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J.L. and B.Z. v. J.F.

January 21, 1999

J.L. AND B.Z., PLAINTIFFS-APPELLANTS,
v.
J.F., DEFENDANT-RESPONDENT.



Before Judges King, Newman and Fall.

The opinion of the court was delivered by: Fall, J.s.c.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: November 18, 1998

On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Bergen County.

The opinion of the court was delivered by

In this civil action seeking compensatory and punitive damages for sexual molestation allegedly occurring over thirty years ago during plaintiffs' minority, we examine the applicability and interrelationship of the statute of limitation tolling provision contained in N.J.S.A. 2A:61B-1(c) and the "reasonable discovery" accrual standard in N.J.S.A. 2A:61B-1(b). Plaintiffs appeal from an order dismissing their complaint with prejudice, based on failure to institute suit within the two-year statute-of-limitation period. We reverse and remand for further proceedings consistent with this opinion.

I.

Plaintiffs, C.C., J.L., and B.Z. are sisters. C.C. does not participate in this appeal. In July 1997 when the complaint in this matter was filed B.Z. was age 55, J.L. was age 52, and C.C. was age 44. Defendant is plaintiffs' uncle. He is married to M.F., sister of plaintiffs' deceased mother.

B.Z. is the oldest sister. According to her certification, she was repeatedly sexually abused by defendant throughout her childhood and teenage years. The abuse occurred while B.Z. was alone with defendant, during family visits to his house. B.Z. said she "felt too ashamed and guilty to come forward and tell anyone of the abuse in order to seek redress. [She] believed [she] had no choice but to suppress [her] pain." B.Z. feared going public about the abuse would "subject [her] to personal vilification and also might mean sacrificing [her] cherished relationship with M.F.," her aunt and wife of defendant.

B.Z. certified she did not know that her sister, J.L., had also been abused by defendant until the sister-plaintiffs had a conversation at a family gathering in November 1995. B.Z. knew defendant had sexually abused the youngest sister, C.C., on one occasion. Sometime after B.Z. was married to her first husband, C.C. told B.Z. that defendant had abused her. B.Z. then informed her parents of the abuse suffered by C.C. In response, her "parents decided that the wisest way to deal with the situation was to avoid family grief and ignore the situation." B.Z. did not tell her parents or C.C. that defendant had previously abused her. B.Z. then told C.C. to avoid defendant.

B.Z. contends that until the conversation among the sister-plaintiffs in the fall of 1995, she "never understood that the psychological trauma [she had] suffered during [her] life was caused by [J.F.'s] abuse" and that "[i]t is only this recent learning that J.F. did not limit his abuse to [her]" that gave her the ability to "articulate and understand for the first time that the damage [she has] suffered was the result of J.F.'s sexual abuse."

Plaintiff J.L. also submitted a certification in opposition to defendant's motion to dismiss the complaint. She alleges defendant sexually abused her during her childhood and teenage years. She "tolerated and suppressed [her] uncle's abuse because of [her] need to be part of J.F.'s family and to experience what [she] believed to be [her aunt's] love." J.L. never told anyone about defendant's abuse prior to November 1995. She "lived in isolation with [her] pain, believing [she] was the only one to have suffered from J.F.'s sexual abuse." After the conversation with her sisters in November 1995, J.L. was "now able, for the first time, to articulate and understand the relationship between J.F.'s conduct and the psychological and emotional harm [she has] experienced during [her] life."

C.C.'s certification reveals she was subjected to one incident of sexual abuse by defendant. Throughout her life, C.C. has "felt great shame and embarrassment when thinking of this incident." She told B.Z. what defendant did to her and B.Z. advised her to avoid him. B.Z. did not reveal to C.C. she had also been sexually abused by defendant until the sisters had their November 1995 conversation. Further, C.C. did not discover defendant had abused J.L. until the November 1995 conversation.

The certification of Dr. Harvey M. Hammer, a psychiatrist with significant experience in treating victims of sexual abuse, was submitted in opposition to defendant's motion to dismiss the complaint. Dr. Hammer met with each of the sisters before writing his certification. B.Z. informed Dr. Hammer she was sexually abused by defendant from age ten until her mid-teens; that she was unable to stop the abuse because her uncle "simply had too much power for her to resist what he was trying to do"; that her uncle had repeatedly groped and fondled her breasts and genitals, and often stripped and masturbated in front of her, ejaculating on her leg; and that defendant demanded she perform oral sex on him when she was approximately eleven years old.

Regarding the abuse suffered by C.C., Dr. Hammer said, "B.Z. learned [after B.Z. was married] that J.F. kissed C.C.'s genital area and touched her breasts." However, "B.Z. and C.C. did not engage in any extensive conversation with respect to J.F.'s abuse of C.C....." When B.Z. learned of C.C.'s abuse she advised C.C. to stay away from their uncle. B.Z. and C.C. informed Dr. Hammer that thereafter C.C. only had minimal contact with defendant.

J.L. advised Dr. Hammer that defendant began abusing her when she was approximately age ten or eleven; he fondled and kissed her breasts and genitals; performed oral sex on her before masturbating; and demanded she "manipulate his penis while talking `dirty.'"

Dr. Hammer certified the abuse by defendant grossly and adversely affected and damaged the sisters' "personalities, their character, and their general psychological well-being." He stated "their overwhelming sense of shame became an integral part of their character, leading to each of the sisters' feelings of emotional isolation and subsequent emotional damages." He said the sisters did not repress or forget the events but they "were simply incapable of confronting the abuse." Dr. Hammer stated, "[t]he overwhelming shame and guilt suffered by B.Z. and J.L. made it impossible for them to deal with the abuse through any mechanism other than denial."

Dr. Hammer noted the sisters did not "have a real understanding of the extent of the deprivations and damage done by the Uncle to all of them" until they learned in the fall of 1995 that each of them had been subjected to similar sexual abuse by defendant. Dr. Hammer said the sisters' "need for silence" turned into "an understandable rage when each of them understood, for the first time, that the damage suffered by each of them during their lifetimes had been caused to a very great extent by the depraved and sadistic acts committed against them by their own uncle." Dr. Hammer stated each of the sisters "has suffered serious damage, psychologically and spiritually, as a result of the sexual abuse committed on them by their Uncle." B.Z., the sister who was abused for the longest period of time, "shows significantly more damaging symptoms and trouble...." Dr. Hammer explained,

It is also clear to me that there is justifiable reason underlying [the sisters'] inability to come forward and seek redress against the Uncle at any time prior to their learning that each of the three had been subjected to his abuse. The ability to talk among themselves, to compare incidents and to compare the psychological damages and injuries suffered by each of them, led them to an understanding that each of them was not singled out, that neither of them had been ...


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