On December 16, 2021, New Jersey’s Appellate Division issued a published decision in E.C., a minor, et al. v. Leo Inglima-Donaldson, et al., A-2752-20, clarifying the application of New Jersey’s newly adopted standard for public entity liability in cases of claims alleging childhood sexual abuse.
In 2019, New Jersey’s Legislature passed two bills which became law that dealt with civil liability for sexual abuse claims. In the first, the Legislature modified the statute of limitations for civil claims brought by those who were victims of sexual abuse or assault as children. Claimants in those situations may now bring claims until they are fifty-five (55) years old, or later in certain circumstances. In the second, modifications were made to the standard of liability applicable to public entities, as well as to religious and charitable institutions, which often find themselves named as defendants in New Jersey sexual abuse litigation.
As to public entities, N.J.S.A. § 59:2-1.3 provided that:
“immunity from civil liability granted by [the Tort Claims Act] to a public entity or public employee shall not apply to an action at law for damages as a result of a sexual assault, any other crime of a sexual nature, a prohibited sexual act …, or sexual abuse… being committed against a person, which was caused by a willful, wanton or grossly negligent act of the public entity or public employee.”
The Appellate Division was confronted with arguments raised by the Bloomfield Board of Education, who contended that this immunity waiver did not apply unless the public entity – and not just the public employee – had engaged in “willful, wanton or grossly negligent” behavior. Alternatively, the Board argued that even if this waiver was triggered, that the Tort Claims Act’s damages threshold, and the declaration that a public entity “is not liable for the acts or omissions of a public employee constituting a crime…” were not immunities, but rather defenses provided by the Tort Claims Act.
Judge Fisher, writing for the Court, noted that the plain language of the statute “expresses that the public entity’s immunities will be disabled when the sexual offense was caused by the willful, wanton or grossly negligent conduct of the public entity “or” public employee.” Although acknowledging that, in some instances, portions of the language employed by the statute may be “redundant,” the Court found that the entire provision “sensibly and reasonably imposes an obligation on a plaintiff to show the ‘willful, wanton or grossly negligent’ conduct of only the public entity “or” public employee, but not both.”
The Court then turned to arguments raised by the Board pertaining to two separate defenses, which the Board argued were not “immunities,” but instead “defenses” – and thus, were not waived even if the waiver provision of the Tort Claims Act was triggered. The first defense is the damages threshold contained in the Tort Claims Act, sometimes referred to as the verbal threshold, which is codified at N.J.S.A. § 59:9-2.The statute provides that “[n]o damages shall be awarded against a public entity or public employee for pain and suffering from an injury,” where there was no “permanent loss of a bodily function, permanent disfigurement or dismemberment [and unless] the medical treatment expenses are in excess of $3,600.00.”The Court agreed that the threshold was a defense and not an immunity because the provision “does not purport to free a public entity from liability. It instead limits the damages that may be awarded once a public entity is held liable….”
The second Tort Claims Act “defense” addressed is that contained in N.J.S.A. § 59:2-10, which provides that “[a] public entity is not liable for the acts or omissions of a public employee constituting a crime, actual fraud, actual malice, or willful misconduct.” The Court ruled that the statutory provision is an immunity, not a defense, given that it describes only those circumstances in which no liability attaches to a public entity.As such, the Court held the immunity is waived in the event of sexual abuse caused by the willful, wanton or grossly negligent conduct of a public employee.
The Appellate Division declined to decide whether the public entity employer could be vicariously liable for the torts of their employee in the circumstances presented and noted that the two disparate approaches to this analysis are found in Davis v. Deveraux Found., 209 N.J. 269 (2012), and Hardwick v. Am. Boychoir Sch., 188 N.J. 69 (2006). The matter was remanded to the trial court for further adjudication. As such, a ruling as to whether principles of vicarious liability could attach to a public entity employer for the intentional criminal sexual torts of its employee was not reached squarely in this matter.