Holding Legislative Amendments Apply Retroactively to Sex Assault Claim, Court Reinstates Suit Against Board of Education

The Appellate Division reversed the grant of summary judgment to a New Jersey school board, and retroactively applied legislative amendments extending the statute of limitations for child sexual assault claims and eliminating the requirement of a pre-suit Tort Claims Act notice.

According to the unpublished opinion, Savan Desai filed a complaint in the Law Division in 2021 that claimed he was sexually assaulted by a substitute teacher while he was a student in the West Windsor-Plainsboro School District in 2005. The complaint, brought under N.J.S.A. 2A:14-2a(a)(1), alleged negligence, gross negligence, negligent hiring, and intentional infliction of emotional distress.

Before the suit, on Dec. 1, 2019, the amending statutes, Chapter 120 and Chapter 239, which extended the statute of limitations and eliminated the TCA notice requirement, took effect, according to the opinion.

The West Windsor-Plainsboro Board of Education moved for summary judgment and argued that the 2019 legislative amendments do not apply retroactively to claims accrued before the effective date. The trial court granted the school board’s motion and found that the TCA amendments “were not retroactive to causes of action which accrued before the new legislation became effective, and plaintiff was obligated to file a timely TCA notice, which was not done.”

Desai’s complaint was dismissed with prejudice on Dec. 17, 2021, according to the opinion. Just a few days later, the Appellate Division held, in W.S. v. Derek Hildreth, Lawrence Township School District, and Myron L. Powell Elementary School, that the legislative amendments “resuscitated child sexual assault claims that would otherwise have been time-barred, making the now timely complaints against public entities subject to the newly enacted N.J.S.A. 59:8-3(b), which specifically eliminated the need to file a TCA notice in advance of filing a complaint.”

In the present case, the Appellate Division’s per curiam opinion reversed the trial court’s order and reinstated Desai’s complaint.

Desai attended West Windsor-Plainsboro Regional High School from September 2004 through June 2005, when he was 14 and 15 years old, according to the opinion. The alleged abuser was a substitute teacher in Desai’s freshman history class, and supervised study hall.

Following the abuse, Desai stated that he did not attend school for two weeks, which prompted principal Dennis Leopold to schedule a meeting with the boy and his mother, according to the opinion. Desai alleged that Leopold spoke with him privately during that meeting when the plaintiff revealed the abuse. According to Desai, Leopold discouraged him from coming forward about a report of rape because child services would be called, his mother would be told, and he would be disciplined for his absences from school and for drinking alcohol.

The appeals panel wrote, ”As we detailed in W.S., Chapter 120 changed the two-year statute of limitations for filing tort actions with regard to sexual abuse claims brought by plaintiffs who allege they were abused as minors. This statute explicitly revives stale claims.”

The panel stated that in W.S., the court set forth the historical chronology whereby the Legislature created a two-year window starting on Dec. 1, 2019, for sexual abuse plaintiffs to bring old claims which otherwise would have been barred,

The opinion highlighted a statement by the New Jersey Senate Judiciary Committee, which explained that “since the extended statute of limitations is retroactive to cover past acts of abuse, any child victim of past abuse who is under the age of fifty-five years when the bill takes effect, or who will reach fifty-five years of age sometime after the bill takes effect could file a suit.”

The per curiam opinion concluded that Desai’s complaint falls “in the universe of lawsuits to which Chapter 120″ applies.

“Here, plaintiff—who is now thirty-three years old—is subject to the new statute of limitations contained in N.J.S.A. 2A:14-2a(a)(1), which permits a plaintiff to file a child sexual abuse claim before they reach the age of fifty-five, ‘regardless of when the events occurred, i.e., “prior to, or after” December 1, 2019, and without regard to when the cause of action accrued,’” the panel wrote. “Furthermore, since plaintiff’s complaint was timely filed under the new statute of limitations, he was not required to file a TCA notice as a prerequisite to suit.”

Counsel to the school board, Jeffrey L. Shanaberger of Hill Wallack in Princeton, declined to comment for this article.

Counsel to Desai, Hillary Mara Nappi of Hach Rose Schirripa & Cheverie in New York, didn’t return a call seeking comment.

“Mr. Desai is extreme grateful that the court agreed with our brief and our statutory interpretation,” said counsel to Desai, Hillary Mara Nappi of Hach Rose Schirripa & Cheverie in New York. “The trial court did not have the benefit of reading the appeals court decision that came out four days later.”

“My client is just really grateful,” said Nappi. “With that being said, litigation is an arduous process, but he is 100% committed to it and feels very thankful to have the opportunity to go back and to continue to litigate.”

“I anticipate we will move forward and complete discovery now, ” said Nappi. “ We were hopeful that once we got discovery from the district, we would be able to locate the substitute teacher’s name. The fear is, that this person may still teaching or around children.”