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H.C. and F.F v. Sisters of the Catholic Apostolate

September 30, 2011

H.C. AND F.F., PLAINTIFFS-APPELLANTS,
v.
SISTERS OF THE CATHOLIC APOSTOLATE, PALLOTTINE SISTERS, DEFENDANTS-RESPONDENTS, AND SACRED HEART ORPHANAGE, ARCHDIOCESE OF NEWARK, SISTER M. REGINA, SISTER FORTUNATA, SISTER ANASTASIA, SISTER AURELLA, DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-7753-05.

Per curiam.

RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 13, 2011

Before Judges Payne, Reisner, and Simonelli.

Plaintiffs H.C. and F.F. appeal from an October 4, 2010 order dismissing on statute of limitations grounds their complaint against defendants Sisters of the Catholic Apostolate and Pallottine Sisters.*fn1 Plaintiffs, two men now in their eighties, alleged that while they were living in a Catholic orphanage from 1937 to 1943, several of the nuns who worked at the orphanage sexually molested them.*fn2

Plaintiffs did not file suit until 2005. After a Lopez*fn3 hearing, the trial judge concluded that plaintiffs' causes of action accrued years before they filed their complaint and they failed to produce credible evidence justifying the application of equitable tolling principles. Having reviewed the entire record, we find no basis to disturb the trial judge's credibility determinations and other factual findings. See Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). Therefore, we affirm.

I Before beginning our discussion of the evidence in this case, we briefly review the legal standards plaintiffs needed to satisfy in order to maintain a cause of action based on events alleged to have occurred more than sixty years earlier.

The Child Sexual Abuse Act (Act), N.J.S.A. 2A:61B-1, was enacted in 1992. The Act defines the accrual date of a cause of action for child sexual abuse as well as the standard for tolling the statute of limitations:

b. In any civil action for injury or illness based on sexual abuse, the cause of action shall accrue at the time of reasonable discovery of the injury and its causal relationship to the act of sexual abuse. Any such action shall be brought within two years after reasonable discovery.

c. Nothing in this act is intended to preclude the court from finding that the statute of limitations was tolled in a case because of the plaintiff's mental state, duress by the defendant, or any other equitable grounds. Such a finding shall be made after a plenary hearing. At the plenary hearing the court shall hear all credible evidence and the Rules of Evidence shall not apply, except for Rule 403 or a valid claim of privilege. The court may order an independent psychiatric evaluation of the plaintiff in order to assist in the determination as to whether the statute of limitations was tolled. [N.J.S.A. 2A:61B-1(b), (c).]

As the Supreme Court acknowledged in R.L. v. Voytac, 199 N.J. 285 (2009), the Act is remedial legislation, which recognizes that child sexual abuse may cause psychological injury that the victim does not connect to the abuse until years after it occurs. Therefore, the Act incorporates the discovery rule in defining the accrual of the cause of action:

The plain words of the Act identify two events that must occur before a cause of action may accrue: the "reasonable discovery" of both (1) the existence of the injury and (2) the causal relationship of that injury to the acts of sexual abuse.

This two-pronged approach was established "[b]ecause of the unique nature of sexual abuse, which may only be discovered by an adult victim after years of repression."

Senate Judiciary Committee, Statement to S.B. 257, February 24, 1992, at 1, reprinted in N.J.S.A. 2A:61B-1. [Id. at 299.]

The Court held that the Act requires a two-step approach, giving a plaintiff essentially two opportunities to file what would otherwise be considered a very untimely complaint. First, to establish when the cause of action accrued, under section 61B-1b, a plaintiff must meet an objective reasonableness standard:

Because the cause of action is meant solely for victims of child sexual abuse, we believe the Legislature intended for the objective standard of reasonableness upon discovering the connection between the abuse and his or her injuries to refer to a reasonable person who has been subjected to sexual abuse as a child. Thus, we hold that a trial court must determine, based on the totality of the circumstances, when the injured party in fact discovered, or when a reasonable person subjected to child sexual abuse should have discovered, that the claimed injury was causally related to the asserted child ...


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