PER CURIAM.
Plaintiff appeals from an order entered by the Law Division on May 3, 2013, dismissing her complaint, and an order entered on June 21, 2013, denying reconsideration. We affirm in part, reverse in part, and remand for further proceedings.
On December 20, 2012, plaintiff filed a complaint naming B.B., the Estate of E.B. (the "Estate"), N.R. Corp. ("N.R.C."), and the Trustee of the B.T. (the "Trustee") as defendants. Plaintiff alleged that, in mid-1995, she was a young teenager who had just arrived in the United States from Guyana. She claimed that her aunt accompanied her to the home of E.B. and his wife, B.B., to perform household chores. Plaintiff alleged that in mid-1997, when she was fifteen, E.B. began to abuse her sexually. Plaintiff claimed that the abuse occurred many times over the course of ten years, during which she was threatened not to tell anyone. Plaintiff alleged that B.B. would deliberately leave her alone with E.B. for about an hour so that he could do with her "as he pleased." She alleged that on "dozens of occasions," E.B. filmed the "vicious and vile acts."
Plaintiff claimed that between 2004 and 2007, she drastically reduced her hours at the home of B.B. and E.B., but in the summer of 2007, E.B. again forced her to perform "terrible sexual acts." According to plaintiff, on August 28, 2010, shortly after E.B. died, B.B. asked plaintiff to return and work for her. Plaintiff refused, allegedly "because of the intense pain" that E.B. and B.B. had caused her.
In count one, plaintiff alleged that from 1996 to 2004, and again in 2007, B.B. knew or had reason to know that it was "extremely likely" that her husband was engaged in "sadistic and perverted sexual acts of molestation with [p]laintiff." She claimed that, at various times, B.B. negligently failed to take actions and precautions that would have stopped the sexual abuse from occurring, and that this caused plaintiff to suffer temporary and permanent physical and emotional harm.
In count two, plaintiff alleged that from mid-1996 to mid-2002, when she was younger than eighteen years old, B.B. knowingly failed to take actions to protect her from E.B.'s alleged sexual abuse. Plaintiff claimed that, as a result, she suffered permanent physical and mental harm.
In count three, plaintiff alleged that from mid-1996 and continuing until 2004, B.B. possessed a "special non-parental relationship" with her, and directly supervised her when she performed household chores and errands. Plaintiff claimed that B.B. did not exercise reasonable care because she failed to alert authorities, confront her husband or otherwise protect her from E.B.'s sexual abuse. Plaintiff claims that, as a result of negligent supervision by B.B., she suffered damages of a temporary and permanent nature "including substantial pain [and] suffering."
In addition, in count four, plaintiff alleged that, as a condition of her employment, B.B. required that she adopt the name of T.W., because she thought that plaintiff's surname "sounded too Muslim." According to plaintiff, B.B. stated that she did not want "people" to think that she had a Muslim working for her, since that would "hurt [B.B.'s] reputation in the community." Plaintiff alleged that, as a result of these actions, she suffered "numerous damages" including "much pain [and] suffering."
In count five, plaintiff further alleged that B.B. intentionally inflicted emotional distress by willfully and deliberately disclosing false information to local police detectives. Specifically, plaintiff alleged that B.B. told the police that she did not know plaintiff. According to plaintiff, this conduct occurred after the police arrested, detained and questioned her. She alleged that B.B. knew of plaintiff's "fragile emotional state, response to her lies, and unfamiliarity with the U.S. justice system." Plaintiff claimed that B.B.'s actions were "extreme and outrageous." She claimed that, as a result of these actions, she "suffered severe emotional distress."
Furthermore, in count six, plaintiff asserted a claim of false imprisonment. Plaintiff alleged that from mid-1996 to mid-2004, and again in 2007, B.B. and E.B. "willfully and forcibly" held her against her will, and that E.B. made threats of what would happen to her if she did not "do what she was told." She also alleged that from mid-1996 to mid-2004, B.B. and E.B. caused her pain and suffering of a permanent and physical nature.
Plaintiff additionally asserted claims of battery (count seven) and assault (count eight), pertaining to acts of sexual abuse that allegedly occurred from mid-1996 to 2007. She also asserted a claim of intentional infliction of emotional distress (count nine) with regard to B.B.'s alleged failure to "understand and foresee the emotional and physical suffering" that would result when she denied knowing plaintiff. Moreover, in count ten, plaintiff asserted that all defendants were vicariously liable for E.B.'s recording of the alleged sexual abuse, from sometime in 1997 to 2007.
Based on these allegations, plaintiff sought judgment against B.B., the Estate, and N.R.C., as well the Trust, which was allegedly named in the will of E.B. Plaintiff sought compensatory and punitive damages, along with interest, costs of suit and attorney's fees.
It should be noted that plaintiff's appendix includes an affidavit dated December 22, 2011, which plaintiff apparently submitted to the Criminal Part of the Law Division in connection with her criminal matter. It appears that the affidavit was part of the record before the trial court in this case. In the affidavit, plaintiff asserted that, after E.B. became terminally ill, he begged her to come to his home. E.B. allegedly told plaintiff he had had a religious experience and was sorry for the pain he had caused her.
According to plaintiff, E.B. gave her video recordings of the sexual abuse and audio recordings in which E.B. said he wanted her to have $500,000 after he dies. Plaintiff stated that she gave the recordings to R.P., a "distant relative." On December 6, 2010, plaintiff drove with R.P. and two others to B.B.'s residence. Plaintiff said she dropped R.P. and another passenger off and waited for them in a nearby park.
Later, after plaintiff picked them up, R.P. told her he had been discussing "employment" with B.B. Plaintiff said that on December 20, 2010, she was driving with R.P. and another person and realized they were heading towards B.B.'s residence. R.P. told her that he had been speaking with B.B. for a few weeks and that B.B. was ready to give plaintiff the money that E.B. had promised her. Plaintiff claimed that she wanted no part of the money. She took the recordings, got out of the car, and went to a bus stop.
Plaintiff was arrested, taken to police headquarters and placed in a holding cell. She later pled guilty and was sentenced to three years of imprisonment.
On March 26, 2013, the Estate filed a motion to dismiss the complaint pursuant to
The motion judge considered the Estate's motion on May 3, 2013. The attorneys for B.B. and N.R.C. confirmed that they had written to the court stating that they were joining the Estate's motion. Counsel for B.B. said the issues raised by the Estate were common to all defendants. Counsel for the Estate and N.R.C. then argued that, to the extent plaintiff was asserting she could not file a timely complaint due to duress, plaintiff could not have been under duress after E.B. died on August 28, 2010. Counsel for the Estate and N.R.C. also noted that, as indicated in plaintiff's December 22, 2011 affidavit, plaintiff pled guilty to attempting to extort $500,000 from B.B., using the videotapes of E.B.'s alleged sexual abuse of plaintiff. Counsel argued that plaintiff could not have been under duress when she attempted to extort monies from B.B. on December 6, 2010.
In response, plaintiff's counsel argued that plaintiff had remained under duress long enough to toll the statute of limitations past the date of the complaint's filing. He provided the judge with a psychological report, for
Thereafter, plaintiff filed a motion for reconsideration, and submitted the psychological report which had been prepared by Leanh Nguyen, Ph.D. ("Dr. Nguyen"). Plaintiff argued that the court should not have dismissed the claims against B.B. and N.R.C. because these parties never filed motions to dismiss the claims against them. In addition, plaintiff argued that the statute of limitations on her sexual-abuse claims was tolled by the Child Sexual Abuse Act ("CSAA"),
On the return date, the judge heard argument from counsel and thereafter determined that he would stand by his previous decision. The judge stated that plaintiff had not met the standards for reconsideration. The judge entered an order dated
June 21, 2013, denying plaintiff's motion for reconsideration.
On appeal, plaintiff argues that the motion judge erred by: (1) arbitrarily dismissing the complaint as untimely without conducting a hearing; (2) suppressing the expert report; (3) failing to find that defendants B.B. and N.R.C. were "passive" abusers who failed to protect plaintiff; (4) failing to find that the emotional distress claims were valid; and (5) considering B.B.'s and N.R.C.'s motions.
We turn first to plaintiff's contention that the trial court erred by dismissing her sexual abuse claims as untimely. As we have explained, the trial court dismissed the complaint in its entirety, finding that all of the claims were filed beyond the time prescribed by the applicable statute of limitations. Plaintiff contends that the time for filing the sexual abuse claims was tolled by the CSAA, and that the court should not have dismissed those claims without first conducting an evidentiary hearing.
The CSAA applies to "any common law claims based on conduct that falls with the [Act's] definition of sexual abuse."
It appears that most of plaintiff's claims fall within the definition of "sexual abuse" under the CSAA.
The statute of limitations under the CSAA for sexual abuse claims is two years.
In its motion to dismiss, the Estate argued that, as alleged by plaintiff, the sexual abuse ended in 2007. The Estate maintained that, accepting plaintiff's claim that E.B. had threatened her if she disclosed the abuse, there could be no credible claim of duress after E.B. died on August 28, 2010.
Thus, the Estate argued that if the statute of limitations was tolled on plaintiff's sexual abuse claims, it was only tolled until E.B. died, and she was required to assert her claims within two years of that date. The Estate said that because the complaint was not filed until December 20, 2012, the sexual abuse claims were untimely and must be dismissed.
In responding to these arguments, plaintiff asked the motion judge to undertake an
Plaintiff argues that the report supports a finding that the statute of limitations on the sexual abuse claims was tolled. She argues that, at the very least, the report warrants a hearing to determine whether the statute was tolled on these claims.
We note that Dr. Nguyen's report, which is dated February 20, 2012, was prepared in connection with plaintiff's deportation proceedings. According to the report, Dr. Nguyen evaluated plaintiff's "psychological functioning." The doctor interviewed plaintiff for six and one-half hours, over four days. The doctor found that plaintiff was "still suffering" from the effects of her arrest and imprisonment on the extortion charge. Dr. Nguyen stated that the criminal proceedings had a "traumatizing effect" upon plaintiff, "making her feel betrayed, violated and "trapped in powerlessness."
According to Dr. Nguyen, the criminal matter was "the culmination of a long, torturous history of multiple betrayals and violations" which revived "the emotional injuries of those previous traumas." Plaintiff exhibited signs of "still being severely affected by this traumatic blow." She had recurrent nightmares, and felt "terrorized by unpredictable[,] ruthless, murderous figures." Plaintiff also had frequent flashbacks and "uncontrollable ruminations about the events surrounding her arrest and conviction."
Dr. Nguyen stated that plaintiff's functioning exhibited numerous "impairments" that warrant a diagnosis of Post-Traumatic Stress Disorder ("PTSD"). The doctor noted that plaintiff has had various stressful and extraordinary experiences. The doctor said, however, that "the core of [plaintiff's] present PTSD lies in the traumatic experience of being falsely accused and betrayed by her former employer, and of being victimized again by the very person who had, in her subjective experience, cheated her of her youth."
Dr. Nguyen also discussed plaintiff's reports of her sexual abuse experiences. She said that plaintiff had a personal relationship with the alleged abuser. She commented that plaintiff had "expressed a great deal of anger and hurt toward [B.B.]" Plaintiff believed B.B. "could easily have ended" the abuse. The doctor addressed the psychological effects of plaintiff's abuse history. She said plaintiff has "an extensive history of isolation and betrayal" and has "sustained deep damages in the areas of trust and intimacy." Plaintiff also has a fear of deportation. The doctor noted that plaintiff believed E.B. and B.B. had "robbed" her of her life.
Dr. Nguyen opined that plaintiff was exhibiting "clear signs" that she was currently suffering from severe PTSD and major depression. According to the doctor, "[t]hese impairments are related to the recent stressors of being imprisoned on (in her experience) unjust and false accusations." The doctor stated that, "[t]he configuration of [plaintiff's] emotional impairments is highly consistent with the presence of sexual violation of a repeated and severe nature."
Dr. Nguyen also stated that, even if she had not been informed of plaintiff's history with her family and employer, she believed "that this is a woman who has sustained trauma of an intimate, sexual, and chronic nature, based on her psychological characteristics and interpersonal difficulties." The doctor opined that if plaintiff were deported, she would experience the removal "as equivalent to a termination of her life."
We are convinced that the motion judge acted prematurely in determining that plaintiff's sexual abuse claims were time-barred. We agree that, after E.B. died on August 28, 2010, there could be no credible claim of duress resulting from E.B.'s alleged threats. However, Dr. Nguyen's report suggests that the statute of limitations on the sexual abuse claims might be tolled through the date upon which the complaint was filed for other reasons, specifically plaintiff's PTSD and major depression.
We note that in her report, Dr. Nguyen did not specifically opine that plaintiff's failure to file her complaint until
December 20, 2012, was due to these psychological conditions. Thus, Dr. Nguyen's report, standing alone, is insufficient to support a finding that the statute of limitations on the sexual abuse claims was tolled through the date on which the complaint was filed.
However, Dr. Nguyen's report indicates that plaintiff was suffering from PTSD and major depression following her arrest on December 20, 2010. The report therefore suggests that these conditions may have been a factor in plaintiff's failure to file her complaint until December 20, 2012.
We note that defendants insist that if plaintiff could participate in a criminal conspiracy to extort monies from B.B. to avoid disclosure of E.B.'s alleged sexual abuse, she could have filed a complaint at least within two years of the date on which that criminal act occurred. The trial court might ultimately reach that conclusion. We are convinced, however, that this issue could not be resolved based on the limited record before the court on the dismissal motions.
We therefore reverse the order dismissing plaintiff's sexual abuse claims. We remand the matter to the trial court for further proceedings to determine whether the statute of limitations was tolled on these claims due to plaintiff's psychological conditions. On remand, the trial court should afford plaintiff an opportunity to present an expert report from a psychologist or psychiatrist, which specifically addresses the question of whether plaintiff's failure to file her complaint until December 20, 2012, was due to any psychological disorder or condition.
If plaintiff fails to present such a report, defendants may renew their motions to dismiss the sexual abuse claims on statute-of-limitations grounds. If plaintiff presents the report, each defendant should be afforded an opportunity to have plaintiff evaluated by a psychologist or psychiatrist of its choice. In addition, we note that the trial court has the authority under
The trial court shall then review the report or reports and determine if they present a genuine material issue of fact, in which case, the court shall conduct a plenary hearing to determine whether the statute of limitations on plaintiff's sexual abuse claims was tolled pursuant to the CSAA.
As we have explained, plaintiff's complaint is not limited to sexual abuse claims. In count four, plaintiff alleged that B.B. required that she adopt the name of T.W., as a condition of her employment. In counts five and nine, plaintiff asserted claims of intentional infliction of emotional distress based on B.B.'s alleged provision of false information to the police regarding the extortion plot.
Based on the complaint, which indicates that plaintiff began working for E.B. and B.B. in 1995, it is clear that the claim based on a demand by B.B. that plaintiff change her name as a condition of employment was asserted long after the two-year statute of limitations had run. Thus, dismissal of the claim in count four was proper.
As to the claims in counts five and nine, we cannot determine, based on the pleading alone, the date or dates upon which B.B. is alleged to have intentionally inflicted emotional distress by providing false information to the police. We therefore conclude that the motion judge erred by dismissing these claims on statute-of-limitations grounds. On remand, defendants may renew their motions to dismiss these claims, but they must establish that B.B. did not make any of the alleged false statements to the police on or after December 20, 2010. If resolution of that issue requires consideration of evidence outside the pleadings, the motion must be treated as a motion for summary judgment.
Moreover, discovery on any disputed issue of material fact may be required.
We note that nothing herein should be viewed as precluding defendants from seeking dismissal of any or all of the claims asserted in the complaint on grounds other than the statute of limitations.
In view of our decision, we need not address the other issues raised by plaintiff.
Affirmed in part, reversed in part and remanded for further proceedings in accordance with this opinion. We do not retain jurisdiction.
