Doe v. C.V.O.

477 N.J.Super. 42

303 A.3d 678

John DOE, Plaintiff-Appellant/Cross-Respondent, v. The ESTATE OF C.V.O., Jr., ¹ and The Estate of G.A.O., Defendants-Respondents/Cross-Appellants.

DOCKET NO. A-2780-21

Superior Court of New Jersey, Appellate Division.

Submitted September 12, 2023

Decided October 12, 2023

Fuggi Law Firm, PC, attorneys for appellant/cross-respondent John Doe ( Robert R. Fuggi, Jr., Toms River, Michael R. Napolitano, Bradley L. Rice, Roseland, and Emma A. McElligott, of counsel and on the briefs).

Donnelly Minter & Kelly, LLC, attorneys for respondent/cross-appellant The Estate of C.V.O., Jr. ( Patrick B. Minter, Morristown, of counsel and on the briefs; Thomas J. Coffey, Morristown, and Alison L. Moody, on the briefs).

Morgan, Lewis & Bockius LLP, attorneys for respondent/cross-appellant The Estate of G.A.O. ( Brian W. Shaffer, and William R. Peterson (Morgan, Lewis & Brockius, LLP) of the Texas bar, admitted pro hac vice, of counsel and on the briefs).

Levy Baldante Finney & Rubenstein PC, attorneys for amicus curiae Child U.S.A. ( John Baldante, Haddonfield, of counsel and on the brief).

Before Judges Sumners, Rose and Perez Friscia.

The opinion of the court was delivered by

PEREZ FRISCIA, J.S.C. (temporarily assigned) This appeal raises issues of first impression pertaining to the civil prosecution of statutory and common law personal injury claims arising from allegations of sexual abuse committed fifty-five years ago against a child by his sister, who also was a minor when the acts occurred. On November 17, 2021, plaintiff John Doe filed Child Sexual Abuse Act (CSAA), N.J.S.A. 2A:61B-1, and common law negligence, gross negligence, and negligent infliction of emotional distress claims against defendants, his deceased parents' estates, the Estate of C.V.O., Jr. and the Estate of G.A.O., alleging his parents failed to prevent sexual assaults committed by his minor sister, D.O.

In 2019, the New Jersey Legislature enacted the Child Victims Act (CVA), L. 2019, c. 120, which supplemented and amended the statute of limitations in civil actions for sexual abuse claims and expanded the categories of potentially liable defendants. 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. Pertinent to this appeal is the enacted statute of limitations which provided a two-year revival window for victims to file otherwise time-barred claims for sexual crimes committed against them while minors. N.J.S.A. 2A:14-2b. 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." N.J.S.A. 2A:14-2a. 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]." N.J.S.A. 2A:14-2a ; N.J.S.A. 2A:14-2b. The CVA also supplemented the CSAA discovery period provision, providing that it is subject to N.J.S.A. 2A:14-2a.

Doe appeals from the Law Division's March 29, 2022 order, which granted defendants' motions to dismiss for failure to state a claim upon which relief can be granted under Rule 4:6-2(e). Doe argues the motion judge erred in finding a cause of action did not exist for sexual abuse under the CSAA because D.O. was not an adult, and that the passive abuser claims against his parents' estates failed because they were derivative. Doe additionally argues the judge erred in dismissing his common law claims based on the erroneous finding that the claims were precluded under the two-year revival window because no cognizable CSAA claim existed, and that the discovery rule did not apply. Defendants cross-appeal from the June 20, 2022 order denying their motion for fees.

We affirm in part and reverse in part. As the CSAA defines sexual abuse as an action committed by an adult against a child, we conclude Doe's derivative passive abuser claims against defendants fail. Thus, we affirm dismissal of Doe's CSAA claims. However, we part ways with the judge's decision that Doe's common law claims were precluded by the CSAA. Accordingly, we conclude Doe's common law claims against the defendants are cognizable because they were timely filed and alleged sexual assaults committed by D.O. when she was a minor.

I.

Doe alleges the following pertinent facts in his complaint. In or around 1964 or 1965, when Doe was nine or ten years old, he was sexually abused by way of "forced intercourse" "multiple times" over a period of "several months" by D.O., his then thirteen- or fourteen-year-old sister. D.O. touched Doe's penis, raised her nightgown, and "sat on top of [Doe's] exposed genitals." D.O. violently hit Doe "when he tried to move away." The sexual abuse "always involved D.O. straddling" Doe and striking him in the face. At "sometime during" the continued abuse, Doe "reported to his mother that D.O. was engaging in conduct that he did not like and described specifically the actions." Doe, at the time, "wrote a letter to his father describing D.O.'s abuse." Doe maintained their parents "knew or should have known that D.O. was sexually abusing [him]." Despite Doe's parents having actual knowledge of the events, neither took any action to prevent the continued abuse. Years later, in 2010, Doe discussed with his parents "the effect of D.O.'s abuse," and in 2017, they acknowledged the sexual abuse in an unrelated lawsuit.

Doe's CSAA claims alleged his parents were passive abusers because they "knowingly permitted or acquiesced in the sexual abuse committed by D.O." As to his common law negligence and gross negligence claims, Doe asserted defendants "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." ² 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 January 31, 2022, defendants moved to dismiss Doe's complaint for failure to state a claim upon which relief can be granted. Doe opposed the motions. At oral argument, defendants contended the CSAA claims failed as a matter of law because the CSAA "provides a cause of action for sexual contact or sexual penetration between a child under the age of [eighteen] and an adult" and, therefore, "where the alleged abuser is a minor" there is no cause of action. Defendants further argued that Doe's CSAA claims against his parents were derivative claims "not legally cognizable ... where the underlying acts [did] not constitute sexual abuse." Defendants did not dispute that Doe timely filed the CSAA claims.

As to the common law claims, defendants argued Doe failed to file the action within the two-year statute of limitations for personal injury claims, which "ran no later than 2012." Defendants maintained the CVA "allow[ed] for an extension [of] ... the statute of limitations, [only] where there [was], in fact, a viable claim under the CSAA." Defendants relied on Hardwicke v. American Boychoir School, 188 N.J. 69, 902 A.2d 900 (2006), arguing the common law claims could only proceed, pursuant to the discovery rule, if D.O. were an adult who committed sexual abuse under the CSAA.

Doe argued in opposition that his common law claims were timely filed within the "two-year [revival] window regardless of whether the claims [we]re based on the CSAA or other actions at law, including common law claims." Further, Doe argued that the CSAA claims were not precluded because "claims [were permitted] to be brought against passive abusers ... [who] acquiesced in the abuse of a minor."

On March 29, 2022, the judge entered an order granting defendants' motions and dismissing Doe's claims with prejudice. In his written statement of reasons, the judge reasoned 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 "the common law discovery rule ... support[ed] 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 [s]tatute of [l]imitations."

On April 18, 2022, defendants moved for attorney's fees. At argument, defendants contended that despite providing Doe with notice "of the frivolous nature of his ... pleadings," Doe nevertheless filed the complaint. Defendants further argued "[t]he equities ... support[ed] an award of fees" because "there [was] a facially obvious fundamental dispositive flaw on each of [the] counts" pleaded. Doe, in response, argued counsel fees should not be awarded as there "had been no showing of bad faith," he "took an opportunity that the [S]tate granted all victims of abuse to try to bring [his] claims," and there were "many cases in which child sex abuse cases [were] brought where there [was not] a CSAA claim ... but nonetheless common law claims could be permitted."

On June 20, 2022, the judge issued...