RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2126-16T4 G.A.-H.,
Plaintiff-Appellant/ APPROVED FOR PUBLICATION Cross-Respondent, June 22, 2018 v. APPELLATE DIVISION K.G.G.,
Defendant,
and
A.M.,
Defendant-Respondent/ Cross-Appellant,
GEM AMBULANCE, LLC,1 and LAKEWOOD S.C. UNITED,
Defendants-Respondents,
MONMOUTH OCEAN SOCCER ASSOCIATION a/k/a MOSA, JERSEY SHORE BOCA, and JERSEY SHORE BOCA JR FC LEAGUE,
Defendants. ______________________________________________________
Argued May 15, 2018 – Decided June 22, 2018
Before Judges Fisher, Fasciale and Natali.
1 Improperly pleaded as GEM Ambulance and GEM TRANS. On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-0418- 15.
Ramon M. Gonzalez argued the cause for appellant/cross-respondent (Gonzalez & Caride, attorneys; Ramon M. Gonzalez and Robert M. Mayerovic, on the briefs).
Frances Wang Deveney argued the cause for respondent/cross-appellant (Marks, O'Neill, O'Brien, Doherty & Kelly, PC, attorneys; Frances Wang Deveney, of counsel; Sophia G. Tyris and Shannon B. Adamson, on the briefs).
George R. Hardin argued the cause for respondent GEM Ambulance, LLC (Hardin, Kundla, McKeon & Poletto, PA, attorneys; George R. Hardin, of counsel; George R. Hardin and John R. Scott, on the briefs).
Mitchell S. Berman argued the cause for Philadelphia Indemnity Insurance Company2 (Mitchell S. Berman LLC, attorney; Mitchell S. Berman, on the brief).
Shiraz Imran Deen, Assistant Prosecutor, argued the cause for respondent Ocean County Prosecutor's Office (Joseph D. Coronato, Ocean County Prosecutor, attorney; Samuel Marzarella, Chief Appellate Attorney, of counsel; Shiraz Imran Deen, Assistant Prosecutor, on the brief).
The opinion of the court was delivered by
FISHER, P.J.A.D.
2 Lakewood S.C. United, to the extent it may be a juridical entity, has not appeared. Counsel retained by Philadelphia Indemnity Insurance Company has appeared in both the trial court and here to argue against the reinstatement of plaintiff's claim against Lakewood S.C. United.
2 A-2126-16T4 In this appeal, we examine whether tort liability may be
imposed when one remains silent and fails to warn a victim or
alert authorities despite knowledge or a reason to suspect that a
co-worker has engaged in the sexual abuse of a minor. In our view,
the common law does not necessarily preclude the imposition of
such a duty. Ultimately, that issue must await further development
of the facts surrounding the relationship between the abuser and
his co-worker, as well as the facts regarding the co-worker's
awareness of the abuse that was unduly limited by the trial judge's
failure to permit plaintiff discovery of evidence in the
prosecutor's possession.
This matter has its genesis in an emergency medical
technician's unlawful sexual relationship with plaintiff G.A.-H.
(Georgia), who was then fifteen years old. Having already obtained
a default judgment against that EMT – defendant K.G.G. (Kenneth),
who was criminally convicted and is now incarcerated – Georgia
seeks damages against the remaining defendants: A.M. (Arthur),
another EMT who worked with Kenneth; GEM Ambulance, LLC, their
employer; and Lakewood S.C. United, a recreational soccer club
alleged to have created an opportunity for the illicit relationship
3 A-2126-16T4 to occur.3 In the proceedings that followed, the trial judge: (1)
limited or precluded Georgia's pursuit of discovery from the Ocean
County Prosecutor; (2) granted summary judgment to both Arthur and
GEM; and (3) denied Georgia the opportunity to reinstate her claim
against Lakewood S.C. United that had been administratively
dismissed. We either reverse or vacate these rulings and remand
for further proceedings in all respects.4
I
We need only briefly discuss Georgia's arguments regarding
the judge's decision not to require a turnover or even an in camera
review of materials gathered by the prosecutor during a criminal
investigation that led to Kenneth's conviction. In a series of
orders, the judge concluded that Georgia failed to provide
sufficient evidence of a sustainable claim against Arthur to
warrant further discovery from the prosecutor of explicit images
of Georgia that were in Kenneth's possession and that may have
3 The names we have used for the involved individuals are fictitious. 4 Arthur filed a cross-appeal, arguing the judge erred by denying him frivolous litigation fees from Georgia. In light of our disposition of the other issues, we affirm the order denying Arthur's motion for fees and sanctions.
4 A-2126-16T4 been viewed by Arthur.5 The judge similarly denied Georgia the
opportunity to examine videotaped statements made by Arthur to
police; these particular materials may have been reviewed by the
judge in camera – the record is not clear to us – but we can locate
in the record no stated rationale for the judge's decision denying
access to this information to the victim of the crime.
The prosecutor has expressed to us a willingness to turnover
relevant materials so long as the trial judge remains involved and
controls further dissemination. With entry of an appropriate
protective order, the prosecutor may be assured that the sensitive
materials in his possession will not be disseminated beyond what
is necessary to allow the victim of the crime to prosecute this
civil action. Consequently, we reject Arthur's opposition6 to the
turnover of any further evidence in the prosecutor's possession.
And we find insufficient merit to warrant further discussion in
5 The significance of this evidence cannot be understated when considering Georgia's factual contentions that Arthur should have been aware of Kenneth's unlawful activities. She contends that the forty-four-year-old Kenneth: bragged to Arthur and others about sleeping with a "much younger" female; showed Arthur and others images on his cellphone that were "something other than soft pornography"; and provided differing statements about the girl's age. It is claimed that the images that were on the cellphone depicted "a young adolescent . . . inherently [of] an age where full development ha[d] not occurred." 6 Arthur's opposition has been more forceful than the prosecutor's expressions of concern.
5 A-2126-16T4 this opinion, R. 2:11-3(e)(1)(E), in the argument that a turnover
of these materials would violate the Adam Walsh Act, N.J.S.A.
2C:24-4(b)(5)(a), which criminalizes receipt of child pornography,
or that a turnover would cause additional injury to the victim of
the crime. We cannot imagine the Legislature intended to frustrate
a victim's pursuit of a civil remedy by invoking the very laws
designed to protect her.
We reverse the orders that foreclosed this discovery and
remand for an in camera review of the materials sought, as well
as the judge's further consideration of Georgia's discovery
requests, particularly in light of our reversal of the summary
judgments entered in favor of Arthur and GEM, to which we now
turn.
II
In granting summary judgment in Arthur's favor, the motion
judge found Georgia's factual version insufficient to support a
claim that Arthur was or should have been aware of Kenneth's
criminal conduct. He also concluded that the law imposed no duty
on Arthur to warn, to contact authorities, or to contact the
employer about his co-worker's conduct. Because we have concluded
that the judge mistakenly curtailed Georgia's efforts to obtain
discovery from the prosecutor, there is no point in presently
6 A-2126-16T4 considering the sufficiency of the evidence adduced to date,
although we also believe that the judge failed to view that
evidence in the light most favorable to Georgia as required. Brill
v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). The
facts marshalled to date, see n.5, as well as other information
that provided further reasonable inferences,7 likely generated
factual disputes about the extent of Arthur and GEM's knowledge
of Kenneth's activities to warrant denial of their summary judgment
motions. We instead focus on the fact that the judge also granted
summary judgment because he believed neither Arthur nor GEM owed
Georgia a tort duty in these circumstances. Our response to that
determination warrants a closer look and more extensive
discussion.
In opposing summary judgment, Georgia largely relied on what
she claims was a duty based on N.J.S.A. 9:6-8.10, which requires
that "[a]ny person having reasonable cause" to believe a child has
been abused "shall report the [abuse] immediately to the Division
of Child Protection and Permanency." We agree with the motion
judge that this obligation arises when a person has reasonable
cause to believe a child has been subjected to child abuse within
7 For example, Georgia offered evidence to suggest that Kenneth would walk her to a bus stop in the morning while co-workers were in an ambulance parked nearby.
7 A-2126-16T4 the meaning of only Title Nine. Thus, the child abuse that gives
rise to this reporting obligation concerns abuse arising from the
acts or omissions of only a child's "parent, guardian, or other
person having [the child's] custody and control." N.J.S.A. 9:6-
8.9. These statutes imposed no duty on Arthur to report to the
Division whatever he might have known about Kenneth's relationship
with Georgia because Kenneth was not Georgia's parent or guardian
or a person "having [her] custody or control." We agree with the
trial judge that Title Nine imposed no duty on Arthur or GEM to
advise the Division of Kenneth's abuse of Georgia.
But that holding does not dispense with the possibility that
the common law might impose such a duty. Although not originally
relied upon by Georgia, we find this possibility may emanate from
J.S. v. R.T.H., 155 N.J. 330, 334 (1998), where our Supreme Court
held that "a wife who suspects or should suspect her husband of
actual or prospective sexual abuse of their neighbors' children
has [a] duty of care to prevent such abuse."8
In considering whether a similar duty may be imposed on a co-
worker, we start by first rejecting Arthur's argument that this
8 Georgia did not rely on J.S. in the trial court nor in her written submissions here. We raised it at oral argument and requested – and have since received – all parties' supplemental briefs about whether J.S. might or should be expanded to cover this situation.
8 A-2126-16T4 case is not the same as J.S. and that J.S. consequently has no
bearing here. To be sure, the abuser and the defendant in J.S. had
a different relationship than did defendant and Arthur. But that
difference should not end our inquiry. The common law did not
suddenly rest after evolving over a thousand years. It forever
progresses to meet an ever-changing society's needs; as some
concepts whither and some die, others emerge and ripen. See
Schwartz v. Accuratus Corp., 225 N.J. 517, 527 (2016) (observing
that "the evolution of case law must reflect the simultaneous
evolution of societal values and public policy"). What constitutes
a duty doesn't rise up from "a simpler society['s]" "rigid
formalism[s]"; this process necessarily "adjust[s] to the changing
social relations and exigencies and . . . [the individual's]
relation[s] to [others]." Wytupeck v. Camden, 25 N.J. 450, 462
(1957). Considering whether J.S. should be viewed as the place
where the reach of such a duty stops or marks only a starting
point requires a deeper analysis of J.S. itself and its expressions
of policy in determining whether our Supreme Court anticipated or
laid the groundwork for a further expansion beyond the duty it
imposed on spouses.
In undertaking that examination, we commence by heeding
Justice Handler's observation that the process is "rather complex"
in that it warrants a weighing and balancing of "several, related
9 A-2126-16T4 factors, including the nature of the underlying risk of harm, that
is, its foreseeability and severity, the opportunity and ability
to exercise care to prevent the harm, the comparative interests
of, and the relationships between or among, the parties, and,
ultimately, based on considerations of public policy and fairness,
the societal interest in the proposed solution." J.S., 155 N.J.
at 337. The Supreme Court later enumerated these same factors in
Schwartz, holding that the decision to impose a tort duty must
include a consideration of: "(1) the relationship of the parties,
namely the relationship between plaintiff and defendant; (2) the
nature of the attendant risk . . . ; (3) the opportunity and
ability to exercise care; and (4) the public interest in the
proposed solution." 225 N.J. at 523-24. See also Hopkins v. Fox &
Lazo Realtors, 132 N.J. 426, 439 (1993). This process always poses
"a question of fairness." Goldberg v. Housing Auth., 38 N.J. 578,
583 (1962).
In considering these factors, we view the "nature of the
attendant risk" when compared to "the opportunity and ability to
exercise care," Schwartz, 225 N.J. at 523-24, to more than fairly
support the imposition of a duty. The risk – child abuse – is
great, while the exercise of care – a call to another (the
Division, the police, or the employer) – imposes a small burden
on a co-worker with sufficient knowledge. See Juarez v. Boy Scouts
10 A-2126-16T4 of Am., Inc., 97 Cal. Rptr. 2d 12, 33 (Ct. App. 2000) (observing
a "common goal of safeguarding our children, our chief legacy, .
. . [that] is gravely threatened by sexual predators").
The more difficult issue concerns the scope of the
relationship between the abuser and the targeted defendant. The
Supreme Court recognized that "whether there is a 'duty' merely
begs the more fundamental question whether the plaintiff's
interests are entitled to legal protection against the defendant's
conduct." Weinberg v. Dinger, 106 N.J. 469, 481 (1987) (quoting
W. Prosser, Handbook of the Law of Torts § 53 at 325 (4th ed.
1971)); see also J.S., 155 N.J. at 338. This involves an
understanding of the parties' relationships and the extent to
which the defendant had access to or otherwise possessed knowledge
of the abuser's conduct sufficient to justify the imposition of a
duty to act. In J.S., the abuser and the defendant were married.
We readily reject Arthur and GEM's contention that the buck must
stop there.9 There are no doubt other types of relationships,
9 We are mindful of the general principle that "[a]n actor whose conduct has not created a risk of physical or emotional harm to another has no duty of care to the other." Restatement (Third) of Torts, § 37 (Am. Law Inst. 2012). But that principle – broadly distinguishing between misfeasance and nonfeasance – often gives way when a particular relationship exists between the actor and the other justifying the imposition of a tort duty. Id. at § 40. While the acts or omissions of Arthur or GEM may not have generated the risk that caused harm to Georgia, a duty of care may
11 A-2126-16T4 including those who have worked together for a sufficiently
reasonable amount of time and intensity, that would be adequate
to fairly warrant the imposition of a duty to act.10
And requiring one to speak or act even if that one was not
the cause of a risk of harm to another is not inconsistent with
the expectations of present-day society. Citizens are urged to
speak out about their suspicions: "if you see something, say
something."11 Although speaking in terms limited to child abuse
within the meaning of N.J.S.A. 9:6-8.10, which we have found
inapplicable here, that statute nevertheless evokes a public
policy that citizens ought not remain silent when aware of child
abuse. Extrapolating from such expressions of public policy, the
J.S. Court recognized an extensive duty to report child abuse that
isn't limited to "professionals, such as doctors, psychologists,
and teachers" but "required of every citizen." 155 N.J. at 343.
To be sure, the Court imposed that duty when considering the
nevertheless be imposed, depending on the quality, nature, and extent of their relationship to Kenneth. 10 See Juarez, 97 Cal. Rptr. 2d at 35, where the court opened the possibility of imposing a duty on the Boy Scouts of America to warn of or prevent abuse committed by its volunteers. 11 A federal agency – the Office of Homeland Security – has been conducting a national campaign that urges citizens to raise their awareness of terrorism indicators. See Homeland Security, If You See Something, Say Something, https/www.dhs.gov/see-something- say-something (last visited June 8, 2018).
12 A-2126-16T4 nonfeasance of a spouse; we cannot, however, conclude it is against
public policy to expand the scope of a duty to warn in such matters
in the absence of a spousal relationship.
Of course, recognizing a policy in favor of action is one
thing. The process of imposing tort liability when a person fails
to so act requires a further leap. Unfortunately, before taking
that jump, we require a better understanding of what Arthur knew
and when he knew it, as well as the extent of his relationship
with Kenneth, all of which was precluded by the limitations the
judge placed on the turnover of evidence from the prosecutor and
by his premature grant of summary judgment. Consequently, we cannot
presently say whether a duty to act ought to be imposed on Arthur
or, for that matter, on GEM.12 The record reveals far too little
about the extent of his relationship to Kenneth or whether whatever
he learned from Kenneth's braggadocio or Arthur's own observations
justify the imposition of a tort duty.
We therefore vacate the summary judgments entered in favor
of Arthur and GEM, and remand for further proceedings.
12 The disposition of Georgia's claim against GEM must also await a fuller understanding of what GEM's employee, Arthur, knew and whether either company policy or the common law duty that might be appropriate to impose on Arthur further implicates GEM.
13 A-2126-16T4 III
Georgia commenced this action in February 2015; she included
within her complaint a claim against an entity referred to as
Lakewood S.C. United (United). She asserted that Kenneth, who was
somehow affiliated with United, hired her to serve as a manager
of its teenage traveling soccer club and, as a result, an
employment relationship came into being that imposed a duty on
United to warn of what eventually occurred between Kenneth and
Georgia.
By August, service of process had not been effected on United,
resulting in an administrative dismissal of that part of the
complaint. That dismissal appears to have been set aside by way
of an order entered the following month.
Georgia moved in February 2016 for leave to effect service
by publication. That motion was denied in March; the judge
determined that personal service should be made on United's alleged
principal. In a May 2016 motion, Georgia's counsel asserted that
service had been effected on United's principal in Lakewood.
Counsel for Philadelphia Indemnity Insurance Company specially
appeared and asserted that this delivery was insufficient because
the individual to whom the papers were handed was the aunt of
United's alleged principal. On July 8, 2016, the judge entered an
14 A-2126-16T4 order – without explanation – that refused to vacate the dismissal
of the action against United.13
Because the motion judge failed to explain the ruling
contained in his July 8, 2016 order, as required by Rule 1:7-4(a),
see Gnall v. Gnall, 222 N.J. 414, 428 (2015); Curtis v. Finneran,
83 N.J. 563, 569-70 (1980), we do not know why the server's handing
over of the summons and complaint to the aunt of United's alleged
principal was insufficient.14 We also do not know whether the judge
concluded that Georgia's counsel had failed to act diligently. Nor
is it clear that a further opportunity to effect service of process
was foreclosed by that last order on this subject.
These unanswered questions are reason enough to permit
further trial court proceedings on this subject. In considering
any further efforts to establish either that service on the aunt
was sufficient or that service at some other place or in some
other manner is warranted, we would remind the motion judge that
reinstatement after an administrative dismissal "is ordinarily
routinely and freely granted" once the problem that led to
13 It is not clear to us why an earlier order suggested that the administrative dismissal had been vacated while this later order suggested the contrary. 14 Counsel for the insurer asserted that the aunt advised that the individual in question "floats around" and, therefore, that her home is not necessarily the alleged principal's residence.
15 A-2126-16T4 dismissal has been cured. Rivera v. Atl. Coast Rehab. & Health
Care Ctr., 321 N.J. Super. 340, 346 (App. Div. 1999); see also
Ghandi v. Cespedes, 390 N.J. Super. 193, 196 (App. Div. 2007). We
vacate the July 8, 2016 order and remand for further consideration
of the issues we have posed, as well as for any other proceedings
necessary to allow Georgia to further pursue any claim she may
possess against United.
* * *
For all these reasons, we reverse the orders that denied
further discovery from the prosecutor, we vacate the orders
granting summary judgment in favor of both Arthur and GEM, and we
vacate the last order regarding service on United. We remand for
further proceedings regarding all these issues in conformity with
this opinion.
We also find no merit in the issue raised in Arthur's cross-
appeal – that the judge erred by denying his motion for frivolous
litigation fees – because, for the reasons expressed in our
disposition of Georgia's appeal, Georgia's claims against Arthur
are "supported by a good faith argument for an extension . . . of
existing law." N.J.S.A. 2A:15-59.1(b)(2). The order that denied
Arthur's motion for sanctions and fees is therefore affirmed.
We do not retain jurisdiction.
16 A-2126-16T4