R.A. VS. WEST ESSEX REGIONAL SCHOOL DISTRICT BOARD OF EDUCATION (L-8607-18 and L-4811-19, ESSEX COUNTY AND STATEWIDE) (CONSOLIDATED)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0329-19
A-1846-19
R.A. (a fictitious designation),
Plaintiff-Respondent,
v.
WEST ESSEX REGIONAL
SCHOOL DISTRICT BOARD
OF EDUCATION, SUSSEX
COUNTY REGIONAL
TRANSPORTATION
COOPERATIVE, and WEST
ESSEX REGIONAL SCHOOL
DISTRICT,
Defendants-Appellants,
and
G.L., JR., G.L., SR., and C.L.,
Defendants-Respondents.
____________________________
G.T. (a fictitious designation),
Plaintiff-Respondent,
v.
WEST ESSEX REGIONAL
SCHOOL DISTRICT BOARD
OF EDUCATION, SUSSEX
COUNTY REGIONAL
TRANSPORTATION
COOPERATIVE, and WEST
ESSEX REGIONAL SCHOOL
DISTRICT,
Defendants-Appellants,
and
G.L., JR., G.L., SR., and C.L.,
Defendants-Respondents.
____________________________
Argued (A-0329-19) and Submitted (A-1846-19)
October 1, 2020 – Decided August 30, 2021
Before Judges Ostrer, Vernoia, and Enright.
On appeal from an interlocutory order of the Superior
Court of New Jersey, Law Division, Essex County,
Docket Nos. L-8607-18 and L-4811-19.
Jeffrey L. Shanaberger argued the cause for appellants
(Hill Wallack, LLP, attorneys; Cherylee O. Melcher
and Jeffrey L. Shanaberger, on the briefs).
Craig J. Hubert argued the cause for respondents
(Szaferman, Lakind, Blumstein & Blader, PC,
attorneys; Craig J. Hubert and Thomas J. Manzo, on the
briefs).
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2
PER CURIAM
In these two cases, which we scheduled back-to-back and consolidate for
purposes of this opinion, by leave granted defendants West Essex Regional
School District Board of Education (Board of Education), Sussex County
Regional Transportation Cooperative (Cooperative), and West Essex Regional
School District (District) (collectively, "defendants") appeal from orders
denying their motions to dismiss the respective complaints of plaintiffs R.A. and
G.T. pursuant to Rule 4:6-2(e).1 In denying defendants' motions, the court
rejected defendants' contention that plaintiffs' causes of action should be
dismissed based on their failure to timely serve notices of tort claim in
accordance with the requirements of the New Jersey Tort Claims Act (TCA),
N.J.S.A. 59:1-1 to 12-3. In denying defendants' motion in R.A.'s case, A-0329-
19, the court did not address their argument that an asserted cause of action
alleging a violation of the New Jersey Anti-Bullying Bill of Rights Act (Anti-
1
We use initials to identify plaintiffs to protect their privacy and because
records concerning alleged victims of sexual offenses are exempt from public
disclosure. R. 1:38-3(c)(12); R. 1:38-3(d)(12); see also N.J.S.A. 2A:61B-
1(f)(1). We also use initials to identify the alleged perpetrator of the sexual
offenses, and his parents, because the record shows he was a juvenile at the time
the offenses were allegedly committed. See N.J.S.A. 2A:61B-1(f)(1).
A-0329-19
3
Bullying Act), N.J.S.A. 18A:37-13 to -37, should be dismissed because the
statute does not authorize a private cause of action for tort liability or damages.
Based on our review of the record in light of the applicable legal
principles, we reverse that portion of the court's order denying defendants'
motion to dismiss the Anti-Bullying Act claim in R.A.'s case. We remand for
entry of an amended order in G.T.'s case, A-1846-19, dismissing the Anti-
Bullying claim because the court found the claim should be dismissed but did
not provide for the dismissal in its order. We otherwise affirm the orders in both
cases.
I.
R.A.'s and G.T.'s complaints assert identical causes of action arising out
of similar but separately alleged facts. The complaints allege that R.A. and G.T.
were sexually assaulted at different times by an older student, defendant G.L.,
Jr. (Glen), while on the school bus that transported them to and from West Essex
Middle School during the 2012-2013 school year. The gravamen of plaintiffs'
tort claims against defendants is that defendants knew or had reason to know
Glen had a history of sexually assaultive and abusive behavior, and defendants
negligently failed to protect them from Glen's alleged sexually assaultive actions
while on bus rides to and from school.
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We review de novo a trial court's order to grant or deny a motion to
dismiss pursuant to Rule 4:6-2(e), Dimitrakopoulos v. Borrus, Goldin, Foley,
Vignuolo, Hyman & Stahl, P.C., 237 N.J. 91, 108 (2019), and apply the same
standard as the trial court to determine whether the facts alleged in the complaint
"set forth a claim upon which relief can be granted," Sickles v. Cabot Corp., 379
N.J. Super. 100, 106 (App. Div. 2005). We do not owe any deference to the
legal conclusions of the trial court. Dimitrakopoulos, 237 N.J. at 108.
Our review of a dismissal motion under Rule 4:6-2(e) "is limited to
examining the legal sufficiency of the facts alleged on the face of the complaint,"
Wreden v. Twp. of Lafayette, 436 N.J. Super. 117, 124 (App. Div. 2014)
(quoting Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746
(1989)), and we do "not concern [ourselves] with [a] plaintiff['s] ability to prove
the[] allegations," id. at 124-25. We "afford[] to [the] plaintiff[] 'every
reasonable inference of fact[,]' . . . [and] 'search[] the complaint in depth and
with liberality to ascertain whether the fundament of a cause of action may be
gleaned even from an obscure statement of claim.'" Major v. Maguire, 224 N.J.
1, 26 (2016) (quoting Printing Mart-Morristown, 116 N.J. at 746). If we can
glean the basis for a cause of action, "then the complaint should survive this
preliminary stage." Wreden, 436 N.J. Super. at 125. With these principles in
A-0329-19
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mind, we first summarize the factual allegations that are common to R.A.'s and
G.T.'s complaints, and then detail the factual allegations unique to each plaintiff.
The District, Board of Education, and Cooperative are public entities
within the meaning of the TCA. See N.J.S.A. 59:1-3. The District includes
West Essex Middle School and West Essex High School.
During the 2012-2013 school year, R.A. and G.T. attended West Essex
Middle School, and Glen was a tenth-grade student at West Essex High School.
R.A., G.T., and Glen were transported to and from school each day on the same
school bus, which was operated by Cooperative. Defendants G.L., Sr., and C.L.
are Glen's parents.
R.A.'s Complaint
R.A. filed her complaint on June 28, 2019. It alleges that during the 2012-
2013 school year, R.A. was thirteen years of age and an eighth-grade student at
West Essex Middle School. In October 2012, Glen sat next to R.A. on the school
bus, rubbed R.A.'s leg, and pulled her hand towards his leg. When R.A. pulled
her hand away, Glen took his penis out of his pants and moved R.A.'s hand
toward his exposed penis. R.A. shook her hand loose from Glen's grip and
elbowed him in the chest. Glen then stopped touching plaintiff and moved away
from her.
A-0329-19
6
According to the complaint, at some undisclosed time, R.A. told her
friend, who is identified as Jane Roe 1, about the assault. Jane Roe 1 told R.A.
she had also been subject to a non-consensual touching by Glen. The complaint
does not indicate when Jane Roe 1 had been allegedly subject to the touching by
Glen.
R.A. turned eighteen years of age in July 2017. In May 2018, R.A. learned
that another individual, who R.A. identifies as Jane Roe 2, had been sexually
assaulted by Glen. R.A.'s complaint alleges Jane Roe 2 had also been a student
at West Essex Middle School, but the complaint does not indicate whether the
alleged assault of Jane Roe 2 occurred while she attended the school or while
Glen attended school in the District. The complaint also does not state whether
the alleged assault on Jane Roe 2 occurred before or after Glen's alleged assault
on R.A. Jane Roe 2 reported Glen's alleged sexual assault to the Essex County
Prosecutor's Office in May 2018.
The complaint also asserts that at some undisclosed time R.A.'s mother
asked her about Jane Roe 2's allegations, "which had recently come to light,"
and R.A. told her mother about Glen's 2012 assault on her and Jane Roe 1's
allegation that Glen assaulted her. The complaint further alleges R.A.
"[e]ventually . . . learned of two other victims," identified as Jane Roe 3 and
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Jane Roe 4, "who were sexually assaulted by" Glen during the 2012-2013 school
year while they were students at West Essex Middle School. The complaint
does not assert whether those alleged assaults were committed on a school bus,
on school property, during the school day, or before or after Glen's alleged
assault on R.A.2
Based on those factual assertions, R.A. alleged defendants "had actual
and/or constructive notice of [Glen's] sexually violent behavior, the risk thereof,
and propensity for committing acts of sexual violence." R.A. asserted causes of
action against defendants for: negligence in failing to take reasonable care to
monitor Glen, hire and train appropriate staff to supervise Glen and prevent his
sexually assaultive and abusive conduct, and to provide adequate security for
R.A. (Count Two); gross negligence and recklessness (Count Three); hostile
environment sexual harassment under the New Jersey Law Against
Discrimination (LAD), N.J.S.A. 10:5-1 to -50 (Count Four); and violating the
2
The complaint further alleged that when Glen was seven years old, long prior
to the 2012-2013 school year, he forced his four-year-old cousin to perform
"sexually inappropriate acts" on him. That factual claim is made in s upport of
R.A.'s causes of action against Glen's parents and is not pertinent to the causes
of action asserted against defendants. R.A. does not allege in the complaint that
defendants were aware of the alleged incident involving the four-year-old child.
A-0329-19
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Anti-Bullying Act (Count Five).3 R.A. also sought a declaratory judgment that
her cause of action against defendants accrued no earlier than May 30, 2018,
"[p]ursuant to the reasoning in Lopez v. Swyer, 62 N.J. 267 (1973)," (Count
Six), and that a tort claims notice she served on defendants "on or about June
22, 2018" was timely under the TCA (Count Seven).
G.T.'s Complaint
G.T. filed an initial complaint on December 6, 2018, and a first amended
complaint on July 26, 2019. Represented by the same counsel as R.A., G.T.'s
first amended complaint asserts identical causes of action against the identical
parties based on facts that parallel R.A.'s, but are unique to G.T. 4 The complaint
alleges G.T. was an eighth-grade student at West Essex Middle School during
the 2012-2013 school year. G.T. was born in 1998 and turned fourteen years of
age in December 2012.
3
Count One asserts a cause of action for battery against Glen only.
4
We refer to the allegations in G.T.'s first amended complaint. That is the
complaint defendants moved to dismiss under Rule 4:6-2(e). As noted, the seven
causes of action in G.T.'s complaint are identical to the seven causes of action
in R.A.'s complaint, and the claims are asserted in the same sequential order.
The last three counts in G.T.'s complaint, however, are misnumbered as Counts
Six, Seven, and Eight because G.T.'s complaint does not include a Count Five.
Thus, Counts Six, Seven, and Eight in G.T.'s complaint allege the same causes
of action as those alleged in Counts Five, Six, and Seven of R.A.'s complaint.
A-0329-19
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G.T. alleged she rode the bus to school each day, and Glen rode the bus
as well. According to the complaint, on multiple occasions during the 2012-
2013 school year, Glen sat next to G.T. on the bus and touched her buttocks and
vaginal area "both over [her] pants and underneath [her] pants" without her
consent or permission. G.T. alleged she "actively suppressed the memories of
the assaults for years."
G.T. turned eighteen in December 2016. She alleged that in the fall of
2017, a friend mentioned a sexual assault to G.T., and, "[a]t that mention," she
remembered Glen's name and began reliving the incidents of sexual assaults on
the school bus. G.T. first reported Glen's alleged 2012-2013 sexual assaults to
her parents on February 8, 2018. On the same day, G.T. reported the allegations
to the police.
G.T. asserted that on May 30, 2018, she learned that two other female
students at West Essex Middle School—identified as Jane Roe 1 and Jane Roe
2—had been sexually assaulted by Glen while on the school bus. 5 On May 31,
2018, G.T. learned from an individual identified as Jane Roe 3 that when she
was four years old, approximately seven-year-old Glen "pulled her into a
5
It is not possible to determine if the Jane Roe 1 and Jane Roe 2 referred to in
G.T.'s complaint are the same or different individuals than those identified by
the same names in R.A.'s complaint.
A-0329-19
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bathroom, and forced her to perform sexually inappropriate acts." The
complaint also alleged that on June 7, 2018, G.T. learned Glen "sexually
assaulted two other girls," identified as Jane Roe 4 and Jane Roe 5, on the school
bus during the 2012-2013 school year.
Based on those factual allegations, G.T. asserted the identical seven
causes of action against defendants as those asserted by R.A. In support of her
cause of action for a declaratory judgment concerning the date of accrual of her
claims, G.T. asserted that her tort claims against defendants did not accrue "until
May 30, 2018, when it became apparent to [her] that the sexual assaults she
suffered at the hands of" Glen "were due to" defendants' negligence. G.T
asserted that prior to May 30, 2018, she knew herself to be Glen's victim, but it
was not until she learned on that date of Glen's assaults on the other victims that
she realized it was possible defendants "may have culpably caused her injuries."
Based on the alleged May 30, 2018 date of accrual, G.T. also asserted she was
entitled to a declaratory judgment that her June 22, 2018 service of a notice of
tort claim on defendants was timely under the TCA.
Defendants' Motions to Dismiss the Complaints
Defendants separately moved to dismiss R.A.'s and G.T.'s complaints
based on their alleged failures to serve timely notices of their tort claims as
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required under the TCA. See N.J.S.A. 59:8-8. Defendants argued that plaintiffs
claimed they were sexually assaulted by Glen while juveniles during the 2012-
2013 school year; plaintiffs knew or had reason to know they were on a school
bus owned or operated by defendants at that time; the accrual dates of plaintiffs'
claims were the dates they respectively turned eighteen; and plaintiffs failed to
serve their notices of tort claim within ninety days of their respective accrual
dates as required under the TCA.
In a September 3, 2019 written opinion in R.A.'s case, and a November
22, 2019 written opinion in G.T.'s case, the court denied defendants' motions to
dismiss under Rule 4:6-2(e).6
In its decision in R.A.'s case, the court reviewed the tort claims asserted
in Counts Two and Three of the complaint, and explained that, accepting the
facts alleged in the complaint as true, they set forth sufficient facts supporting
the negligence and gross negligence causes of action asserted. The court found
defendants' arguments supporting the motion were based on plaintiffs' alleged
failures to comply with the TCA, and that the motions ignored the standard for
dismissal under Rule 4:6-2(e). The court further found R.A.'s claim she was
6
The motions were filed separately and at two different times in the two actions.
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subject to a hostile environment in school based on her gender was sufficient to
state a claim under the LAD.
The court also explained the TCA requirement that a claimant asserting a
tort claim against a public entity must file a notice of claim within ninety days
of the date of accrual or the claimant will "be forever barred from recovering
against [the] public entity." See N.J.S.A. 59:8-8. The court, however, did not
address or determine the date of accrual of R.A.'s causes of action, or otherwise
make any findings concerning the dates of accrual of her causes of action based
on the facts alleged in the complaint. Instead, the court found that the proper
inquiry under Rule 4:6-2(e) is to determine if the plaintiff alleged sufficient facts
supporting the causes of action asserted, and it concluded R.A. had met that
burden by pleading the elements of the causes of action for negligence, gross
negligence, and violating the LAD alleged in the complaint. 7 Thus, the court
7
In R.A.'s case, and also in G.T.'s case, it does not appear defendants moved to
dismiss the declaratory judgment causes of action asserted in the complaints
because, as defendants acknowledge in their briefs on appeal, their motions to
dismiss were founded on their contention R.A. and G.T. failed to comply with
the notice provisions of the TCA. See N.J.S.A. 59:8-8 to -9. Defendants do not
argue that R.A.'s and G.T.'s asserted causes of action for declaratory relief are
subject to the requirements of the TCA. In addition, the motion court did not
address R.A.'s and G.T.'s declaratory judgment claims, and defendants do not
argue on appeal the court erred by failing to do so. See Sklodowsky v. Lushis,
417 N.J. Super. 648, 657 (App. Div. 2011) (finding "[a]n issue not briefed on
appeal is deemed waived").
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did not directly address defendants' argument that the complaint should be
dismissed for failure to state a claim upon which relief could be granted under
Rule 4:6-2(e) based on defendants' contention R.A. failed to adequately plead
that she filed a timely notice of tort claim under the TCA.
Instead, the court noted the Legislature had enacted an amendment to the
TCA eliminating the requirement that a claimant file a notice of tort claim
against a public entity in an action for an injury resulting from the commission
of a sexual assault, any crime of a sexual nature, a prohibited sexual act under
N.J.S.A. 2A:30B-2, or sexual abuse as defined in 2A:61B-1. See N.J.S.A. 59:8-
3(b); see also L. 2019, c. 120, § 8. The amendment was not in effect when R.A.
and G.T. filed their respective complaints, when defendants filed the motions to
dismiss, or when the court decided the motions in September and November
2019. As the motion court noted in its opinion in R.A.'s case, the amendment
did not become effective until December 1, 2019. See L. 2019, c. 120, § 10
(codified at N.J.S.A. 2A:14-2c). Nonetheless, the court applied what it
characterized as the intent of the amendment, and determined it would be
incongruous to apply the notice provisions of the TCA to R.A.'s claims because
the Legislature had enacted an amendment to the TCA, albeit one not yet in
effect, rendering inapplicable the TCA's notice requirements in cases asserting
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claims resulting from the commission of sexual offenses and abuse. The court
entered an order denying defendants' motion to dismiss R.A.'s complaint under
Rule 4:6-2(e).
Although the court's focus in each of its decisions is on defendants' claim
plaintiffs failed to comply with the notice requirements of the TCA, defendants
also sought dismissal of the Anti-Bullying Act claims asserted in Count Five of
R.A.'s complaint and Count Six of G.T.'s complaint because the Anti-Bullying
Act does not authorize a private cause of action. In its opinion in G.T.'s case,
the court found the Anti-Bullying Act claim in Count Six of G.T.'s complaint
should be dismissed because the Anti-Bullying Act does not provide a private
cause of action, but the court's order in G.T.'s case erroneously does not provide
for dismissal of Count Six of her complaint. In R.A.'s case, the court erred by
failing to separately address in its opinion defendants' argument relating to the
Anti-Bullying Act and by failing to dismiss the Anti-Bullying Act claim asserted
in Count Five of R.A.'s complaint. See N.J.S.A. 18A:37-18 ("T[he Anti-
Bullying A]ct shall not be interpreted to prevent a victim from seeking redress
under any other available law either civil or criminal. Th[e Anti-Bullying A]ct
does not create or alter any tort liability."); see also N.J.S.A. 18A:37-37 (same);
Zelnick v. Morristown-Beard Sch., 445 N.J. Super. 250, 265 (Law Div. 2015)
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(explaining the Anti-Bullying Act, "by its own terms, does not create tort
liability and therefore does not establish a standard of care"); Dunkley v. Bd. of
Educ., 216 F. Supp. 3d 485, 495 (D.N.J. 2016) (noting N.J.S.A. 18A:37-37
provides that the Anti-Bullying Act "does not create or alter any tort liability,"
and, as a result, it "cannot support an independent cause of action"). We
therefore reverse the court's denial of defendants' motion to dismiss Count Five
of R.A.'s complaint, remand for a modification of the order in G.T.'s case to
reflect the dismissal of Count Six of her complaint, and next address defendants'
claim the court erred by denying their motion to dismiss R.A.'s and G.T.'s tort
claims based on plaintiffs' alleged failures to comply with the TCA's notice
requirements.
As noted, in G.T.'s case, the court issued a written opinion mirroring the
reasoning provided in R.A.'s case on the issues related to the TCA's notice
requirements, and entered an order denying defendants' motion to dismiss G.T.'s
complaint.8 We later granted defendants' motion for leave to appeal from the
orders in R.A.'s and G.T.'s cases, and scheduled the matters back to back.
8
In its decision on defendants' motion in G.T.'s case, the court referenced and
incorporated its reasoning for its denial of defendants' motion to dismiss in
R.A.'s case. As noted, the court also granted defendants' motion to dismiss the
Anti-Bullying Act claim asserted in Count Six of G.T.'s complaint.
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II.
We begin by noting defendants' motions to dismiss were based on the
singular contention that the tort claims in R.A.'s and G.T.'s complaints were
barred because R.A. and G.T. failed to timely file notices of tort claim with
defendants within ninety days of the accrual dates of their claims as required
under N.J.S.A. 59:8-8. Although the motion court did not separately address
each of the causes of action in the complaints, defendants' argument under the
TCA does not support a dismissal of the asserted LAD claims because the TCA's
notice of claim requirements are inapplicable to LAD claims. Richter v.
Oakland Bd. of Educ., 246 N.J. 507, 539 (2021); Abbamont v. Piscataway Twp.
Bd. of Educ., 138 N.J. 405, 430 (1994); Fuchilla v. Layman, 109 N.J. 319, 330-
32 (1988). We therefore affirm the court's order denying defendants' motion s
to dismiss the LAD claims asserted in Count Four of R.A.'s and G.T.'s
complaints.
Similarly, Counts Six and Seven of R.A.'s complaint and Counts Seven
and Eight of G.T.'s complaint do not assert tort claims for damages. Those
counts assert causes of action for declaratory judgment related to the application
of the TCA. Plaintiffs had no obligation to serve notices of tort claim under the
TCA as a prerequisite to the assertion of those causes of action. See N.J.S.A.
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59:1-4 (providing "[n]othing in [the TCA] shall affect liability based on contract
or the right to obtain relief other than damages against the public entity or one
of its employees" (emphasis added)); see, e.g., First Am. Title Ins. v. Twp. of
Rockaway, 322 N.J. Super. 583, 595-96 (Ch. Div. 1999) (finding that a cause of
action seeking a declaration as to title of property purchased from a municipality
and a return of the purchase price on equitable grounds is not a claim subject to
the requirements of the TCA). Because the TCA's requirements apply solely to
tort claims for damages, the court properly denied defendants' Rule 4:6-2(e)
motions to dismiss Counts Six and Seven of R.A.'s complaint and Counts Seven
and Eight of G.T.'s complaint.
Defendants' dismissal motions, founded on plaintiffs' purported untimely
filing of the notices of claim under N.J.S.A. 59:8-8, are necessarily limited to
the negligence and gross negligence claims asserted in Counts Two and Three
of both complaints. They are the only tort claims asserted against defendants.
Prior to addressing defendants' motions, we briefly summarize the requirements
applicable to service of a notice of claim under the TCA.
"As a prerequisite to proceeding with a tort claim against a public entity,
a plaintiff must file a notice of claim within ninety days of the accrual of the
cause of action." Ben Elazar v. Macrietta Cleaners, Inc., 230 N.J. 123, 133
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(2017) (citing N.J.S.A. 59:8-8); see also H.C. Equities, LP v. Cnty. of Union,
___ N.J. ___, ___ (2021) (slip op. at 2, 20). A plaintiff may file a late notice of
claim within one year of the accrual of the claim, provided a court finds there is
a showing of extraordinary circumstances and the public entity has not been
substantially prejudiced. Ben Elazar, 230 N.J. at 133 (citing N.J.S.A. 59:8-9);
see also O'Donnell v. N.J. Tpk. Auth., 236 N.J. 335, 346 (2019). The failure to
file a notice of claim within ninety days, or within one year under extraordinary
circumstances, bars the claimant from bringing the tort claim against the public
entity. N.J.S.A. 59:8-8(a).
The TCA defines "accrual" as "the date on which the claim accrued and
shall not be affected by the notice provisions contained herein." N.J.S.A. 59:8-
1. "The provision 'does not define the date of accrual in any significant way,
[but] the comment to that section states that "[i]t is intended that the term accrual
of a cause of action shall be defined in accordance with existing law in the
private sector."'" Ben Elazar, 230 N.J. at 134 (alterations in original) (quoting
Beauchamp v. Amedio, 164 N.J. 111, 116 (2000)). The "law in the private
sector" defining the accrual date of a cause of action generally
holds that a claim accrues on the date on which the
underlying tortious act occurred. However, that same
common law allows for delay of the legally cognizable
date of accrual when the victim is unaware of his [or
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her] injury or does not know that a third party is liable
for the injury. By operation of the discovery rule, the
accrual date is tolled from the date of the tortious act or
injury when the injured party either does not know of
his [or her] injury or does not know that a third party is
responsible for the injury.
[H.C. Equities, LP, ___ N.J. at ___ (slip op. at 20)
(quoting Ben Elazar, 230 N.J. at 134).]
"Generally, in the case of tortious conduct resulting in injury, the date of
accrual will be the date of the incident on which the negligent act or omission
took place." Beauchamp, 164 N.J. at 117. There is, however, an "exception to
that well[-]established notion of accrual . . . where the victim either is unaware
that he [or she] has been injured or, although aware of an injury , does not know
that a third party is responsible." Ibid.The discovery rule applies to the TCA's notice requirements, McDade v.
Siazon, 208 N.J. 463, 474-75 (2011), and it may "delay[] the accrual of a cause
of action 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.'" Worthy v. Kennedy Health Sys., 446 N.J. Super.
71, 87 (App. Div. 2016) (quoting Baird v. Am. Med. Optics, 155 N.J. 54, 66
(1998)). "Whether the discovery rule applies depends on 'whether the facts
presented would alert a reasonable person, exercising ordinary diligence, that he
A-0329-19
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or she was injured due to the fault of another.'" Ben Elazar, 230 N.J. at 134
(quoting Caravaggio v. D'Agostini, 166 N.J. 237, 246 (2001)).
The TCA also provides the date of accrual for a minor's claim is tolled
until the minor reaches the age of eighteen. N.J.S.A. 59:8-8. The tolling of the
date of accrual applies to the notice of claim requirements and the statute of
limitations under the TCA. See Lebron v. Sanchez, 407 N.J. Super. 204, 214
(App. Div. 2009); Vedutis v. Tesi, 135 N.J. Super. 337, 340-41 (Law Div. 1975),
aff'd o.b., 142 N.J. Super. 492 (App. Div. 1976).
A defense based on a plaintiff's alleged failure to timely notify a public
entity of a tort claim is an affirmative defense. Hill v. Middletown Bd. of Educ.,
183 N.J. Super. 36, 40 (App. Div. 1982); cf. Henebema v. Raddi, 452 N.J. Super.
438, 450 (App. Div. 2017). The defendant bears the burden of pleading and
proving a failure to comply with the TCA's notice requirements. See Hill, 183
N.J. Super. at 40-41; Margolis & Novack, Claims Against Public Entities, cmt.
on N.J.S.A. 59:1-2 (2020) ("As to the procedure for raising the immunities and
defenses provided by the [TCA] to public entities, the burden is placed upon the
entity to both plead and prove them."); cf. Maison v. N.J. Transit Corp., 245 N.J.
270, 298 (2021); Leang v. Jersey City Bd. of Educ., 198 N.J. 557, 582 (2009);
Kolitch v. Lindedahl, 100 N.J. 485, 497 (1985) ("It is well established that the
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21
burden is on the public entity both to plead and prove its immunity under [the
TCA] . . . ."). Thus, when a defendant fails to timely raise an affirmative
defense, such as a plaintiff's failure to comply with the TCA's notice
requirements, the defendant ordinarily waives the defense. See, e.g., Hill, 183
N.J. Super. at 40 (noting a defendant who fails to plead the defense of failure to
file a notice of tort claim "may be found to have waived the protection thereof");
Henebema, 452 N.J. Super. at 443 (finding the public entity defendants waived
their affirmative defenses by waiting years to raise them); see also Buteas v.
Raritan Lodge #61 F. & A.M., 248 N.J. Super. 351, 363-64 (App. Div. 1991)
(explaining a defendant who fails to plead an affirmative defense ordinarily
waives it).
As explained by Judge Pressler in Buteas, a motion to dismiss under Rule
4:6-2(e) "goes to the legal sufficiency of the pleading, ordinarily connoting the
failure of the complaint to state either a cognizable cause of action or all of the
elements of a cognizable cause of action." 248 N.J. Super. at 363. In contrast,
an affirmative defense assumes the legal sufficiency of a plaintiff's complaint,
but is a means of avoiding liability for culpable conduct based on a defendant's
separately pleaded "statement of facts constituting an avoidance or affirmative
defense and not merely by legal conclusion." JB Pool Mgmt., LLC v. Four
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22
Seasons at Smithville Homeowners Ass'n, 431 N.J. Super. 233, 250 (App. Div.
2013) (quoting Pressler & Verniero, Current N.J. Court Rules, cmt. 1 on R. 4:5-
4 (2013)); see also Faul v. Dennis, 118 N.J. Super. 338, 342 (Law Div. 1972)
("An affirmative defense generally involves the introduction of new matter
which is not shown by the plaintiff's own proof or pleading."). Thus, a plaintiff
may sufficiently plead a cause of action in his or her complaint even if "an
affirmative defense might [be] evident from the face of the complaint itself."
Buteas, 248 N.J. Super. at 364.
The motion court determined Counts Two and Three of the complaints
allege sufficient facts to establish a cognizable claim for the negligence causes
of action asserted. The elements of a cause of action for negligence are "(1) a
duty of care, (2) a breach of that duty, (3) proximate cause, and (4) actual
damages." Townsend v. Pierre, 221 N.J. 36, 51 (2015) (quoting Polzo v. Cnty.
of Essex, 196 N.J. 569, 584 (2008)). Based on our review of the complaints, we
too are satisfied Counts Two and Three allege sufficient facts supporting each
of the elements of a negligence claim. Defendants do not argue otherwise.
Plaintiffs were under no obligation to address or allege facts disproving
the elements of an affirmative defense defendants are obligated to plead and
prove. Compliance with the notice requirements of the TCA is not an element
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23
of a negligence cause of action against a public entity, and defendants do not
point to any legal authority to the contrary. Plaintiffs fulfilled their obligation
to plead cognizable causes of action in Counts Two and Three of the complaints
by alleging facts addressing each of the required elements of the negligence
claims asserted. See Cornett v. Johnson & Johnson, 414 N.J. Super. 365, 385
(App. Div. 2010) (explaining the legal sufficiency of a pleading under Rule 4:6-
2(e) "requires allegation[s] of all the facts that the cause of action requires").
For that reason alone, we affirm the court's denial of defendants' Rule 4:6-2(e)
motions as to the negligence claims asserted in Counts Two and Three of R.A.'s
and G.T.'s complaints.
Our determination is not a finding that R.A.'s and G.T.'s June 22, 2019
notices of tort claim were timely filed as required under N.J.S.A. 59:8-8, or that
R.A. and G.T. alleged sufficient facts to support the claims for declaratory relief
in Counts Six and Seven of R.A.'s complaint and Counts Seven and Eight of
G.T.'s complaint.9 We determine only that the court properly denied defendants'
9
As noted, defendants moved to dismiss Counts Six and Seven of R.A.'s
complaint and Counts Seven and Eight of G.T.'s complaint solely on the basis
that plaintiffs were barred from asserting the declaratory judgment claims due
to plaintiffs' alleged failures to comply with the TCA's notice requirements. We
uphold the court's rejection of defendants' argument and its denial of the motions
on that basis. Our decision does not preclude defendants from moving to dismiss
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24
motions to dismiss the tort claims in the complaints because plaintiffs had no
obligation to plead compliance with the TCA's notice requirements in the first
instance, and, as a result, their alleged failure to adequately plead facts
demonstrating their compliance could not support a finding they failed to state
a claim upon which relief may be granted under Rule 4:6-2(e). To conclude
otherwise would be to improperly shift the burden to plaintiffs to plead facts
disproving an affirmative defense, and plaintiffs have no such obligation. See
generally Printing Mart-Morristown, 116 N.J. at 744-46, 750-72 (finding a Rule
4:6-2(e) motion must be denied when the complaint alleges sufficient facts
supporting each of the elements of a cause of action).
We recognize the defense of failure to comply with the TCA's notice
requirements is sometimes compared to the defense of the statute of limitations.
See, e.g., Ben Elazar, 230 N.J. at 134-35 (discussing statute of limitations tolling
principles in the context of determining the date of accrual for notice of claim
purposes). We further appreciate "[t]here is authority for the proposition that
those counts for failure to state a claim on which relief may be granted under
Rule 4:6-2(e) based on a claim the allegations in the complaints do not set forth
a cognizable cause of action for the relief sought. That claim was not made
before the motion court, and is not made on appeal. We therefore do not address
it and do not offer any opinion on it. Those motions, if made, shall be decided
by the court in the first instance based on the record presented by the parties.
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where the relevant facts are not in dispute on that issue, a statute of limitations
defense is sufficiently akin to failure to state a claim as to permit its disposition
by way of a motion under [Rule] 4:6-2(e)." CKC Condo. Ass'n v. Summit Bank,
335 N.J. Super. 385, 387 n.1 (App. Div. 2000); see also O'Connor v. Altus, 67
N.J. 106, 116 (1975); Rappeport v. Flitcroft, 90 N.J. Super. 578, 580-81 (App.
Div. 1966).
Here, the parties dispute the dates of accrual of R.A.'s and G.T.'s causes
of action. And, as noted, plaintiffs were not obligated to plead all of the facts
in the complaints supporting their compliance with the TCA's notice provisions,
including all of the facts pertinent to a final determination of the accrual dates
of their respective tort claims against defendants. We must give plaintiffs the
benefit of all reasonable inferences based on the facts alleged in the complaint,
and we shall not dismiss a complaint under Rule 4:6-2(e) that suggests a
fundament of a legally cognizable claim. See Printing Mart-Morristown, 116
N.J. at 746, 771-72. Given all of those circumstances and limitations, it is not
reasonable or proper to definitively determine the accrual dates of plaintiffs' tort
claims against defendants, which clearly implicate the discovery rule, based
solely on the facts alleged in the complaints. Thus, defendants bear the burden
of proving plaintiffs' noncompliance with the TCA's notice provisions based on
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26
competent, credible evidence outside of the pleadings. See Buteas, 248 N.J.
Super. at 363-64; see, e.g., J.P. v. Smith, 444 N.J. Super. 507, 525-30 (App. Div.
2016) (finding the grant of the defendants' summary judgment motion
dismissing the plaintiff's claims for noncompliance with the TCA's notice
requirements was warranted when the competent evidence presented by the
parties established the accrual date of the plaintiff's claims and the fact that she
did not timely serve a notice of tort claim). We therefore affirm the court's order
denying defendants' motions to dismiss the tort claims in R.A.'s and G.T.'s
complaints under Rule 4:6-2(e) based on plaintiffs' purported failure to comply
with the TCA's notice requirements.
III.
Defendants also argue the court erred by denying their dismissal motions
based on L. 2019, c. 120. In pertinent part, the legislation expanded the statute
of limitations for claims made by sexual assault and abuse victims, N.J.S.A.
2A:14-2a; L. 2019, c. 120, § 2; relieved sexual assault claimants from complying
with the TCA's notice requirements, N.J.S.A. 59:8-3(b); L. 2019, c. 120, § 8;
and provided for a two-year period for filing claims based on sexual assaults and
abuse that "would otherwise be barred" by the statute of limitations, N.J.S.A.
2A:14-2b(a); L. 2019, c. 120, § 9. Defendants claim the court's reliance on the
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27
statute to excuse R.A.'s and G.T.'s alleged failures to comply with the TCA's
notice requirements was erroneous because plaintiffs filed their complaints, and
the court decided defendants' motions to dismiss, prior to the legislation's
December 1, 2019 effective date.
The motion court recognized L. 2019, c. 120 had not yet become effective
when the complaints were filed and when it decided defendants' dismissal
motions. The court, however, did not conduct any analysis of the statute or
whether it might be properly applied retroactively, on its future December 1,
2019 effective date, to plaintiffs' alleged failure to comply with the TCA's notice
requirements. The court instead applied what it discerned to be the Legislature's
intent to eliminate the TCA's notice requirements for claims against public
entities arising from sexual assault and abuse. It then concluded that although
L. 2019, c. 120 was not yet effective, the Legislature's intent should be applied
to excuse any alleged failures by R.A. and G.T. to comply with the TCA's notice
requirements.
In our view, it was error for the court to apply what it determined was the
intent of a statute that had been enacted but which the court recognized was not
yet effective. Indeed, until its effective date, the legislation could have been
amended or repealed. Simple logic dictates that a motion should not be decided
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28
based on either the letter or intent of a statute that, due to its future effective
date, has no force of law when the motion is decided. See Phillips v. Curiale,
128 N.J. 608, 615 (1992) (noting "a court is to apply the law in effect at the time
it renders its decision" (quoting Bradley v. Sch. Bd. of Richmond, 416 U.S. 696,
711 (1974))).
"It is a well-established principle that an appellate court on direct review
will apply the statute in effect at the time of its decision, at least when the
[L]egislature intended that its modification be retroactive to pending cases."
Kruvant v. Mayor & Council of Cedar Grove Twp., 82 N.J. 435, 440 (1980).
Here, we recognize that L. 2019, c. 120, § 8, which added N.J.S.A. 59:8-3(b) to
the TCA, is in effect at present. We therefore consider whether it was intended
to be retroactive to pending cases and, thus, eliminated the requirement that R.A.
and G.T. comply with the TCA's notice requirements for the prosecution of their
tort claims against defendants.
N.J.S.A. 59:8-3(a), as amended by L. 2019, c. 120, § 8, states that
"[e]xcept as otherwise provided in this section, no action shall be brought
against a public entity or public employee under [the TCA] unless the claim
upon which it is based shall have been presented in accordance with the
procedure set forth in this chapter." The procedure set forth in Chapter 8 of the
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29
TCA includes the requirement that a claimant present a notice of claim "not later
than the 90th day after accrual of the cause of action." N.J.S.A. 59:8-8.
As noted, however, L. 2019, c. 120, § 8 eliminated the TCA's notice of
claim requirements for actions for injuries resulting from sexual crimes and
certain sexual acts and sexual abuse. The legislation added the following
provision to the TCA: "The procedural requirements of this chapter shall not
apply to an action at law for an injury resulting from the commission of sexual
assault, any other crime of a sexual nature, a prohibited sexual act as defined in
[N.J.S.A. 2A:30B-2], or sexual abuse as defined in [N.J.S.A. 2A:61B-1]."
N.J.S.A. 59:8-3(b); L. 2019, c. 120, § 8.
L. 2019, c. 120 was enacted on May 13, 2019, but was not made
immediately effective. The legislation expressly provides that it "shall take
effect on December 1, 2019." L. 2019, c. 120, § 10. Despite this clear
expression of the statute's effective date, R.A. and G.T. argue it should be
applied retroactively to their tort actions, both of which were filed prior to
December 1, 2019, and both of which are founded on alleged torts occurring
prior to that date.
"[W]hether a statute applies retroactively 'is a purely legal question of
statutory interpretation.'" State v. J.V., 242 N.J. 432, 442 (2020) (quoting
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30
Johnson v. Roselle EZ Quick LLC, 226 N.J. 370, 386 (2016)). Thus, as with all
questions of law, we review issues of statutory interpretation de novo.
Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
"When interpreting a statute, 'our overriding goal must be to determine the
Legislature's intent.'" Johnson, 226 N.J. at 386 (quoting Jersey Cent. Power &
Light Co. v. Melcar Util. Co., 212 N.J. 576, 586 (2013)). "[G]enerally, the best
indicator of [the Legislature's] intent is the statutory language." Garden State
Check Cashing Serv., Inc. v. N.J. Dep't of Banking & Ins., 237 N.J. 482, 489
(2019) (quoting DiProspero v. Penn, 183 N.J. 477, 492 (2005)). "If the plain
language leads to a clear and unambiguous result, then our interpretative process
is over." Spade v. Select Comfort Corp., 232 N.J. 504, 515 (2018) (quoting
Johnson, 226 N.J. at 386). "[I]f, [however,] there is ambiguity in the statutory
language that leads to more than one plausible interpretation, we may turn to
extrinsic evidence, 'including legislative history, committee reports, and
contemporaneous construction.'" Kocanowski v. Twp. of Bridgewater, 237 N.J.
3, 9 (2019) (first alteration in original) (quoting DiProspero, 183 N.J. at 492-
93). "We construe the statutory language 'in context with related provisions so
as to give sense to the legislation as a whole.'" Finkelman v. Nat'l Football
League, 236 N.J. 280, 289 (2019) (quoting Spade, 232 N.J. at 515).
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31
"Generally, newly enacted laws are applied prospectively," Johnson, 226
N.J. at 387 (citing James v. N.J. Mfrs. Ins., 216 N.J. 552, 556 (2014)), "based
on 'long-held notions of fairness and due process,'" ibid. (quoting Cruz v. Cent.
Jersey Landscaping, Inc., 195 N.J. 33, 45 (2008)). This approach, however, "is
not to be applied mechanistically to every case." Ibid. (quoting Gibbons v.
Gibbons, 86 N.J. 515, 522 (1981)). "Rather, '[t]wo questions inhere in the
determination whether a court should apply a statute retroactively. '" Ibid.(alteration in original) (quoting Twiss v. State, 124 N.J. 461, 467 (1991)). "The
first question is whether the Legislature intended to give the statute retroactive
application." Ibid. (quoting Twiss, 124 N.J. at 467). "If so, the second question
is whether retroactive application is an unconstitutional interference with 'vested
rights' or will result in a 'manifest injustice.'" Ibid. (quoting Twiss, 124 N.J. at
467). "Both questions must be satisfied for a statute to be applied retroactively."
Ibid.We will find retroactive application of a law is warranted under three
circumstances. First, retroactive application is appropriate where "the
Legislature provided for retroactivity expressly, either in the language of the
statute itself or its legislative history, or implicitly, by requiring retroactive
effect to 'make the statute workable or to give it the most sensible
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interpretation.'" J.V., 242 N.J. at 444 (quoting Gibbons, 86 N.J. at 522).
"Implied retroactivity may be found from the statute's operation when
retroactive application is necessary to fulfill legislative intent." James, 216 N.J.
at 564.
Second, retroactive application is warranted when "the statute is
ameliorative or curative." J.V., 242 N.J. at 444 (quoting Gibbons, 86 N.J. at
523). "[T]he term 'ameliorative' refers only to criminal laws that effect a
reduction in a criminal penalty." Perry v. N.J. State Parole Bd., 459 N.J. Super.
186, 196 (App. Div. 2019) (quoting State in Interest of J.F., 446 N.J. Super. 39,
54 (App. Div. 2016)). Meanwhile, a "curative" law is "designed to 'remedy a
perceived imperfection in or misapplication of the statute.'" Pisack v. B & C
Towing, Inc., 240 N.J. 360, 371 (2020) (quoting James, 216 N.J. at 564). "[A]n
amendment is curative if it does 'not alter the act in any substantial way, but
merely clarifie[s] the legislative intent behind the [previous] act." Ardan v. Bd.
of Review, 231 N.J. 589, 611 (2018) (alterations in original) (quoting James,
216 N.J. at 564). "Generally, curative acts are made necessary by inadvertence
or error in the original enactment of a statute or in its administration." Ibid.
(quoting James, 216 N.J. at 564). In contrast, an amendment to a statute will
"not [be] considered 'curative' merely because the Legislature has altered a
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33
statute so that it better serves public policy objectives." Pisack, 240 N.J. at 372
(quoting Ardan, 231 N.J. at 612).
Third, retroactive application of a law is justified when "the parties'
expectations warrant retroactive application." J.V., 242 N.J. at 444. When
determining whether the expectations of the parties warrant retroactivity, "a
court will look at the controlling law at the relevant time and consider the parties'
reasonable expectations as to the law." Johnson, 226 N.J. at 389. The
"expectation of retroactive application 'should be strongly apparent to the
parties,'" and reliance on pending legislation is not sufficient to be reasonable.
Ibid. (quoting James, 216 N.J. at 573).
Applying these principles, we cannot conclude N.J.S.A. 59:8-3(b) is
retroactive as ameliorative legislation because it does not amend any criminal
law or affect any criminal penalty. See Perry, 459 N.J. Super. at 196. Similarly,
N.J.S.A. 59:8-3(b) cannot be properly deemed curative because it does not
remedy an error in the TCA; it instead substantially alters the long-standing
notice of claim requirements for actions for damages founded on sexual assault
and other sexual acts and offenses. See Ardan, 231 N.J. at 611-12 (explaining
an amendment to a statute was not "curative" where it was intended to expand
the statute's reach).
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Retroactive application of N.J.S.A. 59:8-3(b) is also not supported by the
expectations of the parties. Indeed, neither R.A. nor G.T. make any claim they
reasonably expected the statute would be retroactive and relieve them of their
obligations to file notices of claim against defendants. And, in fact, both R.A.
and G.T. recognized their obligations to comply with the notice requirements;
they each filed motions for leave to file late notices of claim; their respective
complaints included causes of action seeking a declaratory judgment that they
satisfied the notice requirements; and they each alleged in their complaints that
they complied with N.J.S.A. 59:8-8's notice requirements.10
Thus, to support a finding that N.J.S.A. 59:8-3(b) should be applied
retroactively, we must first determine whether the Legislature expressly
provided for its retroactive application or whether retroactivity is necessary to
"make the statute workable or to give it the most sensible interpretation." J.V.,
242 N.J. at 444 (quoting Gibbons, 86 N.J. at 522). Based on our review of L.
2019, c. 120, we conclude the Legislature clearly did not intend that N.J.S.A.
59:8-3(b) should be applied retroactively.
10
Plaintiffs' respective motions for leave to file a late notice of tort claim were
denied without prejudice by the court.
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35
We begin with the plain language of L. 2019, c. 120, §10, which, as noted,
provides that although enacted on May 13, 2019, the legislation, including
N.J.S.A. 59:8-3(b), "shall take effect on December 1, 2019." Generally, a law's
delayed effective date indicates a legislative intent to apply the law
prospectively. See Twiss, 124 N.J. at 468 (explaining a law's "postponed
effective date" indicates the Legislature's intent for that law to have prospective
application). Thus, the law's delayed effective date supports the conclusion the
Legislature intended that L. 2019, c. 120 apply prospectively. That the declared
effective date was intended to apply only to lawsuits filed on or after December
1, 2019, except as otherwise provided, is supported by the Senate Committee
Statement to the bill that was enacted as L. 2019, c. 120; the committee stated
the legislation "would take effect on December 1, 2019, and beginning on that
date lawsuits could be filed in accordance with the bill's provisions." S.
Judiciary Comm. Statement to S. Comm. Substitute for S. 477, at 8 (Mar. 7,
2019) [hereinafter Statement to S. 477] (emphasis added).
Moreover, in its enactment of L. 2019, c. 120, the Legislature expressly
provided in a variety of contexts for retroactive application of many of its
provisions. That is, the Legislature was fully aware of potential issues
concerning the retroactivity of the legislation, and it made express and precise
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36
provision for retroactivity of certain portions of the legislation. Tellingly, for
other parts of the legislation, the Legislature did not make any provision for
retroactivity.
For example, the legislation's expansion of the statute of limitations for
claims for injuries resulting from certain sexual crimes and abuse against minors
under the age of eighteen is expressly made applicable to claims for injuries for
sexual crimes and abuse that "occurred prior to, on or after the" December 1,
2019 effective date of L. 2019, c. 120. N.J.S.A. 2A:14-2a(a)(1); L. 2019, c. 120,
§ 2; see also Statement to S. 477, at 1-2 (explaining the extension of the "statute
of limitations [for minors] is retroactive to cover past acts of abuse"). The
statute further extended the statute of limitations for actions for injuries arising
from sexual crimes and abuse "that occurred prior to, on or after the" December
1, 2019 effective date. N.J.S.A. 2A:14-2a(b)(1); L. 2019, c. 120, § 2.
L. 2019, c. 120 also changed the standard for liability under the New
Jersey Charitable Immunity Act, N.J.S.A. 2A:53A-7 to -11, for claims against
non-profit organizations for injuries resulting from sexual crimes and abuse.
See N.J.S.A. 2A:53A-7(c); L. 2019, c. 120, § 5; see also Statement to S. 477, at
6 (explaining L. 2019, c. 120, § 5 codified that "non-profit organizations are
expressly liable for willful, wanton[,] or grossly negligent acts" and established
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37
"retroactive liability" for claims for injuries arising from sexual offenses and
abuse under the extended statute of limitations under the legislation). The
Legislature further provided that other amendments to the Charitable Immunity
Act were retroactive; it enacted a provision stating a revision to the Act applied
to "all civil actions for an injury resulting from an act that occurred prior to the
[December 1, 2019] effective date of" the legislation. N.J.S.A. 2A:53A-7.5(b)
(emphasis added); L. 2019, c. 120, § 6.
The legislation also added N.J.S.A. 2A:14-2b, which provided an
additional two years from December 1, 2019 to file claims for damages arising
from sexual offenses and abuse. N.J.S.A. 2A:14-2b(a); L. 2019, c. 120, § 9.
The statute expressly provides for its retroactive application to actions for
damages resulting from sexual offenses and abuse "that occurred prior to"
December 1, 2019, and "which action would otherwise be barred through
application of the [previously effective] statute of limitations." N.J.S.A. 2A:14-
2b(a); L. 2019, c. 120, § 9; see also Statement to S. 477, at 7-8 (explaining L.
2019, c. 120, § 9 creates a two-year window for claims of sexual abuse that
occurred prior to December 1, 2019 that would otherwise be time barred "even
after applying (retroactively) the new extended statute of limitation s," and
noting that "[t]he same retroactive application of the amended Charitable
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38
Immunity Act" would apply to lawsuits filed during the extended statute of
limitations period).
In sum, L. 2019, c. 120 is replete with detailed and precise legislative
determinations as to which provisions are retroactive. Thus, the Legislature
clearly knew how to make statutory provisions retroactive, parsed through the
legislation to address the retroactivity issue in unequivocal terms, and made
express provision for retroactive application where it deemed appropriate. With
regard to the enactment of N.J.S.A. 59:8-3(b), however, the Legislature opted
not to provide for retroactivity, and we interpret that choice as a determination
retroactivity was not intended. See GE Solid State, Inc. v. Dir., Div. of Tax'n,
132 N.J. 298, 308 (1993) (explaining that "where the Legislature has carefully
employed a term in one place and excluded it in another, it should not be implied
where excluded"). In sharp contrast to the other provisions of L. 2019, c. 120,
there is simply no language associated with the enactment of N.J.S.A. 59:8-3(b)
supporting a finding the Legislature intended to apply it retroactively. "As
Justice LaVecchia . . . reminded us writing on behalf of a unanimous Supreme
Court, '[i]t is not our job to engraft requirements [on a statute] that the
Legislature did not include. It is our role to enforce the legislative intent as
expressed through the words used by the Legislature.'" Opderbeck v. Midland
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39
Park Bd. of Educ., 442 N.J. Super. 40, 58 (App. Div. 2015) (second and third
alterations in original) (quoting Lippman v. Ethicon, Inc., 222 N.J. 362, 388
(2015)).
R.A. and G.T. attempt to breathe life into their retroactivity claim by
asserting it would make little sense for the Legislature to retroactively apply the
extended statute of limitations to claims otherwise barred by the prior statute of
limitations, and not provide those same claimants with relief from the TCA's
notice provisions. We reject the argument because, for the reasons noted, it is
simply not supported by the plain language of the legislation. We also disagree
with the notion that the Legislature's decision not to make N.J.S.A. 59:8-3(b)
retroactive cannot be reasonably reconciled with the purposes of L. 2019, c. 120
and the TCA.
N.J.S.A. 59:8-3(b) addresses an issue unrelated to the extension of the
statute of limitations. The TCA has always included the requirement that a
claimant wait six months following the presentation of notice of claim before
instituting suit. N.J.S.A. 59:8-8. The six-month period serves important public
policies related to public entities. Our Supreme Court has explained N.J.S.A.
59:8-8 is intended
(1) to allow the public entity at least six months for
administrative review with the opportunity to settle
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40
meritorious claims prior to the bringing of suit; (2) to
provide the public entity with prompt notification of a
claim in order to adequately investigate the facts and
prepare a defense; (3) to afford the public entity a
chance to correct the conditions or practices which gave
rise to the claim; and (4) to inform the State in advance
as to the indebtedness or liability that it may be
expected to meet.
[Jones v. Morey's Pier, Inc., 230 N.J. 142, 155 (2017)
(quoting McDade, 208 N.J. at 475-76).]
As the Court explained, in its enactment of N.J.S.A. 59:8-8, "the Legislature
sought to afford to public entities an 'opportunity to plan for potential liability
and correct the underlying condition.'" Ibid. (quoting McDade, 208 N.J. at 476).
L. 2019, c. 120 extended the statute of limitation for the filing of claims
arising from sexual offenses and abuse and, in doing so, increased the financial
exposure of public entities for such claims. It also eliminated the benefits of the
six-month notice provision previously afforded public entities under N.J.S.A.
59:8-8. Thus, for public entities, the changes in the law implemented by L.
2019, c. 120 not only exposed them to increased claims, but it also deprived
them of the "opportunity to plan for [the] potential liability" for actions that
might be filed following the statute's December 1, 2019 effective date. Jones,
230 N.J. at 155 (quoting McDade, 208 N.J. at 476). The loss of that opportunity
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is a harm unique to public entities and it deprives them of the benefits the Court
has found were intended under N.J.S.A. 59:8-8. See ibid.For those reasons, we do not find it unreasonable or nonsensical, as
plaintiffs contend, for the Legislature to have treated the notice of tort claim
requirements under the TCA differently than the retroactive application of the
statute of limitations and other liability provisions under L. 2019, c. 120. By
not making N.J.S.A. 59:8-3(b) retroactive, the Legislature simply chose to
continue to apply the long-standing protections afforded to public entities to
actions filed during the six-month period following L. 2019, c. 120's enactment
in May 2019 to its December 1, 2019 effective date. In doing so, the Legislature
provided public entities, in a manner consistent with N.J.S.A. 59:8-8, with the
opportunity to plan for the potential financial liabilities each might face for new
claims filed after the December 1, 2019 effective date.
In sum, and for the reasons noted, we do not find N.J.S.A. 59:8-3(b)
applies retroactively to R.A.'s or G.T.'s tort claims. There is simply nothing in
the language of L. 2019, c. 120 supporting a finding the Legislature intended
that N.J.S.A. 59:8-3(b) should be applied retroactively, and the Legislature's
decision to exclude N.J.S.A. 59:8-3(b) from the numerous provisions of the
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legislation that were expressly made retroactive compels the conclusion that
retroactive application of N.J.S.A. 59:8-3(b) was not intended.
Any of defendants' arguments we have not expressly addressed are
without sufficient merit to warrant discussion in a written opinion. R. 2:11-
3(e)(1)(E).
Affirmed in part and reversed in part as to A-0329-19. We reverse that
portion of the court's order denying defendants' motion to dismiss the Anti -
Bullying Act claim asserted in Count Five, affirm the remaining portions of the
order, and remand for further proceedings on the remaining counts in the
complaint. We do not retain jurisdiction.
Affirmed as to A-1846-19, but we remand for modification of the court's
order to reflect the dismissal of the Anti-Bullying Act claim in Count Six, and
for further proceedings on the remaining counts in the complaint. We do not
retain jurisdiction.
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