to the school and its students first. Fairwinds' choice to hire employees with family ties is a factor it controlled and needed to consider when fulfilling its duty to protect its students against abuse. Rather than providing a safe harbor for Fairwinds, its decision to hire employees with potential conflicts of interest between their duty to the students and their relationships with each other is a factor the jury must consider when evaluating whether the school acted with the required level of care.
In addition, a reasonable juror could view evidence that Fairwinds failed to implement any preventative and remedial measures to protect students from sexual abuse as a gross departure from the standard of care, given that Fairwinds had a statutory duty to report sexual abuse that could only be acted upon by its human employees. Likewise, a reasonable juror could find that Fairwinds was grossly negligent for failing to act after female students lodged complaints about Sterling's inappropriate sexual behavior and employees allegedly witnessed inappropriate contact between Sterling and Hecksher. Thus, material issues of fact remain as to whether Sandy's knowledge and conduct can be imputed to Fairwinds, and whether Fairwinds was grossly negligent for failing to have any sexual abuse prevention and detection policies in place and for failing to act on red flags that Sterling posed a serious risk to female students. Accordingly, we reverse the judgment of the Superior Court granting summary judgment to Fairwinds and remand for trial.
II. FACTUAL HISTORY
i. Fairwinds School
While Hecksher was a student, from 1985 to 1990, Fairwinds was led by its founder, Pastor E. L. Britton, and later his son, Pastor Tim Britton. Fairwinds enrolled students in pre-kindergarten through high school and estimates that it employed fewer than thirty employees. The Fairwinds High School had twenty students, including nine in Hecksher's graduating class. According to Sandy, Fairwinds was a close-knit community: the students " not only were taught by these people, they went to church with these people, they went to youth groups with these people, and they felt like they
were family." 
During the time Hecksher was a student at Fairwinds, Sterling was employed as a Math, Bible, and Spanish teacher and was Hecksher's teacher for each of those subjects. Sandy was the secretary to the principal of Fairwinds (the " Principal" ) from 1981 to 1989 and, as such, " the nerve center of the office."  Sandi Sterling (" Sterling's sister-in-law" ) was also employed by Fairwinds as a kindergarten teacher.
The Principal supervised all three Sterlings. According to Hecksher, the Principal was also sexually abusing a Fairwinds student during the same time period, but the Superior Court did not permit Hecksher to pursue discovery into that alleged abuse.
As a religious school, Fairwinds enforced strict rules regarding the conduct of staff and students. As an example, students were forbidden from dancing and wearing suggestive clothing, and Hecksher was disciplined for " wearing her collar up."  Pastor E. L. Britton and the Principal testified that Fairwinds emphasized teacher morality, and that all employees were expected to act if they saw another employee acting inappropriately, even if that employee witnessed the inappropriate conduct outside of the school.
Yet, at the time the abuse was allegedly occurring, Fairwinds did not have any written policy addressing the prevention and reporting of potential sexual abuse of students. The record suggests that, consistent with its lack of a policy, Fairwinds did not educate its staff on their legal obligation to report sexual abuse, nor did it offer training on sexual abuse detection and prevention. That is despite the fact that Delaware law at the time stated: " Any person, agency, organization or entity who knows or in good faith suspects child abuse or neglect shall make a report in accordance with § 904 of this title."  Although this statute does not, by its terms, require any training or policies, an entity like Fairwinds could only ...