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M.P. v. Wee Care Day Nursery of Maplewood

Decided: July 5, 1991.

M.P., AN INFANT BY HIS GUARDIAN AD LITEM D.P., AND D.P., INDIVIDUALLY, PLAINTIFFS-APPELLANTS,
v.
WEE CARE DAY NURSERY OF MAPLEWOOD AND SO. ORANGE, INC., ARLENE SPECTOR, DIANE COSTA, JOHN DOES AND JANE DOE (FICTITIOUS PERSONS), DEFENDANTS-RESPONDENTS



On appeal from Superior Court, Law Division, Essex County.

J.h. Coleman, Dreier and Landau, Judges. The opinion of the court was delivered by Landau, J.A.D.

Landau

[250 NJSuper Page 120] On leave granted, plaintiffs M.P., an infant by his guardian ad litem, D.P., and D.P. individually, appeal an in limine order entered in their civil action against defendant-respondent Wee Care Day Nursery of Maplewood and So. Orange, Inc. (Wee Care), and the other captioned defendants-respondents.

Plaintiffs are seeking damages for negligent supervision and sexual abuse of the infant plaintiff by a nursery teacher, Margaret Kelly Michaels, during the 1984-1985 school year when M.P. was four years of age. We granted plaintiffs' motion for leave to appeal a determination by the trial judge that the tender years hearsay exception embodied in Evid.R. 63(33)*fn1 is not applicable to this non-criminal proceeding.

M.P.'s civil case had been stayed pending conclusion of a criminal trial which commenced in June 1987, in which defendant-respondent's teacher, Michaels, was convicted of 115 counts of aggravated sexual assault, sexual assault, and endangering the welfare of a child, involving a number of Wee-Care's enrollees, including M.P. That conviction is presently on appeal.

"Tender years" testimony by M.P.'s mother, D.P., was admitted at the criminal trial under the then vital authority of State v. D.R., 214 N.J. Super. 278, 518 A.2d 1122 (App.Div.1986), rev'd, 109 N.J. 348, 537 A.2d 667 (1988). D.P. related statements made to her by M.P. regarding various improper sexual acts committed upon him by Michaels. Both D.P. and M.P. (then six) testified at the criminal trial and were cross-examined.

Following completion of the criminal trial, the stay previously in effect was lifted, and the in limine ruling here under appeal was made. Essentially Judge Neagle ruled that D.P.'s "tender years" hearsay testimony respecting M.P.'s statements must be barred in that the Evid.R. 63(33) exception states only that such a statement "is admissible in a criminal proceeding brought against a defendant for the commission of such offense . . ." He reasoned that Evid.R. 63(33) could be applied only in a criminal proceeding.

The trial judge's caution is understandable. In reversing State v. D.R., supra, the Supreme Court specifically emphasized that, given the serious and far-reaching nature of the hearsay exception there created, comity required invocation of the concurrence procedures established by the Evidence Act of 1960, N.J.S.A. 2A:84A-33 to -44, rather than approval of a new judicially established common law hearsay exception. State v. D.R., 109 N.J. 348, 375-76, 537 A.2d 667 (1988). Evid.R. 63(33) was adopted thereafter, in the form proposed by the Supreme Court in D.R., supra, 109 N.J. at 378, 537 A.2d 667, which, as Judge Neagle noted, used the words "in a criminal proceeding" after stating the exception.

The issue here, however, does not involve judicial creation of a new evidence rule, but interpretation of Evid.R. 66(33) in a manner which avoids otherwise anomalous and inconsistent results, and which effectuates its purpose.

No less than legislated statutes, rules of evidence must be interpreted to avoid injustice and to conform to the spirit and intention of the drafters. Where an incongruous and inconsistent result is achieved by adherence to the strict letter of a statute, the policy that is implied is as effective as that which is expressed. Leitner v. Citizens Casualty Co. of N.Y., 135 N.J.L. 608, 52 A.2d 687 (E. & A.1947). See also Clay v. East Orange, 177 N.J. Super. 79, 424 A.2d 1199 (Law Div.1980), aff'd, 181 N.J. Super. 40, 436 A.2d 553 (App.Div.1981); aff'd, 91 N.J. 429, 452 A.2d 1323 (1982); Glick v. Trustees of Free Public

Library, 2 N.J. 579, 67 A.2d 463 (1949). Such an exercise of a court's power of interpretation, however, is limited; when no ambiguities, inconsistencies or anomalies are presented by statutory language, a court should delve no further than an act's literal terms to divine ...


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