W.S. VS. DEREK HILDRETH, ET AL. (L-0043-20, GLOUCESTER COUNTY AND STATEWIDE) (A-2066-20)

 W.S. VS. DEREK HILDRETH, ET AL. (L-0043-20, GLOUCESTER COUNTY AND STATEWIDE) (A-2066-20)

Plaintiff alleged he was sexually molested by his sixth-grade teacher during the 1996–97 school year, but he reasonably did not realize he suffered injury as a result until 2016. His 2017 motion to file a late notice of claim was denied without prejudice; the judge concluding the certifications in support of the motion were not based on personal knowledge and otherwise inadequate.

In 2019, the Legislature made sweeping changes to the Tort Claims Act, the Child Sexual Abuse Act, and the Charitable Immunity Act, and it also enacted entirely new statutes of limitations for tort claims arising from sexual abuse and exploitation of minors, and sexual crimes committed against adults. See L.2019, c. 120, and L. 2019, c. 239.

In particular, effective December 1, 2019, plaintiffs alleging sexual abuse as a minor that occurred prior to, on or after the effective date, may file suit at any time until reaching the age of fifty-five. The date the claim accrued no longer mattered. Effective the same date, a suit alleging sexual abuse by a public employee or employer no longer needed to comply with the predicate procedural requirements of the TCA, including, the notice of claim provision in N.J.S.A. 59:8-8. Plaintiff filed this suit in January 2020, and defendants — elementary school and school district — moved to dismiss, contending plaintiff failed to file a notice of claim within ninety days of the accrual of his claim. Ibid.

The court affirmed the motion judge's denial of defendants' motion, albeit for different reasons than he expressed. The court concluded that a retroactivity analysis was not required under the facts of this case, because plaintiff filed suit after the effective date of the new legislation and within the new statute of limitations; and, when filed, the complaint was no longer subject to the TCA's procedural requirements.

Todd B. Glassman v. Steven P. Friedel, M.D. (085273) (Monmouth County and Statewide) (A-48/49/50/51-20; 085273)

 Todd B. Glassman v. Steven P. Friedel, M.D. (085273) (Monmouth County and Statewide) (A-48/49/50/51-20; 085273)

The Court agrees with the Appellate Division that the Ciluffo pro tanto credit does not further the legislative intent expressed in the Comparative Negligence Act and does not reflect developments in case law over the past four decades. In its stead, the Court sets forth a procedure to apportion any damages assessed in the trial of this case and future successive-tortfeasor cases in which the plaintiff settles with the initial tortfeasors prior to trial.

Cooper Hospital University Medical Center v. Selective Insurance Company of America (085211) (Camden County and Statewide) (A-46-20

 Cooper Hospital University Medical Center v. Selective Insurance Company of America (085211) (Camden County and Statewide) (A-46-20; 085211)

Because Mecouch was a Medicare enrollee in 2016, Cooper -- a Medicare provider -- was required to bill and accept payment from Medicare, which promptly covered Mecouch’s medical expenses in accordance with its fee schedule. Cooper could not seek payment from Selective other than for reimbursement of the Medicare co-payments and deductibles.

E.C., ET AL. VS. LEO INGLIMA-DONALDSON, ET AL. (L-1419-18, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-2752-20)

 E.C., ET AL. VS. LEO INGLIMA-DONALDSON, ET AL. (L-1419-18, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-2752-20)

In 2019, the Legislature expanded public-entity civil liability for claims based on sexual assaults and other sexual misconduct by enacting N.J.S.A. 59:2-1.3(a), which disables in those instances the immunities provided by the Tort Claims Act. In this action, plaintiff alleges he was the victim of the sexual misconduct of a teacher employed by the defendant board of education. In appealing the partial denial of its summary judgment motion, the board argued that this new statute does not apply unless the public entity – and not just the public employee – has engaged, in the words of the statute, in "willful, wanton or grossly negligent" conduct. The board also argued that even if triggered, N.J.S.A. 59:2-1.3(a) deprives the public entity only of its Tort Claims Act immunities, and not two defenses under the Act: the verbal threshold, N.J.S.A. 59:9-2(d), and the declaration that a public entity "is not liable for the acts or omissions of a public employee constituting a crime . . .," N.J.S.A. 59:2-10.

In affirming the denial of the board's summary judgment motion, the court enforced N.J.S.A. 59:2-1.3(a)(1) as written, concluding that a public employee's sexual offense was sufficient to provide the "willful, wanton or grossly negligent" conduct required of "the public entity or public employee" (emphasis added). The court also held that N.J.S.A. 59:2-10 is an immunity disabled by N.J.S.A. 59:2-1.3(a)(1) but that the verbal threshold in N.J.S.A. 59:9-2(d) is a limitation of liability, not an immunity, and remained applicable.

COLUMBIA FRUIT FARMS, INC., ET AL. VS. DEPARTMENT OF COMMUNITY AFFAIRS, ET AL. (DEPARTMENT OF COMMUNITY AFFAIRS) (A-3155-19)

 COLUMBIA FRUIT FARMS, INC., ET AL. VS. DEPARTMENT OF COMMUNITY AFFAIRS, ET AL. (DEPARTMENT OF COMMUNITY AFFAIRS) (A-3155-19)

Appellants are a group of twenty-nine New Jersey farms that maintained barns and other storage facilities on their properties. During the growing season, appellants housed farm workers in these structures. Despite this obvious change of use from structures intended to store agricultural products and equipment to residences for human beings, appellants refused to implement the additional fire safety measures required for residences by the New Jersey Uniform Construction Code (UCC), N.J.S.A. 52:27D-119 to -141.

In May 2018, the Director of the Division of Codes and Standards in the Department of Community Affairs (DCA) sent a letter to local construction officials reminding them of their responsibility to issue notices of violation when a farm failed to add fire suppression systems to the buildings in which their workers lived as required by the UCC. In March 2019, the Director sent a similar letter to the construction officials. As a result, the officials cited eighteen of the twenty-nine appellants for violating DCA's fire safety regulations between 2018 and 2019. None of these farms challenged the notices of violation.

On February 4, 2020, the Director sent a third letter to the construction officials again instructing them to enforce the change-of-use regulation when a farm converted a commercial farm building to residential living quarters for workers. The Director forwarded a similar letter to the New Jersey Secretary of Agriculture outlining the UCC requirements for residential structures used to house farm workers and the Secretary distributed that letter to a number of farms. Appellants thereafter filed a notice of appeal alleging that the Director's February 4, 2020 inter-agency letter to the Secretary constituted a "new agency rule" that DCA did not adopt in accordance with the rulemaking procedures required by the Administrative Procedure Act (APA), N.J.S.A. 52:14B-1 to -31.

The court rejected this argument and concluded the Director's February 4 letter bore few of the qualities that characterize a rulemaking activity subject to the procedural requirements of the APA as set forth in Metromedia, Inc. v. Dir., Div. of Tax'n, 97 N.J. 313, 331-32 (1984). Because the letter was not a new agency rule, the court dismissed appellants' appeal.