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 against the School. However, the judge reinstated the common law causes of action and ordered a Lopez
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.
The underlying facts of this appeal are largely undisputed. Plaintiff was a member
The complaint further alleged that:
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 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:
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 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:
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:
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 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
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.
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 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.
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.
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 judge." Bhagat v. Bhagat, 217 N.J. 22, 38, 84 A.3d 583 (2014) (citing W.J.A. v. D.A., 210 N.J. 229, 237-38, 43 A.3d 1148 (2012); Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330, 9 A.3d 882 (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, 666 A.2d 146 (1995); R. 4:46-2(c)).
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, 903 A.2d 513 (App.Div.), certif. denied, 189 N.J. 104, 912 A.2d 1264 (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, 984 A.2d 872 (2009). Similarly, determining the date upon which a statute of limitations begins to run is an issue of law, subject to plenary
With respect to plaintiff's reconsideration motion, we note the grounds for reconsideration are limited. State v. Puryear, 441 N.J.Super. 280, 294, 117 A.3d 1255 (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, 997 A.2d 1139 (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, 793 A.2d 856 (App.Div.), certif. denied, 174 N.J. 544, 810 A.2d 64 (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, 113 A.3d 1217 (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, 796 A.2d 182 (2002)).
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-1(a)(1). Thus, the statute imposes liability on both "active" and "passive" sexual abusers. Hardwicke v. Am. Boychoir Sch., 188 N.J. 69, 86, 902 A.2d 900 (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, 902 A.2d 900. 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, 902 A.2d 900. 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, 902 A.2d 900. The Court first found the boarding school was a "person" under the statute. Id. at 91, 902 A.2d 900. It next determined the school satisfied the role of "in loco parentis" because it
Finally, the Court considered whether the boarding school was a "household" under the statute. Id. at 93, 902 A.2d 900. The Court stated:
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, 862 A.2d 1226 (App.Div. 2004), certif. denied, 188 N.J. 356, 907 A.2d 1015 (2006). There, we affirmed the grant of summary judgment dismissing claims against a public high school under the CSAA because the school did not qualify as "in loco parentis within the household." Id. at 649, 862 A.2d 1226.
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:
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
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, 930 A.2d 1223 (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, 120 A.3d 170 (2015) (quoting State v. O'Driscoll, 215 N.J. 461, 474, 73 A.3d 496 (2013)). We first examine the "plain language of the statute." Ibid. (citing State v. Frye, 217 N.J. 566, 575, 90 A.3d 1281 (2014); DiProspero v. Penn, 183 N.J. 477, 492, 874 A.2d 1039 (2005)). "When that language clearly reveals the meaning of the statute, the court's sole function is to enforce the statute in accordance with those terms." State v. Olivero, 221 N.J. 632, 639, 115 A.3d 1270 (2015) (quoting McCann v. Clerk of Jersey City, 167 N.J. 311, 320, 771 A.2d 1123 (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.
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 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
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 provision
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, 751 A.2d 1047 (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, 300 A.2d 563. 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, 747 A.2d 266 (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, 747 A.2d 266. 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 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, 747 A.2d 266.
"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, 300 A.2d 563. 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, 300 A.2d 563. 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, 300 A.2d 563. 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, 300 A.2d 563.
"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, 826 A.2d 700 (2003) (quoting
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,
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, 9 A.3d 882 (citing Dunn v. Borough of Mountainside, 301 N.J.Super. 262, 274, 693 A.2d 1248 (App.Div.1997), certif. denied, 153 N.J. 402, 709 A.2d 795 (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.
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, 61 A.3d 906 (2013) (alteration in original)(quoting Beauchamp, supra, 164 N.J. at 116, 751 A.2d 1047). 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
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, 751 A.2d 1047. "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, 751 A.2d 1047. "However, once an injury is known, even a minor one, 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, 894 A.2d 100 (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, 457 A.2d 837 (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, 793 A.2d 856. In any event, it centered on plaintiff's claim under the CSAA that the School was "within the household," and provided no new 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.
The portion of the July 14, 2015 order dismissing the CSAA claim is affirmed. The portion of the order that reinstated