In a precedential published ruling of first impression, the New Jersey Appellate Division has ruled that a man may pursue certain civil claims against his parents for not stopping his sister from sexually abusing him.
The uniqueness of the case is that the actions are alleged to have occured fifty-five years ago when both the man and his sister were minors. Additionally, both of his parents are deceased. (Essentially, he is seeking monetary damages against the money his sister inherited from their parents).
This new ruling reverses a lower court's ruling that all claims were barred because both siblings were minors at the time.
In 2019, the New Jersey Legislature enacted the Child Victims Act (CVA), which extended the statute of limitations for lawsuits against sexual abuse committed when the victim was a minor.
The CVA created two new statutes of limitations for actions at law for injuries resulting from the commission of sexual crimes, which both became effective on December 1, 2019. The second enacted statute of limitations expanded the time for filing claims for "certain sexual crimes," permitting minor victims to file claims "within 37 years after the minor reaches the age of majority, or within seven years from the date of reasonable discovery of the injury . . . whichever is later."
The statutes similarly provide for actions at law arising from sexual crimes committed against minors, including: "sexual assault, any other crime of a sexual nature, a prohibited sexual act . . ., or sexual abuse as defined in [the CSAA]."
Pursuant to this new law, on November 17, 2021, - within the two-year window - a man identified in court records only as John Doe filed suit against his parents alleging that they knew that his sister sexually abused him over a period of several months and that they did not take any action to stop the actions.
Both Doe and his sister were minors at the time. He was nine or ten years old, she was thirteen- or fourteen-years-old. The alleged actions occured fifty five years ago.
In his lawsuit filed in Superior Court in Union County, Doe's sought relief pursuant to CSAA, alleging that his parents were passive abusers because they "knowingly permitted or acquiesced in the sexual abuse committed by his sister D.O."
Doe also sought relief pursuant to common law negligence and gross negligence, asserting that his parents "breached their duties to [him] through their negligent and grossly negligent care, supervision, failure to rescue, and other actions and inactions that permitted D.O. to abuse [him] over a multiple month period."
Doe additionally claimed negligent infliction of emotional distress as defendants "owed [him] a duty to use reasonable care to ensure [his] safety and well-being . . . by virtue of his status as a minor and family member in the household."
On March 29, 2022, the motion judge dismissed the complaint, finding that Doe could not "sustain a claim under the CSAA because he was not abused by an adult." The judge emphasized defendants could not be held liable under the CSAA "because liability stems from the statutory definition of 'sexual abuse,' which is sexual contact or penetration between an adult and a minor." The judge further held the two-year revival window did "not apply to common law causes of action, unless . . . plaintiff [had] a valid claim under the CSAA" and, specifically, that Doe's "common law claims [were] barred by the [s]tatute of [l]imitations" because Doe "fail[ed] to state a claim under the CSAA."
The judge also found that "the common law discovery rule . . . supported dismissal of Doe's claims," because Doe "was aware that he had been injured as far back as 2010, or alternatively by 2017," and therefore he filed the complaint "outside of the statute of limitations."
Appellate Division Judges Sumners, Rose and Perez Friscia have now reversed this ruling in part, finding that the timely-filed common law claims may proceed.
Under the CSAA, an adult that commits a sexual offense against a child is subject to potential liability. The CSAA provides in pertinent part:
a. As used in this act:
(1) "Sexual abuse" means an act of sexual contact or sexual penetration between a child under the age of 18 years and an adult. A parent, resource family parent, guardian or other person standing in loco parentis who knowingly permits or acquiesces in sexual abuse by any other person also commits sexual abuse, except that it is an affirmative defense if the parent, resource family parent, guardian or other person standing in loco parentis was subjected to, or placed in, reasonable fear of physical or sexual abuse by the other person so as to undermine the person's ability to protect the child.
. . . .
b. In 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. Any such action shall be subject to the statute of limitations set forth in section 2 of [N.J.S.A. 2A:14-2a].
When the Legislature enacted the CSAA in 1992, and then amended the CSAA in 2019, it clearly intended to define sexual abuse as sexual contact or penetration between a child under eighteen and an adult eighteen or older, consistent with N.J.S.A. 9:17B-3.
The judge correctly noted the CSAA's definition of sexual abuse required an act against a child by "an adult," and found the passive abuser claim was precluded because D.O. was a minor when she allegedly committed forced sexual intercourse. It is undisputed D.O. was thirteen or fourteen when the alleged sexual assaults occurred, and therefore is not considered an "adult" under the statute's plain meaning. We thus agree with the judge that Doe's CSAA claims fail to state a cause of action because he was not sexually abused by an adult.
In addition, Doe's contention that the "passive abuser" claims against defendants are permitted under the CSAA, regardless of whether an "active abuser" claim is cognizable, is unavailing. The CSAA provides a claim for liability against a parent who "knowingly permits or acquiesces in sexual abuse by any other person," but must be read in context with the preceding sentence stating sexual abuse by "an adult." A passive abuser claim is derivative and cannot stand without a cause of action for sexual abuse by an adult. The defined term "sexual abuse" is unambiguous and must be consistently applied throughout the statute.
Accordingly, there is no cognizable "passive abuser" claim.
However, we part ways as to the dismissal of Doe's common law claims.
The Legislature enacted the two-year revival window specifically to allow time-barred "action[s] at law" for injuries resulting from the following four categories of sexual crimes: (1) "the commission of sexual assault"; (2) "any other crime of a sexual nature"; (3) "a prohibited sexual act as defined in [N.J.S.A. 2A:30B-2]"; (4) "or sexual abuse as defined in [the CSAA]." N.J.S.A. 2A:14-2b(a). A plaintiff could proceed to bring a claim "notwithstanding the statute of limitations provisions . . . or any other statute for an injury resulting from" the commission of one of the offenses.
The plain language of N.J.S.A. 2A:14-2b(a) is clear that "an action at law" includes common law and statutory claims. The Legislature provided four separate sexual offenses for victims to pursue causes of action. Pursuant to the statute, a sexual assault action is a separately permitted "action at law."
Had the Legislature intended to limit the availability of claims only to sexual abuse claims under the CSAA, it would not have permitted "an action . . . from the commission of sexual assault" and separately stated "or sexual abuse as defined in [the CSAA]." Therefore, we conclude a timely-filed common law claim for the "commission of sexual assault" committed by a minor may proceed irrespective of a cognizable "sexual abuse" claim under the CSAA.
In enacting the supplementary two-year revival statutes of limitations, effective December 1, 2019, the CVA opened the door for previously time-barred common law claims stemming from sexual assault. Accordingly, Doe timely filed his complaint on November 17, 2021, within the two-year window, and alleged cognizable common law causes of action based on sexual assault.
Defendants' arguments that the common law claims fail because Doe's allegation of sexual assault, and acts of sexual abuse, do not fall within one of four enumerated sexual offenses are unavailing. The alleged "forced intercourse" by D.O. irrefutably falls within the enumerated offense of a "commission of sexual assault," even though perpetrated by a minor.
Further, were we to accept defendants' arguments that common law claims only are viable if there is a cognizable CSAA claim, then child victims who are sexually assaulted by another minor would be foreclosed from bringing common law causes of action. We reject that statutory interpretation. Defendants' arguments conflate the term sexual assault and the CSAA's definition of sexual abuse to contort preclusion under N.J.S.A. 2A:14-2b. This interpretation neither is supported by the statute's ordinary meaning nor the clear legislative intent, "as illuminated by the Legislature's stated desire to expand the rights of victims of sexual assaults and other sexual misconduct."
Thus, a plaintiff precluded from a CSAA cause of action is not precluded from maintaining separate common law claims based on alleged abuse by a minor. Doe's common law claims are permitted under N.J.S.A. 2A:14-2b even though his CSAA claims against defendants are dismissed.
In sum, the plain language of the two-year revival window clearly permitted Doe to file "an action at law for an injury resulting from the commission of sexual assault" by D.O. as a minor. The judge erred in dismissing Doe's timely-filed common law claims, which are not tethered to the CSAA precluded claims. We therefore reverse and remand the order dismissing Doe's commons law claims, the Appellate judges concluded.
The court permitted Child USA to appear as amicus curiae. Represented by Attorney John Baldante Esq. of Levy Baldante Finney & Rubenstein PC, they asserted the legislative intent in enacting the CVA was to create a remedial statute to be interpreted broadly, which clearly can be discerned from "the statute's language and legislative history." In their view, the Legislature passed the CVA to broaden civil actions to provide recourse for all victims of child sexual abuse, and defendants' purported interpretation would defeat the legislative purpose. Child USA supported Doe's arguments that the CSAA passive abuser claims against defendants are viable irrespective of the fact that D.O. was not an adult, that the common law claims were timely filed, and the common law claims are permissive "actions at law" not tethered to the CSAA claims.
John Doe was represented by Attorneys Robert R. Fuggi, Jr., Michael R. Napolitano, Bradley L. Rice, and Emma A. McElligott Esq. of the Fuggi Law Firm, PC.
The Estates of his parents were represented by Attorneys Patrick B. Minter, Thomas J. Coffey and Alison L. Moody Esq. of Donnelly Minter & Kelly, LLC, and Brian W. Shaffer, and William R. Peterson Esq. of Morgan, Lewis & Bockius LLP.
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