On appeal from Superior Court of New Jersey, Law Division, Hunterdon County, No. L-358-06.
The opinion of the court was delivered by: Wefing, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, R. B. Coleman, and Lyons.
Plaintiff appeals from a trial court order granting defendant's motion for summary judgment, and defendant has filed a cross-appeal. After reviewing the record in light of the contentions advanced on appeal, we reverse and remand for further proceedings and dismiss the cross-appeal.
In July 2004 plaintiff and defendant were both employees of South Hunterdon Regional Board of Education. Plaintiff alleged that on July 20, 2004, when they were both on the premises of South Hunterdon Regional High School, defendant sexually assaulted her. In October 2004 plaintiff filed a claim for workers compensation benefits and notified the police. In December 2004 plaintiff filed a motion seeking leave to file a late notice of claim under the Tort Claims Act, N.J.S.A. 59:8-9. Defendant was not a party to that proceeding. The trial court denied plaintiff's motion, finding plaintiff had not established extraordinary circumstances. Plaintiff appealed, and we affirmed in an unpublished opinion. Gazzillo v. Board of Education, No. A-3167-04T1 (App. Div. Jan. 25, 2006). The Supreme Court denied plaintiff's petition for certification. 186 N.J. 365 (2006). In August 2005, between the trial court's denial of plaintiff's motion to file a late notice of claim and this court's affirmance of that decision, defendant pled guilty to the crime of criminal sexual contact. N.J.S.A. 2C:14-3.
In July 2006 plaintiff filed the instant complaint against defendant individually. She did not name the school board as a defendant. Defendant moved for summary judgment, contending that plaintiff could not proceed against him because of the earlier denial of plaintiff's motion for leave to file a late notice of claim on the school board. The trial court, citing Velez v. City of Jersey City, 180 N.J. 284 (2004), and Bonitsis v. N.J. Inst. of Tech., 363 N.J. Super. 505 (App. Div. 2003), certif. denied, 180 N.J. 456, rev'd, 180 N.J. 450 (2004), agreed and granted defendant's motion. This appeal followed.
We agree with plaintiff's contention that Velez and Bonitsis are both distinguishable from the present matter. The plaintiff in Velez was an employee of Jersey City who approached her councilman to seek his assistance in obtaining child support from her former husband. 180 N.J. at 286. When his efforts were successful, she went to his office to thank him in person; she alleged that he refused her handshake and instead grabbed her to hug her, and fondled and groped her until she was able to break free. Id. at 286-87. She filed suit against the City and the councilman, asserting a variety of claims, including assault and battery and violations of the Law Against Discrimination, N.J.S.A. 10:5-1 to -49. The trial court dismissed all of the plaintiff's common law claims based on her failure to file a tort notice of claim. Id. at 287. This court reversed, holding, inter alia, that the conduct of the councilman, if true, constituted outrageous conduct which would deprive the councilman of his statutory immunity. Velez v. City of Jersey City, 358 N.J. Super. 224, 240 (App. Div. 2003). On that basis, we concluded that the plaintiff was not required to file a notice of claim in order to maintain her suit. Ibid.
The Supreme Court, however, ruled that "a plaintiff must give a public entity written notice, pursuant to the Act, prior to filing a common law intentional tort action against a public employee." 180 N.J. at 286. The Velez Court recognized that its decision was a new rule of law; it thus held that it was to be "applied prospectively to all similar causes of action accruing after the date of this opinion." Id. at 297. Plaintiff Gazzillo was assaulted approximately three weeks after the Court rendered its decision in Velez.
The plaintiff in Bonitsis was an associate professor at the defendant Institute of Technology. 363 N.J. Super. at 510. He filed a multi-count complaint against the school and several of its professional employees, including counts asserting that two of the individual defendants had tortiously interfered with his contract of employment and had intentionally inflicted emotional distress upon him. Id. at 510. We affirmed the trial court's dismissal of these claims for failure to file a notice of claim. Id. at 511.
We reached this conclusion for several reasons. We noted that the language of the tort claims statute did not distinguish between negligent and intentional torts in its provision for serving a notice of claim. Id. at 520-21. We also recognized the underlying purpose of the statute's notice provisions.
(1) to allow the public entity at least six months for administrative review with the opportunity to settle meritorious claims prior to the bringing of suit; (2) to provide the public entity with prompt notification of a claim in order to adequately investigate the facts and prepare a defense; (3) to afford the public entity a chance to correct the conditions or practices which gave rise to the claim; and (4) to inform the State in advance as to the indebtedness or liability that it may be expected to meet. [Id. at 518 (quoting Beauchamp v. Amedio, 164 N.J. 111, 121-22 (2000) (internal citations omitted).]
We were satisfied that requiring a notice of a claim in the event of a claimed intentional tort by a public employee would further ...