Superior Court of New Jersey, Law Division, Cumberland
RICHARD J. GEIGER, J.S.C.
the court is plaintiff, W.S.'s motion for leave to file a
late tort claim notice against defendants, Derek Hildreth,
Lawrence Township School District and Myron L. Powell
Elementary School and its teachers, directors, officers,
employees, agents, counselors, servants or volunteers.
Plaintiffs motion was filed on January 20, 2017. The motion
was originally returnable February 17, 2017, but was
adjourned by the court to March 17, 2017, to provide
additional time for plaintiff to serve defendants with a copy
of the motion papers. Plaintiff served a copy of the motion
papers on defendants on February 16, 2017, by certified mail
and regular mail. Defendants did not submit any opposing
papers or otherwise oppose the motion. Although the notice of
motion indicated that plaintiff requested oral argument,
plaintiffs attorney did not appear on the rescheduled motion
return date for oral argument. The court took the motion
under advisement and issues this Opinion pursuant to
moving papers consist of his notice of motion, a
certification of his attorney, a short brief, a verifying
certification by plaintiff, and a proof of mailing. The
moving papers do not include any affidavits or certifications
of treatment providers or experts, or any medical records.
matter arises out of two alleged incidents occurring in the
Spring of 1997, when plaintiff was a sixth grade student at
the Myron L. Powell Elementary School in Lawrence Township,
Cumberland County, New Jersey. Plaintiff alleges that he was
sexually assaulted during those incidents by teacher Derek
Hildreth. He claims that the school system did nothing to
protect its students from Hildreth.
further alleges that his allegations against Hildreth are
similar to the allegations of four others who were also
Hildreth's students. This led to plaintiff meeting with
Detective Abdill of the New Jersey State Police, in the
presence of his attorney, on January 11, 2017. At that time
plaintiffs attorney purportedly first became aware of the
exact details of the sexual abuse perpetrated on plaintiff by
is now an adult. The court infers that he was approximately
eleven years old when the alleged incidents occurred while he
attended the sixth grade in 1997. Therefore, plaintiff
reached the age of 18 in or about 2004. He is now
approximately 30 years old.
contends that, for the first time as an adult, he felt
damaged by the sexual abuse when he began telling others in
April 2016 that he had been sexually abused by Hildreth.
Plaintiff reported the sexual abuse to his ex-wife and then
girlfriend during that time frame. By that point, plaintiff
had been married and divorced. Plaintiff claims that he was
embarrassed, ashamed and fearful to come forth sooner.
motion record indicates that on unspecified dates, plaintiff
tried to commit suicide twice. After being released by a
crisis center, he was arrested on an unspecified date by the
Somers Point Police Department and was incarcerated for an
unspecified time period until he was able to post bail on or
about December 8, 2016.
attorney also represents plaintiff in a criminal proceeding
in which he is charged with sexual assault in violation of
N.J.S.A. 2C:14-2. In the course of preparing his defense,
plaintiffs attorney met with plaintiff on November 16, 2016.
In the course of that representation, plaintiff told his
attorney that he was sexually abused by Hildreth. Plaintiffs
counsel represents, however, that he first became aware of
the "exact details" of the incidents on January 11,
2017, when plaintiff gave a statement to Detective Abdill.
REQUIREMENTS UNDER THE TORT CLAIMS ACT
against public entities and public employees are governed by
the New Jersey Tort Claims Act ("TCA"),
N.J.S.A.59A-1 to:12-3. Claimants must serve a notice of tort
claim in accordance with the requirements imposed by the TCA.
N.J.S.A. 59:8-3. A tort claim notice must be served within 90
days of the accrual of the cause of action. N.J.S.A. 59:8-8.
The claimant is barred from recovering against a public
entity or public employee unless he files a tort claim notice
with the public entity within 90 days of accrual of the claim
except as otherwise provided in N.J.S.A. 59:8-9. N.J.S.A.
59:8-8(a). However, the time periods for notice and the
statute of limitations are tolled until the claimant reaches
the age of majority or returns to mental capacity. N.J.S.A.
59:8-8; Lebron v. Sanchez, 407 N.J.Super. 204, 214
(App. Div. 2009). The age of majority is 18, not 21.
Green v. Auerbach Chev. Corp., 127 N.J. 591 (1992).
Plaintiff reached the age of majority in or about 2004.
provides the following exception to the 90-day time limit if
extraordinary circumstances are present:
A claimant who fails to file a notice of his claim within 90
days as provided in section 59:8-8 of this act, may, in the
discretion of a judge of the Superior Court, be permitted to
file such notice at any time within one year after the
accrual of his claim provided that the public entity or the
public employee has not been substantially prejudiced
thereby. Application to the court for permission to file a
late notice of claim shall be made upon motion supported by
affidavits based upon personal knowledge of the affiant
showing sufficient reasons constituting extraordinary
circumstances for his failure to file notice of claim within
the period of time prescribed by section 59:8-8 of this act
or to file a motion seeking leave to file a late notice of
claim within a reasonable ...