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A library worker and part-time student victimized by sex crimes on the Seton Hall University campus in South Orange, N.J., won the opportunity Friday to develop evidence that would prevent the school from claiming charitable immunity against her suit for damages. As a result of New Jersey Superior Court Judge Edward Schwartz’s ruling denying the university’s motion to dismiss, Maryanne McGinn, of Basking Ridge, N.J., can pursue her claim that the school was liable for the April 1998 and May 1999 incidents in which a male Seton Hall student followed her, exposed himself and masturbated. Schwartz made plain in his ruling in McGinn v. Seton Hall et al., ESX-L-2236-00, that it was based on the incomplete state of the record and that he was “not foreclosing the opportunity for Seton Hall to argue charitable immunity.” The record didn’t show such essential facts as whether McGinn was still a student at the time of the second incident, nor how many similar incidents had occurred on the South Orange campus. The plaintiff’s lawyer, Karen DeSoto, argued that the university should not be allowed to shield itself behind charitable immunity because it has a “pattern and practice” of failing to protect students. In particular, she said, it failed to take action to stop the student, Mark Abredabbo. Abredabbo eventually pleaded guilty to three counts of fourth-degree sexual contact, including the two involving McGinn, and another, in April 1999, involving Seton Hall student Tara Pokorny, which took place inside the Walsh Library. He was sentenced on March 3 to counseling and probation. According to DeSoto, Seton Hall did nothing about Abredabbo until Pokorny’s mother became upset about the university’s inaction and made a fuss, leading to Abredabbo’s expulsion. DeSoto, an associate with Eric Bernstein & Associates, says Pokorny, now in her junior year at Seton Hall, retained her last week and she will seek to add Pokorny as a plaintiff to the case. The opportunity to proceed with discovery won by DeSoto last week will allow her to obtain evidence of the other victims she has heard about, DeSoto told Schwartz. McGinn’s suit seeks compensatory and punitive damages under theories of negligence, intentional infliction of emotional distress and respondeat superior. Because McGinn, at the time of the incidents she relates, was a full-time Seton Hall employee — working as a circulation clerk at the library — and a part-time student, her case raises a novel question about the application of the charitable immunity statute. N.J.S.A. 2A:53A-7 provides for immunity from negligence suits where the claimant is “a beneficiary, to whatever degree, of the works of such nonprofit corporation, society or association.” However, the statute makes an exception where the claimant “is one unconcerned in and unrelated to and outside of the benefactions of such corporation, society or association.” Schwartz acknowledged that he was aware of no case law construing the exception where the claimant is both a student and an employee. At the time of the May 1999 incident, Schwartz noted, it was not clear whether McGinn was still a part-time student and thus a “beneficiary” under the statute. McGinn asserts that Seton Hall refused her counseling services after that incident, claiming she had already graduated. DeSoto said she wasn’t sure of McGinn’s actual graduation date. Schwartz also wanted to know whether McGinn had attended classes on the days of the two incidents, in addition to working at the library. DeSoto had argued in her brief that regardless of McGinn’s student status, Seton Hall could not cloak itself in charitable immunity because it was reckless and grossly negligent in knowingly allowing its premises to be used for criminal behavior. Seton Hall’s attorney, Patricia McDonagh, an associate at Livingston, N.J.’s Marshall, Dennehy, Warner, Coleman & Goggin, declined comment on Schwartz’s ruling, but a Seton Hall public relations spokeswoman, Laurie Pine, stated: “Seton Hall University provides a safe environment for its students and employees. If an allegation of sexual assault is reported to the University, the University immediately investigates the matter and reports it to local authorities. Seton Hall cooperated fully with local authorities in the investigation of this matter, which resulted in the arrest and conviction of an individual, as well as his expulsion.” McGinn also sued Seton Hall’s security company, Agenbright Security. McGinn swore, in an affidavit opposing the dismissal motion, that Seton Hall security in both instances failed to take a report from her or call the police as she requested and when she approached a guard in distress after the April 1998 incident, he laughed at her. On both occasions, McGinn went to the South Orange police to file a complaint. In contrast to Seton Hall’s brushing off of McGinn, says DeSoto, the local police escorted McGinn to her car for a week after the first incident. McGinn also claims she was rebuffed when she asked to meet with the provost about the incidents. DeSoto notes that Seton Hall still has not posted a guard at the library, even though the building is open to the public and its isolated stacks are a prime setting for crimes like the one against Pokorny. Agenbright is represented by Neil Reiseman of Reiseman Sharp Kelsey & Brown in Parsippany, who said, after Friday’s ruling, that “after everything is discovered, I feel reasonably confident it will show that the security company didn’t contribute” to McGinn’s harm. McDonagh, in her motion for summary judgment, also sought dismissal of McGinn’s suit on the ground that, as a Seton Hall employee, her exclusive remedy was workers’ compensation. Schwartz reached a similar conclusion on that issue, holding that McGinn was entitled to the opportunity to show facts that would support her argument that workers’ compensation exclusivity did not apply because the university’s conduct was intentional. Legislation pending in the New Jersey Senate that would strip away some immunity for nonprofits in the case of some sexual offenses would not help McGinn or Pokorny. The bill, S-965, introduced in February by Senators Joseph Vitale, D-Middlesex, N.J., and C. Louis Bassano, R-Union, N.J., and pending in the Senate Judiciary Committee, applies only to sexual offenses against those under 18 resulting from the “negligent hiring or supervision of any employee.” It is expressly aimed at reversing Schultz v. Roman Catholic Archdiocese of Newark, 95 N.J. 530 (1984), which involved child molestation by a counselor at a Catholic camp. A second bill, A-2670/S-1514, would require colleges each year to distribute and post copies of the “Campus Sexual Assault Victim’s Bill of Rights.” First introduced in June and sponsored by Assemblywomen Rose Marie Heck, R-Bergen, N.J., and Nellie Pou, D-Passaic, N.J., and Senators John Mattheusen, R-Camden, N.J., and Martha Bark, R-Burlington, N.J., it is before the Assembly Judiciary and Senate Education committees.

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