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G.A.-H. v. K.G.G.

Superior Court of New Jersey, Appellate Division

June 22, 2018

G.A.-H., Plaintiff-Appellant/ Cross-Respondent,
v.
K.G.G., Defendant, and A.M., Defendant-Respondent/ Cross-Appellant, and GEM AMBULANCE, LLC, 1 and LAKEWOOD S.C. UNITED, Defendants-Respondents, and MONMOUTH OCEAN SOCCER ASSOCIATION a/k/a MOSA, JERSEY SHORE BOCA, and JERSEY SHORE BOCA JR FC LEAGUE, Defendants.

          Argued May 15, 2018 [1]

          On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-0418-15.

          Ramon M. Gonzalez argued the cause for appellant/cross-respondent (Gonzalez & Caride, attorneys; Ramon M. Gonzalez and Robert M. Mayerovic, on the briefs).

          Frances Wang Deveney argued the cause for respondent/cross-appellant (Marks, O'Neill, O'Brien, Doherty & Kelly, PC, attorneys; Frances Wang Deveney, of counsel; Sophia G. Tyris and Shannon B. Adamson, on the briefs).

          George R. Hardin argued the cause for respondent GEM Ambulance, LLC (Hardin, Kundla, McKeon & Poletto, PA, attorneys; George R. Hardin, of counsel; George R. Hardin and John R. Scott, on the briefs).

          Mitchell S. Berman argued the cause for Philadelphia Indemnity Insurance Company [2] (Mitchell S. Berman LLC, attorney; Mitchell S. Berman, on the brief).

          Shiraz Imran Deen, Assistant Prosecutor, argued the cause for respondent Ocean County Prosecutor's Office (Joseph D. Coronato, Ocean County Prosecutor, attorney; Samuel Marzarella, Chief Appellate Attorney, of counsel; Shiraz Imran Deen, Assistant Prosecutor, on the brief).

          Before Judges Fisher, Fasciale and Natali.

          OPINION

          FISHER, P.J.A.D.

         In this appeal, we examine whether tort liability may be imposed when one remains silent and fails to warn a victim or alert authorities despite knowledge or a reason to suspect that a co-worker has engaged in the sexual abuse of a minor. In our view, the common law does not necessarily preclude the imposition of such a duty. Ultimately, that issue must await further development of the facts surrounding the relationship between the abuser and his co-worker, as well as the facts regarding the co-worker's awareness of the abuse that was unduly limited by the trial judge's failure to permit plaintiff discovery of evidence in the prosecutor's possession.

         This matter has its genesis in an emergency medical technician's unlawful sexual relationship with plaintiff G.A.-H. (Georgia), who was then fifteen years old. Having already obtained a default judgment against that EMT - defendant K.G.G. (Kenneth), who was criminally convicted and is now incarcerated - Georgia seeks damages against the remaining defendants: A.M. (Arthur), another EMT who worked with Kenneth; GEM Ambulance, LLC, their employer; and Lakewood S.C. United, a recreational soccer club alleged to have created an opportunity for the illicit relationship to occur.[3] In the proceedings that followed, the trial judge: (1) limited or precluded Georgia's pursuit of discovery from the Ocean County Prosecutor; (2) granted summary judgment to both Arthur and GEM; and (3) denied Georgia the opportunity to reinstate her claim against Lakewood S.C. United that had been administratively dismissed. We either reverse or vacate these rulings and remand for further proceedings in all respects.[4]

         I

         We need only briefly discuss Georgia's arguments regarding the judge's decision not to require a turnover or even an in camera review of materials gathered by the prosecutor during a criminal investigation that led to Kenneth's conviction. In a series of orders, the judge concluded that Georgia failed to provide sufficient evidence of a sustainable claim against Arthur to warrant further discovery from the prosecutor of explicit images of Georgia that were in Kenneth's possession and that may have been viewed by Arthur.[5] The judge similarly denied Georgia the opportunity to examine videotaped statements made by Arthur to police; these particular materials may have been reviewed by the judge in camera - the record is not clear to us - but we can locate in the record no stated rationale for the judge's decision denying access to this information to the victim of the crime.

         The prosecutor has expressed to us a willingness to turnover relevant materials so long as the trial judge remains involved and controls further dissemination. With entry of an appropriate protective order, the prosecutor may be assured that the sensitive materials in his possession will not be disseminated beyond what is necessary to allow the victim of the crime to prosecute this civil action. Consequently, we reject Arthur's opposition[6] to the turnover of any further evidence in the prosecutor's possession. And we find insufficient merit to warrant further discussion in this opinion, R. 2:11-3(e)(1)(E), in the argument that a turnover of these materials would violate the Adam Walsh Act, N.J.S.A. 2C:24-4(b)(5)(a), which criminalizes receipt of child pornography, or that a turnover would cause additional injury to the victim of the crime. We cannot imagine the Legislature intended to frustrate a victim's pursuit of a civil remedy by invoking the very laws designed to protect her.

         We reverse the orders that foreclosed this discovery and remand for an in camera review of the materials sought, as well as the judge's further consideration of Georgia's discovery requests, particularly in light of our reversal of the ...


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