On appeal from Superior Court of New Jersey, Law Division, Mercer County, MER-L-2646-03.
The opinion of the court was delivered by: Holston, Jr., J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 21, 2007
Before Judges Stern, Lisa and Holston, Jr.
In this case, plaintiff, J.H., filed a Law Division complaint alleging child sexual abuse under the Child Sexual Abuse Act (CSAA), N.J.S.A. 2A:61B-1, and other common-law causes of action. Plaintiff sought compensatory and punitive damages for his emotional distress which he alleges was proximately caused by sexual abuse inflicted upon him by defendant, Monet Mason,*fn1 an adult youth worker at defendant, Mercer County Youth Detention Center (Detention Center),*fn2 when he was a minor being detained in the Detention Center. The Detention Center is operated by defendant, Mercer County, under the direction of the Mercer County Department of Human Services (DHS).*fn3
N.J.S.A. 2A:61B-1 states in applicable part: "'Sexual abuse' means an act of sexual contact or sexual penetration between a child under the age of 18 years and an adult. A . . . guardian or other person standing in loco parentis within the household who knowingly permits or acquiesces in sexual abuse by any other person also commits sexual abuse."
In this appeal we must determine whether the Detention Center constitutes a "person standing in loco parentis within the household" of plaintiff under the CSAA within the meaning of N.J.S.A. 2A:61B-1. See Hardwicke v. American Boychoir School, 188 N.J. 69 (2006). For the reasons that follow, we hold that the Detention Center falls within the statutory definition of a "person standing in loco parentis within the household" of plaintiff under the CSAA.
We must also determine whether the immunities granted to public entities under the New Jersey Tort Claims Act (TCA) provisions, N.J.S.A. 59:2-10 and N.J.S.A. 59:9-2(c) and (d), bar plaintiff's causes of action against the County defendants both under the CSAA and under the common-law torts of negligence and intentional infliction of emotional distress. We hold that the TCA does not bar plaintiff's claims under the CSAA for compensatory and punitive damages but plaintiff's failure to meet the medical expense threshold of the TCA bars his common-law claims against the County defendants.
On October 8, 2003, plaintiff filed a four-count complaint against the County defendants and Mason. Plaintiff sought compensatory and punitive damages based on violations of the CSAA (first count); common-law negligence (count two); intentional infliction of emotional distress (count three), and for punitive damages on the common-law claims (count four).
On December 5, 2005, the motion judge granted partial summary judgment dismissing with prejudice counts two, three and four and on January 23, 2006, granted summary judgment as to count one and denied plaintiff's motion for reconsideration of its December 5, 2005 ruling. The court's December 5, 2005 and January 23, 2006 oral opinions were memorialized in the court's order of January 23, 2006 and amended order of February 2, 2006.
The motion judge in granting summary judgment to the County defendants found that the CSAA does not apply to public entities and that plaintiff's common-law claims were barred by the limitation of damages provisions of the TCA, N.J.S.A. 59:9-2(c) and (d). Based on the court's analysis of the parties' factual contentions, the court determined that those in a supervisory position at the Detention Center were not proven to have knowledge of Mason's sexual abuse of plaintiff. Because in sexually abusing plaintiff, Mason was engaged in willful misconduct outside the scope of her employment, the court also determined that, as public employers, the County defendants cannot be held vicariously liable for Mason's intentional torts and are immune from liability pursuant to N.J.S.A. 59:2-10 and our decision in Cosgrove v. Lawrence, 215 N.J. Super. 561, 563 (App. Div. 1987). We affirm the court's dismissal of counts two, three and four and reverse the court's dismissal of count one.
The factual contentions underlying this appeal are in dispute. Applying the standard for summary judgment motions contained in Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 535-36 (1995), we state the facts viewed in the light most favorable to plaintiff.
On November 22, 2002, at age seventeen, plaintiff was placed in the Detention Center and remained there until he was released on May 21, 2003. From the date of his detention until his birthday on March 7, 2003, plaintiff was a minor under the age of eighteen.
On or about December 5, 2002, Mason, age twenty-four, a female youth worker employed by the Detention Center, and a person who had supervisory authority over plaintiff, initiated a sexual relationship with plaintiff. Mason continued the sexual relationship with plaintiff until he was released from the Detention Center and, thereafter, until June 15, 2003, when plaintiff terminated the relationship. Plaintiff claims he acquiesced in Mason's sexual demands while a minor and detainee at the Detention Center because he feared her, i.e., he was concerned Mason would fabricate complaints against him, including making false charges against him, thereby prolonging his detention if he refused her advances.
While plaintiff was a minor and detainee at the Detention Center, Mason coerced and manipulated him by providing him with "goodies" including cigarettes, pornographic magazines, cognac, and a lubricant for use when engaging in anal intercourse. The sexual acts Mason enticed him to engage in with her on a regular basis in his room at the Detention Center and elsewhere in the facility were vaginal intercourse, anal intercourse and the performance of oral sex on him.
Plaintiff told youth worker supervisor, Ronald Matlock, that Mason was giving him cigarettes as a bribe and told Matlock about his sexual relationship with Mason, but Matlock did nothing to stop Mason's sexual advances. The sexual relationship between Mason and plaintiff was known to Debbinique McBride, another youth worker at the detention center, who initiated a like sexual relationship with A.B., another minor detainee.
Llionel Henderson, the Detention Center superintendent, stated that after December 5, 2002 and into the year 2003, there were several incidents in the building involving contraband which was found during shakedowns. Henderson believed that the contraband found was brought into the Detention Center by staff members Mason and McBride to give to plaintiff and A.B., with whom they were fraternizing. Henderson also confirmed that in early February 2003, after conducting a shakedown in the yellow pod where plaintiff was housed, holiday liquor bottle gift bags, pornographic material and a lubricant which plaintiff and A.B. claimed they received from staff were found.
C.K., another detainee, recalled that sometime between February and mid-April 2003, he saw "on an every day-every other day basis" Mason go into plaintiff's room and remain there from one-half hour to an hour. He stated that as a result of being questioned by youth worker Keith Williams, C.K. made Williams aware of Mason going into plaintiff's room.
On his March 7, 2003 birthday, plaintiff became intoxicated. Youth worker Gerard Sanders discovered liquor bottles and told Henderson that Mason and McBride had brought plaintiff alcohol. Shortly thereafter, Sanders told Henderson of his suspicion that Mason had become too familiar with plaintiff and A.B. because she was always taking her breaks in their pod. As a result, Mason's 3-11 p.m. supervisor was made aware of the suspicions involving Mason and McBride. An official incident report dated May 8, 2003 notes that personal lubricant and one adult magazine were found in plaintiff's room.
Plaintiff alleges that Matlock, Williams and Sanders knew or should have known Mason was subjecting him to sexual abuse and permitted or acquiesced in Mason's sexual abuse of him contrary to the CSAA. Alternatively, Detention Center supervisors were negligent in their failure to exercise, on behalf of the County defendants, their non-delegable duty to insure plaintiff's safety from child sexual abuse. Therefore, the County defendants were liable for the common-law torts of negligence and the intentional infliction of emotional distress for the sexual abuse perpetrated upon him by Mason.
Plaintiff contends as a result of the sexual abuse by Mason and because of the Detention Center's youth workers' and supervisors' failure to stop the abuse that he suffers from sleep interruption, nightmares and flash-backs, has self-medicated by abusing alcohol, and is sexually dysfunctional. As a result, after a psychiatric evaluation in January 2004, by a psychiatrist at Catholic Charities who diagnosed plaintiff with post-traumatic stress disorder (PTSD), characterized by recurrent intrusive thoughts of the traumatic experiences and disorganization of his thinking patterns due to those intrusive thoughts, plaintiff underwent psychotherapy on ten occasions at Catholic Charities from January 3, 2004 until June 2004. Plaintiff, in addition, was prescribed the psychotropic medications Lexapro and Paxil. Plaintiff incurred medical expenses of $1300 for the psychotherapy and medical management.
In a January 11, 2005 medical report Dr. Richard Rubin, a psychiatrist retained by plaintiff, rendered an opinion based on his examination of plaintiff and review of Catholic Charities' progress notes. Dr. Rubin opined that the "events" which occurred to plaintiff while he was a minor detained in the Detention Center combined with his pre-existing personality disorder, based on his substantial juvenile arrest history, have caused him permanent emotional damage. Dr. Rubin stated that treatment would merely be an attempt to ameliorate the situation and prevent his condition from becoming worse. In a certification, attached to plaintiff's supplemental brief in support of reconsideration of summary judgment on ...