On appeal from Superior Court of New Jersey, Law Division, Essex County, L-8144-05.
The opinion of the court was delivered by: Grall, J.A.D.
RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parker, Grall and Newman.
In 2004, R.L. graduated from a high school in the State-Operated School District of the City of Newark (District). On May 5, 2005, he learned that he is infected with the human immunodeficiency virus (HIV). R.L. contends that he contracted the disease as a consequence of a sexual relationship with his teacher, who was also the school's band director. The sexual relationship commenced during his junior year of high school and continued until July 2004.
R.L. acknowledges that any claim he has against the District and its employees is subject to the New Jersey Tort Claims Act (the Act), N.J.S.A. 59:1-1 to :12-3. On October 7, 2005, he moved for leave to file a notice of claim more than ninety days after the accrual of his cause of action. See N.J.S.A. 59:8-8; N.J.S.A. 59:8-9. The trial court granted that motion, and this court granted the District's motion for leave to appeal. See Moon v. Warren Haven Nursing Home, 182 N.J. 507, 508 (2005) (order granting leave to file notice of claim is interlocutory).
This case raises two issues. We first consider the accrual date and conclude that it was May 5, 2005, the date R.L. learned that he was harmed by the intercourse. See J.L. v. J.F., 317 N.J. Super. 418, 433-34 (App. Div.), certif. denied, 158 N.J. 685 (1999); Maher v. County of Mercer, 384 N.J. Super. 182, 189 (App. Div. 2006). We next consider whether the motion judge erred in granting leave to file this claim later than the ninetieth day after discovery and conclude that the judge did not misapply the statutory criteria or otherwise abuse her discretion. N.J.S.A. 59:8-9.
R.L.'s certification in support of his motion provided the following information relevant to the decision on appeal. In the fall of 2000, R.L. was a fourteen-year-old freshman at the high school and a member of the band. His music teacher, also the band director, took an interest in him and touched him "in a sexual manner." There is no evidence that this sexual contact advanced beyond groping through clothing during that year.
R.L. reported the incidents to his aunt, who was his guardian. She removed him from the school and enrolled him in a high school in another city. Prior to his sophomore year, R.L. returned to Newark to live with his sister and re-enrolled in the same high school. He was placed in a class taught by the same teacher.
R.L. asked his guidance counselor to transfer him but did not give a reason for that request. As the year progressed, he told her about the incidents that occurred during his freshman year. The counselor arranged for R.L., his aunt and his sister to meet with a social worker. No action was taken following that meeting, and there were no additional incidents of sexual contact that year. When R.L. returned to school for his junior year, his guidance counselor and the social worker were no longer working at the high school.
During R.L.'s junior year, the sexual conduct resumed under different circumstances. R.L. was in the band. The teacher, who was still the band director, flirted with him at school and band events and offered him rides. He invited R.L. to his cousin's apartment, where he gave him alcohol and "weed." They had sex. After the first encounter, the conduct was repeated on a regular basis. The last incident occurred within a month of R.L.'s graduation and shortly after his eighteenth birthday.
In April 2005 R.L.'s friend suggested that he be tested for HIV and R.L. agreed. On May 5, 2005, R.L. learned that the test was positive. Before the end of May, he reported the illness and the teacher's conduct to the Newark Board of Education. On June 1, 2005, R.L. reported the teacher's conduct to the Newark Police Department. The teacher's employment with the District was terminated for reasons not clear on the record before us.
Following his diagnosis, R.L. was "very distressed." He cried every day and rarely left his home. Family and friends cared for him. He felt like he was going to have a nervous breakdown and was preoccupied with thoughts of death. Although R.L. felt compelled to take action to protect other students by reporting to school officials and police, he ...