February 13, 2008
REGINA J. ANTROM, PLAINTIFF-APPELLANT,
DIVISION OF YOUTH AND FAMILY SERVICES AND FORMER COMMISSIONER JAMES M. DAVY, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, L-915-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 7, 2008
Before Judges Sabatino and Alvarez.
Plaintiff, Regina J. Antrom, appearing pro se, appeals from the dismissal by way of summary judgment of her claims against the Division of Youth and Family Services (DYFS), as well as the Division of Youth and Family Services former Commissioner James M. Davy. We affirm.
Plaintiff's name was placed on the Child Abuse Central Registry in 1991. N.J.S.A. 9:6-8.11. That year, three foster children were removed from her care because of substantiated physical abuse, although she adamantly disputes this claim. One of the children was returned to her care over a year later. In 1999, she reapplied to become a foster parent, and was then advised of the Registry listing. From November 1999 to February 2005, she sought to delete her name from the Registry, including the filing of an administrative law proceeding. For reasons not contained in this record, on February 28, 2005, DYFS wrote to plaintiff and advised that the 1991 report of child abuse was not substantiated. Antrom's name was thereafter removed from the Registry.
The following month, in March 2005, plaintiff sued DYFS and former Commissioner James M. Davy for $10,000,000. She seeks $10,000,000 in actual damages, as well as unspecified punitive damages for violation of her due process rights. On November 3, 2006, the court below granted DYFS's motion for summary judgment based on statute of limitation defenses. Thereafter, plaintiff filed for reconsideration. As a result, the motion judge directed the parties to submit additional information as to whether the Registry listing was available to the public, and whether there was a potential claim for damages for a continuing wrong actionable until the plaintiff's name was removed from the list in 2005. Upon consideration of the submissions, the motion for summary judgment was granted. As stated by the court below:
The [c]court is satisfied at this juncture that the - - the application before the [c]court is one that is squarely founded upon the issues of the statute of limitations.
Plaintiff has indicated, and there's little dispute, that she learned about being placed on this registry in 1999, that the action, the notice claim, was not filed until April 1, 2005.
The [c]court expressed some concern at the initial oral argument as to the possibility of a continuing violation, if in fact, the information contained within the DYFS list, was disseminated to the general public.
We have received the January 19, 2007 correspondence from the division, indicating that, in fact, that list is internally held and not disseminated. And if the information was released, there would be ways to track who the information was released to.
It was never requested from any outside party, nor was it released to any outside party. And, in fact, there was no damage flowing from the placement on the list to the plaintiff, as a result of the internal nature of the list.
It appears, and the [c]court is satisfied, that no one, other than the plaintiff, herself, was aware of the fact that she was on the list, other than the members of the division, itself, that contained the list.
I'm satisfied that the expiration of the statute of limitations prevents any further prosecution of this claim. The [c]court is entering an order. We agree.
The Tort Claims Act, N.J.S.A. 59:8-1 to 59:8-11, requires that a party file notice of a tort claim against a public entity within ninety days of the accrual of a claim. N.J.S.A. 59:8-8(a). N.J.S.A. 59:8-8(b) further states that a party is "forever barred" from bringing a claim if "two years have elapsed since the accrual of the claim." Plaintiff waited from 1999, when she learned of the listing, until after the removal of her name in 2005 to initiate proceedings. The act is therefore dispositive of the claim. By statute, plaintiff is barred. N.J.S.A. 59:8-8(b).
Before deciding DYFS' motion for summary judgment, the judge, in an effort to ensure that plaintiff's claims, as she is pro se, received thorough consideration, directed counsel for DYFS to research whether maintenance of plaintiff's name on the Registry constituted a continuing tort such that the statute would be tolled until her name was actually removed. This doctrine has been found to be applicable in cases where there is a continuing nuisance, or in those situations in which a hostile workplace is alleged. See, e.g., Lyons v. Twp. of Wayne, 185 N.J. 426 (2005); Wilson v. Wal-Mart Stores, 158 N.J. 263 (1999). Neither situation is the case here. Further, as to the continuing tort doctrine, one "'wrongful act with consequential damages is not a continuing tort' and does not lengthen the statute of limitations." Russo Farms v. Vineland Bd. of Educ., 144 N.J. 84, 114 (1996) (quoting Ricottilli v. Summersville Mem. Hosp., 425 S.E.2d 629, 632 (W. Va. 1992)).
New Jersey follows the single publication rule for the accrual of defamation claims. Churchill v. State, 378 N.J. Super. 471, 478 (App. Div. 2005) (citing Barres v. Holt, Rinehart & Winston, Inc., 131 N.J. Super. 371, 374 (Law Div. 1974), aff'd o.b., 141 N.J. Super. 563 (App. Div. 1976), aff'd o.b., 74 N.J. 461 (1977)). In other words, assuming for purposes of discussion, that the inclusion of plaintiff's name on the Registry was defamatory, only one discrete act was engaged in by the alleged tortfeasor in this case, namely, the initial publication of plaintiff's name on the Registry. The public does not have access to the Registry and the information was never disseminated. This rule means the statute of limitations may have commenced to run even prior to plaintiff's discovery of the listing in 1999. Therefore, the single publication doctrine defeats plaintiff's claim. As pointed out in the State's brief, even if the claim is characterized as an action alleging harm resulting from defamation, it is barred by the one-year statute of limitation on libel and slander claims. N.J.S.A. 2A:14-3.
Although not specified, plaintiff alleges violations of her due process rights pursuant to federal and state constitutions. Although the Tort Claims Act does not apply to alleged violations of 42 U.S.C.A. §1983, and federal constitutional rights, those claims are similarly barred under New Jersey's general statute of limitations applicable to personal injury claims, or two years. Wilson v. Garcia, 471 U.S. 261, 276-77, 105 S.Ct. 1938, 1947-49, 85 L.Ed. 2d 254, 266-69 (1985) (holding that state statutes of limitations apply in personal injury 42 U.S.C.A. § 1983 claims); N.J.S.A. 2A:14-2(a).
Accordingly, the judge's rationale for dismissal of the claims is entirely proper. All of plaintiff's claims are barred by operation of both the Tort Claims Act as well as the applicable statutes of limitations.
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