W.S. v. Hildreth

          OPINION

          RICHARD J. GEIGER, J.S.C.

         Before the court is plaintiff, W.S.'s^[1] 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 R. 1:6-2(f).

         Plaintiffs 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.

         This 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.

         Plaintiff 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 Hildreth.

         Plaintiff 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.

         Plaintiff 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.

         The 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.

         Plaintiffs 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.

         NOTICE REQUIREMENTS UNDER THE TORT CLAIMS ACT

         Claims 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.

         The TCA 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 ...