Hardwicke v. American Boychoir School , 188 N.J. 69 ( 2006 )

Justice RIVERA-SOTO,

concurring in part and dissenting in part.

In this appeal, the majority reaches five separate substantive conclusions. These are:

(1) that “[i]n light of the language of the statute as supplemented by the definition of person in Title I [of the Child Sexual Abuse Act (CSAA), N.J.S.A. 2A:61B-1], the extrinsic evidence of legislative intent, and the State’s strong policy to hold both active and passive child abusers accountable, we find that the [American Boychoir] School is a person under the passive abuse provision of the CSAA[,]” ante, 188 N.J. at 91, 902 A.2d at 113 (2006);

(2) that “the School’s view of its role vis-á-vis its students is accurate and that there are more than sufficient indicia of the exercise of parental authority to bring the School within the in loco parentis requirement of the CSAA[,]” ante, 188 N.J. at 92-93, 902 A.2d at 914 (2006);

(3) that “the qualities and characteristics of the [School-student] relationship establish the School as a household under the CSAA[,]’’ ante, 188 N.J. at 94, 902 A.2d at 915 (2006) (citation and internal quotation marks omitted);

(4) that “the [Charitable Immunity Act) immunizes charitable entities for negligence only, and that under the 2006 amendment plaintiff has a claim for negligent hiring, supervision and retention against the School[,]” ante, 188 N.J. at 99, 902 A.2d at 918 (2006); and,

(5) that “any common-law claims based on conduct that falls within the definition of sexual abuse ... may be brought under the liberal tolling provision associated with the two-year statute of limitations in the CSAA[,]” ante, 188 N.J. at 100, 902 A.2d at 919 (2006) (footnote omitted).

Save for the majority’s conclusion that plaintiffs intentional tort claims are not barred by statutory charitable immunity, I concur with the majority. In respect of the majority’s conclusion that charitable immunity applies only to negligence claims, I respectfully dissent. Further, I also address whether plaintiffs claims are time-barred.

I.

Plaintiffs amended complaint alleged seven separate causes of action.¹ They consisted of a single statutory claim of sexual assault under the CSAA seeking compensatory and punitive damages based on violation of the CSAA, N.J.S.A. 2A:61B-1, and the common-law torts of intentional infliction of emotional distress; negligent infliction of emotional distress; negligent and/or fraudulent non-disclosure;² assault and battery; negligent hiring and supervision; and false imprisonment. One must start, then, with an analysis of whether plaintiffs claims are barred by statutory charitable immunity.

II.

Although charitable immunity long has been part of New Jersey’s common law legal landscape, D'Amato v. Orange Mem’l Hosp., 101 N.J.L. 61, 127 A. 340 (E. & A.1925), there has been significant tension between the Legislature and this Court concerning the doctrine’s continued viability. In a trilogy of cases, this Court abolished charitable immunity as a judicially created doctrine. Benton v. Y.M.C.A., 27 N.J. 67, 69, 141 A.2d 298 (1958); Collopy v. Newark Eye & Ear Infirmary, 27 N.J. 29, 39, 141 A.2d 276 (1958); Dalton v. St. Luke’s Catholic Church, 27 N.J. 22, 24, 141 A.2d 273 (1958). What followed next was succinctly described in Schultz v. Roman Catholic Archdiocese of Newark, 95 N.J. 530, 536-37, 472 A.2d 531 (1984):

Within a week, the Legislature acted to restore the doctrine by introduction of an act to provide immunity for all nonprofit corporations organized for religious, charitable, educational, or hospital purposes from negligence suits brought by any person who was a beneficiary, to whatever degree, of the organization’s works---It remains the law today. The Legislature thus quickly reversed the retreat of the doctrine in New Jersey.

The Legislature’s response was the Charitable Immunity Act, N.J.S.A. 2A:53A-7 to -11(CIA). The relevant portion of that statute currently provides that:

No nonprofit corporation, society or association organized exclusively for religious, charitable or educational purposes or its trustees, directors, officers, employees, agents, servants or volunteers shall, except as is hereinafter set forth, be liable to respond in damages to any person who shall suffer damage from the negligence of any agent or servant of such corporation, society or association, where such person is a beneficiary, to whatever degree, of the works of such nonprofit corporation, society or association; provided, however, that such immunity from liability shall not extend to any person who shall suffer damage from the negligence of such corporation, society, or association or of its agents or servants where such person is one unconcerned in and unrelated to and outside of the benefactions of such corporation, society or association.

[L. 1959, c. 90, § 1, as amended by L. 1995, c. 183, § 1, codified at N.J.S.A. 2A:53A-7a.]

As we recently noted, the application of that statute is straightforward: “an entity qualifies for charitable immunity when it (1) was formed for nonprofit purposes; (2) is organized exclusively for religious, charitable or educational purposes; and (3) was promoting such objectives and purposes at the time of the injury to plaintiff who was then a beneficiary of the charitable works.” O’Connell v. State, 171 N.J. 484, 489, 795 A.2d 857 (2002) (citations and internal quotation marks omitted).

If we faithfully apply the O’Connell test, the conclusion that the CIA applies with full force here is unassailable. There can be no doubt that the School was “formed for nonprofit purposes[.]” Further, it is beyond question that the School was “organized exclusively for ... educational purposes[.]” Finally, no one can dispute that the School was “promoting such objectives and purposes at the time of the injury to plaintiff who was then a beneficiary of the charitable works.”

Rejecting that approach, the majority adopts instead the position advanced in dissent in Schultz v. Roman Catholic Archdiocese of Newark, supra, 95 N.J. at 540, 472 A.2d 531 (Handler, J., dissenting). In doing so, the majority does not address Schultz’s well-reasoned rejection of the position the majority embraces:

Our dissenting colleagues advance a related theory. The argument has attraction because our natural sympathies favor the result, but it presents problems of consistency. It suggests that immunity is lost when the tort is intentional, since the statutory immunity refers consistently and exclusively to “negligence.” Thus the fact that the ultimate act that did the damage was intentional takes the entire incident out of the statute in the dissent’s view. That would make the church, protected in the past by the common law immunity and now by statutory immunity, more vulnerable than private entities protected by neither common law nor statutory immunity. The dissent asks us to assume that the Legislature decided to disregard all other aspects of the tort and simply focus on the final action. Its premise is that the Legislature, having removed liability for the most likely situations, implicitly would restore liability for the most unlikely situations. Would not the same logic also apply had the sexual crime been committed by an unsupervised fellow student. Yet in Jones [v. St Mary’s Roman Catholic Church, 7 N.J. 533, 538, 82 A.2d 187 (1951) ], the negligent failure to avert the commission of an intentional act by a fellow student did not impose liability.

At root is the dissent’s notion that the church should be liable when its employees are not pursuing the business of charity: “It is evident that in the commission of an intentional tort, the wrongful conduct is so far removed from the beneficent purposes of the charity that it would serve no salutary societal goal to accord immunity from liability. The immunity protects the charity in its normal endeavors, and not in activities that are antithetical to its charitable ends.” [95 N.J.] at 549 [472 A.2d 531]. It is ironic that in the dissent’s view the more remote the agent’s act is from the charity’s purposes, the more liable the charity will become. This is contrary to common law doctrine.

[Schultz v. Roman Catholic Archdiocese of Newark, supra, 95 N.J. at 535-36, 472 A.2d 531 (footnote omitted).]

There is no reason to depart from Schultz’s powerful logic. For the reasons the Schultz majority so easily rejected its dissent’s contentions, so too I reject the majority’s conclusions here.

That conclusion is further buttressed by the 1995 amendments to the CIA, which cannot be read as anything other than the Legislature’s intent not only to retain charitable immunity, but to expand it. Originally, the CIA’s scope reached those entities organized for “religious, charitable, educational or hospital purposes[.]” L. 1959, c. 90, § 1. The 1995 amendments, however, deleted hospitals from that list in the explicit recognition that only nonprofit hospitals should receive the benefit of the doctrine, thereby barring for-profit hospitals from its reach. N.J.S.A. 2A:53A-7b.³ Furthermore, the 1995 amendments increased the breadth of the CIA’s reach by adding all “trustees, directors, officers, employees, agents, servants or volunteers” of a qualifying nonprofit to the scope of those protected by the charitable immunity doctrine. L. 1995, c. 183, § 1.

Most important, however, are the explicit limitations the 1995 amendments placed on the scope of immunity of those whom those amendments added to the list of immunized persons: “Nothing in this section shall be deemed to grant immunity to: (1) any trustee, director, officer, employee, agent, servant or volunteer causing damage by a willful, wanton or grossly negligent act of commission or omission, including sexual assault and other crimes of a sexual nature[.]” N.J.S.A. 2A:53A-7c(1). Thus, the Legislature included within the ambit of those eligible for charitable immunity these specific individuals — trustees, directors, officers, employees, agents, servants or volunteers — while contemporaneously limiting the scope of the immunity granted to them. This construction can only mean that solely those specifically enumerated persons would not be immunized for “a willful, wanton or grossly negligent act of commission or omission, including sexual assault and other crimes of a sexual nature[.]” Significantly, the Legislature did not similarly limit the immunity granted to nonprofit institutions that were the objects of the charitable immunity doctrine in the first instance. Thus, the result the majority reaches today contravenes the Legislature’s clear actions: although the Legislature could have limited the scope of charitable immunity as applied to nonprofit institutions in the same way that it did so in respect of individuals, it refused to do so.

On the whole, then, the language, history and core logic of the CIA inescapably leads to the conclusion that the limitation sought by the majority and earlier rejected in Schultz — that the CIA applies only in respect of negligence and does not reach intentional torts — is not well-founded.⁴ I therefore reject the majority’s conclusions in respect of the application of the CIA to the claims pressed here. I turn, then, to whether plaintiffs statutory and common-law claims are barred by the statute of limitations.

III.

A.

We have explained that “[t]he statute of limitations governs the period during which a party may bring a suit, and generally accrues from the date of the negligent act or omission.” Martinez v. Cooper Hosp.-Univ. Med. Ctr., 163 N.J. 45, 51, 747 A.2d 266 (2000) (citing Tortorello v. Reinfeld, 6 N.J. 58, 65, 77 A.2d 240 (1950)). We further have explained that “[t]he purpose of a limitations period, which embodies important public policy considerations, is to stimulate activity, punish negligence, and ‘promote repose by giving security and stability to human affairs.’ ” Ibid. (quoting Wood v. Carpenter, 101 U.S. 135, 139, 25 L.Ed. 807 (1879)). We have cautioned, however, that “[t]o prevent the sometimes harsh result of a mechanical application of the statute of limitations, we adopted the discovery rule.” Id. at 52, 747 A.2d 266 (citing Vispisiano v. Ashland Chem. Co., 107 N.J. 416, 426, 527 A.2d 66 (1987); Fernandi v. Strully, 35 N.J. 434, 449-50, 173 A.2d 277 (1961)). We have stressed that “[t]he discovery rule is essentially a rule of equity [and that it] provides 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 may have a basis for an actionable claim.” Ibid. (quoting Lopez v. Swyer, 62 N.J. 267, 272-73, 300 A.2d 563 (1973) (internal quotation marks omitted)).

Quoting Baird v. American Med. Optics, 155 N.J. 54, 66, 713 A.2d 1019 (1998), Martinez highlighted that

[cjritical to the running of the statute is the injured party’s awareness of the injury and the fault of another. The discovery rule prevents the statute of limitations from running when injured parties reasonably are unaware that they have been injured, or, although aware of an injury, do not know that the injury is attributable to the fault of another, (citations omitted)

[Martinez v. Cooper Hosp.-Univ. Med. Ctr., supra, 163 N.J. at 52, 747 A.2d 266.]

Martinez further noted that “[t]he question 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!,]” and concluded that “[t]he standard is basically an objective one— whether plaintiff ‘knew or should have known’ of sufficient facts to start the statute of limitations running.” Ibid. (citing Baird v. American Med. Optics, supra, 155 N.J. at 72, 713 A.2d 1019). Finally, Martinez explained the application of that analysis as follows:

That does not mean that a plaintiff must have knowledge of a specific basis for legal liability or a provable cause of action before the statute of limitations begins to run. Savage v. Old Bridge-Sayreville Med. Group, 134 N.J. 241, 248 [633 A.2d 514] (1993). It does, however, require knowledge not only of the injury but also that another is at fault. Id. at 246 [633 A.2d 514]; Lynch v. Rubacky, 85 N.J. 65, 70 [424 A.2d 1169] (1981). Both are critical elements in determining whether the discovery rule applies.

For that analysis, plaintiffs are divided into two classes: those who do not know that they have been injured and those who know they have suffered an injury but do not know that it is attributable to the fault of another. Lopez, supra 62 N.J. at 274 [300 A.2d 563]. A cause of action does not accrue until both of those factors exist.

In many cases, knowledge of fault is acquired simultaneously with knowledge of injury----In other eases, however, a plaintiff may be aware of an injury, but not aware that the injury is attributable to the fault of another.

[Id. at 52-53, 747 A.2d 266.]

Any fair application of those standards to the limited facts presented here leads to but one conclusion: plaintiffs statutory and common-law claims are likely time-barred. The events complained of by plaintiff occurred between October 1970 and April 1971, when plaintiff was approximately thirteen years old. For limitations purposes, then, plaintiff would have been considered a minor and, hence, the relevant limitations period⁵ would have been tolled until plaintiff achieved “the age of 21 years.” N.J.S.A. 2A:14-21. Plaintiff, however, did not bring this action until more than thirty-one years after he first entered the School, more than thirty years after plaintiff alleges the sexual assaults he endured started, almost thirty years after plaintiff alleges the sexual assaults ended, and at least twenty-two years after plaintiff reached the age of majority. At first blush, then, plaintiffs statutory and common-law claims should be time-barred.

B.

Eschewing that analysis, the Appellate Division concluded that the tolling provision of the CSAA, N.J.S.A. 2A:61B-1b, tolls both plaintiffs statutory and common-law claims. Although it provides for a two-year statute of limitations from the accrual of the cause of action, N.J.S.A. 2A:61B-1b also provides that, “[i]n 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.” According to the Appellate Division, because “[t]he statute does not state ... in ‘any civil action for injury or illness arising under this Aet[,]’ ” the panel “interpreted] the relaxed statute of limitations to apply to all remaining counts of plaintiffs complaint, not only those brought under the [CSAA].” Hardwicke v. Am. Boychoir Sch., 868 N.J.Super. 71, 106, 845 A.2d 619 (App.Div.2004). The majority rejects the breadth of the panel’s reasoning. To the extent the majority tethers the application of the CSAA’s tolling provision to “common-law claims based on sexual abuse as defined in [the CSAA,]” ante, 188 N.J. at 100, 902 A.2d at 919 (2006), I concur. That said, I add the following.

The precise terms of N.J.S.A. 2A:61B-1b govern. That statute clearly states that “any civil action for injury or illness based on sexual abuse” will be entitled to its tolling provision. “Sexual abuse” is a defined term within the CSAA, one that requires an “act of sexual contact or sexual penetration between a child under the age of 18 years and an adult.” N.J.S.A. 2A:61B-1a(1). In turn, both “sexual contact” and “sexual penetration” are statutorily defined. N.J.S.A. 2A:61B-1a(2) and (3). When read in the context of those definitions, it is clear that the Legislature did not intend to extend the CSAA’s tolling provisions to every conceivable common-law tort having a common nucleus of fact with an act of sexual abuse. The Legislature’s reach was much shorter: it sought to “establish a statutory civil action for sexual abuse” and, “[b]ecause of the unique nature of sexual abuse, which may only be discovered by an adult victim after years of repression, [it] provide[d] that a civil suit for sexual abuse shall accrue at the time of reasonable discovery of the injury and its causal relationship to the act of sexual abuse.” Senate Judiciary Committee Statement, Senate Bill No. 257 — L. 1992, c. 109.

According to the Appellate Division’s reasoning, any cause of action related to an act of sexual abuse — whether statutorily based on the CSAA or grounded in the common law — is entitled to the CSAA’s tolling provisions. The better view is, if the Legislature had intended that the CSAA tolling provision extend past the CSAA itself, it would have said that the CSAA’s tolling provision applied “[i]n any statutory or common law civil action for injury or illness based on sexual abuse____” That the Legislature did not do.

On the contrary, during the pendency of this appeal, the Legislature adopted an exception to the Charitable Immunity Act to provide that statutory charitable immunity “shall not apply to a claim in any civil action that the negligent hiring, supervision or retention of any employee, agent or servant resulted in a sexual offense being committed against a person under the age of 18 who was a beneficiary of the nonprofit organization.” N.J.S.A. 2A:53A-7.4 (effective Jan. 5, 2006). When it did so, however, the Legislature limited this exception:

The provisions of [N.J.S.A. 2A:53A-7.4] shall apply prospectively and also shall be applicable to all civil actions for which the statute of limitations has not expired as of [January 5, 2006], including the statutes of limitation set forth in [the Child Sexual Abuse Act, N.J.S.A. 2A:61B-1], These applicable actions include but are not limited to matters filed with a court that have not yet been dismissed or finally adjudicated as of [January 5, 2006],

[N.J.S.A. 2A:53A-7.5.]

Thus, when squarely confronted with the opportunity to adopt a broad rule, the Legislature refused to do so, electing instead to adopt a measured approach that preserves those actions not yet stale while jettisoning time-barred actions.

In light of the strong policy considerations that undergird the application of statutes of limitations, and in the face of intervening legislative action, the reach of the CSAA’s tolling provision cannot be extended beyond those actions that fit the statutory definition of “sexual abuse.”

C.

No matter how one parses the application of the CSAA’s tolling provision, plaintiffs claims, whether statutory or common-law, are not entirely free of statute of limitations concerns. The CSAA’s tolling provisions describe that “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.” N.J.S.A. 2A:61B-1b. In this context, “where, within the limitations period, a plaintiff knows of an injury and that the injury is due to the fault of another, he or she has a duty to act.” Martinez v. Cooper Hosp.Univ. Med. Ctr., supra, 163 N.J. at 55, 747 A.2d 266. Martinez also explains that “where a plaintiff knows of an injury, but fault is not self-evident or implicit in the injury itself, it must be shown that a reasonable person would have been aware of such fault in order to bar the plaintiff from invoking the discovery rule.” Ibid. We look to the plaintiff because, although “a plaintiffs subjective characteristics, standing alone, will not absolve him or her of the obligation to file a claim within the relevant statutory period[,] ... a litigant’s personal characteristics may be relevant to an objective fact in issue.” Ibid.

The starting point is that “whenever a plaintiff claims a right to relief from the bar of the statute of limitations by virtue of the so-called ‘discovery’ rule, the question as to whether such relief is properly available shall be deemed an issue for determination by the court rather than by the jury.” Lopez v. Swyer, 62 N.J. 267, 272, 300 A.2d 563 (1973). The procedure to be followed is clear:

The determination by the judge should ordinarily be made at a preliminary hearing and out of the presence of the jury. Generally the issue will not be resolved on affidavits or depositions since demeanor may be an important factor where credibility is significant. Where credibility is not involved, affidavits, with or without depositions, may suffice; it is for the trial judge to decide. The issue will be whether or not a party, either plaintiff or counterclaimant, is equitably entitled to the benefit of the discovery rule. All relevant facts and circumstances should be considered. The determinative factors may include but need not be limited to: the nature of the alleged injury, the availability of witnesses and written evidence, the length of time that has elapsed since the alleged wrongdoing, whether the delay has been to any extent deliberate or intentional, whether the delay may be said to have peculiarly or unusually prejudiced the defendant.

[Id. at 275-76, 300 A.2d 563 (footnote omitted).]

At that hearing, plaintiff, the party who seeks to avoid the application of the statute of limitations, bears the burden of proof and persuasion. Id. at 276, 300 A.2d 563 (“The burden of proof will rest upon the party claiming the indulgence of the rule.”) (footnote omitted).

Plaintiffs complaint alleged that, as a result of the repeated sexual abuse he endured while at the School, “throughout the remainder of his childhood and through most of his adult life, [plaintiff] believed that he was a homosexual and struggled with his conflict over his sexual identity.” However, plaintiff also alleged that “[although [he] had a conscious memory of the acts of sexual abuse ... perpetrated upon him by defendants, he was not aware that the serious psychological and mental illness suffered by him was caused by these acts of abuse until, at the earliest, the Fall of 1999, with the assistance of psycho-therapy and counseling.” Against that backdrop and given the credibility issues inherent in those contradictory allegations, this ease is a textbook example of the cases that must survive the crucible of Lopez in order to trigger the tolling of the statute of limitations. Thus, even if all of plaintiffs claims are eligible for the tolling provisions of N.J.S.A. 2A:61B-1b, nothing in the majority’s opinion should be read to excuse plaintiff from the requirement that every one of his claims, both statutory and common-law, must survive a Lopez hearing and determination.⁶

D.

In the final analysis, the Lopez hearing that must follow the remand ordered by the majority may render unnecessary any distinction between plaintiffs statutory and common-law claims. Because they share a common factual basis, whether plaintiffs claims are time-barred appears to be an all-or-nothing proposition: if any one claim is time-barred, they all must be time-barred.

Further, even if plaintiff is allowed to proceed to trial and he succeeds on all of his claims, he nonetheless will be entitled to only a single recovery. Alfone v. Sarno, 87 N.J. 99, 115, 432 A.2d 857 (1981) (“A requirement that a tortfeasor pay twice for the same damages caused by a single wrong would be inconsistent with basic principles of tort law.”); Theobald v. Angelos, 44 N.J. 228, 239, 208 A.2d 129 (1965) (“[Tjhere may be but one satisfaction of a wrong.”). See also Neveroski v. Blair, 141 N.J.Super. 365, 382, 358 A.2d 473 (App.Div.1976) (providing single recovery from aggregate of deceptive practices claim under Consumer Fraud Act, N.J.S.A. 56:8-1 to -135, fraudulent concealment, and breach of contract claims, particularly where additional Consumer Fraud Act remedies of treble damages and counsel fees were awarded), superseded by statute on other grounds, N.J.S.A. 56:8-19; Concrete Spaces, Inc. v. Sender, 2 S.W.3d 901, 909-11 (Tenn.1999) (explaining difficulties that arise when plaintiff seeks relief under multiple theories of recovery); Dowd & Dowd, Ltd. v. Gleason, 181 Ill.2d 460, 486, 230 Ill.Dec. 229, 693 N.E.2d 358, 371-72 (Ill.1998) (“A plaintiff may plead and prove multiple causes of action, though it may obtain only one recovery for an injury.”) (citations omitted). In this case, the admissibility of relevant evidence does not hinge on whether any one of plaintiffs claims survives. Moreover, if successful, plaintiff will be made whole on his CSAA claim alone.⁷ In those circumstances, the balance of equities required to toll a limitations period leads to the following result: the continuation of plaintiffs common-law claims does nothing to benefit plaintiff while it injects an unnecessary element of prejudice to defendants.

IV.

I concur with the lion’s share of the majority’s views: that the School is a “person” under the passive abuse provision of the CSAA; that the School falls within the in loco parentis requirement of the CSAA; that the School is a “household” under the CSAA; and that whether plaintiffs claims are time-barred remains to be adjudicated. To the extent, however, that the majority concludes that statutory charitable immunity does not bar plaintiff’s claims for relief in this case, I respectfully dissent.

For affirmance as Modified/Remandment — Chief Justice PORITZ and Justices LONG, LaVECCHIA, ZAZZALI and WALLACE — 5.

For concurrence in part/dissent in part — Justice RIVERA-SOTO — 1.

1 There was an additional claim for loss of consortium pressed by plaintiff’s wife. As the majority notes, that claim was dismissed by the trial court and no appeal was taken from that determination. Ante, 188 N.J. at 81, 902 A.2d at 907 (2006) (n. 5 and accompanying text).

2 The School did not seek summary judgment on the basis that plaintiff’s claim for negligent and/or fraudulent disclosure was time-barred. Therefore, no opinion is expressed whether that claim is barred by either the now statutorily-codified charitable immunity doctrine or the statute of limitations.

3 The application of charitable immunity in respect of non-profit hospitals is further limited by N.J.S.A. 2A:53A-8, which provides that "[notwithstanding the provisions of the [Charitable Immunity Act, nonprofit hospitals] shall be liable to respond in damages to such beneficiary who shall suffer damage from the negligence of [the nonprofit hospital] or of its agents or servants to an amount not exceeding $250,000 ... and to the extent to which such damage ... shall exceed the sum of $250,000 such [non-profit hospital] shall not be liable therefor." See also White v. Mattera, 175 N.J. 158, 163, 814 A.2d 627 (2003) (explaining legislative abrogation of total immunity for nonprofit hospitals while imposing liability limits).

4 The majority asserts that I “ignore[] the plain meaning of the statute, specifically, that section 7(a) provides immunity for a nonprofit corporation only for 'negligence' and not more egregious wrongful conduct.” Ante, 188 N.J. at 95 n. 10, 902 A.2d at 916 n.10 (2006). However, the time for such interpretive luxury is long past.

More than twen1y-two years ago, Schultz considered and rejected the analysis today adopted by the majority, ironically also on the basis of a plain language analysis. Because Schultz already interpreted the CIA to include both negligent and intentional torts, the correct course is to refrain from engaging anew in an examination of the statute's plain language. Instead, as this Court has repeatedly held, the principled analysis is that the Legislature's failure to statutorily change Schultz’s result demonstrates the Legislature’s acquiescence with Schultz’s reasoning and conclusions. Macedo v. Dello Russo, 178 N.J. 340, 346, 840 A.2d 238 (2004); Quaremba v. Allan, 67 N.J. 1, 14, 334 A.2d 321 (1975). See also Tlumac v. High Bridge Stone, 187 N.J. 567, 573, 902 A.2d 222 (2006) (citations omitted) (holding that "[wjhen interpreting a statute, the Court's role is to effectuate the will of the Legislature^]” and determining that result is achieved when it is "Consistent with the long-standing interpretation that court’s have given to [the statute] and the legislative acquiescence in that interpretation^]”); State v. Chapland, 187 N.J. 275, 291, 901 A.2d 351 (2006) (citations omitted) (holding that "the Legislature is presumed to be aware of the judicial construction placed on an enactment [and that, i]n this case, that construction is supported by a long period of legislative acquiescence or failure to amend the statute indicating agreement with the Court’s holdings.”); Tonelli v. Bd. of Educ. of Twp. of Wyckoff, 185 N.J. 438, 448, 888 A.2d 433 (2005) (same); Smith v. Fireworks by Girone, Inc., 180 N.J. 199, 215, 850 A.2d 456 (2004) (same); Green v. Jersey City Bd. of Educ., 177 N.J. 434, 445, 828 A.2d 883 (2003) (same). The controlling authority is clear: "There is ample precedent in New Jersey to support the proposition that, when a statute has been judicially construed, the failure of the Legislature subsequently to act is evidence of legislative acquiescence in the construction given to the statute.” Cavuoti v. N.J. Transit Corp., 161 N.J. 107, 133-34, 735 A.2d 548 (1999) (per curiam) (citing cases).

5 Because each of the common-law torts complained of by plaintiff allege “the wrongful act, neglect or default of any person within this State[, an action alleging such torts was required to] be commenced within 2 years next after the cause of action of any such action shall have accruedf.]" N.J.S.A. 2A:14-2a.

6 Without referencing Lopez itself, the majority explicitly commands a Lopez hearing on remand. Ante, 188 N.J. at 100, 902 A.2d at 919 (2006) (“On remand, after a hearing, the trial court must determine whether the two-year statute of limitations is tolled as to Hardwicke.”).

7 The breadth of damages recoverable under the CSAA alone moots any concern that a successful CSAA plaintiff will not be made whole. The CSAA specifically provides that "[a] plaintiff who prevails in a civil action pursuant to this act shall be awarded damages in the amount of $10,000, plus reasonable attorney’s fees, or actual damages, whichever is greater." N.J.S.A. 2A:61B-1h. The CSAA defines "actual damages” as ”consist[ing] of compensatory and punitive damages and costs of suit, including reasonable attorney’s fees.” Ibid. Under the CSAA, ”[c]ompensatory damages may include, but are not limited to, damages for pain and suffering, medical expenses, emotional trauma, diminished childhood, diminished enjoyment of life, costs of counseling, and lost wages." Ibid.