T.L. v. DAVID SCHECK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

T.L.,

Plaintiff-Appellant,

v.

DAVID SCHECK,

Defendant,

and

VINCENT RUFINO, and WEST MORRIS

AREA REGIONAL HIGH SCHOOL

improperly pleaded as WEST MORRIS

AREA REGIONAL HIGH SCHOOL,

Defendants-Respondents.

______________________________________________

May 19, 2016

Submitted1 April 12, 2016 Decided

Before Judges St. John and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-2166-11.

Heymann & Fletcher, attorneys for appellant (Ronald S. Heymann, on the brief).

Gold, Albanese & Barletti, LLC, attorneys for respondents (Randall S. Bruckman, on the brief).

PER CURIAM

Plaintiff T.L. appeals from a February 3, 2012 Law Division order granting summary judgment in favor of defendants West Morris Area Regional High School District (West Morris) and Vincent Rufino. The motion judge determined that plaintiff's claims were not timely filed as required by the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to -12-3. We affirm.

We glean the following facts from the record and view them, as did the motion judge, in the light most favorable to plaintiff. Strawn v. Canuso, 140 N.J. 43, 48 (1995). In 2007, plaintiff was enrolled as a sophomore at West Morris. Plaintiff was very active in the school's music department and a member of the school band and orchestra.

Defendant David Scheck was a teacher at West Morris and plaintiff's music instructor. Defendant sent plaintiff a friend request on her MySpace2 account. When plaintiff questioned defendant if he would get in trouble for contacting her, he responded that he was not returning to the school the following year.

In May 2007, plaintiff was selected to attend an event at Rutgers University as a representative of the West Morris music department. During the trip, plaintiff stayed at a hotel and Scheck came to the hotel to see her. Within one or two weeks of the Rutgers trip, plaintiff and Scheck engaged in kissing in Scheck's office after school. This progressed to Scheck digitally penetrating plaintiff's vagina in band practice rooms after school.

When Scheck began to contact plaintiff by phone, plaintiff expressed concern that someone at school would find out about their relationship. Scheck repeated that it was not a problem because the administration was not renewing his contract. During this time, Scheck visited plaintiff at her parents' home. Plaintiff believed Scheck when he told her they would be together after she turned eighteen, and stated that she "cared for him very much."

Plaintiff's classmates, a teacher, and the supervisor of the music department all took note of the time plaintiff was spending with Scheck. Vincent Rufino, the supervisor, told Scheck not to spend so much time with females in his office at a time when plaintiff was spending all of her free time there. A teacher told plaintiff's parents that plaintiff was spending too much time with Scheck.

Plaintiff's parents grew suspicious after seeing Scheck's phone number repeatedly appear on plaintiff's cell phone. Plaintiff's mother contacted school officials and was told that the number belonged to Scheck.

Police were notified and two officers responded to West Morris on June 18, 2007. Plaintiff and her parents were interviewed, but plaintiff would not admit to any relationship with Scheck. The West Morris superintendent relieved Scheck from his end of the year responsibilities, and he was not rehired for the next school year.

The police investigation continued, and Scheck was arrested in November 2007 and charged with aggravated assault, sexual assault, aggravated criminal sexual contact, criminal sexual contact, and endangering the welfare of a minor. A ten-count indictment was filed, charging defendant in August 2009. He pled guilty in May 2014 to official misconduct and a reduced charge of fourth-degree criminal sexual contact.

On November 23, 2010, plaintiff's counsel filed a notice of tort claim against West Morris and Scheck. On July 29, 2011, plaintiff filed a complaint against West Morris, Rufino, and Scheck. Plaintiff alleged that Scheck had an inappropriate relationship with her, Rufino was negligent in failing to properly supervise Scheck and failing to advise his supervisors of the inappropriate relationship, and West Morris was negligent in that it breached its duty to effectively hire, train, supervise, and monitor its employees.

In their answer, defendants West Morris and Rufino pled, as an affirmative defense, that plaintiff failed to comply with the notice provisions of the Tort Claims Act, N.J.S.A. 59:8-8. Defendants then filed a motion for summary judgment.

In her certification filed in opposition to defendants' motion, plaintiff stated that she was angry with her parents and felt betrayed when they contacted West Morris regarding her relationship with Scheck. She cared for Scheck, tried to talk to him in the summer after he was fired, and continued to deny to the police that their relationship was anything more than just text messages. Plaintiff continued her efforts to contact Scheck until his arrest. She looked forward to court dates so she would have an opportunity to see Scheck, and maintained hope that they would get back together.

On December 1, 2007, the Star-Ledger published an article about Scheck's arrest for having inappropriate relations with a fifteen-year-old student. The article included the plaintiff's online screen name. Plaintiff claimed that the article made her feel exposed, stating "[i]t was as if that publication of my private information which identified me ended my idealizations. . . . I began to understand that certain boundaries had been destroyed."

Plaintiff began therapy in January 2008, when she was sixteen years old. A report from her therapist indicates that she presented as "angry and oppositional," did not view herself as a victim, did not feel Scheck did anything wrong, and felt responsible for his arrest. Her therapist concluded that plaintiff was in denial, defensive of Scheck, and not ready to start treatment.

When plaintiff next saw her therapist in July 2008, she was not "dramatically" different and still declared her love for Scheck. By February 2009, her therapist noted that plaintiff had come to accept that Scheck exploited her for his own gratification and questioned whether Scheck had used her. Plaintiff felt angry and hurt by Scheck.

In July 2010, between plaintiff's freshman and sophomore years of college, she again met with her therapist, who noted that plaintiff believed that Scheck had abused her and that he was the perpetrator of a crime.

On July 20, 2011, nine days before she filed her complaint, plaintiff told her therapist that she was conflicted about pursuing a civil suit and, although her parents favored the suit, she was ambivalent about whether it was a good use of her time and energy.

On February 3, 2012, the court heard oral argument on defendants' summary judgment motion. The judge noted that plaintiff turned eighteen on August 7, 2009, and her TCA notice was due within ninety days of that date, or by November 5, 2009. Her TCA notice was not served until November 23, 2010.

The judge also noted a discrepancy in plaintiff's certification in opposition to summary judgment in which she claimed that she went see her attorney, Ronald Heymann, in November 2009, right after the Star-Ledger published her story in October 2009. The judge noted that the Star-Ledger article had actually been published almost two years earlier, on December 1, 2007, the day after Scheck was arrested.

The judge considered the notes from plaintiff's therapist and determined that, based on plaintiff's statements contained therein, her cause of action accrued no later than July 20, 2010, if not earlier, on February 3, 2009. He rejected plaintiff's argument that her cause of action did not accrue until she finally realized through therapy that she should see a lawyer.3

On appeal, plaintiff maintains that the "discovery rule" applies and plaintiff did not "discover" her abuse until November 2009, thereby tolling the accrual date for purposes of the TCA. She also maintains that she presented extraordinary circumstances for not filing a notice of tort claim within the requisite period, and that the underlying goals of the notice provision have been met where defendants were aware of the facts underlying plaintiff's claims.

Our review of a trial court's summary judgment order is de novo, and an appellate court applies the same legal standard as the trial court. Bhagat v. Bhagat, 217 N.J. 22, 38 (2014) (citing [10] W.J.A. v. D.A., 210 N.J. 229, 237-38 (2012)). A motion for summary judgment should be granted only when the moving party establishes the absence of any genuine issue as to a material fact. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 539-40 (1995). The court is obligated to view the facts in the light most favorable to the non-moving party. Guido v. Duane Morris, LLP, 202 N.J. 79, 82 (2010). If there is no genuine issue of material fact, a reviewing court decides whether the trial court's ruling on the law was correct. Prudential Prop.& Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167-68 (App. Div.), certif. denied, 154 N.J. 608 (1998). This review affords no deference to the trial court's legal conclusions. W.J.A., supra, 210 N.J. at 238.

Claims against West Morris and Rufino are governed by the TCA, which "defines the extent of the Legislature's waiver of sovereign immunity and 'establishes the procedures by which claims may be brought[.]'" D.D. v. Univ. of Med. & Dentistry of N.J., 213 N.J. 130, 146 (2013) (alteration in original) (quoting Beauchamp v. Amedio, 164 N.J. 111, 116 (2000)). Under the TCA, a claimant must file a notice of claim within ninety days of the accrual of the cause of action. N.J.S.A. 59:8-8. N.J.S.A. 59:8-9 alleviates the rigidity of the ninety-day requirement by allowing a claimant to seek judicial permission to file late notice within one year after the accrual of the claim upon a showing of "extraordinary circumstances."

The TCA provides that, for purposes of the statute's notice and filing limitations, "[a]ccrual shall mean the date on which the claim accrued and shall not be affected by the notice provisions contained herein." N.J.S.A. 59:8-1. Under the TCA, the "discovery rule is part and parcel" of determining when a claim accrued "because it can toll the date of accrual." Beauchamp, supra, 164 N.J. at 118. "Until the existence of an injury (or, knowledge of the fact that a third party has caused it) is ascertained, the discovery rule will toll accrual." Id. at 122. "However, once an injury is known, even a minor one, the ninety day notice is triggered." Ibid.

Plaintiff claims that the discovery rule should have tolled the date of accrual until plaintiff's therapist indicated she first viewed herself as a victim. Defendants respond that plaintiff's claims accrued in August 2009, when she turned eighteen, or alternatively on July 20, 2010, when her therapist's notes clearly indicate that she realized she had been abused by Scheck.

Ordinarily, a cause of action accrues on the date when a wrongful act or omission producing the harm occurs. Id. at 116. In an appropriate case, a cause of action will be held not to accrue until the injured party discovers, or by an exercise of reasonable diligence and intelligence should have discovered, a basis for an actionable claim. Lopez v. Swyer, 62 N.J. 267, 272 (1973). This equitable principle, known as the discovery rule, operates to "prevent the sometimes harsh result of a mechanical application of the statute of limitations." Martinez v. Cooper Hosp.-Univ. Med. Ctr., 163 N.J. 45, 52 (2000).

"The discovery rule is essentially a rule of equity. It has been said that in equity lies its genesis." Lopez, supra, 62 N.J. at 273. Courts must balance the desire to give innocent injured parties their day in court against the fairness to those who must defend stale claims. Id. at 274. "The decision [on accrual] requires more than a simple factual determination; it should be made by a judge . . . conscious of the equitable nature of the issue before him." Id. at 275. Under Lopez, the equitable factors that may be relevant are: (1) "the nature of the alleged injury," (2) "the availability of witnesses and [] evidence," (3) "the length of time that has elapsed," (4) the "deliberate or intentional" nature of the delay, and (5) whether the delay "peculiarly or unusually prejudiced the defendant." Id. at 276.

The fundamental question in a discovery rule case is "whether the facts presented would alert a reasonable person, exercising ordinary diligence, that he or she was injured due to the fault of another." Caravaggio v. D'Agostini, 166 N.J. 237, 246 (2001).

Here, plaintiff was aware of the inappropriate relationship, Scheck's role in the relationship, and his affiliation with the school when she first became involved with him in May 2007. However, viewing the facts in the light most favorable to plaintiff, she arguably was unaware of the abusive nature of the relationship or the emotional effects of the abuse at that time.

The evidence before the court, as demonstrated by the notes of plaintiff's therapist, clearly establishes that, by July 20, 2010, plaintiff was able to fully understand that her relationship with Scheck was abusive. Plaintiff had just completed her freshman year in college and her therapist reported that "[plaintiff] now sees that this was abuse and [Scheck] abused his position of power and her immaturity or naivet ."

Because plaintiff's claims accrued no later than July 20, 2010, she was required to file a tort claim notice within ninety days of that date. She failed to do so. She also failed to seek permission to file a late claim within one year of the accrual of her claim. Plaintiff's failure to comply with the time requirement of N.J.S.A. 59:8-8(a) constitutes an absolute bar to recovery against West Morris and Rufino. Karczewski v. Nowicki, 188 N.J. Super. 355, 357 (App. Div. 1982).

Plaintiff's argument that extraordinary circumstances excuse her late filing was not raised before or decided by the motion judge, and therefore is not properly before us. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

Affirmed.

1 This matter was originally scheduled for oral argument but was waived on consent.

2 MySpace.com is a social media website.

3 Mr. Heymann informed the motion judge at oral argument that he first met with plaintiff in August 2010 and he filed the notice of claim three months later.