RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0055-15T1
J.P., APPROVED FOR PUBLICATION Plaintiff-Appellant/ Cross-Respondent, March 7, 2016
APPELLATE DIVISION v.
GREGORY J. SMITH, COUNTY OF OCEAN, CITY OF MANAHAWKIN, TOWNSHIP OF STAFFORD, and STATE OF NEW JERSEY,
Defendants,
and
SOUTHERN REGIONAL HIGH SCHOOL and SOUTHERN REGIONAL HIGH SCHOOL BOARD OF EDUCATION,
Defendants-Respondents/ Cross-Appellants.
Argued January 25, 2016 - Decided March 7, 2016
Before Judges Messano, Carroll, and Sumners.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-2831-14.
Robert R. Fuggi, Jr., argued the cause for appellant/cross-respondent (Fuggi Law Firm, P.C., attorneys; Mr. Fuggi and Ronald A. Rosa, of counsel and on the briefs).
Jerald J. Howarth argued the cause for respondents/cross-appellants (Howarth & Associates, LLC, attorneys; Mr. Howarth and Purnima D. Ramlakhan, on the brief).
The opinion of the court was delivered by
CARROLL, J.A.D.
In this appeal we address claims of sexual abuse brought by
plaintiff J.P. against defendants Southern Regional High School
and Southern Regional High School Board of Education
(collectively, "the School"). In her complaint, filed in
September 2014, plaintiff alleged that, in 2004, she was
subjected to repeated sexual abuse by the School's assistant
band director, defendant Gregory Smith. The acts of abuse
allegedly occurred (1) at the School, where plaintiff was a
student; (2) during two School-organized overnight trips; and
(3) in plaintiff's home. Plaintiff sought damages pursuant to
the Child Sexual Abuse Act (CSAA), N.J.S.A. 2A:61B-1, and under
various common law theories of tort liability.
The trial court granted summary judgment dismissing
plaintiff's complaint against the School. The motion judge
concluded that (1) the School did not qualify as a "household"
within the meaning of the CSAA; and (2) plaintiff's claims were
barred by the statute of limitations and her failure to comply
with the notice provisions of the New Jersey Tort Claims Act
(TCA), N.J.S.A. 59:1-1 to 12-3. On reconsideration, the judge
declined to disturb the dismissal of plaintiff's CSAA claim
2 A-0055-15T1 against the School. However, the judge reinstated the common
law causes of action and ordered a Lopez1 hearing to determine
the accrual date of those claims.
Pursuant to leave granted, both sides appeal. Because we
are not persuaded that, under the facts presented, the School
falls within the ambit of the CSAA, we affirm the dismissal of
that claim. However, we part company with the trial court's
determination that a Lopez hearing is necessary to establish the
accrual date of plaintiff's common law causes of action. Since
we conclude that those claims accrued no later than July 2013,
and plaintiff failed to file a timely tort claim notice under
the TCA, we reverse the order reinstating those claims.
I.
The underlying facts of this appeal are largely undisputed.
Plaintiff was a member of the color guard for the School's
marching band, which was directed by plaintiff's father. In her
complaint, filed on September 30, 2014, plaintiff alleged that
during her junior year of high school, Smith began instant
messaging her on a personal level and making "off-color" sexual
jokes and comments. Over time, Smith's messages to plaintiff
1 Lopez v. Swyer, 62 N.J. 267, 272 (1973) (requiring a hearing when "a plaintiff claims a right to relief from the bar of the statute of limitations by virtue of the so-called 'discovery' rule").
3 A-0055-15T1 became more frequent and sexually explicit in nature. At some
point, Smith obtained permission from plaintiff's father to stay
at their house for the weekend. Plaintiff alleged that Smith
raped her the first night he stayed at her home. Smith told
plaintiff not to worry, that he would marry her when she turned
eighteen, and that her father would approve of their
relationship because he liked Smith enough to have hired him as
assistant band director.
The complaint further alleged that:
After the initial incident, [] Smith began to stay at [plaintiff]'s house often during the summer. [] Smith sexually abused plaintiff [] every time he stayed over in various locations of the house while plaintiff's parents were sleeping. Defendant [] would also abuse plaintiff once or twice during the week at school or while traveling at competitions by isolating her during walks together. Methods of abuse included, but were not limited to, vaginal penetration and oral sex.
At some point later on, plaintiff fainted during [] drum corps. It turned out that plaintiff was pregnant. Subsequent to that notice, plaintiff had an abortion.
Pertinent to this appeal, plaintiff asserted a claim
against the School seeking compensatory and punitive damages
under the CSAA (count two). Plaintiff also asserted claims for
delayed discovery/equitable estoppel (count seven); negligent
hiring, supervision, and retention (count eight); negligent
4 A-0055-15T1 entrustment and breach of fiduciary duty (count nine); breach of
the statutory duty to report a reasonable suspicion of abuse
(count ten); and endangering the welfare of children (count
eleven) (collectively, the "common law" claims). In counts
seven through eleven, plaintiff further alleged that, prior to
September 11, 2014, she could not have reasonably ascertained
the identity of the School as a party responsible for Smith's
sexual abuse, or the harm that resulted from it.
Plaintiff's expert report, submitted in opposition to the
School's motion for summary judgment, provides additional
detail. In a September 11, 2014 report, psychologist Christine
Hatchard indicated that she evaluated plaintiff at the request
of her attorney on June 17 and 24, 2014. The purpose of the
evaluation was "to determine when [plaintiff] realized that she
was a victim of sexual abuse and how the trauma has affected her
life." Dr. Hatchard noted that plaintiff had been seeing a
psychotherapist since July 2011, and "that she finds therapy
helpful and that her therapist knows of her abuse history and is
supportive."
Plaintiff, then age thirty-one, told Dr. Hatchard that she
was abused by Smith at age sixteen while a student at the
School. Dr. Hatchard described plaintiff's recounting of the
facts underlying the sexual abuse allegations as follows:
5 A-0055-15T1 [Smith] . . . was hired for drumline and then was promoted to assistant band director, working directly under and closely with [plaintiff's] father . . . .
As percussion drum corps leader, [Smith] would chaperone band events, competitions, and trips, which [plaintiff] often attended as a member of the Color Guard . . . . [Smith] would instant message [plaintiff] . . . on a more personal level [by] making "off-color" sexual jokes and comments, frequently calling her "cutie," "hon," and other terms of endearment.
. . . .
In April, [Smith] asked [plaintiff's] father if he could stay at their house for a weekend and her father agreed . . . . On the first night that he was at her house, he led her to the first floor guest room where he was staying. She reports . . . that he pinned her beneath him and raped her. After the weekend was over, [Smith] emailed her saying "don't worry," "this will be okay, we'll get married when you're [eighteen]," and promising that her father would approve of the relationship since he liked [Smith] enough to hire him to teach for the marching band program.
After this initial incident, [Smith] stayed at [plaintiff's] house several weekends over the summer. He sexually abused her every time he stayed over in various locations of the house while her parents were sleeping or not at home. He would also abuse her once or twice during the week at school or while traveling at competitions by isolating her during walks together . . . . She noted all of the times that they engaged in sexual behavior in her journal/planner with a symbol, which the police allegedly made a copy of and subsequently lost.
6 A-0055-15T1 In August, [plaintiff] fainted during a school performance and suspected she might be pregnant . . . .
In late August or early September, [plaintiff] told her mother that she was pregnant. Her mother verbally went through a list of names of potential fathers until she came to [Smith] and [plaintiff] nodded. Her mother took her back to the women's clinic for an abortion and would not pay extra money for [plaintiff] to be anesthesized during the procedure.
Afterward, . . . her father had a "staff meeting" with [Smith] in their house during which [plaintiff] . . . believed that [Smith] was encouraged to quit his job at her school.
[Plaintiff] went to the police with her parents, spoke to them about the sexual relationship and gave them her journal/planner where she had detailed the incidents of abuse. She reports that she returned one other time to the police department but that charges were never filed against [Smith]. Her parents also notified the school board. [Smith] insisted that he had nothing to do with [plaintiff's] pregnancy and her father believed him, accusing [plaintiff] of becoming pregnant from having sex with someone her own age.
Dr. Hatchard identified a number of negative consequences
plaintiff experienced following the sexual abuse. These
included: a decline in her grades; having to live in various
locations including her car after her parents locked her out of
their family home when she turned eighteen; a drug addiction
fueled by numerous unhealthy relationships she maintained during
7 A-0055-15T1 this period; impaired sexual relations; an inability to maintain
a relationship with her step-son, her parents, or her sister;
receipt of psychiatric treatment, which included detoxification
from her opioid addiction; and individual psychotherapy once a
week beginning in July 2011.
Dr. Hatchard noted that plaintiff "became tearful when
discussing the aftermath of her sexual abuse, especially her
parents' disbelief." The doctor explained:
[Plaintiff] remembers feeling like she "just wanted [her] parents to believe [her] and acknowledge that [the sexual abuse] wasn't [her] fault," but they were silent about the abuse and no one talked about it again. [Plaintiff] felt like her "life was over," and she "didn't understand what she had done wrong."
. . . . [I]n the summer of 2012, her father stated "I still don't believe you" [and] . . . her husband "freaked out". . . . Seeing her husband's anger provided her validation that she had not received from others in her life, and she began to have the thoughts that maybe the sexual relationship may have been abusive and not her fault, despite what she perceived as her parents' punishment.
In 2013, [plaintiff] . . . spoke to a prosecutor who initiated a recorded phone call to [Smith] who confessed to the abuse around the week of July 4, 2013 . . . . Her parents only began to believe that she had been abused when they learned that he had confessed . . . .
Several factors likely contributed to [plaintiff's] delay in fully understanding
8 A-0055-15T1 that she was being sexually abused by [Smith] . . . . [Smith] was allowed into her home on a regular basis by her parents, who she trusted to protect her, which increased her confusion about experiencing abuse from a "safe" person.
Dr. Hatchard diagnosed plaintiff as suffering from (1)
post-traumatic stress disorder (PTSD) (delayed expression); (2)
persistent depressive disorder (with persistent major depressive
episodes, moderate severity); and (3) opioid use disorder
(severe). Dr. Hatchard ultimately concluded that:
[Plaintiff] experienced significant difficulty identifying the abuse due to the manipulation and grooming behaviors by [] Smith who presented the abuse as a romantic relationship, and her parents repeated denial of the abuse and punishment of [plaintiff]. She was only able to fully understand that the sexual relationship was abuse and that it had severe consequences, when [Smith] confessed to the crime in July [] 2013 and she finally received validation from the police as well as her parents . . . . This new insight was marked by her development of [PTSD] in July [] 2013, which is when she began to directly acknowledge and confront the abuse. She . . . will require long-term psychiatric care, especially due to the delay in her healing process and the reinforced shame and guilt that she experienced as an adolescent and throughout her adulthood.
[(Emphasis added).]
On June 2, 2014, prior to her first interview with Dr.
Hatchard, plaintiff filed a notice of tort claim. The notice
named the School, Smith, and others as responsible parties. It
9 A-0055-15T1 specified that, from April 2000 through September 2000, Smith
"systematically engaged in sexual acts with [plaintiff] . . .
resulting in [her] pregnancy which was terminated when she was
[seventeen] years old."
In February 2015, the School moved for summary judgment.
It argued that the CSAA did not apply because the School was not
in the same "household" as the plaintiff. It also sought
dismissal of the common law claims as barred by the statute of
limitations and the notice provisions of the TCA.
Plaintiff opposed the motion, contending that the CSAA
applied because the School could be deemed a person standing in
loco parentis within plaintiff's household. Plaintiff further
argued that none of her claims accrued until September 11, 2014,
the date of Dr. Hatchard's report. Plaintiff contended that
this represented the date "when she was able to establish the
causal relationship between the . . . sexual abuse perpetrated
by [] Smith and the various mental and emotional harms she had
and continues to suffer." Plaintiff argued that her tort claim
notice was timely because it was submitted before the running of
the statutory ninety-day limit. N.J.S.A. 59:8-8. She further
argued that the statute of limitations was tolled by the
discovery doctrine, and that the duress imposed upon her delayed
her discovery of the sexual abuse and the common law claims.
10 A-0055-15T1 The judge heard oral argument on March 20, 2015. In his
oral opinion, the judge concluded that the CSAA did not apply to
the School because the School did not fit the CSAA's definition
of "within the household." The judge also found that
plaintiff's remaining claims were barred by the statute of
limitations and the notice provisions of the TCA. The same day,
the judge entered a memorializing order granting the School's
motion and dismissing all claims against it with prejudice.
In a telephone conference initiated sua sponte by the court
on March 23, the judge expressed reservations with respect to
his ruling on when plaintiff's claims accrued, and whether a
Lopez hearing was needed to determine their accrual date.
Plaintiff then timely moved for reconsideration, accompanied by
an affidavit that was not previously submitted in opposition to
the summary judgment motion.
In her April 1, 2015 affidavit, plaintiff provided
additional details intended to establish that the School was
"within the household" so as to trigger applicability of the
CSAA. She averred that her father, who was the School's
director of the marching band, drumline, and color guard, held a
number of meetings and other activities at their family home
where much of the sexual abuse had occurred.
11 A-0055-15T1 Plaintiff further recounted that, in 2000, she attended a
four-day drumline/color guard competition in Dayton, Ohio. In
route, Smith intentionally chaperoned her bus and proceeded to
touch her leg for long periods of time. While in Dayton,
despite the requirement that girls and boys sleep in separate
rooms, Smith awakened plaintiff in the middle of the night and
informed her that her father wanted to see her. He then
sexually assaulted her in a hallway. Plaintiff subsequently
attended another trip to Canada, this time for a one-week
period. On this trip, chaperones placed tape across the
students' dorm rooms after curfew. Smith ripped the tape,
brought plaintiff to his room, and sexually assaulted her.
In addition to assaulting her in her home and on overnight
competitions, plaintiff's affidavit averred that Smith also
sexually assaulted her on school grounds either prior to
competitions or after practices. When she became pregnant in
August or September of 2000, Smith told her to obtain an
abortion, which she did in early September 2000. At some point
thereafter, in compliance with school requirements, her father
took her to file a police report. However, the police response
was that "we couldn't ever prove it happened and my name and
face would be smeared all over the newspapers." When asked if
12 A-0055-15T1 she wanted to continue filing a report, plaintiff answered "no."
She then dropped out of the color guard in November 2000.
The court heard argument on the reconsideration motion on
June 26, 2015. Prior to the argument, plaintiff's counsel
prepared and submitted a "time line" that he asked the court to
accept and attach to plaintiff's reply brief. The judge again
ruled that the CSAA did not apply. The judge found that many of
the acts of sexual abuse occurred in plaintiff's own home, and
that the "temporary and short-term [band and color guard] trips"
were not "substantial enough to impart a 'household' status" to
the School so as to bring it within the purview of the CSAA.
The judge then proceeded to reconsider the accrual issue
with respect to plaintiff's remaining claims. Although the
judge found that plaintiff "knew what was going on" back in 2000
when she became pregnant, and upon alerting the police in 2013,
he nevertheless decided to conduct "a Lopez hearing to determine
the tolling issue." On July 14, the court entered an order
denying plaintiff's motion to reinstate count two, the CSAA
claim. However, the order reinstated the common law claims
asserted in counts seven through eleven, and directed that a
Lopez hearing be scheduled to determine the accrual date of
those claims. Both parties sought leave to appeal, which we
granted on September 3, 2015.
13 A-0055-15T1 II.
On appeal, plaintiff argues that the trial court erred in
finding that she was not entitled to the protection of the CSAA
because the School did not qualify under the statutory language
as a "person . . . within the household." Plaintiff also argues
that all of her claims are entitled to the more liberal CSAA
tolling provisions, and therefore none of them are time-barred
by the TCA or the statute of limitations.
The School contends that, on reconsideration, the court
erred in reinstating plaintiff's common law claims, and in
relying upon documentary evidence not presented in opposition to
the initial summary judgment motion. The School submits that a
Lopez hearing is unnecessary, as the record already establishes
that plaintiff's common law claims are time-barred by either:
(1) her failure to file a timely tort claim notice; or (2) the
two-year statute of limitations applicable to tort actions.
Finally, the School urges us to affirm the trial court's finding
that it was not "within the household" for purposes of
establishing its liability as a passive abuser under the CSAA.
III.
We begin with the standard of review that governs our
analysis. "An appellate court reviews an order granting summary
judgment in accordance with the same standard as the motion
14 A-0055-15T1 judge." Bhagat v. Bhagat, 217 N.J. 22, 38 (2014) (citing W.J.A.
v. D.A., 210 N.J. 229, 237-38 (2012); Henry v. N.J. Dep't of
Human Servs., 204 N.J. 320, 330 (2010)). We "identify whether
there are genuine issues of material fact and, if not, whether
the moving party is entitled to summary judgment as a matter of
law." Ibid. (citing Brill v. Guardian Life Ins. Co. of Am., 142
N.J. 520, 540 (1995); R. 4:46-2(c)).
[A] determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non- moving party.
[Brill, supra, 142 N.J. at 540.]
We then decide "whether the motion judge's application of
the law was correct." Atl. Mut. Ins. Co. v. Hillside Bottling
Co., 387 N.J. Super. 224, 231 (App. Div.), certif. denied, 189
N.J. 104 (2006). In this regard, "[w]e review the law de novo
and owe no deference to the trial court . . . if [it has]
wrongly interpreted a statute." Zabilowicz v. Kelsey, 200 N.J.
507, 512 (2009). Similarly, determining the date upon which a
statute of limitations begins to run is an issue of law, subject
to plenary review. Town of Kearny v. Brandt, 214 N.J. 76, 91
(2013).
15 A-0055-15T1 With respect to plaintiff's reconsideration motion, we note
the grounds for reconsideration are limited. State v. Puryear,
441 N.J. Super. 280, 294 (App. Div. 2015). Reconsideration is
appropriate only when "1) the [c]ourt has expressed its decision
based upon a palpably incorrect or irrational basis, or 2) it is
obvious that the [c]ourt either did not consider, or failed to
appreciate the significance of probative, competent evidence."
Ibid. (alterations in original) (quoting Palombi v. Palombi, 414
N.J. Super. 274, 288 (App. Div. 2010)). Reconsideration is not
appropriate as a vehicle to bring to the court's attention
evidence that was not presented, but was available, in
connection with the initial argument. Fusco v. Bd. of Educ. of
City of Newark, 349 N.J. Super. 455, 463 (App. Div.), certif.
denied, 174 N.J. 544 (2002).
"[A] trial court's reconsideration decision will be left
undisturbed unless it represents a clear abuse of discretion."
Pitney Bowes Bank, Inc. v. ABC Caging Fulfillment, 440 N.J.
Super. 378, 382 (App. Div. 2015). A court abuses its discretion
"when a decision is made without a rational explanation,
inexplicably departed from established policies, or rested on an
impermissible basis." Ibid. (quoting Flagg v. Essex Cty.
Prosecutor, 171 N.J. 561, 571 (2002)).
16 A-0055-15T1 IV.
We first address the issue of whether the School qualifies
as a "passive abuser" under the CSAA. The CSAA defines "sexual
abuse" as "an act of sexual contact or sexual penetration
between a child under the age of [eighteen] years and an adult.
A . . . person standing in loco parentis within the household
who knowingly permits or acquiesces in sexual abuse by any other
person also commits sexual abuse . . . ." N.J.S.A. 2A:61B-
1a(1). Thus, the statute imposes liability on both "active" and
"passive" sexual abusers. Hardwicke v. Am. Boychoir Sch., 188
N.J. 69, 86 (2006).
In Hardwicke, the Supreme Court held that a private
boarding school could be liable as a passive abuser under the
CSAA. Id. at 94. There, the plaintiff alleged the Musical
Director of the school abused him over the course of two years,
and the school itself knew or should have known of the abuse.
Id. at 74. The Court noted that in order to hold a passive
sexual abuser liable under the statute, a plaintiff must
demonstrate the defendant is: "(1) a person (2) standing in loco
parentis (3) within the household." Id. at 86. The Court first
found the boarding school was a "person" under the statute. Id.
at 91. It next determined the school satisfied the role of "in
loco parentis" because it
17 A-0055-15T1 regulated the students' personal hygiene, monitored the cleanliness of their rooms, dictated the amount of money each student could have on campus, required students to write two weekly letters to friends or family, expected students to attend religious services when on campus during the weekend, provided transportation for recreational activities off school grounds, and disciplined students who violated those policies.
[Id. at 91-92.]
Finally, the Court considered whether the boarding school was a
"household" under the statute. Id. at 93. The Court stated:
[T]he School provides food, shelter, educational instruction, recreational activities and emotional support to its full-time boarders - in other words, housing with the amenities characteristic of both a school and a home.
[Id. at 94.]
The Court thus concluded "the School [was] a 'person' standing
'in loco parentis' within a 'household.'" Ibid.
We reached a different result in D.M. v. River Dell
Regional High School, 373 N.J. Super. 639 (App. Div. 2004),
certif. denied, 188 N.J. 356 (2006). There, we affirmed the
grant of summary judgment dismissing claims against a public
18 A-0055-15T1 high school under the CSAA because the school did not qualify as
"in loco parentis within the household." Id. at 649.2
In Bryson v. Diocese of Camden, N.J., 909 F. Supp. 2d 364
(D.N.J. 2012), the United States District Court was called upon
to interpret the applicability of the CSAA in light of
controlling New Jersey case law. The court concluded that
defendant, a private Catholic school, "[did] not fit a
reasonable definition of 'within the household'" for purposes of
the CSAA. Id. at 369. In distinguishing Hardwicke, the court
explained:
If, as Plaintiff argues, neither a single roof nor a familial relationship is required to be "within the household," the Hardwicke decision suggests that a closely analogous, intimate relationship is required.
In Hardwicke, the court found the boarding school to be "within the household" only after noting that the students were "full- time boarders" and depended on the school, in the absence of their parents or other care givers, for "amenities characteristic of . . . a home," including the basic necessities of life, such as food and shelter. For practical purposes, the boarding school was "the household" of the plaintiff victim. Here, Plaintiff resided
2 We note that D.M. was decided shortly before Hardwicke and thus the panel in D.M. did not explain the application of the Hardwicke factors as they had not yet been announced. We further note that shortly after Hardwicke was decided on August 8, 2006, the Court denied certification in D.M. on September 21, 2006, 188 N.J. 356, thus leaving the ruling in D.M. intact.
19 A-0055-15T1 at all times with his parents, who provided him with home amenities, including food and shelter; he did not reside at the school as the plaintiff did in Hardwicke. Defendant educated and provided religious counseling to Plaintiff through [the active abuser] and others, and cared for Plaintiff a few hours per week after school. In doing so, Defendant provided services and amenities normally associated with those of a typical after-school program of a school or a church, not those of a home. Defendant did not function as a parent to Plaintiff in the same way the boarding school did in Hardwicke to the plaintiff in that case. [The active abuser] was not a member of the household, nor had he visited Plaintiff's home on more than one occasion. The qualities and characteristics of the relationship here are not sufficiently strong to establish that Defendant was within the Plaintiff's household.
[Bryson, supra, 909 F. Supp. 2d at 369-70 (internal citation omitted).]
In the present case, plaintiff argues that the motion judge
erred when he held that the School was not liable for passive
abuse under the CSAA because it was not "within the household."
Plaintiff points to the overnight trips she took to Ohio and
Canada, where the School provided meals, lodging, and
supervision. She contends that the School provided her with
food, shelter, educational instruction, recreational activities
and emotional support, the same five elements that were deemed
sufficient in Hardwicke to establish the School as a household
under the CSAA. See Hardwicke, supra, 188 N.J. at 94.
20 A-0055-15T1 We are not persuaded. Plaintiff's arguments overlook the
fact that in Hardwicke the school provided those amenities and
services to "its full-time boarders." Ibid. (emphasis added).
That crucial element is lacking here. The Court in Hardwicke
was clearly concerned not only with the role of the school as a
parental substitute, but also with its role as the provider of
amenities normally associated with a home environment for
students who resided there full-time. Ibid.; see also J.H. v.
Mercer Cnty. Youth Det. Ctr., 396 N.J. Super. 1, 14-15 (App.
Div. 2007) (finding a youth detention center a household for the
purposes of the CSAA). We are therefore satisfied that the term
"within the household" connotes a degree of "residential"
custody that is more than fleeting and temporary in nature and
is simply not present in this case.
We are also satisfied the result we reach comports with
basic principles of statutory construction. In construing a
statute, "[o]ur task [] is to discern and give effect to the
Legislature's intent." State v. Munafo, 222 N.J. 480, 488
(2015) (quoting State v. O'Driscoll, 215 N.J. 461, 474 (2013)).
We first examine the "plain language of the statute." Ibid.
(citing State v. Frye, 217 N.J. 566, 575 (2014); DiProspero v.
Penn, 183 N.J. 477, 492 (2005)). "When that language clearly
reveals the meaning of the statute, the court's sole function is
21 A-0055-15T1 to enforce the statute in accordance with those terms." State
v. Olivero, 221 N.J. 632, 639 (2015) (quoting McCann v. Clerk of
Jersey City, 167 N.J. 311, 320 (2001)).
Had the legislature wished to include a public day school
within the scope of the CSAA, it could very easily have used the
terminology "school or household." Also, "[t]he legislature
could have omitted the phrase [within the household] and
extended potential liability to all persons who stood in loco
parentis of the victim. The legislature chose not to do so."
Bryson, supra, 909 F. Supp. 2d at 370.
Summarizing, the CSAA's definition of passive sexual abuse
limits the class of persons who are potentially liable to those
"within the household." Because the School does not fit that
definition, we affirm the dismissal of plaintiff's CSAA claim
against the School.
V.
We next address the issue of whether plaintiff's remaining
claims are barred by either the statute of limitations or the
notice provisions of the TCA. Our analysis of this issue
compels us to also determine whether a Lopez hearing is needed
to establish the date that these common law claims accrued.
The School argues that plaintiff's claims "accrued" in
August or September, 2000, when she terminated her pregnancy and
22 A-0055-15T1 reported Smith's sexual abuse to her parents, the police, and
School authorities. In that event, her claims are barred by the
two-year statute of limitations in N.J.S.A. 2A:14-2, and the
notice provisions of the TCA, N.J.S.A. 59:8-8. Even if the
"discovery rule" applies, plaintiff's own expert concluded that
plaintiff was aware of the abuse and its consequences by June or
July, 2013. Accordingly, her tort claim notice, filed in June
2014, exceeded the ninety-day period within which notice must be
given pursuant to N.J.S.A. 59:8-8. Since the record is clear,
the School maintains there is no need to conduct a hearing to
determine the accrual date of plaintiff's claims.
As noted, in her complaint and her argument before the
trial court, plaintiff contended that all her claims accrued on
September 11, 2014, the date her expert report was issued.
Plaintiff argues that the CSAA's more liberal accrual provision3
tolls the limitations period for her related common law claims.
Additionally, plaintiff argues that "[t]he question of whether
or not the statute of limitations is tolled is determined by the
existence of either equitable grounds, duress and/or whether or
3 See N.J.S.A. 2A:61B-1b ("In any civil action for injury or illness based on sexual abuse, the cause of action shall accrue at the time of reasonable discovery of the injury and its causal relationship to the act of sexual abuse.").
23 A-0055-15T1 not [p]laintiff has 'repressed the memories' of [her] sexual
abuse." N.J.S.A. 2A:14-21 (emphasis omitted).
Ordinarily, a cause of action accrues on the date upon
which a wrongful act or omission producing the harm occurs.
Beauchamp v. Amedio, 164 N.J. 111, 116 (2000). The pertinent
statute of limitations, therefore, presumptively begins to run
from the time of that wrongful conduct. Our courts have long
recognized, however, that "in an appropriate case a cause of
action will be held not to accrue until the injured party
discovers, or by an exercise of reasonable diligence and
intelligence should have discovered[,] that he [or she] may have
a basis for an actionable claim." Lopez, supra, 62 N.J. at 272.
This equitable principle, commonly known as the discovery rule,
operates to "prevent the sometimes harsh result of a mechanical
application of the statute of limitations." Martinez v. Cooper
Hosp.-Univ. Med. Ctr., 163 N.J. 45, 52 (2000).
The discovery rule applies not only to situations where the
injury has not been discovered, but also to situations where the
injury is apparent, but it is not known "that it is attributable
to the fault of another." Id. at 53. The cause of action does
not accrue until both of these elements are known to the
plaintiff. Ibid. In determining the date of a claim's accrual
under the discovery rule, the court must assess "whether the
24 A-0055-15T1 facts presented would alert a reasonable person exercising
ordinary diligence that he or she was injured due to the fault
of another." Id. at 52.
"The discovery rule is essentially a rule of equity. It
has been said that in equity lies its genesis." Lopez, supra,
62 N.J. at 273. Courts must balance the desire to give innocent
injured parties their day in court against the fairness to those
who must defend stale claims. Id. at 274. With this balance in
mind, the Supreme Court has held that, "[t]he decision [on
accrual] requires more than a simple factual determination; it
should be made by a judge . . . conscious of the equitable
nature of the issue before him." Id. at 275. Among the
equitable factors that may be relevant under Lopez are: (1)
"the nature of the alleged injury," (2) "the availability of
witnesses and [] evidence," (3) "the length of time that has
elapsed," (4) the "deliberate or intentional" nature of the
delay, and (5) whether the delay "peculiarly or unusually
prejudiced the defendant." Id. at 276.
"Although the discovery rule does not require knowledge of
a specific basis for legal liability or a provable cause of
action, it does require knowledge not only of the injury but
also that another is at fault." Guichardo v. Rubinfeld, 177
N.J. 45, 51 (2003) (quoting Martinez, supra, 163 N.J. at 52).
25 A-0055-15T1 "Once a person knows or has reason to know of this information,
his or her claim has accrued since, at that point, he or she is
actually or constructively aware of that state of facts which
may equate in law with a cause of action." Abboud v. Viscomi,
111 N.J. 56, 63 (1988) (quoting Burd v. N.J. Tel. Co., 76 N.J.
284, 291 (1978)). The fundamental question in a discovery rule
case, therefore, is "whether the facts presented would alert a
reasonable person, exercising ordinary diligence, that he or she
was injured due to the fault of another." Caravaggio v.
D'Agostini, 166 N.J. 237, 246 (2001).
Here, plaintiff was undoubtedly aware of the abuse, Smith's
identity as her abuser, and Smith's affiliation with the School,
when she became pregnant in 2000. However, viewing the facts in
the light most favorable to plaintiff as the non-moving party,
as we must,4 plaintiff arguably was unaware of the emotional
effects of the sexual abuse at that time. In any event, the
competent evidence before the court at the summary judgment
stage,5 as demonstrated by plaintiff's own expert psychologist,
Dr. Hatchard, clearly establishes that by July 2013, plaintiff
4 See R. 4:46-2(c); Brill, supra, 142 N.J. at 540. 5 See Ji v. Palmer, 333 N.J. Super. 451, 463-64 (App. Div. 2000) (limiting appellate review of the grant of summary judgment to the record that existed before the motion judge).
26 A-0055-15T1 was "able to fully understand that the sexual relationship was
abuse and that it had severe consequences."
The motion judge originally dismissed plaintiff's claims as
barred by the statute of limitations and the notice provisions
of the TCA. On reconsideration, the judge determined that a
Lopez hearing was necessary to establish the accrual date of
plaintiff's common law claims. We conclude that the judge erred
in determining that a Lopez hearing was necessary. A plaintiff
who invokes the discovery rule is not always entitled to a
hearing. "A Lopez hearing is only required when the facts
concerning the date of the discovery are in dispute." Henry,
supra, 204 N.J. at 336 n. 6 (citing Dunn v. Borough of
Mountainside, 301 N.J. Super. 262, 274 (App. Div. 1997), certif.
denied, 153 N.J. 402 (1998)). Here, it is undisputed that, no
later than July 2013, plaintiff fully understood that she was
abused and the consequences of that abuse.
Affording plaintiff the benefit of the discovery rule, we
conclude that, no later than July 2013, a reasonable person,
possessing plaintiff's knowledge, could have discovered a basis
for a cause of action with the exercise of ordinary diligence.
Using July 2013 as the accrual date of her claims, we further
conclude that her September 2014 complaint was timely filed
within the two-year statute of limitations.
27 A-0055-15T1 We reach a different result, however, with respect to
plaintiff's failure to comply with the TCA. Claims against the
School are governed by the TCA, which "defines the extent of the
Legislature's waiver of sovereign immunity and establishes the
procedures by which claims may be brought[.]" D.D. v. Univ. of
Med. & Dentistry of N.J., 213 N.J. 130, 146 (2013) (alteration
in original)(quoting Beauchamp, supra, 164 N.J. at 116). Under
the TCA, a claimant must file a notice of claim within ninety
days of the accrual of the cause of action. N.J.S.A. 59:8-8.
N.J.S.A. 59:8-9 somewhat alleviates the rigidity of the ninety-
day requirement by allowing a claimant to seek judicial
permission to file late notice within one year after the accrual
of the claim upon a showing of "extraordinary circumstances."
In N.J.S.A. 59:8-1, the TCA clarifies that, for purposes of
the statute's notice and filing limitations, "[a]ccrual shall
mean the date on which the claim accrued and shall not be
affected by the notice provisions contained herein." Under the
TCA, "the discovery rule is part and parcel" of determining when
a claim accrued "because it can toll the date of accrual."
Beauchamp, supra, 164 N.J. at 118. "Until the existence of an
injury (or, knowledge of the fact that a third party has caused
it) is ascertained, the discovery rule will toll accrual." Id.
at 122. "However, once an injury is known, even a minor one,
28 A-0055-15T1 the ninety day notice is triggered." Ibid. (emphasis added).
"Worsening of that injury does not extend the time [to serve a
notice] or otherwise alter the party's obligation." Ibid.; see
also Maher v. Cnty. of Mercer, 384 N.J. Super. 182, 186 (App.
Div. 2006).
Because we have concluded that plaintiff's claims accrued
no later than July 2013, she was required to file her tort claim
notice within ninety days of that time. She failed to do so.
She also failed to seek permission to file a late claim within
one year of the accrual of her claim. Plaintiff's failure to
comply with the time requirement of N.J.S.A. 59:8-8(a)
constitutes an absolute bar to recovery against the School.
Karczewski v. Nowicki, 188 N.J. Super. 355, 357 (App. Div.
1982).
We briefly comment on the evidence submitted in support of
plaintiff's motion for reconsideration. Plaintiff's affidavit,
dated April 1, 2015, contained no new information that could not
have been submitted in opposition to the School's summary
judgment motion. Accordingly, its submission on reconsideration
was inappropriate. Fusco, supra, 349 N.J. Super. at 463. In
any event, it centered on plaintiff's claim under the CSAA that
the School was "within the household," and provided no new
29 A-0055-15T1 detail that could form the basis for reconsideration of when her
claims accrued.
After her reply brief was filed, plaintiff's counsel also
prepared and submitted a "time line" in support of her argument
that her tort claim notice and her complaint were both timely
filed. This submission suffers from the same infirmity as
plaintiff's affidavit, as it contains information that could and
should have been presented on the initial motion. Moreover, it
was newly filed after plaintiff's reply brief and, as such, did
not afford the School a meaningful opportunity to respond to it.
Additionally, it was not accompanied by an affidavit or
certification based on personal knowledge attesting to the
accuracy of the information it contained, as required by Rule
1:6-6. Accordingly, the "time line," to the extent it may have
been considered by the court, did not provide proper evidential
support for plaintiff's reconsideration motion.
For these reasons, we conclude that plaintiff's failure to
comply with the notice provisions of the TCA bars her common law
claims against the School. No Lopez hearing was necessary to
determine the date those claims accrued. We therefore reverse
the order reinstating counts seven through eleven of plaintiff's
complaint, which were properly dismissed on summary judgment.
30 A-0055-15T1 The portion of the July 14, 2015 order dismissing the CSAA
claim is affirmed. The portion of the order that reinstated the
common law counts and ordered a Lopez hearing is reversed.
31 A-0055-15T1