John Doe v. the Estate of C.V.O., Jr.

CourtNew Jersey Superior Court Appellate Division
DecidedOctober 12, 2023
DocketA-2780-21
StatusPublished

This text of John Doe v. the Estate of C.V.O., Jr. (John Doe v. the Estate of C.V.O., Jr.) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
John Doe v. the Estate of C.V.O., Jr., (N.J. Ct. App. 2023).

Opinion

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2780-21

JOHN DOE,

Plaintiff-Appellant/ APPROVED FOR PUBLICATION Cross-Respondent, October 12, 2023

v. APPELLATE DIVISION

The Estate of C.V.O., JR.,1 and The Estate of G.A.O.,

Defendants-Respondents/ Cross-Appellants. ____________________________

Submitted September 12, 2023 – Decided October 12, 2023

Before Judges Sumners, Rose and Perez Friscia.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-3924-21.

Fuggi Law Firm, PC, attorneys for appellant/cross- respondent John Doe (Robert R. Fuggi, Jr., Michael R. Napolitano, Bradley L. Rice, and Emma A. McElligott, of counsel and on the briefs).

Donnelly Minter & Kelly, LLC, attorneys for respondent/cross-appellant The Estate of C.V.O., Jr. (Patrick B. Minter, of counsel and on the briefs;

1 We use initials to preserve the confidentiality of these proceedings. R. 1:38- 3(c)(9); N.J.S.A. 2A:61B-1(f)(1). Thomas J. Coffey and Alison L. Moody, on the briefs).

Morgan, Lewis & Bockius LLP, attorneys for respondent/cross-appellant The Estate of G.A.O. (Brian W. Shaffer, and William R. Peterson (Morgan, Lewis & Brockius, LLP) of the Texas bar, admitted pro hac vice, of counsel and on the briefs).

Levy Baldante Finney & Rubenstein PC, attorneys for amicus curiae Child U.S.A. (John Baldante, of counsel and on the brief).

The opinion of the court was delivered by

PEREZ FRISCIA, J.S.C. (temporarily assigned)

This appeal raises issues of first impression pertaining to the civil

prosecution of statutory and common law personal injury claims arising from

allegations of sexual abuse committed fifty-five years ago against a child by

his sister, who also was a minor when the acts occurred. On November 17,

2021, plaintiff John Doe filed Child Sexual Abuse Act (CSAA), N.J.S.A.

2A:61B-1, and common law negligence, gross negligence, and negligent

infliction of emotional distress claims against defendants, his deceased parents'

estates, the Estate of C.V.O., Jr. and the Estate of G.A.O., alleging his parents

failed to prevent sexual assaults committed by his minor sister, D.O.

In 2019, the New Jersey Legislature enacted the Child Victims Act

(CVA), L. 2019, c. 120, which supplemented and amended the statute of

limitations in civil actions for sexual abuse claims and expanded the categories

A-2780-21 2 of potentially liable defendants. The CVA created two new statutes of

limitations for actions at law for injuries resulting from the commission of

sexual crimes, which both became effective on December 1, 2019. Pertinent to

this appeal is the enacted statute of limitations which provided a two-year

revival window for victims to file otherwise time-barred claims for sexual

crimes committed against them while minors. N.J.S.A. 2A:14-2b. The second

enacted statute of limitations expanded the time for filing claims for "certain

sexual crimes," permitting minor victims to file claims "within 37 years after

the minor reaches the age of majority, or within seven years from the date of

reasonable discovery of the injury . . . whichever is later." N.J.S.A. 2A:14-2a.

The statutes similarly provide for actions at law arising from sexual crimes

committed against minors, including: "sexual assault, any other crime of a

sexual nature, a prohibited sexual act . . ., or sexual abuse as defined in [the

CSAA]." N.J.S.A. 2A:14-2a; N.J.S.A. 2A:14-2b. The CVA also

supplemented the CSAA discovery period provision, providing that it is

subject to N.J.S.A. 2A:14-2a.

Doe appeals from the Law Division's March 29, 2022 order, which

granted defendants' motions to dismiss for failure to state a claim upon which

relief can be granted under Rule 4:6-2(e). Doe argues the motion judge erred

in finding a cause of action did not exist for sexual abuse under the CSAA

A-2780-21 3 because D.O. was not an adult, and that the passive abuser claims against his

parents' estates failed because they were derivative. Doe additionally argues

the judge erred in dismissing his common law claims based on the erroneous

finding that the claims were precluded under the two-year revival window

because no cognizable CSAA claim existed, and that the discovery rule did not

apply. Defendants cross-appeal from the June 20, 2022 order denying their

motion for fees.

We affirm in part and reverse in part. As the CSAA defines sexual

abuse as an action committed by an adult against a child, we conclude Doe's

derivative passive abuser claims against defendants fail. Thus, we affirm

dismissal of Doe's CSAA claims. However, we part ways with the judge's

decision that Doe's common law claims were precluded by the CSAA.

Accordingly, we conclude Doe's common law claims against the defendants

are cognizable because they were timely filed and alleged sexual assaults

committed by D.O. when she was a minor.

I.

Doe alleges the following pertinent facts in his complaint. In or around

1964 or 1965, when Doe was nine or ten years old, he was sexually abused by

way of "forced intercourse" "multiple times" over a period of "several months"

by D.O., his then thirteen- or fourteen-year-old sister. D.O. touched Doe's

A-2780-21 4 penis, raised her nightgown, and "sat on top of [Doe's] exposed genitals."

D.O. violently hit Doe "when he tried to move away." The sexual abuse

"always involved D.O. straddling" Doe and striking him in the face. At

"sometime during" the continued abuse, Doe "reported to his mother that D.O.

was engaging in conduct that he did not like and described specifically the

actions." Doe, at the time, "wrote a letter to his father describing D.O.'s

abuse." Doe maintained their parents "knew or should have known that D.O.

was sexually abusing [him]." Despite Doe's parents having actual knowledge

of the events, neither took any action to prevent the continued abuse. Years

later, in 2010, Doe discussed with his parents "the effect of D.O.'s abuse," and

in 2017, they acknowledged the sexual abuse in an unrelated lawsuit.

Doe's CSAA claims alleged his parents were passive abusers because

they "knowingly permitted or acquiesced in the sexual abuse committed by

D.O." As to his common law negligence and gross negligence claims, Doe

asserted defendants "breached their duties to [him] through their negligent and

grossly negligent care, supervision, failure to rescue, and other actions and

inactions that permitted D.O. to abuse [him] over a multiple month pe riod."2

Doe additionally claimed negligent infliction of emotional distress as

2 We acknowledge Doe's claims for negligence and gross negligence are pleaded as negligent supervision claims.

A-2780-21 5 defendants "owed [him] a duty to use reasonable care to ensure [his] safety and

well-being . . . by virtue of his status as a minor and family member in the

household."

On January 31, 2022, defendants moved to dismiss Doe's complaint for

failure to state a claim upon which relief can be granted. Doe opposed the

motions. At oral argument, defendants contended the CSAA claims failed as a

matter of law because the CSAA "provides a cause of action for sexual contact

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