Governor Murphy Signs Law Expanding Public Entity Liability for Sexual Abuse and Assault

By: Aron Mandel

In New Jersey, public entities and their employees are offered numerous protections and immunities from civil liability for tort actions by the State’s Tort Claims Act, N.J.S.A. 59:1-1, et seq.  New Jersey’s Governor, Phillip Murphy, recently signed a bill into law that will eliminate some of those protections in cases involving allegations of sexual abuse or assault.  More specifically, when the new law becomes effective on December 1, 2019, immunity from civil liability granted by the Tort Claims Act will not apply to any matter seeking damages as a result of a sexual assault, crime of a sexual nature, prohibited sexual act or sexual abuse “which was caused by a willful, wanton or grossly negligent act of the public entity or public employee.”  This new law further clarifies that the Tort Claims Act’s immunities will not be available to a public entity where such sexual assault or abuse “was caused by the negligent hiring, supervision or retention of any public employee.”

This new law is in response and in addition to other new laws that will also become effective on December 1, 2019.  More specifically, N.J.S.A.2A:14-2a and 2A:14-2b extend the statute of limitations for actions seeking damages as a result of sexual abuse or assault, including providing a two year window beginning on December 1, 2019, in which claims for damages arising out of sexual abuse or assault that would otherwise be time barred may be filed.  Additionally, a previous version of this bill had simply provided that public entities and employees would be liable for sexual assault or abuse claims, without making any reference to a legal standard for liability.  This new version of the law adds the “willful, wanton or grossly negligent” standard, addressing a concern that the original version would have eliminated any defenses to such claims.

The effect of these new laws will be to expand potential liability of public entities and their employees for claims of sexual abuse or assault, both by providing an opportunity for more claims, which would have otherwise been time barred, to be filed and by eliminating some of the defenses previously available under the protections of the Tort Claims Act.  Additionally, the elimination of these Tort Claims Act immunities will also be applicable to any previously filed and pending lawsuit that has not already been adjudicated.  However, it is important to note that the Tort Claims Act already carved out exceptions to its immunities for conduct of a public employee that constituted a crime, actual fraud, actual malice or willful misconduct. N.J.S.A. 59:3-14.  As such, because sexual abuse and assault will now almost always be pled as a result of malice, willful misconduct or a crime, it is not clear that this new law will actually expand liability for public employees.

Nonetheless, some important Tort Claims Act defenses may still be available in claims for damages caused by sexual abuse or assault.  For instance, N.J.S.A. 59:9-6(b) prohibits a claimant from bring suit against a public entity where they have already brought suit against the public employee.  It is also likely that some form of Tort Claim Notice may still be required under N.J.S.A. 59:8-8, et seq.

The attorneys at Hoagland Longo are prepared to assist employers, public or private, in creating policies that will minimize potential claims brought by employees and to defend those claims when they do arise.  Please feel free to reach me at amandel@hoaglandlongo.com with questions regarding this new law or for assistance on any matter.