Synopsis: New Jersey’s recently enacted legislation which significantly extends the statute of limitations for sexual abuse claims and creates a two-year filing window for sexual abuse claims that would otherwise be time-barred by the statute of limitations is now effective as of December 1, 2019.

On May 13, 2019, the Governor of New Jersey signed into law legislation that expanded the statute of limitations for filing civil sex abuse lawsuits, giving victims more time to sue their accusers and organizations that happen to be affiliated with them. We wrote about the Act when it was first passed here. Claims under this new law can now be filed as of December 1, 2019.

The new legislation significantly expands the ability of individuals to pursue civil claims against their attackers and the entities that allegedly allowed the assaults to occur. Previously, New Jersey allowed minor victims of sexual abuse only two years from the later of the date of their eighteenth birthday, or the date the victim learned of their injury and its causal relationship to the sexual misconduct, to file suit. The law now allows child victims of childhood sexual abuse to file lawsuits up until the time they turn 55 years old, or seven years from the date they became aware of the abuse, whichever is later. It also allows adult victims of sexual abuse, whatever their age, to bring suit within seven years from the time of their discovery of the abuse. It also gives victims who were previously barred from filing claims, because the statute of limitations had lapsed, a two-year window to now file their claims.

Importantly, New Jersey now also permits lawsuits against organizations that were historically immune from suit by amending the Charitable Immunity Act N.J.S.A. 2A:53A-7 to expose nonprofit organizations to retroactive liability for willful, wanton, or grossly negligent acts resulting in sex abuse. The new law also retroactively applies an exception to the Charitable Immunity Act so that nonprofit organizations can face liability for acts of simple negligence in the hiring, supervision, or retention of an employee agent or server for servant that led to the sexual abuse against a minor.

The new law also creates a carve-out to the New Jersey Tort Claims Act N.J.S.A. 59:1-1, stripping public entities of immunity from sexual abuse lawsuits, such that they can now be held liable as if they were private organizations. This means public schools, and not-for-profit private schools, will now find themselves named as defendants in sex abuse claims, in what is a striking departure from well-established New Jersey law.

However, the law has certain limitations. Notably, it will not permit lawsuits alleging child sex abuse to proceed as a class action, or be settled privately as a class, a limitation which may make any lawsuits filed be more manageable to administer, but which will require many victims to come forward and file individual lawsuits seeking redress.

Much like New York, which passed similar legislation in early 2019 entitled “The Child Victim Act,” the New Jersey legislation was passed in the context of the newfound momentum for victim’s rights stemming from the #MeToo Movement, the detailed widespread sexual abuse of the Catholic Church in New York, New Jersey, and in a Grand Jury Report in neighboring Pennsylvania which accused 300 clergy members of sexual assault, where certain of these priests resided in New Jersey.

What Does This Mean for Your Institution?

Simply stated, the ramifications of the legislation can be enormous. Any educational, religious or civic organization that cares for children, such as a school camp or day care facility, will be subject to this new legislation. As a result, a significant number of victims may now come forward, recognizing that they have broad-based legislative and public support, and will not face the immediate dismissal of their claims on statute of limitations grounds. While many wrongdoers have gone to their graves without proper punishment, their employers will be left to answer for their wrongdoing, accused of turning a blind eye to these victims when in their care, and negligently supervising or retaining the wrongdoer.

As an institution providing services to children, your organization may be subject to a public lawsuit even if it is currently unaware of any historical issues. The defense of such cases is often extremely difficult as memories have faded and witnesses have disappeared or died. Evidence such as student records, medical records, witnesses to the abuse, individuals who might have received the victim’s outcry, and even the wrongdoers themselves, may be long gone. In many respects, the lack of any evidence, other than the statement of the victim, can make an institution particularly vulnerable when such claims are filed.

The new legislation does not alter the burden of proof as a civil case: liability can still be established by a mere preponderance of the evidence.

The creation of a two-year window to assert claims that previously were, or would have been, dismissed under the former statute will likely open the floodgates as to the initiation of child sex abuse cases for conduct that occurred decades ago. It will be extremely difficult to predict how many people chose to initiate lawsuits during this “look back” period. In some cases, institutions unable to assess what might be an overwhelming horizon of liability may face financial uncertainty or distress.

What’s New with New York’s CVA? Will New Jersey Follow Suit?

New York’s Child Victim Act (CVA) was enacted in February 2019 and, similar to New Jersey, it had a six-month waiting period before complaints could be filed. On August 14, 2019, the first day on which complaints could be filed, hundreds were indeed filed throughout the state. By the time the window closes in August 2020, it is expected that thousands of cases will have been filed. During the six-month waiting period, New York’s Office of Court Administration (OCA) crafted rules specifically designed for CVA cases, including creation of Special Parts to hear CVA trials, specialized training of judges who would be dealing with victims of sex abuse, an expedited discovery schedule, a method of filing claims anonymously using an OSC procedure, assignment in each Judicial District of a CVA Judge to handle all pre-trial discovery, amongst other initiatives.

Four months into the window, the process has evolved even further with the creation of a court-appointed Steering Committee comprised of plaintiffs’ counsel and members of the defense Bar. They have been tasked to create a Case Management Order (CMO) to improve efficiencies as to how these cases are to be handled. Across New York’s five boroughs the Steering Committee is working together to streamline the causes of action to file. For example, plaintiffs’ counsel are considering agreeing not to file certain claims, such as claims for sexual assault, which defendants believe should not be levied against an institution as opposed to the actual abuser. This would obviate the need for defense counsel to file motions to dismiss as to that claim. There are similar initiatives being considered with respect to the management of discovery, possible ADR procedures, and expedited appeals. In New York City, the Administrative Judge is planning to abate all case deadlines while the Steering Committee considers the contents of its CMO.

During this same period we recently saw a constitutional challenge to the CVA, arguing that the legislature exceeded its authority in creating the extended statute of limitations without sufficient justification. The New York Attorney General is now involved to defend the constitutionality of the Statute. The simple reality is that it is unlikely, at least in New York City, that any case will be ready for trial within the one-year window. With these issues in mind, it will be interesting to see what steps New Jersey takes to best handle the deluge of cases that may be filed there and the extent to which they follow the initiatives that we have seen in New York.

Conclusion

Sexual abuse of children has had lasting impacts on its victims in countless ways. The enactment of this sweeping legislation addresses the conduct in an attempt to stop its proliferation and compensate its victims. While your institution has a responsibility to the children it serves, it must also take reasonable and prudent steps to prepare itself to respond to any complaints or lawsuits that may now be brought. It needs to now consider allocation of resources and the extent to which funds can be used for today’s objectives, while reserving funds to pay for the possibility of historical claims. These are not easy decisions to make and they require careful consideration. One thing is for certain however: the Act is now the law in both New Jersey and New York, which means that these cases will almost certainly be filed, and an institutional response will be required.

Seyfarth would be happy to discuss these various ideas and alternatives with you in more detail, and share with you our collective wisdom.