Legislation Clarifies Standard for Sex Abuse Suits Against Public Entities

The New Jersey Legislature is advancing a bill that clarifies the standard for liability in sexual abuse lawsuits against public entities and public employees. Senate Bill 3739 aims to address the confusion created by recently enacted Senate Bill 477, which extended the statute of limitations for civil sexual abuse claims. The new standards are identical to the liability standards applied to non-profit organizations; and their officers, employees, and other agents, based on exceptions to the immunity granted under the Charitable Immunity Act.

Senate Bill 477 Extends Statute of Limitations for Sexual Abuse

Gov. Phil Murphy signed Senate Bill 477into law on May 13, 2019.  It creates new, extended statute of limitations periods for sexual abuse, one which applies to persons abused as minors, and one which applies to persons abused after reaching 18 years of age. For child victims, suit must be filed by the 55th birthday, or within seven years of discovering the injury, whichever date is later. For adult victims, suit must be filed within seven years of discovering the injury. SB477 also establishes a two-year window during which actions may be commenced even though they would otherwise be time-barred, even after using the appropriate new, extended statute of limitations period.  

The new law also expands the categories of potential defendants in civil actions by making private and public institutions who harbor offenders liable. It specifically provides that any person who knowingly permitted or acquiesced in the sexual abuse may be civilly liable.

Under SB477, victims of sexual abuse can file lawsuits against institutions that protect the perpetrators “due to the negligent hiring, supervision or retention of an employee, agent or servant of a nonprofit corporation, society or association organized exclusively for religious, charitable, educational or hospital purposes.”

Gov. Murphy’s Signing Statement

In a statement upon signing SB 477, Murphy raised concerns that the bill creates a different standard of liability for public entities and their employees. “This section inadvertently fails to establish a standard of proof for cases involving claims filed against public entities,” he said. “If unaddressed, the lack of clarity would create uncertainty and likely lead to additional litigation.”

That provision of SB 477 states: “Notwithstanding any other provision of law to the contrary, including but not limited to the ‘New Jersey Tort Claims Act,’ N.J.S. 59:1-1 et seq., a public entity is liable in an action at law for an injury resulting from the commission of sexual assault, any other crime of a sexual nature, a prohibited sexual act … or sexual abuse[.]”

As it is worded, the provision suggests that public entities are automatically liable for sexually based offenses without plaintiffs having to offer proof. To provide clarity, the sponsors of SB 477 stated that they would introduce a separate bill. “I have received assurances that the Legislature will correct this omission by clarifying that public entities should be held to the same standard of liability that is applied to religious and nonprofit organizations,” Gov. Murphy stated. “Applying a different standard would be unjustified.”

Senate Bill 3739 Clarifies Legal Standard for Public Entities

The new bill, Senate Bill 3739, would amend the Tort Claims Act to provide: “Any immunity from civil liability granted to a public entity … or public employee shall not apply to an action at law claiming that a willful, wanton or grossly negligent act of a public entity or public employee resulted in a sexual assault, any other crime of a sexual nature, a prohibited sexual act as defined in section 2 of P.L.1992, c.7 (C.2A:61B-1) being committed against a person.”

Accordingly, a public entity or public employee could be held liable for willful, wanton or grossly negligent acts resulting in a “sexual assault, any other crime of a sexual nature, a prohibited sexual act as defined in section 2 of P.L.1992, c.7 (C.2A:30B-2), or sexual abuse as defined in section 1 of P.L.1992, c.109 (C.2A:61B-1)” being committed against a person. A public entity could also be held liable for a claim that its negligent hiring, supervision or retention of any public employee resulted in any such form of sexual abuse being committed against a minor. There would be no such “simple” negligence liability for any public employees under this cause of action, just as there is no liability for a non-profit organizations’ agents.

The bill would take effect on December 19, 2019, which is the same date SB 477 takes effect. SB 3739 also expressly indicates that once lawsuits may commence against public entities and public employers beginning on December 1, 2019, these suits, and any suits previously filed that have not yet been finally adjudicated or dismissed, would be subject to the new, extended statute of limitations, and lawsuits could, if otherwise time-barred, be brought during the two-year window.

For more information about the legislation or the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Government Law Group.

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