J.P. v. Gregory J. Smith

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0055-15T1

J.P.,
APPROVED FOR PUBLICATION
Plaintiff-Appellant/
Cross-Respondent, March 7, 2016

APPELLATE DIVISION
v.

GREGORY J. SMITH, COUNTY OF OCEAN,
CITY OF MANAHAWKIN, TOWNSHIP OF
STAFFORD, and STATE OF NEW JERSEY,

Defendants,

and

SOUTHERN REGIONAL HIGH SCHOOL and
SOUTHERN REGIONAL HIGH SCHOOL BOARD
OF EDUCATION,

Defendants-Respondents/
Cross-Appellants.

Argued January 25, 2016 - Decided March 7, 2016

Before Judges Messano, Carroll, and Sumners.

On appeal from the Superior Court of New
Jersey, Law Division, Ocean County, Docket
No. L-2831-14.

Robert R. Fuggi, Jr., argued the cause for
appellant/cross-respondent (Fuggi Law Firm,
P.C., attorneys; Mr. Fuggi and Ronald A.
Rosa, of counsel and on the briefs).

Jerald J. Howarth argued the cause for
respondents/cross-appellants (Howarth &
 Associates, LLC, attorneys; Mr. Howarth and
Purnima D. Ramlakhan, on the brief).

The opinion of the court was delivered by

CARROLL, J.A.D.

In this appeal we address claims of sexual abuse brought by

plaintiff J.P. against defendants Southern Regional High School

and Southern Regional High School Board of Education

(collectively, "the School"). In her complaint, filed in

September 2014, plaintiff alleged that, in 2004, she was

subjected to repeated sexual abuse by the School's assistant

band director, defendant Gregory Smith. The acts of abuse

allegedly occurred (1) at the School, where plaintiff was a

student; (2) during two School-organized overnight trips; and

(3) in plaintiff's home. Plaintiff sought damages pursuant to

the Child Sexual Abuse Act (CSAA), N.J.S.A. 2A:61B-1, and under

various common law theories of tort liability.

The trial court granted summary judgment dismissing

plaintiff's complaint against the School. The motion judge

concluded that (1) the School did not qualify as a "household"

within the meaning of the CSAA; and (2) plaintiff's claims were

barred by the statute of limitations and her failure to comply

with the notice provisions of the New Jersey Tort Claims Act

(TCA), N.J.S.A. 59:1-1 to 12-3. On reconsideration, the judge

declined to disturb the dismissal of plaintiff's CSAA claim

2 A-0055-15T1
against the School. However, the judge reinstated the common

law causes of action and ordered a Lopez1 hearing to determine

the accrual date of those claims.

Pursuant to leave granted, both sides appeal. Because we

are not persuaded that, under the facts presented, the School

falls within the ambit of the CSAA, we affirm the dismissal of

that claim. However, we part company with the trial court's

determination that a Lopez hearing is necessary to establish the

accrual date of plaintiff's common law causes of action. Since

we conclude that those claims accrued no later than July 2013,

and plaintiff failed to file a timely tort claim notice under

the TCA, we reverse the order reinstating those claims.

I.

The underlying facts of this appeal are largely undisputed.

Plaintiff was a member of the color guard for the School's

marching band, which was directed by plaintiff's father. In her

complaint, filed on September 30, 2014, plaintiff alleged that

during her junior year of high school, Smith began instant

messaging her on a personal level and making "off-color" sexual

jokes and comments. Over time, Smith's messages to plaintiff

1
Lopez v. Swyer, 62 N.J. 267, 272 (1973) (requiring a hearing
when "a plaintiff claims a right to relief from the bar of the
statute of limitations by virtue of the so-called 'discovery'
rule").

3 A-0055-15T1
became more frequent and sexually explicit in nature. At some

point, Smith obtained permission from plaintiff's father to stay

at their house for the weekend. Plaintiff alleged that Smith

raped her the first night he stayed at her home. Smith told

plaintiff not to worry, that he would marry her when she turned

eighteen, and that her father would approve of their

relationship because he liked Smith enough to have hired him as

assistant band director.

The complaint further alleged that:

After the initial incident, [] Smith
began to stay at [plaintiff]'s house often
during the summer. [] Smith sexually abused
plaintiff [] every time he stayed over in
various locations of the house while
plaintiff's parents were sleeping.
Defendant [] would also abuse plaintiff once
or twice during the week at school or while
traveling at competitions by isolating her
during walks together. Methods of abuse
included, but were not limited to, vaginal
penetration and oral sex.

At some point later on, plaintiff
fainted during [] drum corps. It turned out
that plaintiff was pregnant. Subsequent to
that notice, plaintiff had an abortion.

Pertinent to this appeal, plaintiff asserted a claim

against the School seeking compensatory and punitive damages

under the CSAA (count two). Plaintiff also asserted claims for

delayed discovery/equitable estoppel (count seven); negligent

hiring, supervision, and retention (count eight); negligent

4 A-0055-15T1
entrustment and breach of fiduciary duty (count nine); breach of

the statutory duty to report a reasonable suspicion of abuse

(count ten); and endangering the welfare of children (count

eleven) (collectively, the "common law" claims). In counts

seven through eleven, plaintiff further alleged that, prior to

September 11, 2014, she could not have reasonably ascertained

the identity of the School as a party responsible for Smith's

sexual abuse, or the harm that resulted from it.

Plaintiff's expert report, submitted in opposition to the

School's motion for summary judgment, provides additional

detail. In a September 11, 2014 report, psychologist Christine

Hatchard indicated that she evaluated plaintiff at the request

of her attorney on June 17 and 24, 2014. The purpose of the

evaluation was "to determine when [plaintiff] realized that she

was a victim of sexual abuse and how the trauma has affected her

life." Dr. Hatchard noted that plaintiff had been seeing a

psychotherapist since July 2011, and "that she finds therapy

helpful and that her therapist knows of her abuse history and is

supportive."

Plaintiff, then age thirty-one, told Dr. Hatchard that she

was abused by Smith at age sixteen while a student at the

School. Dr. Hatchard described plaintiff's recounting of the

facts underlying the sexual abuse allegations as follows:

5 A-0055-15T1
 [Smith] . . . was hired for drumline
and then was promoted to assistant band
director, working directly under and closely
with [plaintiff's] father . . . .

As percussion drum corps leader,
[Smith] would chaperone band events,
competitions, and trips, which [plaintiff]
often attended as a member of the Color
Guard . . . . [Smith] would instant message
[plaintiff] . . . on a more personal level
[by] making "off-color" sexual jokes and
comments, frequently calling her "cutie,"
"hon," and other terms of endearment.

. . . .

In April, [Smith] asked [plaintiff's]
father if he could stay at their house for a
weekend and her father agreed . . . . On
the first night that he was at her house, he
led her to the first floor guest room where
he was staying. She reports . . . that he
pinned her beneath him and raped her. After
the weekend was over, [Smith] emailed her
saying "don't worry," "this will be okay,
we'll get married when you're [eighteen],"
and promising that her father would approve
of the relationship since he liked [Smith]
enough to hire him to teach for the marching
band program.

After this initial incident, [Smith]
stayed at [plaintiff's] house several
weekends over the summer. He sexually
abused her every time he stayed over in
various locations of the house while her
parents were sleeping or not at home. He
would also abuse her once or twice during
the week at school or while traveling at
competitions by isolating her during walks
together . . . . She noted all of the times
that they engaged in sexual behavior in her
journal/planner with a symbol, which the
police allegedly made a copy of and
subsequently lost.

6 A-0055-15T1
 In August, [plaintiff] fainted during a
school performance and suspected she might
be pregnant . . . .

In late August or early September,
[plaintiff] told her mother that she was
pregnant. Her mother verbally went through
a list of names of potential fathers until
she came to [Smith] and [plaintiff] nodded.
Her mother took her back to the women's
clinic for an abortion and would not pay
extra money for [plaintiff] to be
anesthesized during the procedure.

Afterward, . . . her father had a
"staff meeting" with [Smith] in their house
during which [plaintiff] . . . believed that
[Smith] was encouraged to quit his job at
her school.

[Plaintiff] went to the police with her
parents, spoke to them about the sexual
relationship and gave them her
journal/planner where she had detailed the
incidents of abuse. She reports that she
returned one other time to the police
department but that charges were never filed
against [Smith]. Her parents also notified
the school board. [Smith] insisted that he
had nothing to do with [plaintiff's]
pregnancy and her father believed him,
accusing [plaintiff] of becoming pregnant
from having sex with someone her own age.

Dr. Hatchard identified a number of negative consequences

plaintiff experienced following the sexual abuse. These

included: a decline in her grades; having to live in various

locations including her car after her parents locked her out of

their family home when she turned eighteen; a drug addiction

fueled by numerous unhealthy relationships she maintained during

7 A-0055-15T1
this period; impaired sexual relations; an inability to maintain

a relationship with her step-son, her parents, or her sister;

receipt of psychiatric treatment, which included detoxification

from her opioid addiction; and individual psychotherapy once a

week beginning in July 2011.

Dr. Hatchard noted that plaintiff "became tearful when

discussing the aftermath of her sexual abuse, especially her

parents' disbelief." The doctor explained:

[Plaintiff] remembers feeling like she
"just wanted [her] parents to believe [her]
and acknowledge that [the sexual abuse]
wasn't [her] fault," but they were silent
about the abuse and no one talked about it
again. [Plaintiff] felt like her "life was
over," and she "didn't understand what she
had done wrong."

. . . . [I]n the summer of 2012, her
father stated "I still don't believe you"
[and] . . . her husband "freaked out". . . .
Seeing her husband's anger provided her
validation that she had not received from
others in her life, and she began to have
the thoughts that maybe the sexual
relationship may have been abusive and not
her fault, despite what she perceived as her
parents' punishment.

In 2013, [plaintiff] . . . spoke to a
prosecutor who initiated a recorded phone
call to [Smith] who confessed to the abuse
around the week of July 4, 2013 . . . . Her
parents only began to believe that she had
been abused when they learned that he had
confessed . . . .

Several factors likely contributed to
[plaintiff's] delay in fully understanding

8 A-0055-15T1
 that she was being sexually abused by
[Smith] . . . . [Smith] was allowed into
her home on a regular basis by her parents,
who she trusted to protect her, which
increased her confusion about experiencing
abuse from a "safe" person.

Dr. Hatchard diagnosed plaintiff as suffering from (1)

post-traumatic stress disorder (PTSD) (delayed expression); (2)

persistent depressive disorder (with persistent major depressive

episodes, moderate severity); and (3) opioid use disorder

(severe). Dr. Hatchard ultimately concluded that:

[Plaintiff] experienced significant
difficulty identifying the abuse due to the
manipulation and grooming behaviors by []
Smith who presented the abuse as a romantic
relationship, and her parents repeated
denial of the abuse and punishment of
[plaintiff]. She was only able to fully
understand that the sexual relationship was
abuse and that it had severe consequences,
when [Smith] confessed to the crime in July
[] 2013 and she finally received validation
from the police as well as her parents
. . . . This new insight was marked by her
development of [PTSD] in July [] 2013, which
is when she began to directly acknowledge
and confront the abuse. She . . . will
require long-term psychiatric care,
especially due to the delay in her healing
process and the reinforced shame and guilt
that she experienced as an adolescent and
throughout her adulthood.

[(Emphasis added).]

On June 2, 2014, prior to her first interview with Dr.

Hatchard, plaintiff filed a notice of tort claim. The notice

named the School, Smith, and others as responsible parties. It

9 A-0055-15T1
specified that, from April 2000 through September 2000, Smith

"systematically engaged in sexual acts with [plaintiff] . . .

resulting in [her] pregnancy which was terminated when she was

[seventeen] years old."

In February 2015, the School moved for summary judgment.

It argued that the CSAA did not apply because the School was not

in the same "household" as the plaintiff. It also sought

dismissal of the common law claims as barred by the statute of

limitations and the notice provisions of the TCA.

Plaintiff opposed the motion, contending that the CSAA

applied because the School could be deemed a person standing in

loco parentis within plaintiff's household. Plaintiff further

argued that none of her claims accrued until September 11, 2014,

the date of Dr. Hatchard's report. Plaintiff contended that

this represented the date "when she was able to establish the

causal relationship between the . . . sexual abuse perpetrated

by [] Smith and the various mental and emotional harms she had

and continues to suffer." Plaintiff argued that her tort claim

notice was timely because it was submitted before the running of

the statutory ninety-day limit. N.J.S.A. 59:8-8. She further

argued that the statute of limitations was tolled by the

discovery doctrine, and that the duress imposed upon her delayed

her discovery of the sexual abuse and the common law claims.

10 A-0055-15T1
 The judge heard oral argument on March 20, 2015. In his

oral opinion, the judge concluded that the CSAA did not apply to

the School because the School did not fit the CSAA's definition

of "within the household." The judge also found that

plaintiff's remaining claims were barred by the statute of

limitations and the notice provisions of the TCA. The same day,

the judge entered a memorializing order granting the School's

motion and dismissing all claims against it with prejudice.

In a telephone conference initiated sua sponte by the court

on March 23, the judge expressed reservations with respect to

his ruling on when plaintiff's claims accrued, and whether a

Lopez hearing was needed to determine their accrual date.

Plaintiff then timely moved for reconsideration, accompanied by

an affidavit that was not previously submitted in opposition to

the summary judgment motion.

In her April 1, 2015 affidavit, plaintiff provided

additional details intended to establish that the School was

"within the household" so as to trigger applicability of the

CSAA. She averred that her father, who was the School's

director of the marching band, drumline, and color guard, held a

number of meetings and other activities at their family home

where much of the sexual abuse had occurred.

11 A-0055-15T1
 Plaintiff further recounted that, in 2000, she attended a

four-day drumline/color guard competition in Dayton, Ohio. In

route, Smith intentionally chaperoned her bus and proceeded to

touch her leg for long periods of time. While in Dayton,

despite the requirement that girls and boys sleep in separate

rooms, Smith awakened plaintiff in the middle of the night and

informed her that her father wanted to see her. He then

sexually assaulted her in a hallway. Plaintiff subsequently

attended another trip to Canada, this time for a one-week

period. On this trip, chaperones placed tape across the

students' dorm rooms after curfew. Smith ripped the tape,

brought plaintiff to his room, and sexually assaulted her.

In addition to assaulting her in her home and on overnight

competitions, plaintiff's affidavit averred that Smith also

sexually assaulted her on school grounds either prior to

competitions or after practices. When she became pregnant in

August or September of 2000, Smith told her to obtain an

abortion, which she did in early September 2000. At some point

thereafter, in compliance with school requirements, her father

took her to file a police report. However, the police response

was that "we couldn't ever prove it happened and my name and

face would be smeared all over the newspapers." When asked if

12 A-0055-15T1
she wanted to continue filing a report, plaintiff answered "no."

She then dropped out of the color guard in November 2000.

The court heard argument on the reconsideration motion on

June 26, 2015. Prior to the argument, plaintiff's counsel

prepared and submitted a "time line" that he asked the court to

accept and attach to plaintiff's reply brief. The judge again

ruled that the CSAA did not apply. The judge found that many of

the acts of sexual abuse occurred in plaintiff's own home, and

that the "temporary and short-term [band and color guard] trips"

were not "substantial enough to impart a 'household' status" to

the School so as to bring it within the purview of the CSAA.

The judge then proceeded to reconsider the accrual issue

with respect to plaintiff's remaining claims. Although the

judge found that plaintiff "knew what was going on" back in 2000

when she became pregnant, and upon alerting the police in 2013,

he nevertheless decided to conduct "a Lopez hearing to determine

the tolling issue." On July 14, the court entered an order

denying plaintiff's motion to reinstate count two, the CSAA

claim. However, the order reinstated the common law claims

asserted in counts seven through eleven, and directed that a

Lopez hearing be scheduled to determine the accrual date of

those claims. Both parties sought leave to appeal, which we

granted on September 3, 2015.

13 A-0055-15T1
 II.

On appeal, plaintiff argues that the trial court erred in

finding that she was not entitled to the protection of the CSAA

because the School did not qualify under the statutory language

as a "person . . . within the household." Plaintiff also argues

that all of her claims are entitled to the more liberal CSAA

tolling provisions, and therefore none of them are time-barred

by the TCA or the statute of limitations.

The School contends that, on reconsideration, the court

erred in reinstating plaintiff's common law claims, and in

relying upon documentary evidence not presented in opposition to

the initial summary judgment motion. The School submits that a

Lopez hearing is unnecessary, as the record already establishes

that plaintiff's common law claims are time-barred by either:

(1) her failure to file a timely tort claim notice; or (2) the

two-year statute of limitations applicable to tort actions.

Finally, the School urges us to affirm the trial court's finding

that it was not "within the household" for purposes of

establishing its liability as a passive abuser under the CSAA.

III.

We begin with the standard of review that governs our

analysis. "An appellate court reviews an order granting summary

judgment in accordance with the same standard as the motion

14 A-0055-15T1
judge." Bhagat v. Bhagat, 217 N.J. 22, 38 (2014) (citing W.J.A.

v. D.A., 210 N.J. 229, 237-38 (2012); Henry v. N.J. Dep't of

Human Servs., 204 N.J. 320, 330 (2010)). We "identify whether

there are genuine issues of material fact and, if not, whether

the moving party is entitled to summary judgment as a matter of

law." Ibid. (citing Brill v. Guardian Life Ins. Co. of Am., 142

N.J. 520, 540 (1995); R. 4:46-2(c)).

[A] determination whether there exists a
"genuine issue" of material fact that
precludes summary judgment requires the
motion judge to consider whether the
competent evidential materials presented,
when viewed in the light most favorable to
the non-moving party, are sufficient to
permit a rational factfinder to resolve the
alleged disputed issue in favor of the non-
moving party.

[Brill, supra, 142 N.J. at 540.]

We then decide "whether the motion judge's application of

the law was correct." Atl. Mut. Ins. Co. v. Hillside Bottling

Co., 387 N.J. Super. 224, 231 (App. Div.), certif. denied, 189

N.J. 104 (2006). In this regard, "[w]e review the law de novo

and owe no deference to the trial court . . . if [it has]

wrongly interpreted a statute." Zabilowicz v. Kelsey, 200 N.J.

507, 512 (2009). Similarly, determining the date upon which a

statute of limitations begins to run is an issue of law, subject

to plenary review. Town of Kearny v. Brandt, 214 N.J. 76, 91

(2013).

15 A-0055-15T1
 With respect to plaintiff's reconsideration motion, we note

the grounds for reconsideration are limited. State v. Puryear,

441 N.J. Super. 280, 294 (App. Div. 2015). Reconsideration is

appropriate only when "1) the [c]ourt has expressed its decision

based upon a palpably incorrect or irrational basis, or 2) it is

obvious that the [c]ourt either did not consider, or failed to

appreciate the significance of probative, competent evidence."

Ibid. (alterations in original) (quoting Palombi v. Palombi, 414

N.J. Super. 274, 288 (App. Div. 2010)). Reconsideration is not

appropriate as a vehicle to bring to the court's attention

evidence that was not presented, but was available, in

connection with the initial argument. Fusco v. Bd. of Educ. of

City of Newark, 349 N.J. Super. 455, 463 (App. Div.), certif.

denied, 174 N.J. 544 (2002).

"[A] trial court's reconsideration decision will be left

undisturbed unless it represents a clear abuse of discretion."

Pitney Bowes Bank, Inc. v. ABC Caging Fulfillment, 440 N.J.

Super. 378, 382 (App. Div. 2015). A court abuses its discretion

"when a decision is made without a rational explanation,

inexplicably departed from established policies, or rested on an

impermissible basis." Ibid. (quoting Flagg v. Essex Cty.

Prosecutor, 171 N.J. 561, 571 (2002)).

16 A-0055-15T1
 IV.

We first address the issue of whether the School qualifies

as a "passive abuser" under the CSAA. The CSAA defines "sexual

abuse" as "an act of sexual contact or sexual penetration

between a child under the age of [eighteen] years and an adult.

A . . . person standing in loco parentis within the household

who knowingly permits or acquiesces in sexual abuse by any other

person also commits sexual abuse . . . ." N.J.S.A. 2A:61B-

1a(1). Thus, the statute imposes liability on both "active" and

"passive" sexual abusers. Hardwicke v. Am. Boychoir Sch., 188

N.J. 69, 86 (2006).

In Hardwicke, the Supreme Court held that a private

boarding school could be liable as a passive abuser under the

CSAA. Id. at 94. There, the plaintiff alleged the Musical

Director of the school abused him over the course of two years,

and the school itself knew or should have known of the abuse.

Id. at 74. The Court noted that in order to hold a passive

sexual abuser liable under the statute, a plaintiff must

demonstrate the defendant is: "(1) a person (2) standing in loco

parentis (3) within the household." Id. at 86. The Court first

found the boarding school was a "person" under the statute. Id.

at 91. It next determined the school satisfied the role of "in

loco parentis" because it

17 A-0055-15T1
 regulated the students' personal hygiene,
monitored the cleanliness of their rooms,
dictated the amount of money each student
could have on campus, required students to
write two weekly letters to friends or
family, expected students to attend
religious services when on campus during the
weekend, provided transportation for
recreational activities off school grounds,
and disciplined students who violated those
policies.

[Id. at 91-92.]

Finally, the Court considered whether the boarding school was a

"household" under the statute. Id. at 93. The Court stated:

[T]he School provides food, shelter,
educational instruction, recreational
activities and emotional support to its
full-time boarders - in other words, housing
with the amenities characteristic of both a
school and a home.

[Id. at 94.]

The Court thus concluded "the School [was] a 'person' standing

'in loco parentis' within a 'household.'" Ibid.

We reached a different result in D.M. v. River Dell

Regional High School, 373 N.J. Super. 639 (App. Div. 2004),

certif. denied, 188 N.J. 356 (2006). There, we affirmed the

grant of summary judgment dismissing claims against a public

18 A-0055-15T1
high school under the CSAA because the school did not qualify as

"in loco parentis within the household." Id. at 649.2

In Bryson v. Diocese of Camden, N.J., 909 F. Supp. 2d 364

(D.N.J. 2012), the United States District Court was called upon

to interpret the applicability of the CSAA in light of

controlling New Jersey case law. The court concluded that

defendant, a private Catholic school, "[did] not fit a

reasonable definition of 'within the household'" for purposes of

the CSAA. Id. at 369. In distinguishing Hardwicke, the court

explained:

If, as Plaintiff argues, neither a
single roof nor a familial relationship is
required to be "within the household," the
Hardwicke decision suggests that a closely
analogous, intimate relationship is
required.

In Hardwicke, the court found the boarding
school to be "within the household" only
after noting that the students were "full-
time boarders" and depended on the school,
in the absence of their parents or other
care givers, for "amenities characteristic
of . . . a home," including the basic
necessities of life, such as food and
shelter. For practical purposes, the
boarding school was "the household" of the
plaintiff victim. Here, Plaintiff resided

2
We note that D.M. was decided shortly before Hardwicke and thus
the panel in D.M. did not explain the application of the
Hardwicke factors as they had not yet been announced. We
further note that shortly after Hardwicke was decided on August
8, 2006, the Court denied certification in D.M. on September 21,
2006, 188 N.J. 356, thus leaving the ruling in D.M. intact.

19 A-0055-15T1
 at all times with his parents, who provided
him with home amenities, including food and
shelter; he did not reside at the school as
the plaintiff did in Hardwicke. Defendant
educated and provided religious counseling
to Plaintiff through [the active abuser] and
others, and cared for Plaintiff a few hours
per week after school. In doing so,
Defendant provided services and amenities
normally associated with those of a typical
after-school program of a school or a
church, not those of a home. Defendant did
not function as a parent to Plaintiff in the
same way the boarding school did in
Hardwicke to the plaintiff in that case.
[The active abuser] was not a member of the
household, nor had he visited Plaintiff's
home on more than one occasion. The
qualities and characteristics of the
relationship here are not sufficiently
strong to establish that Defendant was
within the Plaintiff's household.

[Bryson, supra, 909 F. Supp. 2d at 369-70
(internal citation omitted).]

In the present case, plaintiff argues that the motion judge

erred when he held that the School was not liable for passive

abuse under the CSAA because it was not "within the household."

Plaintiff points to the overnight trips she took to Ohio and

Canada, where the School provided meals, lodging, and

supervision. She contends that the School provided her with

food, shelter, educational instruction, recreational activities

and emotional support, the same five elements that were deemed

sufficient in Hardwicke to establish the School as a household

under the CSAA. See Hardwicke, supra, 188 N.J. at 94.

20 A-0055-15T1
 We are not persuaded. Plaintiff's arguments overlook the

fact that in Hardwicke the school provided those amenities and

services to "its full-time boarders." Ibid. (emphasis added).

That crucial element is lacking here. The Court in Hardwicke

was clearly concerned not only with the role of the school as a

parental substitute, but also with its role as the provider of

amenities normally associated with a home environment for

students who resided there full-time. Ibid.; see also J.H. v.

Mercer Cnty. Youth Det. Ctr., 396 N.J. Super. 1, 14-15 (App.

Div. 2007) (finding a youth detention center a household for the

purposes of the CSAA). We are therefore satisfied that the term

"within the household" connotes a degree of "residential"

custody that is more than fleeting and temporary in nature and

is simply not present in this case.

We are also satisfied the result we reach comports with

basic principles of statutory construction. In construing a

statute, "[o]ur task [] is to discern and give effect to the

Legislature's intent." State v. Munafo, 222 N.J. 480, 488

(2015) (quoting State v. O'Driscoll, 215 N.J. 461, 474 (2013)).

We first examine the "plain language of the statute." Ibid.

(citing State v. Frye, 217 N.J. 566, 575 (2014); DiProspero v.

Penn, 183 N.J. 477, 492 (2005)). "When that language clearly

reveals the meaning of the statute, the court's sole function is

21 A-0055-15T1
to enforce the statute in accordance with those terms." State

v. Olivero, 221 N.J. 632, 639 (2015) (quoting McCann v. Clerk of

Jersey City, 167 N.J. 311, 320 (2001)).

Had the legislature wished to include a public day school

within the scope of the CSAA, it could very easily have used the

terminology "school or household." Also, "[t]he legislature

could have omitted the phrase [within the household] and

extended potential liability to all persons who stood in loco

parentis of the victim. The legislature chose not to do so."

Bryson, supra, 909 F. Supp. 2d at 370.

Summarizing, the CSAA's definition of passive sexual abuse

limits the class of persons who are potentially liable to those

"within the household." Because the School does not fit that

definition, we affirm the dismissal of plaintiff's CSAA claim

against the School.

V.

We next address the issue of whether plaintiff's remaining

claims are barred by either the statute of limitations or the

notice provisions of the TCA. Our analysis of this issue

compels us to also determine whether a Lopez hearing is needed

to establish the date that these common law claims accrued.

The School argues that plaintiff's claims "accrued" in

August or September, 2000, when she terminated her pregnancy and

22 A-0055-15T1
reported Smith's sexual abuse to her parents, the police, and

School authorities. In that event, her claims are barred by the

two-year statute of limitations in N.J.S.A. 2A:14-2, and the

notice provisions of the TCA, N.J.S.A. 59:8-8. Even if the

"discovery rule" applies, plaintiff's own expert concluded that

plaintiff was aware of the abuse and its consequences by June or

July, 2013. Accordingly, her tort claim notice, filed in June

2014, exceeded the ninety-day period within which notice must be

given pursuant to N.J.S.A. 59:8-8. Since the record is clear,

the School maintains there is no need to conduct a hearing to

determine the accrual date of plaintiff's claims.

As noted, in her complaint and her argument before the

trial court, plaintiff contended that all her claims accrued on

September 11, 2014, the date her expert report was issued.

Plaintiff argues that the CSAA's more liberal accrual provision3

tolls the limitations period for her related common law claims.

Additionally, plaintiff argues that "[t]he question of whether

or not the statute of limitations is tolled is determined by the

existence of either equitable grounds, duress and/or whether or

3
See N.J.S.A. 2A:61B-1b ("In any civil action for injury or
illness based on sexual abuse, the cause of action shall accrue
at the time of reasonable discovery of the injury and its causal
relationship to the act of sexual abuse.").

23 A-0055-15T1
not [p]laintiff has 'repressed the memories' of [her] sexual

abuse." N.J.S.A. 2A:14-21 (emphasis omitted).

Ordinarily, a cause of action accrues on the date upon

which a wrongful act or omission producing the harm occurs.

Beauchamp v. Amedio, 164 N.J. 111, 116 (2000). The pertinent

statute of limitations, therefore, presumptively begins to run

from the time of that wrongful conduct. Our courts have long

recognized, however, that "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[,] that he [or she] may have

a basis for an actionable claim." Lopez, supra, 62 N.J. at 272.

This equitable principle, commonly 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 applies not only to situations where the

injury has not been discovered, but also to situations where the

injury is apparent, but it is not known "that it is attributable

to the fault of another." Id. at 53. The cause of action does

not accrue until both of these elements are known to the

plaintiff. Ibid. In determining the date of a claim's accrual

under the discovery rule, the court must assess "whether the

24 A-0055-15T1
facts presented would alert a reasonable person exercising

ordinary diligence that he or she was injured due to the fault

of another." Id. at 52.

"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. With this balance in

mind, the Supreme Court has held that, "[t]he 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. Among the

equitable factors that may be relevant under Lopez 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.

"Although the discovery rule does not require knowledge of

a specific basis for legal liability or a provable cause of

action, it does require knowledge not only of the injury but

also that another is at fault." Guichardo v. Rubinfeld, 177

N.J. 45, 51 (2003) (quoting Martinez, supra, 163 N.J. at 52).

25 A-0055-15T1
"Once a person knows or has reason to know of this information,

his or her claim has accrued since, at that point, he or she is

actually or constructively aware of that state of facts which

may equate in law with a cause of action." Abboud v. Viscomi,

111 N.J. 56, 63 (1988) (quoting Burd v. N.J. Tel. Co., 76 N.J.

284, 291 (1978)). The fundamental question in a discovery rule

case, therefore, 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 undoubtedly aware of the abuse, Smith's

identity as her abuser, and Smith's affiliation with the School,

when she became pregnant in 2000. However, viewing the facts in

the light most favorable to plaintiff as the non-moving party,

as we must,4 plaintiff arguably was unaware of the emotional

effects of the sexual abuse at that time. In any event, the

competent evidence before the court at the summary judgment

stage,5 as demonstrated by plaintiff's own expert psychologist,

Dr. Hatchard, clearly establishes that by July 2013, plaintiff

4
See R. 4:46-2(c); Brill, supra, 142 N.J. at 540.
5
See Ji v. Palmer, 333 N.J. Super. 451, 463-64 (App. Div. 2000)
(limiting appellate review of the grant of summary judgment to
the record that existed before the motion judge).

26 A-0055-15T1
was "able to fully understand that the sexual relationship was

abuse and that it had severe consequences."

The motion judge originally dismissed plaintiff's claims as

barred by the statute of limitations and the notice provisions

of the TCA. On reconsideration, the judge determined that a

Lopez hearing was necessary to establish the accrual date of

plaintiff's common law claims. We conclude that the judge erred

in determining that a Lopez hearing was necessary. A plaintiff

who invokes the discovery rule is not always entitled to a

hearing. "A Lopez hearing is only required when the facts

concerning the date of the discovery are in dispute." Henry,

supra, 204 N.J. at 336 n. 6 (citing Dunn v. Borough of

Mountainside, 301 N.J. Super. 262, 274 (App. Div. 1997), certif.

denied, 153 N.J. 402 (1998)). Here, it is undisputed that, no

later than July 2013, plaintiff fully understood that she was

abused and the consequences of that abuse.

Affording plaintiff the benefit of the discovery rule, we

conclude that, no later than July 2013, a reasonable person,

possessing plaintiff's knowledge, could have discovered a basis

for a cause of action with the exercise of ordinary diligence.

Using July 2013 as the accrual date of her claims, we further

conclude that her September 2014 complaint was timely filed

within the two-year statute of limitations.

27 A-0055-15T1
 We reach a different result, however, with respect to

plaintiff's failure to comply with the TCA. Claims against the

School 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, supra, 164 N.J. at 116). 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 somewhat 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."

In N.J.S.A. 59:8-1, the TCA clarifies 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." 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,

28 A-0055-15T1
the ninety day notice is triggered." Ibid. (emphasis added).

"Worsening of that injury does not extend the time [to serve a

notice] or otherwise alter the party's obligation." Ibid.; see

also Maher v. Cnty. of Mercer, 384 N.J. Super. 182, 186 (App.

Div. 2006).

Because we have concluded that plaintiff's claims accrued

no later than July 2013, she was required to file her tort claim

notice within ninety days of that time. 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 the School.

Karczewski v. Nowicki, 188 N.J. Super. 355, 357 (App. Div.

1982).

We briefly comment on the evidence submitted in support of

plaintiff's motion for reconsideration. Plaintiff's affidavit,

dated April 1, 2015, contained no new information that could not

have been submitted in opposition to the School's summary

judgment motion. Accordingly, its submission on reconsideration

was inappropriate. Fusco, supra, 349 N.J. Super. at 463. In

any event, it centered on plaintiff's claim under the CSAA that

the School was "within the household," and provided no new

29 A-0055-15T1
detail that could form the basis for reconsideration of when her

claims accrued.

After her reply brief was filed, plaintiff's counsel also

prepared and submitted a "time line" in support of her argument

that her tort claim notice and her complaint were both timely

filed. This submission suffers from the same infirmity as

plaintiff's affidavit, as it contains information that could and

should have been presented on the initial motion. Moreover, it

was newly filed after plaintiff's reply brief and, as such, did

not afford the School a meaningful opportunity to respond to it.

Additionally, it was not accompanied by an affidavit or

certification based on personal knowledge attesting to the

accuracy of the information it contained, as required by Rule

1:6-6. Accordingly, the "time line," to the extent it may have

been considered by the court, did not provide proper evidential

support for plaintiff's reconsideration motion.

For these reasons, we conclude that plaintiff's failure to

comply with the notice provisions of the TCA bars her common law

claims against the School. No Lopez hearing was necessary to

determine the date those claims accrued. We therefore reverse

the order reinstating counts seven through eleven of plaintiff's

complaint, which were properly dismissed on summary judgment.

30 A-0055-15T1
 The portion of the July 14, 2015 order dismissing the CSAA

claim is affirmed. The portion of the order that reinstated the

common law counts and ordered a Lopez hearing is reversed.

31 A-0055-15T1