WEBVTT 2 00:00:44.746 --> 00:00:44.751 SIMPKINS KINS VERSUS SOUTH ORANGE-MAPLEWOOD SCHOOL DISTRICT, MAY WE PLEASE HAVE 3 00:00:44.751 --> 00:00:48.837 APPEARANCES. (APPEARANCES TENDERED.) CHIEF JUSTICE 4 00:00:48.837 --> 00:01:18.755 RABNER: I HAD YOU GOING FIRST EVEN THOUGH YOU ARE SITTING IN THE MIDDLE IS THAT OKAY. 5 00:01:18.755 --> 00:01:19.645 GABRIEL C. MAGEE: YES. CHIEF JUSTICE RABNER: 6 00:01:19.645 --> 00:01:24.460 I WILL ASK ALL COUNSEL TO BE VERY COMFORTABLE ADOPTING ARGUMENTS THAT 7 00:01:24.460 --> 00:01:33.039 HAVE ALREADY MADE AS YOUR OWN RATHER THAN GOING THROUGH THEM, IF THAT MAKES SENSE. 8 00:01:33.039 --> 00:01:37.796 MR. MAGEE, PLEASE GO AHEAD. GABRIEL C. MAGEE: 9 00:01:37.796 --> 00:01:46.261 THANK YOU, MR. CHIEF JUSTICE AND MAY IT PLEASE THE COURT I WOULD LIKE TO 10 00:01:46.261 --> 00:01:49.218 RESERVE THREE MINUTES OF MY TIME FOR REBUTTAL. THE COURT: THAT'S 11 00:01:49.218 --> 00:01:52.207 FINE. GABRIEL C. MAGEE: I WOULD LIKE TO BEGIN BY TAKING 12 00:01:52.207 --> 00:01:57.163 A MOMENT TO RECOGNIZE THE SURVIVORS OF SEXUAL ABUSE WHO BRING THESE CASES BEFORE 13 00:01:57.163 --> 00:02:02.726 THE COURT TODAY AS WELL AS ALL OTHERS OF SEXUAL ABUSE SURVIVORS WHO FILE 14 00:02:02.726 --> 00:02:07.544 SIMILAR CASES AND THOSE OUT THERE STILL STRUGGLING IN SILENCE. IT IS 15 00:02:07.544 --> 00:02:13.830 THEIR COURAGE TO SURVIVE THAT CAUSED US TO PASS THE CHILD VICTIM'S IN 2013 AND 16 00:02:13.830 --> 00:02:17.443 IT THAT PIECE OF LEGISLATION THAT ARE BRINGS US HERE TODAY. 17 00:02:17.443 --> 00:02:23.124 TISH BEFORE THIS COURT IS A NARROW ONE WHETHER IN PASTING THE ACT IN 2019, PUBLIC 18 00:02:23.124 --> 00:02:28.913 ENTITY TO VICARIOUS LIABILITY TO THE WILLFUL WANTING OR GROSSLY NEGLIGENCE 19 00:02:28.913 --> 00:02:35.528 ACTS TO AN EMPLOYEE COMMITTED IN RELATION TO CHILD SEXUAL ABUSE, IN ANSWERING IN 20 00:02:35.528 --> 00:02:39.309 THE NEGATIVE WE BELIEVE THE APPELLATE DIVISION ERRED BECAUSE THEY IGNORED 21 00:02:39.309 --> 00:02:45.125 THE CLEAR AND UNAMBIGUOUS LANGUAGE OF THE STATUTE AND THE LEGISLATURE IN PASSING 22 00:02:45.125 --> 00:02:48.816 AND WE WOULD ASK THE LEGISLATURE TO REVERSE THOSE DECISIONS FOR THOSE 23 00:02:48.816 --> 00:02:52.293 REASONS. I WOULD LIKE TO BEGIN BY FIRST DISCUSSING THE FLAWS 24 00:02:52.293 --> 00:02:56.565 IN THE APPELLATE DIVISION OPINION THAT WE THINK JUSTIFY REVERSAL, THEN TURN TO 25 00:02:56.565 --> 00:03:01.595 THE REMEDY WE BELIEVE SOLVES THE ISSUE WHICH HAS NOW BEEN ENDORSE #D BY 26 00:03:01.595 --> 00:03:05.192 THE ATTORNEY GENERAL, AS WEM. I WOULD LIKE TO HAVE A FEW MINUTES TO 27 00:03:05.192 --> 00:03:09.437 SPEAK TO THE ISSUE OF FIDUCIARY DUTY WHICH IS AN ISOLATED INCIDENT IN THE 28 00:03:09.437 --> 00:03:15.668 HORNOR MATTER AND WITH ANY REMAINING TIME DISCUSS VIK KIER YOUS LIBLT UNDER THE 29 00:03:15.668 --> 00:03:20.644 FACTS OF HORNOR. IF IT PLEASE ES THE COURT, MR. BALDANTE WILL 30 00:03:20.644 --> 00:03:30.304 ADDRESS VICARIOUS LIABILITY UNDER HORT. IF FIRST FLAW WE THINK 31 00:03:30.304 --> 00:03:34.267 JUSTIFIES REVERSAL HERE IS THAT THE APPELLATE DIVISION OPINION IGNORES THE 32 00:03:34.267 --> 00:03:39.316 CLEAR AND UNAMBIGUOUS LANGUAGE OF THE STATUTE. IN 2019 WHEN IT PASSED 33 00:03:39.316 --> 00:03:47.091 THE LEGISLATION IN THE CHILD VICTIMS ACT AMENDED THE TORT CLAIMS ACT, 59:2-1.3 34 00:03:47.091 --> 00:03:54.515 A 1. FOR CONVENIENCE I WILL REFER TO THAT AS A ONE. A ONE SAYS EXPLICITLY NOT 35 00:03:54.515 --> 00:04:00.655 WITHSTANDING ANY OTHER PROVISION OF THE TORT CLAIMS ACT TO THE CONTRARY RE, IT 36 00:04:00.655 --> 00:04:05.852 LOOUFS ANY, PIB ENTITY HAS FOR LIABILITY ARISING FROM WILLFUL, WANT TON OR 37 00:04:05.852 --> 00:04:14.658 GROSSLY. CLEARLY AND UN AM BIG GULY THAT ROOUFS VIEK CAR YOUS. 38 00:04:14.658 --> 00:04:17.729 JUSTICE PATTERSON: SLOW DOWN, A BIT, PLEASE. 39 00:04:17.729 --> 00:04:22.717 GABRIEL C. MAGEE: CLEARLY AND UNAMBIGUOUSLY, THAT ROOUFS ANY IMMUNITY FROM 40 00:04:22.717 --> 00:04:27.423 VICARIOUS LIABILITY THAT A PUBLIC ENTITY HAD. IN 2023, IN A 41 00:04:27.423 --> 00:04:33.418 UNANIMOUS OPINION, THIS COURT ANALYZE THE VERY STATUTE AND SAID WHEN A STATUTE 42 00:04:33.418 --> 00:04:39.087 IS CLEAR AND UNAMBIGUOUS ON ITS FACE WE APPLY THE LAW AS WRITTEN. 43 00:04:39.087 --> 00:04:42.168 RESPECTFULLY IN THE APPELLATE DIVISION HAD FOLLOWED THAT OPINION WE WOULDN'T 44 00:04:42.168 --> 00:04:48.314 BE HERE BECAUSE THIS UNAMBIGUOUSLY ROOUFRS ANY LIABILITY, WHEN YOU DO THAT, YOU 45 00:04:48.314 --> 00:04:53.607 LEAVE IN PLACE THE COMMON LAW THAT REMAINS, WHICH IN THIS INSTANCE IS THE HARVARD 46 00:04:53.607 --> 00:05:00.147 DECISION WHICH IMPOSES LIABILITY FOR ACTS OF CHILD ABUSE IN CERTAIN LIMITED 47 00:05:00.147 --> 00:05:03.585 CIRCUMSTANCES. WE THINK IN IGNORING THAT LANGUAGE, THE APPELLATE 48 00:05:03.585 --> 00:05:10.549 DIVISION ERRED AND IN ESSENCE NOT ONLY DID ITER AND CONTRADICT THIS COURT'S EDICT 49 00:05:10.549 --> 00:05:16.605 TO HONOR THAT CLEAR AND UNAMBIGUOUS LANGUAGE IT ALSO TURNED THIS SECTION 50 00:05:16.605 --> 00:05:21.034 OF THE STATUTE INTO AN NULT AND THAT SIMPLY CAN'T BE THE CASE BECAUSE THE APPELLATE 51 00:05:21.034 --> 00:05:24.737 DIVISION HAS NEVER EXPLAINED AND NEITHER OF THE RESPONDENTS CAN EXPLAIN 52 00:05:24.737 --> 00:05:30.965 CREDIBLY WHAT A 1 DOES IF IT DOESN'T IMPOSE VICARIOUS LIABILITY ON A PUBLIC ENTITY. 53 00:05:30.965 --> 00:05:36.654 IT SIMPLY CAN'T BE THE CASE THAT WE READ THE STATUTE AS TOTALLY 54 00:05:36.654 --> 00:05:41.075 MEANINGLESS. FOR THAT REASON WE THINK THE APPELLATE DIVISION 55 00:05:41.075 --> 00:05:47.391 ERRED AND SHOULD BE REVERSE. THE SECOND WE THINK, IGNORED THE EXPRESS 56 00:05:47.391 --> 00:05:52.230 LEGISLATIVE INTENT BEHIND NOT JUST THE CHILD VICTIMS ACT BUT THIS SPECIFIC 57 00:05:52.230 --> 00:05:57.080 SECTION. IT HAS BEEN A LONG STANDING CANON OF STATUTORY 58 00:05:57.080 --> 00:06:04.431 INTERPRETATION THAT THE LEGISLATIVE INTENT IS PARAMOUNT WHEN WE ANALYZE, DIPROSPERO 59 00:06:04.431 --> 00:06:08.943 V. PENN IN 2005 AND IT HAS BEEN A LONG STANDING INTERPRETATION OF THIS COURT. 60 00:06:08.943 --> 00:06:13.538 OFTEN WHEN WE HAVE TO INTERPRET A STATUTE AN WHEN OUR COURTS 61 00:06:13.538 --> 00:06:18.447 COME TO INTERPRET A STATUTE ITS A DIFFICULT TASK. HERE IT IS QUITE SIMPLE. WE 62 00:06:18.447 --> 00:06:23.364 KNOW THE CHILD VICTIMS ACT WAS PASSED EXPLICITLY TO GIVE VICTIMS GREATER 63 00:06:23.364 --> 00:06:28.694 ACCESS TO SOME SORT OF JUSTICE THROUGH THE YIFL COURT SYSTEM, BUT MORE THAN THAT 64 00:06:28.694 --> 00:06:36.519 WE KNOW WHY 593.251 WAS PASSED BECAUSE IN 2019 WHEN THIS LAW WAS PASSED A 65 00:06:36.519 --> 00:06:41.300 DIFFERENT VERSION OF THE STATUTE EXISTED AND WHEN GOVERNOR MURPHY SIGNED THAT INTO 66 00:06:41.300 --> 00:06:45.541 LAW, HE REJECTED THE ORIGINAL VERSION OF THIS. AS EVERYBODY 67 00:06:45.541 --> 00:06:50.075 AGREES THAT ORIGINAL VERSION SIMPLY STATED THAT IF A PUBLIC EMPLOYEE COMMITS AN 68 00:06:50.075 --> 00:06:54.606 ACT OF CHILD SEXUAL ABUSE AN ENTITY IS LIABLE. IT ESSENTIAL 69 00:06:54.606 --> 00:07:00.750 LY AMOUNTED TO STRICT LIABILITY IN THAT FORM AND GOVERN MURRAY JEKTD IT AN HE DID 70 00:07:00.750 --> 00:07:07.238 SO IN HIS SIGNING STATEMENT AND HE SAID IT WAS AN ERROR, A FLAW, EXPLICIT 71 00:07:07.238 --> 00:07:12.173 AN CONTINGENT PROMISE BY THEM THAT THEY WOULD CORRECT THIS ERROR AND MAKE THE 72 00:07:12.173 --> 00:07:16.634 LIABILITY FOR A PUBLIC ENTITY THE SAME AS A CHARITABLE ENTITY AN HE SAID, 73 00:07:16.634 --> 00:07:20.484 AND I QUOTE, ANY OTHER STANDARD WOULD BE UNJUSTIFIED. SO WE 74 00:07:20.484 --> 00:07:24.599 KNOW WHAT THE SPECIFIC INTENT BEHIND THE PASSAGE OF THIS SECTION WAS AND IN FACT 75 00:07:24.599 --> 00:07:27.775 THAT'S EXACTLY WHAT THE LEGISLATION DID. THIS WENT BACK TO 76 00:07:27.775 --> 00:07:32.044 THE LEGISLATION AND IN THE SUBSTANTIVE CLEANUP BILL IT CREATED THE VERSION THAT 77 00:07:32.044 --> 00:07:35.278 IS BEFORE THE COURT HERE TODAY. IT IS IMPORTANT TO LOOK AT THE 78 00:07:35.278 --> 00:07:40.417 LANGUAGE IN THE CONTEXT OF GOVERNOR MURPHY'S STATEMENT. HE ASKED THEM TO 79 00:07:40.417 --> 00:07:47.901 MAKE THE LIABILITY OF A PUBLIC ENTITY THE SAME AS A CHIR RIT TABL I'M MIENT. AND 80 00:07:47.901 --> 00:07:53.566 IN RESPONSE THEY WENT TO THE ACT AND WENT TO IS SECTION THAT GOVERNED VICARIOUS 81 00:07:53.566 --> 00:07:57.674 LIABILITY FOR ACTS OF ABUSE AN THEY TOOK ALMOST THE SAME LANGUAGE AND INSERTED 82 00:07:57.674 --> 00:08:03.100 IT NOW INTO THE TORT CLAIMS ACT. THAT LANGUAGE EXISTS TODAY AND THAT 83 00:08:03.100 --> 00:08:08.604 LANGUAGE GOVERNS HERE TODAY. IT IS ALSO IMPORTANT TO REALIZE THAT THAT 84 00:08:08.604 --> 00:08:12.418 LANGUAGE INSERTED INTO THE TORT CLAIMS ACTS IS NEARLY IDENTICAL TO THE, 85 00:08:12.418 --> 00:08:21.715 ACT IN 2 OF 6:00 IN THE HOR DECISION IMPOSITION OF VICARIOUS LIABILITY FOR ACTS 86 00:08:21.715 --> 00:08:27.234 OF CHILD SEXUAL ABUSE COMMITTED BY AN EMPLOYEE. THAT SAME 87 00:08:27.234 --> 00:08:32.585 LANGUAGE NOW EXISTS IN THE TORT CLAIMS ACT, THE INTENT WAS TO MAKE THE LIABILITY 88 00:08:32.585 --> 00:08:36.800 THE SAME AND YET SOMEHOW THE APPELLATE DIVISION DID NOT ACHIEVE THAT INTENT, 89 00:08:36.800 --> 00:08:42.377 NOT ONLY DID THEIR OPINION NOT ACHIEVE IT, IT ACTUALLY FRUSTRATED IT BECAUSE IT 90 00:08:42.377 --> 00:08:48.848 LEAVES IN PLACE AN IMMUNITY, WHILE EXPOSING A CHARITABLE ENTITY TO THOSE 91 00:08:48.848 --> 00:08:52.863 ACTS. POTENTIALLY IN THIS CASE IT HAS IMPLICATIONS IMMUNIZE 92 00:08:52.863 --> 00:09:00.685 THE UPPER FREEHOLD BOARD OF EDUCATION FOR VICARIOUS, WHILE LEAVING THE FUTURE FARMERS 93 00:09:00.685 --> 00:09:05.724 OF NEW EXPOSED TO THAT SAME LIABILITY, THAT DIRECTLY CONTRADICTS THE STATED 94 00:09:05.724 --> 00:09:10.646 INTENT NOT JUST THE PASSAGE OF THE CHILD VICTIMS ACT BUT THIS SPECIFIC SECTION, 95 00:09:10.646 --> 00:09:15.466 FOR THAT ADDITIONAL REASON WE THINK THE APPELLATE DIVISION ERRED AND JUSTIFIES 96 00:09:15.466 --> 00:09:19.520 REVERSAL. JUSTICE PATTERSON: ARE YOU FINISHED WITH YOUR 97 00:09:19.520 --> 00:09:22.232 OPENING STATEMENT. GABRIEL C. MAGEE: SURE. JUSTICE 98 00:09:22.232 --> 00:09:27.205 PATTERSON: YOU SAID THAT THE ATTORNEY GENERAL ENDORSES THE SAME REMEDY AS YOU SEEK, 99 00:09:27.205 --> 00:09:32.027 BUT YOU AND THE ATTORNEY GENERAL ARE NOT ALIGNED ON THIS AS I UNDERSTAND 100 00:09:32.027 --> 00:09:36.078 IT, AM I CORRECT? GABRIEL C. MAGEE: THAT'S FAIR JUSTICE. 101 00:09:36.078 --> 00:09:39.994 JUSTICE PATTERSON: THE REMEDY BEING A REMAND IS WHAT YOU, I GUESS, 102 00:09:39.994 --> 00:09:42.831 WERE REFERRING TO IN THAT REGARD. GABRIEL C. MAGEE: THE RE 103 00:09:42.831 --> 00:09:46.465 MEDY BEING OVERRULING THAT SPECIFIC PART OF THE APPELLATE DIVISION OPINION 104 00:09:46.465 --> 00:09:50.761 THAT SAYS THAT THE TORT CLAIMS ACT CONTINUES TO BAR CLAIMS OF VICARIOUS LIABILITY. 105 00:09:50.761 --> 00:09:53.162 JUSTICE PATTERSON: ONE OF THE CLAIMS MADE BY THE ATTORNEY 106 00:09:53.162 --> 00:10:00.575 GENERAL IS THAT THE AIDED BY AGENCY THEORY WOULD HAVE ALMOST NO BORDERS IF APPLIED 107 00:10:00.575 --> 00:10:07.555 IN THIS KIND OF CONTEXT AND THERE HAS TO BE SOME PRINCIPLED BOUNDARIES TO 108 00:10:07.555 --> 00:10:12.235 THAT THEORY AS APPLIED HERE. YOU DISAGREE WITH THAT, AM I CORRECT? 109 00:10:12.235 --> 00:10:15.655 JUSTICE PATTERSON: YOU ARE CORRECT, WE DO. JUSTICE 110 00:10:15.655 --> 00:10:20.990 PATTERSON: WHY IS THAT. GABRIEL C. MAGEE: AS A THRESHOLD MATH, 111 00:10:20.990 --> 00:10:24.893 MATTER THIS COURT HAS A GENERAL RULE OF REFUSING TO ADDRESS ISSUES RAISED 112 00:10:24.893 --> 00:10:29.709 FOR THE FIRST TIME BY AN AMICUS BRIEF AND THAT'S EXACTLY WHAT THE ATTORNEY GENERAL 113 00:10:29.709 --> 00:10:35.252 DID. THEY BELIEVE THIS COURT SHOULD MODIFY HARDWICKE AND ADD 114 00:10:35.252 --> 00:10:38.456 IN THE ADDITION OF MOD. JUSTICE PATTERSON: I DON'T THINK THEY'RE 115 00:10:38.456 --> 00:10:44.209 TELLING US TO MODIFY HARDWICKE, IN THE CONTEXT OF HARDWICKE BLANK, WHAT 116 00:10:44.209 --> 00:10:48.663 THEY ARE PRESENTING TO US IS A PROPOSAL FOR A TEST WHICH NEITHER PARTY AGREES WITH 117 00:10:48.663 --> 00:10:54.380 AS FAR AS I CAN TELL IN READING THE BRIEF, BUT WHICH ESSENTIALLY IS WHAT 118 00:10:54.380 --> 00:11:00.664 THEIR VIEW OF WHAT THE LEGISLATURE WAS INTENDING IN THE PUBLIC ENTITY SETTING. 119 00:11:00.664 --> 00:11:07.374 SO -- BUT IF YOU CAN ADDRESS THAT ON THE MERITS. GABRIEL C. 120 00:11:07.374 --> 00:11:12.379 MAGEE: ON THE MERITS, JUSTICE, WE DISAGREE WITH THE TEXT IN AND OF ITSELF WITH 121 00:11:12.379 --> 00:11:15.840 THE PROPOSAL, WITH THE MODIFICATION THAT THEY PROPOSE. OUR 122 00:11:15.840 --> 00:11:20.477 POSITION IS THERE IS NOTHING WRONG WITH HARDWICKE. THIS CASE LAW THAT THIS COURT 123 00:11:20.477 --> 00:11:24.909 ADOPTED HAS BEEN WORKING WELL IN NEW JERSEY FOR OVER 20 YEARS AN HARDWICKE 124 00:11:24.909 --> 00:11:30.107 AND THE PROGENY THAT MODIFIED IT HAVE PUT IN PLACE SUFFICIENT GUARDRAILS THAT MAKE 125 00:11:30.107 --> 00:11:35.218 THIS VICARIOUS LIABILITY NOT SOMETHING OF STRICT LIABILITY. WE THINK THOSE 126 00:11:35.218 --> 00:11:39.896 GUARDRAILS HAVE BEEN DEVELOPED BY NOT JUST THIS COURTS BUT THE APPELLATE DIVISION 127 00:11:39.896 --> 00:11:43.889 THAT GIVE THE KIND OF GUARDRAILS AN THE COMFORT THE ATTORNEY GENERAL IS 128 00:11:43.889 --> 00:11:47.471 LOOKING FOR. THERE IS NO REASON TO START OVER WITH A NEW TEXT THAT WOULD HAVE TO GO 129 00:11:47.471 --> 00:11:52.597 THROUGH THE ENTIRE PROCESS AGAIN OF LITIGATION UP AND POSSIBLY TO THIS 130 00:11:52.597 --> 00:11:56.917 COURT. AS TO THE SPECIFIC TESTS OR MODIFICATION THE ATTORNEY 131 00:11:56.917 --> 00:12:02.235 GENERAL RECOMMENDS, AS WE NOTED IN OUR BRIEFING, THERE IS MANY FLAWS WITH IT AND 132 00:12:02.235 --> 00:12:06.660 I THINK AS AN INITIAL MATTER, IT SHOWS YOU THE DIFFICULTIES IN TRYING TO 133 00:12:06.660 --> 00:12:11.365 COME UP WITH A TEST THAT IS GOING TO APPLY TO THESE ISSUES WITHOUT THE BENEFIT 134 00:12:11.365 --> 00:12:17.166 OF ANY FACTS BECAUSE THESE ARISE AS THIS COURT KNOWS ON A MOTION TO DISMISS, NOT 135 00:12:17.166 --> 00:12:22.183 A MOTION FOR SUMMARY FOR SUMMARY JUDGMENT. THE ATTORNEY GENERAL 136 00:12:22.183 --> 00:12:27.160 ASKED THIS COURT TO ESSENTIALLY ADOPT THE STANDARD FOR VIK KIER YOUS LIABILITY 137 00:12:27.160 --> 00:12:31.678 UNDER THE LAWS AGAINST DISCRIMINATION AND THERE IS AN AFFIRMATIVE DEFENSE THAT WAS 138 00:12:31.678 --> 00:12:38.402 RECOGNIZED BY THIS COURT IN STATE V. A YU WITNESS THAT SAYS ESSENTIALLY IT IS 139 00:12:38.402 --> 00:12:42.755 A DEFENSE TO THAT VICARIOUS LIABILITY IF THE ENTITY HAS SUFFICIENT POLICIES AND 140 00:12:42.755 --> 00:12:46.021 PROCEDURES IN PLACE AND THE PLAINTIFF FAILED TO TAKE ADVANTAGE OF THOSE. 141 00:12:46.021 --> 00:12:47.704 JUSTICE PATTERSON: BUT THE ATTORNEY GENERAL ACKNOWLEDGES 142 00:12:47.704 --> 00:12:53.444 THAT THAT IS NOT OO PERFECT FIT IN A SETTING INVOLVING YOUNG STUDENTS SO IT IS 143 00:12:53.444 --> 00:13:00.273 NOT SO SIMPLE. THEIR POSITION IS A LITTLE MORE NUANCED TO SIMPLY ADOPT THE 144 00:13:00.273 --> 00:13:06.275 L ID BECAUSE THAT WAS AN ADULT EMPLOYMENT SETTING AND THIS IS OBVIOUSLY A SCHOOL 145 00:13:06.275 --> 00:13:09.576 SETTING SO THEY HAVE SOME NUANCE TO THAT. GABRIEL C. MAGEE: 146 00:13:09.576 --> 00:13:17.232 I THINK THOSE NUANCES RENDER THEIR PROPOSAL NOT ONLY INEFFICIENT BUT UNJUST. 147 00:13:17.232 --> 00:13:20.092 THE NUANCES THAT YOU MENTION, FOR INSTANCE THAT THESE ARE CHILDREN, 148 00:13:20.092 --> 00:13:24.590 YOU CAN'T EXPECT THEM TO REPORT THIS ABUSE IN THE WAY YOU WOULD EXPECT THAT OF 149 00:13:24.590 --> 00:13:29.590 AN ADULT IN RELATION TO A COWORKER OR EVEN A SUPERVISOR. WE 150 00:13:29.590 --> 00:13:35.044 KNOW MOST SURVIVORS OF SEXUAL ABUSE DON'T REPORT THIS ABUSE OR IF THEY DO DON'T 151 00:13:35.044 --> 00:13:40.531 DO IT FOR DECADES SO TO HOLD THEM NOW RESPONSIBLE, TO GIVE THEM AN 152 00:13:40.531 --> 00:13:44.950 AFFIRMATIVE RESPONSE FOR SOMETHING THAT IS VERY UNLIKELY. JUSTICE 153 00:13:44.950 --> 00:13:51.892 PATTERSON: WHAT I AM SAYING IS WHEN I SAY IT'S NUANCED IT IS AN ADAPTATION TO THE 154 00:13:51.892 --> 00:13:55.846 SETTING OF THE SCHOOL SO IF YOU COULD RESPOND TO THE ACTUAL PROPOSAL THAT 155 00:13:55.846 --> 00:14:01.846 THEY HAVE MADE, WHICH WOULD NOT INCLUDE THAT, WHICH WOULD INCLUDE THAT ASPECT OF THE 156 00:14:01.846 --> 00:14:06.577 AFFIRMATIVE DEFENSE. GABRIEL C. MAGEE: I THINK SUGGESTING 157 00:14:06.577 --> 00:14:12.002 IT IS A DEFENSE TO HAVE POLICIES AND PROCEDURES IN PLACE IS FLAWED; THAT 158 00:14:12.002 --> 00:14:17.363 REALLY PUTS THE BURDEN IN THE WRONG PLACE. THE THRUST OF THE HARDWICKE 159 00:14:17.363 --> 00:14:22.766 DECISION IS THAT -- AND I THINK HARDWICKE SAYS AT PAGE 102 OF THAT DECISION, 160 00:14:22.766 --> 00:14:28.123 EXCUSE ME, 106 THAT WE'RE GOING TO IMPOSE VICARIOUS LIABILITY BECAUSE IT PUTSZ 161 00:14:28.123 --> 00:14:33.173 THE BURDEN THAT IS IN THE BEST PLACE TO RECOGNIZE AND STOP IT. 162 00:14:33.173 --> 00:14:36.005 JUSTICE WAINER APTER: THE DRAFT OF HARDWICKE WHEN YOU READ THE OPINION IS REALLY 163 00:14:36.005 --> 00:14:43.413 MOSTLY ABOUT THE C S A A. IT IS A VERY CLOSE STATUTORY READ OF THE CONSIDERS 164 00:14:43.413 --> 00:14:49.421 A A AND WHAT WOULD CON STIT IN LOCAL PAR RENT ADVERTISE, WHAT WOULD CONSTITUTE 165 00:14:49.421 --> 00:14:57.091 A PERSON AN IT'S A VERY CLOSE STATUTORY READ OF THE C I A A. IS THERE ANY C 166 00:14:57.091 --> 00:15:00.929 S A A CLAIM IN THIS CASE. GABRIEL C. MAGEE: YES, THERE IS IN OUR 167 00:15:00.929 --> 00:15:03.984 CASE AND I THINK. JUSTICE WAINER APTER: WHICH CLAIM IS THAT? 168 00:15:03.984 --> 00:15:07.537 GABRIEL C. MAGEE: I THINK IN OUR GENERAL NEGLIGENCE CLAIM, 169 00:15:07.537 --> 00:15:13.148 WE BRING THAT AND IN THE LEADING PARAGRAPHS WE IDENTIFY THE C S A A AS ONE OF 170 00:15:13.148 --> 00:15:18.140 THE FOUNDATIONAL ACTS WE'RE MOVING UNDERSTAND AS WE FORESEE NEGLIGENCE 171 00:15:18.140 --> 00:15:20.595 UNDERSTAND THAT. JUSTICE PATTERSON: YOUR NEGLIGENCE CLAIM IS 172 00:15:20.595 --> 00:15:23.976 THE COMMON LAW CLAIM. GABRIEL C. MAGEE: THAT'S SO, JUSTICE BUT IF 173 00:15:23.976 --> 00:15:28.324 YOU LOOK AT THE COMPLAINT IN THE OPENING PARAGRAPH WE IDENTIFY THE C S A 174 00:15:28.324 --> 00:15:31.276 A AS ONE OF THE SOURCES MUCH LIABILITY HERE. JUSTICE WAINER 175 00:15:31.276 --> 00:15:35.445 APTER: C S A A CLAIMS CAN ONLY BE BROUGHT OR A SCHOOL CAN ONLY BE LIABLE 176 00:15:35.445 --> 00:15:41.105 UNDERSTAND THE C S A A IF IT STANDS IN LOEK COMPANY PAR RENT ADVERTISE AND IF IT 177 00:15:41.105 --> 00:15:46.957 IS KNOWINGLY PERMITS AND ACQUIESCES IN SEXUAL ABUSE BY ANY OTHER PERSON AND 178 00:15:46.957 --> 00:15:53.506 THAT'S N J A C, B ONE A ONE, ARE YOU SUGGESTING THAT A COMMON LAW CLAIM WOULD HAVE 179 00:15:53.506 --> 00:15:58.144 TO MEET THE SAME THRESHOLD? I READ YOUR COMPLAINT CAREFULLY AND 180 00:15:58.144 --> 00:16:02.258 I COULD NOT FIGURE OUT IF THERE WAS AN ACTUAL CLAIM BROUGHT UNDERSTAND THE 181 00:16:02.258 --> 00:16:07.456 C S A A OR IF THERE WAS JUST A REFERENCE TO THE C S A A IN THE FIRST NEGLIGENCE 182 00:16:07.456 --> 00:16:11.277 COUNT AND ARE YOU SUGGESTING THAT A NEGLIGENCE COUNT WOULD HAVE TO MEET 183 00:16:11.277 --> 00:16:16.359 THE SAME STABBED DARD AS THE C S A A OR IT WOULDN'T HAVE TO MEET THE SAME 184 00:16:16.359 --> 00:16:20.972 STANDARD AND THE C S A A IS A STRICTER STANDARD? HOW IS THE 185 00:16:20.972 --> 00:16:25.114 C S A A RELEVANT TO THIS CASE. GABRIEL C. MAGEE: WE BELIEVE THE 186 00:16:25.114 --> 00:16:31.502 C S A A IS A STRICTER STANDARD. WHAT YOU REFERENCED IS PASSIVE ABUSER LIABILITY 187 00:16:31.502 --> 00:16:36.493 AND AS YOU ALLUDED IT REQUIRES KNOWING ABOUT THE ABUSE OR ACQUIESCENCE TO IT. 188 00:16:36.493 --> 00:16:40.123 THAT IS DIFFERENT FROM THE VICARIOUS LIABILITY THAT HARDWICKE IS PROPOSING. 189 00:16:40.123 --> 00:16:44.067 IF YOU LOOK AT THE HARDWICKE DECISION, WHILE IT DOES SPEND 190 00:16:44.067 --> 00:16:49.364 A LOT OF TIME FOCUSED ON THE C S A A THEY DO THEN TURN TO THE COMMON LAW CLAIMS 191 00:16:49.364 --> 00:16:53.506 AND THEY MAKE A POINT OF SAYING THE SAME RATIONAL THAT JUSTIFIES THE IMPOSITION 192 00:16:53.506 --> 00:16:59.255 OF THE C S A A CLAIMS WHICH IS THE PROTECTION OF CHILDREN ON THAT ENTITY THROUGH 193 00:16:59.255 --> 00:17:06.189 A PRIVATE SCHOOL ALSO JUSTIFIES EXTEND IT IT TO A CLAIM OF VICARIOUS LIABILITY. 194 00:17:06.189 --> 00:17:09.662 JUSTICE WAINER APTER: YOU'RE SAYING THE C S A A IMPOSES A 195 00:17:09.662 --> 00:17:13.662 STRICTER STANDARD AND YOU THINK YOU SHOULD BE ABLE TO BRING A NEGLIGENCE CLAIM 196 00:17:13.662 --> 00:17:18.826 THAT IS RELYING ON THE C S A A BUT NOT BROUGHT UNDER THE C S A A. 197 00:17:18.826 --> 00:17:23.082 GABRIEL C. MAGEE: JUST SO I'M CLEAR, I THINK WE CAN BRING A C S A A CLAIM. I 198 00:17:23.082 --> 00:17:26.509 THINK WE CAN BRING A NEGLIGENCE CLAIM. FOR INSTANCE WE BRING NEGLIGENCE 199 00:17:26.509 --> 00:17:31.271 BLANK AND SUPERVISION CLAMGS WHICH ARE DIRECTLY AUTHORIZED NOW BY THE STATUTE AND 200 00:17:31.271 --> 00:17:35.138 IN ADDITION WE CAN BRING OUR VICARIOUS LIABILITY CLAIMS. 201 00:17:35.138 --> 00:17:40.250 JUSTICE WAINER APTER: I GUESS WHAT WOULD A CASE BE THAT SHOWED THAT A NEGLIGENCE 202 00:17:40.250 --> 00:17:44.568 CLAIM THAT IS SIMILAR TO, BUT NOT EXACTLY THE SAME AS THE C S A A WOULD 203 00:17:44.568 --> 00:17:50.261 IMPOSE LIABILITY BEYOND WHAT THE C S A A IS IMPOSING BECAUSE WHEN YOU REETD HARDWICKE, 204 00:17:50.261 --> 00:17:54.900 IT DOES NOT CLEARLY STATE ANYWHERE -- I MEAN THE ESSENCE OF THE HOLDING IS 205 00:17:54.900 --> 00:18:01.058 THAT HE HAD A CLAIM UNDER THE C S A A AND THAT IT WASN'T BARRED BY THE C I A A 206 00:18:01.058 --> 00:18:05.650 AND IT DOESN'T CLEARLY SAY NEGLIGENCE LIABILITY WOULD BE MUCH BROADER. THE 207 00:18:05.650 --> 00:18:10.140 NEGLIGENCE PIECE IS ALMOST LIKE AN ADD ON AT THE END OF THE OPINION. 208 00:18:10.140 --> 00:18:16.470 GABRIEL C. MAGEE: I THINK THE ANSWER, TO THAT, JUSTICE IS THAT A VICARIOUS VIABILITY 209 00:18:16.470 --> 00:18:20.860 CLAIM IS NOT A NEGLIGENCE CLAIM. IT'S SOMETHING DIFFERENT. VICARIOUS 210 00:18:20.860 --> 00:18:24.963 LIABILITY IS NOT A STRAIGHT NEGLIGENCE CLAIM. YOU DON'T HAVE TO SHOW FORESEE ABILITY. 211 00:18:24.963 --> 00:18:29.315 YOU DON'T HAVE TO SHOW ALL THOSE ELEMENTS IT'S AN ALTERNATIVE AND I THINK 212 00:18:29.315 --> 00:18:34.529 THAT'S WHAT THE HARDWICKE COURT WAS IMPOSING WHEN THEY GAVE THE CLAIM. 213 00:18:34.529 --> 00:18:39.237 TODAY, AS WE STAND HERE TODAY, WHEN WE BRING OUR CLAIMS FOR VICARIOUS LIABILITY 214 00:18:39.237 --> 00:18:43.614 THEY ARE PURSUANT TO HARDWICKE, BUT VICARIOUS LIABILITY AND NEGLIGENCE ARE 215 00:18:43.614 --> 00:18:48.092 TWO DIFFERENT CONCEPTS AND I THINK THAT'S THE REASON THAT WE'RE PERMITTED TO BRING 216 00:18:48.092 --> 00:18:52.865 THOSE. IT'S NOT A NEGLIGENCE STANDARD AND SO I DON'T THINK THAT -- 217 00:18:52.865 --> 00:18:56.445 JUSTICE PATTERSON: WHAT IS NOT A NEGLIGENCE STANDARD? YOUR 218 00:18:56.445 --> 00:19:01.541 NONE LAW NEGLIGENCE CLAIM IS EXACTLY THAT. IT'S A REASONABLENESS STANDARD. WE'RE 219 00:19:01.541 --> 00:19:06.334 TALKING ABOUT VICARIOUS LIABILITY YOUR CLAIM IS NOT. GABRIEL C. 220 00:19:06.334 --> 00:19:09.119 MAGEE: YES, YOUR HONOR. OUR NEGLIGENCE CLAIM IS FOUND IN NEGLIGENCE, 221 00:19:09.119 --> 00:19:13.614 HIGH RETENTION AND SUPERVISION. THOSE ARE NEGLIGENCE CLAIMS AND THEY SOUND 222 00:19:13.614 --> 00:19:19.993 IN COMMON LAW, NEGLIGENCE THEY REQUIRE ALL THE RELEVANCE, NEGLIGENCE, ELUCIDATED 223 00:19:19.993 --> 00:19:24.247 BY THIS COURT, VICARIOUS LIABILITY CLAIMS ARE SOMETHING DIFFERENT THAT ARE 224 00:19:24.247 --> 00:19:26.901 SPECIFICALLY AUTHORIZED. JUSTICE WAINER APTER: SO WHEN YOU SAY 225 00:19:26.901 --> 00:19:32.384 SPECIFICALLY AUTHORIZED IS HARDWICKE THE ONLY CASE THAT SAYS VICARIOUS 226 00:19:32.384 --> 00:19:37.214 SPECIFICALLY BUT SPECIFICALLY AUTHORIZED BROADER THAN C S A A LIABILITY AND THAT 227 00:19:37.214 --> 00:19:42.763 IT ENCOMPASSES SOME FORM OF LIABILITY THAT CANNOT ATTACH UNDER THE C S A 228 00:19:42.763 --> 00:19:45.734 A. GABRIEL C. MAGEE: I DON'T THINK IT'S THE ONLY CASE. I 229 00:19:45.734 --> 00:19:50.130 THINK THAT OTHER CASES HAVE INTERPRETED HARDWICKE AND AGREED WITH THAT DECISION, 230 00:19:50.130 --> 00:19:56.852 SO, FOR INSTANCE, THE E S BRUNSWICK PARTNERSHIP LIMITED CASE AND IN THE 231 00:19:56.852 --> 00:20:02.487 ES CASE THAT'S AN APPELLATE DIVISION CASE, THEY FOUND THAT THERE WAS NO VICARIOUS 232 00:20:02.487 --> 00:20:07.212 LIEBLTH UNDER HARDWICKE AND THEY DEALT WITH THE ISSUES THAT YOU'RE TALKING 233 00:20:07.212 --> 00:20:11.237 ABOUT AND ULTIMATELY I THINK THE CRUX OF THAT CASE IF YOU LOOK AT IT AN YOU LOOK 234 00:20:11.237 --> 00:20:14.739 AT THE REASON OF THE APPELLATE DIVISION IS THAT THE ENTITIES DID NOT STANDS IN 235 00:20:14.739 --> 00:20:20.229 LOEK COMPANY PAR RENT ADVERTISE TO THESE CHILDREN AND THEY DID NOT MOVE PURSUANT 236 00:20:20.229 --> 00:20:24.804 TO A STATUTE THAT WOULD AFFECT AN IMPORTANT PUBLIC POLICY. 237 00:20:24.804 --> 00:20:31.745 THOSE ARE THE IMPORTANT GUARDRAILS THAT HARDWICKE AND. A. 238 00:20:31.745 --> 00:20:34.698 JUSTICE WAINER APTER: BECAUSE THOSE WORDS WERE FOUND IN THE STATUTE. IT DID 239 00:20:34.698 --> 00:20:40.223 SEEM LIKE IN YOUR BRIEF THAT YOU WERE ACCEPTING THE IN LOEK COMPANY PARENT 240 00:20:40.223 --> 00:20:44.298 ADVERTISE REQUIREMENT, THAT YOU COULD ONLY SUE A SCHOOL IF IT STANDS IN LOEK COMPANY 241 00:20:44.298 --> 00:20:49.427 PARENT ADVERTISE BUT YOU COULD NOT ACCEPT THE KNOWING PERMITTED OR AK, PART OF 242 00:20:49.427 --> 00:20:53.669 THE CENTER BUT I AM ASKING WHERE DO YOU COME UP WITH THAT BECAUSE A CLOSE 243 00:20:53.669 --> 00:20:58.965 READ OF HARDWICKE DOES NOT SHOW THAT THEY ARE CREATING A SEPARATE NEGLIGENCE ACTION 244 00:20:58.965 --> 00:21:04.987 THAT IS OUTSIDE OF THE C S A AND THAT IS BROADER THAN THE C S A AND THAT 245 00:21:04.987 --> 00:21:11.695 INCLUDES AN IN LOEK COMPANY PARENT ADVERTISE REQUIREMENT BUT NOT A AK COUNT 3 HARDWICKE 246 00:21:11.695 --> 00:21:16.345 R AK. GABRIEL C. MAGEE: I THINK IF I READ HARDWICKE CLOSE 247 00:21:16.345 --> 00:21:20.666 LY I WOULD HAVE TO DISAGREE WITH YOU, JUSTICE BECAUSE THEY MAKE IT CLEAR THOSE ARE 248 00:21:20.666 --> 00:21:24.766 TWO DIFFERENT CLAIMS AND IT IS ON THAT PAGE 106 WHERE THEY MENTION THIS. 249 00:21:24.766 --> 00:21:28.631 IF THAT WERE TRUE, JUSTICE THOSE TWO CLAIMS WOULD NOT -- THERE 250 00:21:28.631 --> 00:21:35.178 WOULD BE NO DIFFERENCE BETWEEN THAT. IF YOU COULD HOLD A PIB ENTITY LIABLE UNDER 251 00:21:35.178 --> 00:21:41.824 THE C S A FOR KNOWING AND UNDERSTAND THE. THERE WOULD BE NO 252 00:21:41.824 --> 00:21:46.630 DIFFERENCE. HARDWICKE WENT OUT OF ITS WAY TO RECOGNIZE THAT WHEN YOU'RE TALKING 253 00:21:46.630 --> 00:21:51.763 ABOUT THE C S A A YOU'RE PERMITTED TO BRING THAT CLAIM AGAINST A CHARITABLE ENTITY. 254 00:21:51.763 --> 00:21:56.123 IN ADDITION YOU MAY BRING A VICARIOUS LIABILITY CLAIM FOR YOUR 255 00:21:56.123 --> 00:21:59.623 COMMON LAW CLAIM SO THOSE TWO THINGS HAVE TO BE DIFFERENT. NOTHING 256 00:21:59.623 --> 00:22:03.861 ABOUT THE HARDWICKE DECISION SAYS YOU MUST ALSO MEET THE STANDARD FOR THE VICARIOUS 257 00:22:03.861 --> 00:22:06.652 LIABILITY CLAIM. JUSTICE WAINER APTER: I THINK IF YOU'RE 258 00:22:06.652 --> 00:22:26.549 GOING TO MAKE THAT ARGUMENT IT WOULD APPLY TO THE IN LOCO PARENTIS, ALSO. 259 00:22:26.549 --> 00:22:35.459 WHERE DO YOU GET THAT YOU NEED IN LOCO PARENTIS BUT YOU DO 260 00:22:35.459 --> 00:22:41.613 NOT NEED THE OTHER AGGRESSIVE. GABRIEL C. MAGEE: UNDER A STRICT 261 00:22:41.613 --> 00:22:46.847 READING OF HARDWICKE, IT DOESN'T NECESSARILY SAY YOU MUST STANDS IN 262 00:22:46.847 --> 00:22:52.989 LOCO PARENTIS TO BRING THIS CLAIM THAT'S ASSUMED IN THAT CASE. THE J.H. VERSUS 263 00:22:52.989 --> 00:22:58.648 MERCER COUNTY YOUTH DETENTION CENTER CASE IN 2007 THAT CASE CAME ONE YEAR AFTER 264 00:22:58.648 --> 00:23:02.742 HARDWICKE AND THERE THEY WERE CONFRONTED WITH FACTS ALMOST IDENTICAL TO 265 00:23:02.742 --> 00:23:08.946 THIS. A PLAINTIFF ZOO SUED A PUBLIC ENTITY AND HE BROUGHT A VICARIOUS LIABILITY 266 00:23:08.946 --> 00:23:14.230 CLAIM. IN THAT J.H. CLAIM THEY AGAIN ANALYZE IN LOANING COMPANY PARENT 267 00:23:14.230 --> 00:23:20.229 ADVERTISE AND IN E S THEY AGAIN, ANALYZED IN LOCO PARENTIS AND IT IS REALLY IN 268 00:23:20.229 --> 00:23:27.586 THE E S DECISION WHERE THEY SAY, AIDED AGENCY OR PARENT AUTHORITY, SCOPE OF 269 00:23:27.586 --> 00:23:34.573 EMPLOYMENT AGAINST AN EMPLOYER, OUTSIDE THE CONTEXT OF SOMEONE PURSUING A PUBLIC. 270 00:23:34.573 --> 00:23:38.359 JUSTICE PATTERSON: THE APPELLATE DIVISION EXPRESSED SOME 271 00:23:38.359 --> 00:23:45.101 CAUTION ABOUT HOW FAR THE AIDED BY AGENCY STANLD DARD COULD TAKE US AND THEY SAY 272 00:23:45.101 --> 00:23:52.870 AN OVERLY BROAD INTERPRETATION, TO 192 B COULD ESSENTIALLY APPLY TO ALMOST 273 00:23:52.870 --> 00:23:59.651 EVERY SITUATION AND THAT WITH NO LIMB IT IS THE THEORY WOULD ESSENTIALLY ELIMINATE 274 00:23:59.651 --> 00:24:04.924 THE GENERAL RULE THAT INTENTIONAL TORTS ARE NOT SUBJECT TO VICARIOUS 275 00:24:04.924 --> 00:24:10.501 LIABILITY, SO YOU'RE RELIESING ON ES, AND THINK ALSO NOTED THAT THE THIRD RESTATEMENT 276 00:24:10.501 --> 00:24:16.769 IS GOING IN A DIFFERENT DIRECTION. SO YOU'RE RELYING ON E S AND I UNDERSTAND 277 00:24:16.769 --> 00:24:26.129 WHY, BUT IT IS EXPRESSING THE SAME CONCERNS THAT THE A G IS EXPRESSING ABOUT 278 00:24:26.129 --> 00:24:32.574 THE NEARLY INFINITE REACH OF YOUR THEORY AIDED BY AGENCY IN A SCHOOL SETTING IN 279 00:24:32.574 --> 00:24:38.169 WHICH POTENTIALLY EVERY TEACHER WHO IS PERMITTED AND AUTHORIZED AND HIRED 280 00:24:38.169 --> 00:24:45.263 TO SPEAK WITH CHILDREN, NO MATTER WHAT CIRCUMSTANCE IT COULD BE, IMPOSES LIABILITY 281 00:24:45.263 --> 00:24:49.880 ON THE ENTITY THAT HIRED THEM. WHAT IS YOUR RESPONSE TO THAT? 282 00:24:49.880 --> 00:24:53.202 GABRIEL C. MAGEE: I THINK THAT'S EXACTLY RIGHT. I COMPLETELY 283 00:24:53.202 --> 00:24:57.791 AGREE WITH EVERYTHING YOU SAID. THEY DID EXPRESS THAT CONCERN AND IT'S THE SAME 284 00:24:57.791 --> 00:25:02.486 CONCERN THE A G SHARES. OUR POSITION IS THAT IT HAS BEEN UNFOUNDED 285 00:25:02.486 --> 00:25:08.870 IN THE LAST 20 YEARS WHICH HARDWICKE HAS EXISTED. IT HASN'T COME TO PASS. 286 00:25:08.870 --> 00:25:12.208 JUSTICE WAINER APTER: THE ONLY REASON THAT THIS CLAIM FROM 287 00:25:12.208 --> 00:25:16.980 40 YEARS AGUAS BROUGHT NOW WAS BECAUSE OF THE 2019 AMENDMENT, CORRECT? 288 00:25:16.980 --> 00:25:18.807 GABRIEL C. MAGEE: CORRECT. JUSTICE WAINER APTER: SO HOW CAN 289 00:25:18.807 --> 00:25:23.961 WE LOOK AT 20 YEARS OF HISTORY IF THE CLAIMS WERE ONLY NECESSITATED OR GIVEN 290 00:25:23.961 --> 00:25:28.865 A NEW WINDOW IN WHICH TO BE BROUGHT IN 2019. ISN'T THIS REALLY ONLY 291 00:25:28.865 --> 00:25:33.053 BEING LITIGATED NOW FOR MANY OF THESE MUCH OLDER CASES. GABRIEL C. 292 00:25:33.053 --> 00:25:37.182 MAGEE: THAT IS TRUE BUT PLAINTIFFS ALWAYS HAD THE TABLT TO PURSUE THESE CLAIMS 293 00:25:37.182 --> 00:25:41.578 IF THEY BROUGHT A CLAIM WITHIN THE OLD STATUTE OF LIMITATIONS. YOU ARE 294 00:25:41.578 --> 00:25:45.601 CORRECTED THAT MOST PLAINTIFFS DIDN'T DO THAT BY VIRTUE OF THE FACT THAT THEY NEVER 295 00:25:45.601 --> 00:25:49.418 REPORT THE ABUSE UNTIL MUCH LATER WHICH IS THE REASON THE STATUTE WAS CHANGED, 296 00:25:49.418 --> 00:25:54.704 BUT THE FACT IS THE PLAINTIFFS DID HAVE THAT ABILITY, FOR INSTANCE IN THE J.H. 297 00:25:54.704 --> 00:25:59.601 CASE A YEAR LATER, IN THE E S DECISION THOSE PLAINTIFFS WERE TWO YOUNG GIRLS 298 00:25:59.601 --> 00:26:03.555 WHO ARE STILL WITHIN THE STATUTE OF LIMITATIONS. I THINK TO 299 00:26:03.555 --> 00:26:08.609 ANSWER JUSTICE PATTERSON'S QUESTION MORE FULLY, THE E S DECISION, WHILE THEY DID 300 00:26:08.609 --> 00:26:12.173 EXPRESS THOSE CONCERNS, IT DEMONSTRATES ACTUALLY WHAT WE'RE TALKING ABOUT. 301 00:26:12.173 --> 00:26:16.471 THEY VOICED THOSE CONCERNS, THEY SAID THEY WERE WORRIED ABOUT THAT AND THEN WHAT 302 00:26:16.471 --> 00:26:20.356 DID THEY DO, THEY FOLLOWED HARDWICKE IN THE SENSE THEY SAID THIS CASE DOES 303 00:26:20.356 --> 00:26:25.678 NOT MEET THE STANDARDS SET OUT IN HARDWICKE SO WE ARE HE NOT GOING TO APPLY VI 304 00:26:25.678 --> 00:26:30.401 CARIOUS LIABILITY TO THIS EMPLOYER. IF YOU LOOK AT PAGE 302 305 00:26:30.401 --> 00:26:38.350 OF THAT DECISION. JUSTICE WAINER APTER: GABRIEL 306 00:26:38.350 --> 00:26:43.743 C. MAGEE: PURSUANT TO THE CHILD VICTIM'S ACT OR PRIOR TO THAT CHILD SEX ABUSE ACT 307 00:26:43.743 --> 00:26:48.undefined OR, FOR INSTANCE, IN THE CONTEXT OF THE LAW AGAINST DISCRIMINATION. 309 00:26:51.607 --> 00:26:55.479 ACTION, IT CREATES A CAUSE OF ACTION FOR SEXUAL ABUSE, CORRECT. 310 00:26:55.479 --> 00:26:57.120 GABRIEL C. MAGEE: CORRECT. JUSTICE WAINER APTER: WHEN YOU SAY YOUR 311 00:26:57.120 --> 00:27:01.188 CLAIMS ARE BROUGHT UNDER THE C DA YOU'RE REFERRING TO ALL THE AMENDMENTS 312 00:27:01.188 --> 00:27:04.181 IN 2019, CORRECT? GABRIEL C. MAGEE: CORRECT. 313 00:27:04.181 --> 00:27:06.764 JUSTICE WAINER APTER: WHAT SPECIFICALLY CREATED A CAUSE OF ACTION THAT YOU ARE 314 00:27:06.764 --> 00:27:11.776 NOW SUING UNDERSTAND, WHAT STATUTORY CAUSE OF ACTION ARE YOU SUING UNDERSTAND. 315 00:27:11.776 --> 00:27:15.598 GABRIEL C. MAGEE: SPECIFICALLY 39 CREATES A SPECIFIC 316 00:27:15.598 --> 00:27:19.688 STATUTORY CAUSE OF ACTION BECAUSE IT RECOGNIZES AND ROOUFS IMMUNITY FROM LIABILITY 317 00:27:19.688 --> 00:27:26.302 FOR ACTS OF VICARIOUS LIABILITY COMMITTED BY AN EMPLOYEE. JUSTICE 318 00:27:26.302 --> 00:27:29.922 FASCIALE: AND AS TO THAT SPECIFIC SECTION IN YOUR OPENING STATEMENT YOU POINTED 319 00:27:29.922 --> 00:27:35.476 TO WHAT YOU ORDINARILY DO IF THERE IS AN AMBIGUITY LOOKING TO EXCHANGE, 320 00:27:35.476 --> 00:27:42.091 ARE YOU RELYING ON THESE RESPONSES A 5392 WHICH SAYS THAT THE SPONSOR EXPLAINED 321 00:27:42.091 --> 00:27:47.664 THE NEW STANDARDS ARE IDENTICAL TO THE LIABILITY STANDARDS APPLIED TO 322 00:27:47.664 --> 00:27:53.547 NONPROFIT ORGANIZATIONS, DOT, DOT, DOT AND BASED ON EX SOEPGSS TO THE IMMUNITY GRANTED 323 00:27:53.547 --> 00:27:58.144 EXCEPT TO ORGANIZATIONS AND AGENTS UNDERSTAND THE C I A A. 324 00:27:58.144 --> 00:28:02.190 GABRIEL C. MAGEE: YES, WE ARE. THE SHORT ANSWER IS YES, WE RELY ON THAT AND I 325 00:28:02.190 --> 00:28:07.433 THINK THAT SHOWS YOU TO JUSTICE WAINER APTER'S POINT, THERE IS A CAUSE OF 326 00:28:07.433 --> 00:28:12.341 ACTION ELUCIDATED BY THAT BECAUSE THAT SECTION IS SPECIFICALLY REFERENCED AS CREATEDING 327 00:28:12.341 --> 00:28:17.172 THE SAME LIABILITY THAT A CHARITABLE ENTITY HAS. JUSTICE 328 00:28:17.172 --> 00:28:20.782 PATTERSON: IS THAT A 1. GABRIEL C. MAGEE: YES. 329 00:28:20.782 --> 00:28:25.936 JUSTICE PATTERSON: A 1, SO THE LEGISLATURE, TYPICALLY WHEN IT CREATES LIABILITY 330 00:28:25.936 --> 00:28:30.660 WILL SAY A CAUSE OF ACTION IS FOR THE FOLLOWING SERIES OF CIRCUMSTANCES, 331 00:28:30.660 --> 00:28:40.938 IT'S CREATED. AND THIS IS THE LEADING I'M DELETING IMMUNITY, NO QUESTION AND 332 00:28:40.938 --> 00:28:48.395 REFERS TO CAUSES OF ACTION BASED ON CRIMES OF A SEXUAL NATURE OR SEXUAL ABUSE BEING 333 00:28:48.395 --> 00:28:53.882 COMMITTED AGAINST A PERSON WHICH WAS CALLED G CAUSE BY A WILLFUL WANT ACT 334 00:28:53.882 --> 00:28:58.854 OF A PUBLIC ENTITY. SIT YOUR CONTENTION THAT THERE IS A PRIVATE 335 00:28:58.854 --> 00:29:04.315 CAUSE OF ACTION CREATED BY SUBSECTION A 1? GABRIEL C. MAGEE: I. 336 00:29:04.315 --> 00:29:06.605 JUSTICE PATTERSON: DO YOU SEE WHAT I AM SAYING? 337 00:29:06.605 --> 00:29:10.497 IT DOES TALK ABOUT IMMUNITY DOES NOT APPLY IN THE FOLLOWING CIRCUMSTANCES AND 338 00:29:10.497 --> 00:29:17.326 ITS PLACED WHERE IT IS PLACED BECAUSE IT'S FUNDAMENTALLY AN IMMUNITY STATUTE THE 339 00:29:17.326 --> 00:29:23.221 TCA IS, BUT I THOUGHT YOU MAY BE SAYING THAT YOU HAVE A PRIVATE CAUSE OF ACTION 340 00:29:23.221 --> 00:29:26.777 BASED ON THAT SPOEFK REVISION. GABRIEL C. MAGEE: I DO THINK 341 00:29:26.777 --> 00:29:31.503 SO IN THIS INSTANCE, GIST STIS AND I DO SEE YOUR POINT, BECAUSE IT ROOUFS 342 00:29:31.503 --> 00:29:35.634 THE IMMUNITY THAT A PUBLIC ENTITY HAD THAT WAS REALLY THE ONLY REASON THAT YOU 343 00:29:35.634 --> 00:29:40.259 COULDN'T BRING A CLAIM UNDERSTAND HARDWICKE AGAINST PUBLIC ENTITY IT LEAVES IN 344 00:29:40.259 --> 00:29:44.033 PLACE THE COMMON LAW AND THAT RIGHTS OF ACTION IS JUSTIFIED BY HARDWICKE. 345 00:29:44.033 --> 00:29:46.333 JUSTICE WAINER APTER: SO IT SEEMS LIKE YOU ARE NOW GIVING 346 00:29:46.333 --> 00:29:50.undefined A DIFFERENT ANSWER. I HAD ORIGINALLY THOUGHT YOU WERE BRINGING YOUR CLAIM ONLY 348 00:29:53.559 --> 00:29:57.477 A STATUTE BECAUSE YOU WERE REFERRING TO OTHER CASES AND YOU SAID IF THERE IS NO 349 00:29:57.477 --> 00:30:02.494 -- I FORGET YOUR EXACT WORD BUT IF THERE IS A STATUTE THAT ALLOWS YOU TO SUE 350 00:30:02.494 --> 00:30:07.364 SO THEN I ASKED, OKAY, WHAT IS THE STATUTE PURSUANT TO WHICH YOU BROUGHT YOUR 351 00:30:07.364 --> 00:30:12.699 CLAIM AND NOW IT SEEMS -- SO IS THE CLAIM PURSUANT TO A STATUTE OR IS IT PURSUANT 352 00:30:12.699 --> 00:30:16.504 TO THE COMMON LAW? GABRIEL C. MAGEE: TO ANSWER YOUR QUESTION, 353 00:30:16.504 --> 00:30:21.240 JUSTICE, IT'S BOTH. I THINK THE DIFFERENCE IS THIS, WHEN WE NORMALLY 354 00:30:21.240 --> 00:30:26.095 SAY WE'RE BRINGING A CLAIM PURSUANT TO A STATUTE WE'RE LOOKING TO A CAUSE OF ACTION 355 00:30:26.095 --> 00:30:28.792 THAT IS DIRECTLY BLANK. JUSTICE WAINER APTER: FOR EXAMPLE, 356 00:30:28.792 --> 00:30:34.914 THE C S A A SAYS, CLOP READING FAST. IT'S VERY CLEAR, CREATING A CAUSE OF ACTION 357 00:30:34.914 --> 00:30:39.072 FOR SEXUAL ABUSE SAYS WHEN IT ACCRUES, ETC.. GABRIEL C. MAGEE: 358 00:30:39.072 --> 00:30:42.446 THE LANGUAGE THAT HARDWICKE AND THESE OTHER CASES HAS DEVELOPED IS A LITTLE 359 00:30:42.446 --> 00:30:46.487 BIT DIFFERENT. WHAT IT RECOGNIZES AS THE GUARDRAIL THAT WAS 360 00:30:46.487 --> 00:30:50.947 PUT IN PLACE TO PROTECT AGAINST THAT STRICT LIABILITY IS THE PLAINTIFF MUST BE 361 00:30:50.947 --> 00:30:55.784 MOVING IN FURTHERANCE OR TO EFFECTUATE A PIECE OF REMEDIAL LEGISLATION THAT IS 362 00:30:55.784 --> 00:30:59.919 DESIGNED TO EFFECTUATE AN IMPORTANT PUBLIC POLICY. PIERCE PIERCE JUST SO 363 00:30:59.919 --> 00:31:06.031 I UNDERSTAND, YOU DID ORIGINALLY RESPOND THAT SECTION 1.3 A CREATES THE CAUSE OF 364 00:31:06.031 --> 00:31:10.277 ACTION. ARE YOU BACKING AWAY FROM THAT OR IS THAT YOUR ANSWER THAT THAT 365 00:31:10.277 --> 00:31:15.902 PARTICULAR SECTION CREATES A CAUSE OF ACTION. I MEAN SECTION A 1 STATES THAT IMMUNITY 366 00:31:15.902 --> 00:31:22.114 SHALL NOT APPLY TO AN ACTION AT LAW FOR DAMAGES AS A RESULT OF SEXUAL ASSAULT. 367 00:31:22.114 --> 00:31:26.363 ARE YOU SAYING THAT THE ACTION AT LAW BEING REFERENCED IN A 368 00:31:26.363 --> 00:31:33.352 1 IS A 1 ITSELF? I JUST WANTS TO UNDERSTAND. IT'S GETTING A 369 00:31:33.352 --> 00:31:36.716 LITTLE CONFUSING. GABRIEL C. MAGEE: I APPRECIATE THAT AND JUST 370 00:31:36.716 --> 00:31:41.578 TO BE CLEAR THE ANSWER IS MORE THAN ONE IT'S NOT THAT WE BELIEVE THE STATUTE CONTAINS 371 00:31:41.578 --> 00:31:47.077 A SPECIFIC STATUTORY CAUSE OF ACTION IN IT FOR SPECIFIC ACTIONS LIKE THE 372 00:31:47.077 --> 00:31:52.881 LAD. ENACTING THE LEGISLATION IN THIS WAY, COMMON LAW CLAIMS, SO FOR INSTANCE, 373 00:31:52.881 --> 00:31:59.625 ACHLTHS 2 PROVIDES FOR NEGLIGENCE HIGHWAY RETENTION AND SUPERVISION CLAS. IT 374 00:31:59.625 --> 00:32:04.662 DOESN'T PROVIDE WHAT YOU CALL PRIVATE RIGHT OF ACTION FOR THOSE. IT ROOUFRS THAT 375 00:32:04.662 --> 00:32:07.463 IMMUNITY. JUSTICE PATTERSON: THAT'S A COMMON LAW CLAIM. 376 00:32:07.463 --> 00:32:13.163 WOOUFR EE ASSERTED IT AS A COMMON LAW CLAIM THAT YOU'VE RECOGNIZED IN SECTION A 377 00:32:13.163 --> 00:32:19.587 2 AS BEING SUBJECT NOT TO AN IMMUNITY. I THINK THAT'S CLEAR FROM THE STATUTE 378 00:32:19.587 --> 00:32:26.697 LANGUAGE, BUT WHAT DOES A 1 GIVE YOU, APART FROM THE OBLIGATION OF AN IMMUNITY 379 00:32:26.697 --> 00:32:31.357 THAT YOU DIDN'T HAVE UNDER THE COMMON LAW, IF ANYTHING. GABRIEL C. 380 00:32:31.357 --> 00:32:36.501 MAGEE: A VICARIOUS LIABILITY CLAIM PURSUANT TO HARDWICKE. 381 00:32:36.501 --> 00:32:38.962 JUSTICE MICHAEL NORIEGA: IS THERE ANYTHING IN THE LANGUAGE THAT INDICATES THAT 382 00:32:38.962 --> 00:32:43.904 WITHOUT HARDWICKE? IS THERE ANYTHING IN THE LANGUAGE OF THAT 383 00:32:43.904 --> 00:32:46.500 SECTION THAT WOULD LEAD US THERE. GABRIEL C. MAGEE: THE PRIOR LANGUAGE 384 00:32:46.500 --> 00:32:51.302 SAYS THAT IT'S ROOUFRG THE IMMUNITY FOR AN ACT OF CHILD SEXUAL ABUSE COMMITTED 385 00:32:51.302 --> 00:32:56.820 BY AN EMPLOYEE. THE REASON THAT WE'RE HERE IS BECAUSE ESSENTIAL 386 00:32:56.820 --> 00:33:01.529 THE APPELLATE DIVISION TOOK THE POSITION THAT FLR NO ACTS OF CHILD SEXUAL ABUSE 387 00:33:01.529 --> 00:33:05.326 THAT ARE EVER COMMITTED WITHIN THE SCOPE OF EMPLOYMENT SO THAT MEANS YOU HAVE 388 00:33:05.326 --> 00:33:15.987 TO PURSUE A CLAIM OF VICARIOUS LIABILITY FOR AN ACT THAT IS OUTSIDES THE SCOPE 389 00:33:15.987 --> 00:33:22.284 OF NEGLIGENCE AND THE ACT THAT ALLOWS THAT IS HARDWICKE. HOV TWO THINGS. 390 00:33:22.284 --> 00:33:24.969 JUSTICE HOFFMAN: TWO THINGINGS. ONE ARE YOU TAKING A POSITION 391 00:33:24.969 --> 00:33:32.208 THAT AN IN LOCO PARENTIS RELATIONSHIP IS NECESSARY IN ORDER TO BRING THE 392 00:33:32.208 --> 00:33:37.132 CLAIMS THAT YOU ARE BRINGING IN THIS CASE AN NO. 2, ARE YOU TAKING THE POSITION 393 00:33:37.132 --> 00:33:42.771 THAT HAVRD R HARDWICKE IN ENUNCIATING THE TEST THAT IT DOES WHEN IT IS DISCUSSED 394 00:33:42.771 --> 00:33:49.108 AS COMMON LAW CLAIMS THAT HARDWICKE IS RELYING UPON OR ADOPTING AN AIDED BY AGENCY 395 00:33:49.108 --> 00:33:53.670 THEORY? WHERE IS THE FOUR-PART TEST THAT HARDWICKE ADOPTS 396 00:33:53.670 --> 00:34:00.770 THAT COMES FROM LEHMANN, IOWA SAY IS SOMEWHAT DIFFICULT WHERE IT INTRODUCES OTHER 397 00:34:00.770 --> 00:34:06.591 CHARACTERISTICS OR ELEMENTS OTHER THAN WHAT A TRADITIONAL AIDED BY AGENCY 398 00:34:06.591 --> 00:34:10.327 THEORY DISCUSSES. THOSE ARE TWO QUESTIONS. GABRIEL 399 00:34:10.327 --> 00:34:14.152 C. MAGEE: LET ME START WITH THE SECOND ONE FIRST. I AGREE WITH WHAT YOU STATED 400 00:34:14.152 --> 00:34:20.358 WE THINK THAT HARDWICKE DOESN'T JUST ADOPT 2 NIGHTS AND 2 D IT MENTIONS 401 00:34:20.358 --> 00:34:25.199 OTHER FACTS THAT PUT IMPORTANT GUARDRAILS ON IT AND THE MAIN ONE IS THIS NOTION 402 00:34:25.199 --> 00:34:33.306 THAT YOU DON'T JUST HAVE A VICARIOUS LIABILITY, YOU HAVE TO BE MOVING AND IT HAS 403 00:34:33.306 --> 00:34:40.095 TO BE IN RELATION TO CHILD SEXUAL ABUSE AT LEAST UNDER HARDWICKE SO WE THINK 404 00:34:40.095 --> 00:34:45.374 AT THE START HARDWICKE ITSELF PUT THOSE TWO GUARDRAILS IN PLACE. 405 00:34:45.374 --> 00:34:52.286 THE NOTION THAT IT NOW IN LOCO PARENTIS, CASE LAW FROM OUR COURTS, PRIMARILY, THE 406 00:34:52.286 --> 00:34:57.901 E S DECISION THAT I HAND BUT I THINK IN THE DAVIS V DEVEREUX SITUATION WHICH 407 00:34:57.901 --> 00:35:05.032 RESPONDENTS RELY ON HEAVILY YOU CAN SEE THAT IS AN IMPORTANT ASPECT AND THAT DIDN'T 408 00:35:05.032 --> 00:35:09.499 REALLY STANDS IN LOCO PARENTIS PERHAPS. JUSTICE HOFFMAN: 409 00:35:09.499 --> 00:35:14.234 WITHOUT LOEK COMPANY PARENT ADVERTISE RELATIONSHIP, YOU WOULD NOT HAVE THE 410 00:35:14.234 --> 00:35:17.077 COMMON LAW CLAIMS THAT YOU HAVE IN THIS CASE. GABRIEL C. MAGEE: 411 00:35:17.077 --> 00:35:22.055 YES; THAT'S OUR POSITION. WE THINK THAT'S AN IMPORTANT GUARDRAIL THAT PREVENTS 412 00:35:22.055 --> 00:35:27.950 THIS FROM TALK, TURNING INTO SOMETHING LIKE STRICT LIABILITY. 413 00:35:27.950 --> 00:35:30.652 JUSTICE PATTERSON: BOARDSING SCHOOL, CHILDREN LEFT THERE, THERE ALL THE TIME, 414 00:35:30.652 --> 00:35:37.974 PARENTS ARE NOT PRESENT AT THE SCHOOL AND DAVIS WHICH WAS A FACILITY FOR ADULTS 415 00:35:37.974 --> 00:35:46.559 WITH CERTAIN DISABILITIES, THOSE ARE 24-HOUR SETTINGS, VERSUS THE SETTING OF YOUR 416 00:35:46.559 --> 00:35:54.021 CASE, WHICH NOT ONLY INVOLVES A CHILD IN A NORMAL SCHOOL DAY, AND GOING HOME 417 00:35:54.021 --> 00:35:59.243 AT THE ENDS OF THE DAY BUT ACTIVITIES THAT ARE LECHD TO HAVE OCCURRED AFTER LEFRPED 418 00:35:59.243 --> 00:36:06.087 TO HAVE OCCURRED AFTER HOURS WHEN SCHOOL WASN'T IN. SO IS THERE A DISTINCTION 419 00:36:06.087 --> 00:36:10.145 THAT IS RELEVANT TO THE SETTING. GABRIEL C. MAGEE: I THINK AT SOME 420 00:36:10.145 --> 00:36:14.997 LEVEL THE FACTS ARE ALGS IMPORTANT, NOT AT SOME LEVEL, THE FACTS ARE ALWAYS 421 00:36:14.997 --> 00:36:20.205 IMPORTANT FOR THESE CLAIMS, THEY ARE ALL FACTUALLY UNIQUE AND PREDICATED ON DIFFERENT 422 00:36:20.205 --> 00:36:23.657 FACTS. TO ANSWER YOUR QUESTION DIRECTLY, YES, THERE IS 423 00:36:23.657 --> 00:36:37.349 OBVIOUSLY A DISTINCTION. HOIR, IN FACT IF YOU LOOK AT HARDZ, FIRST, 424 00:36:37.349 --> 00:36:41.548 THEY ARE ANALYZING THE FACTS AND TALKING ABOUT THEM FIRST WITH RESPECT TO 425 00:36:41.548 --> 00:36:47.778 THE C A A BECAUSE WE KNOW IN ORDER TO BRING THE CLAIM AT THAT TIME WE NEED. 426 00:36:47.778 --> 00:36:52.055 DEMONSTRATING THAT THEY WERE WITHIN THE HOURLD, NOW THAT PROVISION 427 00:36:52.055 --> 00:36:59.224 DOESN'T EXIST TODAY, BUT THOSE FACTS ARE SUFFICIENT. HARDWICKE NEVER SAYS THEY 428 00:36:59.224 --> 00:37:04.423 ARE NECESSARY AND I THINK THAT'S THE KEY TO ANALYZING THIS. THE HARDWICKE 429 00:37:04.423 --> 00:37:10.082 DECISION GIVES THE TRIAL COURTS THE FLEXIBILITY TO ANALYZE THE FACTS. HERE WHILE 430 00:37:10.082 --> 00:37:15.907 YES IT'S TRUE THIS INCIDENCE OF SEXUAL ABUSE OCCURRED AFTER SCHOOL HOURS 431 00:37:15.907 --> 00:37:22.213 AT THE TEACHER'S APARTMENT, YOU CAN'T LOOK AT IT JUST ON THAT. THERE IS NUMEROUS 432 00:37:22.213 --> 00:37:29.076 INSTANCES OF GROOMING, BOTH AS A SCHOOL TEACHER AND A FUTURE FARMERS OF 433 00:37:29.076 --> 00:37:36.521 AMERICA COACH AND ADVISOR SO THE FACTS START TO LOOK MORE LIKE HARDWICKE. 434 00:37:36.521 --> 00:37:42.084 JUSTICE PATTERSON: YOU ANSWERED JUSTICE HOV'S FIRST QUESTION BUT I DIDN'T 435 00:37:42.084 --> 00:37:45.954 LET YOU ANSWER THE FIRST. GABRIEL C. MAGEE: LOCAL PARENTS 436 00:37:45.954 --> 00:37:49.573 ADVERTISE IS YES. JUSTICE WAINER APTER: YOUR OTHER GUARDRAIL 437 00:37:49.573 --> 00:37:55.640 I CAUGHT AS AN R IN ORDER TO EFFECTUATE AN IMPORTANT PIECE OF REMEDIAL 438 00:37:55.640 --> 00:37:58.423 LEGISLATION; IS THAT CORRECT? GABRIEL C. MAGEE: CORRECT. 439 00:37:58.423 --> 00:38:00.838 JUSTICE WAINER APTER: THAT'S WHAT I AM HAVING TROUBLE I UNDERSTANDING BECAUSE 440 00:38:00.838 --> 00:38:06.189 USUALLY WHEN THERE IS AN IMPORTANT PIECE OF REMEDIAL LEGISLATION IT IS 441 00:38:06.189 --> 00:38:11.007 EFFECTUATED BY ENFORCING IT AS IT IS WRITTEN, BUT YOU SEEM TO BE ASKING US TO NOT 442 00:38:11.007 --> 00:38:16.495 ENFORCE IT AS IT IS WRITTEN 'IN, BUT INSTEAD TO ALLOW A BROADER COMMON LAW CLAIM 443 00:38:16.495 --> 00:38:21.683 THAT EFFECT YATS WHAT YOU SAY IS THE GOAL OF THE STATUTE WITHOUT FITTING 444 00:38:21.683 --> 00:38:27.858 INTO THE PRECISE WORDS OF THE C S A A SO I WANT TO ASK HOW FAR THAT WORKS SO FRAFRMD, 445 00:38:27.858 --> 00:38:33.370 THE LAD IS A VERY SPECIFIC REMEDIAL STATUTE COULD SOMEONE BRING A CLAIM 446 00:38:33.370 --> 00:38:37.542 THAT DOES NOT MEET THE RIRNLTSZ OF THE LAD BUT JUST SAY THIS IS IN ORDER TO EFFECTUATE 447 00:38:37.542 --> 00:38:42.142 AN IMPORTANT PIECE OF REMEDIAL LEGISLATION, MY CLAIM IS NOT BROUGHT 448 00:38:42.142 --> 00:38:46.042 UNDERSTAND THE LAD, IT IS BROUGHT UNDERSTAND THE COMMON LAW AND I SHOULDN'T HAVE 449 00:38:46.042 --> 00:38:50.998 TO MAKE THE LAD REQUIREMENTS, BUT I SHOULD BE STILL ABLE TO GO FORWARD WITH THE 450 00:38:50.998 --> 00:38:55.354 COMMON LAW CLAIM BECAUSE IT IS IN ORDER TO EFFECTUATE AN IMPORTANCE PIECE 451 00:38:55.354 --> 00:39:00.609 OF REMEDIAL LEGISLATION. GABRIEL C. MAGEE: IN MY OPINION THE ANSWER 452 00:39:00.609 --> 00:39:05.020 IS NO BECAUSE THE COURTS WHEN THEY TALK TO THE PURPOSE OF THESE REMEDIAL 453 00:39:05.020 --> 00:39:10.665 LEGISLATION EASE THEY DON'T JUST LOOK TO THE LANGUAGE BUT THE PURPOSE. WE'RE NOT 454 00:39:10.665 --> 00:39:16.037 JUST MOVING TO AFFECT THE C F A A THE IMPORTANT PIECE OF REMEDIAL 455 00:39:16.037 --> 00:39:20.175 LEGISLATION WE'RE MOVING TO EFFECTUATE HERE IS THE CHILD VICTIMS ACT APPEND WE KNOW 456 00:39:20.175 --> 00:39:27.409 THAT INCLUDING THIS COURT IN 2023, IN THE HILDRETH, ADDITION RECOGNIZED THAT THE 457 00:39:27.409 --> 00:39:31.728 IMPACT AND IMPORTANCE OF THAT LEGISLATION AND THE PURPOSE WAS TO GIVE VICTIMS 458 00:39:31.728 --> 00:39:37.227 OF CHILD SEXUAL ABUSE GREATER ACCESS TO JUSTICE THROUGH THE CIVIL COURT 459 00:39:37.227 --> 00:39:40.999 SYSTEM. I THINK IT IS MORE APPROPRIATE TO ASK COULD SOMEONE 460 00:39:40.999 --> 00:39:45.187 JUST BRING A NEGLIGENCE CLAIM AND CLAIM THEY ARE TRYING TO EFFECTUATE A PIECE OF 461 00:39:45.187 --> 00:39:50.152 REMEDIAL LEGISLATION, THEY COULD CLAIM THAT BUT I THINK IF YOU LET THE TRIAL 462 00:39:50.152 --> 00:39:54.586 COURT ANALYZE IT THEY WOULDN'T SEE THAT THAT IS THE GOAL. I THINK THAT'S WHAT YOU 463 00:39:54.586 --> 00:39:59.315 SEE IN THAT E S DECISION WHERE THEY RECOGNIZE THAT THESE TWO YOUNG GIRLS WERE 464 00:39:59.315 --> 00:40:06.003 SEXUALLY ABUSED BY THIS HANDYMAN, BUT PART OF THE ANALYSIS OF PAGE 302 RECOGNIZES 465 00:40:06.003 --> 00:40:11.827 THAT WE'VE ONLY -- I'M JUST GOING TO READ THE QUOTE, HER QUOTE IS NEVER APPLIED 466 00:40:11.827 --> 00:40:20.515 TO AIDED BY AIDED, OTHER THAN THOSE REMEDIAL STATUTES DESIGNED TO 467 00:40:20.515 --> 00:40:27.072 ERADICATE THAT'S THE LEAD, TO PROTECT CONSCIENTIOUS EMPLOYERS, THAT, SEEF FA THE 468 00:40:27.072 --> 00:40:31.433 ADAM MA KIES. JUSTICE WAINER APTER: ISN'T THAT THE C S A A 469 00:40:31.433 --> 00:40:37.898 THAT'S WHAT I AM HAVING A HARD TIME, THE C. AND IT AMENDMENTS THE 470 00:40:37.898 --> 00:40:42.675 C S A A BUT YOU'RE SAYING YOU'RE NOT SUING PURSUANT TO THAT. SO 471 00:40:42.675 --> 00:40:47.613 WHAT IS THE REST OF THE CONSIDERED A THAT YOU ARE SUING UNDERSTAND OR IS IT JUST 472 00:40:47.613 --> 00:40:55.068 THE TK A CHANGE TCA CHANGE AND THE C I A A CHANGE THAT WE'VE ALREADY DISCUSSED 473 00:40:55.068 --> 00:40:59.455 AND YOU SAY YOU'RE NOT SUING PURSUANT TO. GABRIEL C. MAGEE: IT IS 474 00:40:59.455 --> 00:41:03.377 THOSE TWO SECTIONS BECAUSE NIECE ARE PUBLIC ENTITIES AND THAT'S WHAT 475 00:41:03.377 --> 00:41:08.125 SPECIFICALLY AUTHORIZES US TO PURSUE THEM. WE PURSUE THOSE COMMON LAW CLAIMS 476 00:41:08.125 --> 00:41:12.156 INCLUDING HARDWICKE AND WE DO IT PURSUANT TO THE PURPOSES OF THE CHILD VICTIMS ACT. 477 00:41:12.156 --> 00:41:16.405 I THINK JUSTICE, THAT'S THE ANSWER ULTIMATELY TO YOUR QUESTION. 478 00:41:16.405 --> 00:41:20.130 WHAT MAKES THIS PURSUANT TO THE CHILD VICTIMS ACT? 479 00:41:20.130 --> 00:41:23.065 IT IS THAT WE'RE BRINGING THESE CLAIMS WHICH WERE SPECIFICALLY AUTHORIZED 480 00:41:23.065 --> 00:41:27.574 BY THE STATUTE NOT JUST THROUGH THOSE CHANGES BUT ALSO THROUGH CHANGES TO THE 481 00:41:27.574 --> 00:41:30.793 STATUTE OF LIMITATIONS BECAUSE THE LEGISLATURE RECOGNIZED THE IMPORTANCE 482 00:41:30.793 --> 00:41:34.791 OF BRINGING THESE CLAIMS AN PROVIDING SOME MEASURE OF JUSTICE. THE 483 00:41:34.791 --> 00:41:42.464 COURT: IN READING THE LEGISLATURE'S TEXT IN A 1 HOW DOES THE GOVERNOR ASSIGN BLANK. 484 00:41:42.464 --> 00:41:45.172 GABRIEL C. MAGEE: I THINK IT'S FUNDAMENTALLY IMPORTANT HERE 485 00:41:45.172 --> 00:41:51.466 BECAUSE IT SHOWS YOU WHAT THE INTENT WAS. OFTEN COURTS ARE TASKED WITH LOOKING 486 00:41:51.466 --> 00:41:56.567 THROUGH VOLUMES OF COURTROOM MATERIALS, BUT NOW WE LOOK AT NOT ONLY THE 487 00:41:56.567 --> 00:42:00.432 PURPOSE OF THE C DA PURPOSE WAS BUT THE A 1. JUSTICE PATTERSON: 488 00:42:00.432 --> 00:42:06.367 THE NATURE AND THE. GABRIEL C. MAGEE: IT DOESN'T SAY THAT 489 00:42:06.367 --> 00:42:12.753 EXPLICITLY, BUT I THINK YOU CAN INFER FROM GOVERNOR MURPHY'S STATEMENT TO SAY, 490 00:42:12.753 --> 00:42:17.403 AND I WANT YOU TO GO BACK AND MAKE THE LIABILITY FOR A PUBLIC ENTITY THE SAME AGS 491 00:42:17.403 --> 00:42:23.357 A DHER RIT TABL ENTITY AND THE REALITY IS THAT IF THE APPELLATE DIVISION 492 00:42:23.357 --> 00:42:29.201 OPINION IS NOT OVERRULED THAT DOES NOT HAPPEN BECAUSE A CHARITABLE ENTITY REMAINS 493 00:42:29.201 --> 00:42:33.578 SUBJECT TO A VICARIOUS LIABILITY UNDER HARDWICKE AND A PUBLIC ENTITY DOES 494 00:42:33.578 --> 00:42:41.595 NOT. JUSTICE PATTERSON: AND THE REFERENCE TO BLANK WHICH 495 00:42:41.595 --> 00:42:47.832 YOU CITED, WHY DOESN'T THAT SEND US TO THE SUBSTANTIVE STANDARD THAT APPLIES TO 496 00:42:47.832 --> 00:42:53.152 A LAD WORKPLACE SEXUAL HARASSMENT OR SEXUAL ASSAULT CLAIM. 497 00:42:53.152 --> 00:42:56.464 GABRIEL C. MAGEE: I THINK TO YOUR POINT EARLIER JUSTICE THAT'S ESSENTIALLY WHAT 498 00:42:56.464 --> 00:43:01.194 THE ATTORNEY GENERAL ARGUES FOR, ALTHOUGH PERHAPS IN A MORE NUANCED WAY. 499 00:43:01.194 --> 00:43:04.956 I JUST DON'T THINK IT FITS HERE. JUSTICE PATTERSON: IF WE BEING 500 00:43:04.956 --> 00:43:10.582 DROEKTD THAT THAT IS WHAT IS BEING SOUGHT HERE IS TO HAVE A FRAMEWORK SIMILAR 501 00:43:10.582 --> 00:43:16.678 TO THOSE TWO CLAIMS AN YOU JUST READ THAT ABOUT LAD AND SEEP PA, WHY SHOULDN'T 502 00:43:16.678 --> 00:43:26.425 WE BE GUIDED BY THE CASE LAW THAT GOVERNS THAT AND SIMILAR GOVRG SEEK KA. 503 00:43:26.425 --> 00:43:29.208 GABRIEL C. MAGEE: FIRST BECAUSE I THINK THE MRFR ALREADY HAD THE ABILITY 504 00:43:29.208 --> 00:43:34.199 TO BRING AN LAD CLAIM HERE SO YOU WOULD BE HEELLY MAKING THE HARDWICKE VICARIOUS 505 00:43:34.199 --> 00:43:38.864 LIABILITY THE EXACTLY SAME AS AN LAD CLAIM. THERE ARE 506 00:43:38.864 --> 00:43:42.530 IMPORTANT DIFFERENCES IN HARDWICKE AND THE VICARIOUS LIABILITY THAT IT AUTHORIZESES 507 00:43:42.530 --> 00:43:46.505 FROM THE LAD AND I THINK THERE IS JUST TOO MANY PROBLEMS -- FIRST OF ALL, 508 00:43:46.505 --> 00:43:52.868 THERE ARE TOO MANY PROBLEMS TO JUST STRAIGHT BLANK STANDARD. THIS COURT HAS 509 00:43:52.868 --> 00:43:56.346 NEVER SAID AND THEY RECOGNIZED THIS IN RECENT CASES THAT THEY HAVE NEVER 510 00:43:56.346 --> 00:44:01.539 ACTUALLY SAID WHAT THE STANDARD FOR AN LAD CLAIM IS WHEN IT COMES TO A CHILD WHO 511 00:44:01.539 --> 00:44:07.311 CLAIMS THAT THOERP SEX ULTLY ABUSED OR SEXUAL HARASSED BY AN EMPLOYEE OF A 512 00:44:07.311 --> 00:44:10.708 PUBLIC ENTITY. IT SEEMS VERY LIKELY THAT THE STANDARD IS GOING 513 00:44:10.708 --> 00:44:15.595 TO BE THE SAME AS THE MODIFIED LAYMAN DECISION THAT WAS ALREADY ACCEPTED BY THIS 514 00:44:15.595 --> 00:44:19.942 COURT FOR PEER TO PEER HARASSMENT AND THAT WOULD MAKE SENSE BUT IT HASN'T 515 00:44:19.942 --> 00:44:23.289 ACTUALLY HAPPENED SO IF YOU WOULD ADOPT THAT HERE FOR HARDWICKE, YOU WOULD BE IN 516 00:44:23.289 --> 00:44:28.801 AN ANOMALOUS SITUATION WHERE YOU CLARIFIED THIS IS THE STANDARD, YOU'VE TAKEN THE 517 00:44:28.801 --> 00:44:33.193 LAD STANDARD AND APPLYING IT TO VICARIOUS LIABILITY BUT WE STILL DON'T KNOW 518 00:44:33.193 --> 00:44:37.281 WHAT THE ACTUAL STANDARD FOR AN LADZ CLAIM IS WHEN A CHILD BRINGS A CLAIM AGAINST 519 00:44:37.281 --> 00:44:41.042 HIS TEACHER. JUSTICE PATTERSON: I THINK THE ATTORNEY 520 00:44:41.042 --> 00:44:47.176 GENERAL HAS TRIED TO RECONCILE ALL OF THOSE ISSUES AND TO COME UP WITH A STANDARD 521 00:44:47.176 --> 00:44:53.800 THAT IN THE ATTORNEY GENERAL'S VIEW IS CONSISTENT WITH LEGISLATIVE INTENT, 522 00:44:53.800 --> 00:45:00.882 BUT ALSO IMPOSES SOME TRULY SIGNIFICANT LIMITATIONS ON THE AIDED BY AGENCY 523 00:45:00.882 --> 00:45:07.910 THEORY THAT APPEARS TO HAVE -- DOESN'T COME WITH GUARDRAILS AND WE KNOW FROM THE 524 00:45:07.910 --> 00:45:12.846 GOVERNOR'S STATEMENT, WHAT THE CHIEF JUST ASKED YOU ABOUT, THAT THEY WERE 525 00:45:12.846 --> 00:45:19.376 LOOKING FOR SOME LIMITATIONS ON LIABILITY OF PUBLIC ENTITIES SUBJECT TO SOVEREIGN 526 00:45:19.376 --> 00:45:25.004 IMMUNITY, SUBJECT TO VERY STRICT I'M MIENTS IN OTHER SETTINGS SO THAT THE 527 00:45:25.004 --> 00:45:28.615 RIGHTS OF THE RESPECTIVE PARTIES WOULD BE BALANCED. GABRIEL C. 528 00:45:28.615 --> 00:45:32.812 MAGEE: I THINK THE ANSWER IS TWOFOLD, ONE, THE PROPOSAL THE ATTORNEY GENERAL MAKES 529 00:45:32.812 --> 00:45:37.293 IS TOO FLAWED TO BE ADOPTED AND TWO, IT DOESN'T ACHIEVE THE LEGISLATIVE 530 00:45:37.293 --> 00:45:42.104 INTENT. THE FIRST ISSUE, THE FLAWS IF YOU LOOK AT THE ATTORNEY 531 00:45:42.104 --> 00:45:47.425 GENERAL'S PROPOSAL, FIRST IT'S LIMITED TO SUPERVISORS, THIS IS A HARD TO DEFINE 532 00:45:47.425 --> 00:45:53.434 TERM IN THE SCHOOL CONTEXT. IT'S EVEN HARDER TO DEFINE OUTSIDES THE SCHOOL 533 00:45:53.434 --> 00:45:58.778 CONTEXT BUT IT IS FUNDAMENTALLY FLAWED BECAUSE THE LIMITED TO SUPERVISORS WOULD 534 00:45:58.778 --> 00:46:04.063 SUGGEST THAT IT MEANS ADMINISTRATORS, PEOPLE LIKE PRINCIPALS, THAT LIMITS TO 535 00:46:04.063 --> 00:46:08.389 THE CONTEXT THAT ARE THE MINORITY MUCH THESE INSTANCES OF CHILD SEXUAL ABUSE, WE 536 00:46:08.389 --> 00:46:12.577 KNOW JUST LOOKING AT THE CASES THAT WE HANDLE AND HAVE BEEN FILED IN THE STATE, 537 00:46:12.577 --> 00:46:18.461 THE VAST MAJORITY OF LOWER LEVEL, TEACHERS OR EVEN LOWER LEVEL FOLKS, THE 538 00:46:18.461 --> 00:46:24.192 LIMIT TO SUPERVISORS LOAN FOR O WOULD THERE EVER FAIL TO PROTECT CHILDREN FROM 539 00:46:24.192 --> 00:46:28.044 THE VERY PEOPLE WHO COMMIT THE MOST. JUSTICE PATTERSON: WE'RE 540 00:46:28.044 --> 00:46:33.251 TALKING ABOUT VICARIOUS LIABILITY, NOT IMMUNIZING INDIVIDUALS. WE'RE TALKING 541 00:46:33.251 --> 00:46:39.457 ABOUT THE SCHOOL DISTRICT'S RESPONSIBILITY TO STAND, HEELLY IN THE SHOES OF THE 542 00:46:39.457 --> 00:46:47.353 INDIVIDUALS WHO WAS ALLEGED TO HAVE SEXUALLY ABUSED THE CHILD AND PAY JUST 543 00:46:47.353 --> 00:46:52.948 AS THAT INDIVIDUAL IN AN INDIVIDUAL LAWSUIT MIGHT BE REQUIRED TO PAY. 544 00:46:52.948 --> 00:46:57.599 SO VICARIOUS LIABILITY NATURALLY BRINGS IN THE AUTHORITY OF THE INDIVIDUAL INVOLVED 545 00:46:57.599 --> 00:47:02.549 INTO PLAY. I THINK FRUGIS MAKES THAT VERY CLEAR. OBVIOUSLY THAT PRECEDED 546 00:47:02.549 --> 00:47:10.353 THE 2019 CHANGES, BUT FRUGIS IS REALLY ALL ABOUT THAT, SO IT'S -- I DON'T -- 547 00:47:10.353 --> 00:47:15.766 RESPECTFULLY, I DON'T THINK THAT COMING UP WITH A NOVEL CONCEPT OF LIMITING VI 548 00:47:15.766 --> 00:47:18.577 CARIOUS LIABILITY IN THAT RESPECT. GABRIEL C. MAGEE: I DON'T THINK 549 00:47:18.577 --> 00:47:21.932 THERE IS ANYTHING ABOUT THE FRUGIS DECISION THAT WOULD SUGGEST THAT THE 550 00:47:21.932 --> 00:47:27.106 DUTY OWED TO STUDENTS IS ONLY OWED BY ADMINISTRATORS. THE FRUGIS DECISION IS VERY 551 00:47:27.106 --> 00:47:30.945 CLEAR THAT IT IS NOT JUST THE DUTY OF THE ADMINISTRATORS, BUT THE TEACHERS. 552 00:47:30.945 --> 00:47:35.257 MORE TO YOUR POINT, THE PROBLEM WITH APPLYING IT THAT WAY IS 553 00:47:35.257 --> 00:47:42.133 THAT I ONLY HOLD THE ENTITY VICARIOUSLY LIABLE IF IT'S A MANAGER, A PRINCIPAL, 554 00:47:42.133 --> 00:47:48.187 AN ADMINISTRATOR COMMITS THE ABUSE; THAT IS RARELY HAPPENS IT'S ALMOST ALWAYS 555 00:47:48.187 --> 00:47:51.933 A TEACHER OR PERHAPS SOMEONE OELS WITHIN THE SCHOOL THAT IS STILL AN EMPLOYEE; 556 00:47:51.933 --> 00:47:56.689 THAT'S NOT THE SITUATION THAT OCCURRED IN HARDWICKE, RESPECTFULLY. I KNOW 557 00:47:56.689 --> 00:48:01.568 THE RESPONDENTS DISAGREE, BUT MORE FROM -- JUSTICE PATTERSON: THE 558 00:48:01.568 --> 00:48:08.992 MUSIC DIRECTOR AS I UNDERSTAND THE UNIQUE SCHOOL OF BEING A CHOIR SCHOOL WAS 559 00:48:08.992 --> 00:48:13.159 REALLY IN CHARGE OF THE PLACE IS THE SENSE I GOT FROM THE FACTS. I DON'T KNOW THAT, 560 00:48:13.159 --> 00:48:16.735 BUT THAT SEEMS TO BE PART OF WHAT THE COURT WAS SAYING. 561 00:48:16.735 --> 00:48:20.594 GABRIEL C. MAGEE: I THINK THAT JUST DEMONSTRATES THE FLAW HERE BECAUSE HIS TITLE 562 00:48:20.594 --> 00:48:26.678 WAS MUSIC DIRECTOR NOT PRINCIPAL OR ADMINISTRATOR AND YET HE HAD THE 563 00:48:26.678 --> 00:48:31.421 APPARENT AUTHORITY OR AGENCY TO ACT IN A MUCH MORE BROAD SCOPE AND MANY, MANY TEACHERS 564 00:48:31.421 --> 00:48:35.740 HAVE THAT SAME AUTHORITY AN EVEN MANY LOWER LEVEL FUNCTION NAR RELEASE IN 565 00:48:35.740 --> 00:48:42.083 THE SCHOOL, FOR INSTANCE IN THE SOUTH WOOD MAPLEWOOD MAKES THE SAME POINT THAT 566 00:48:42.083 --> 00:48:50.131 SOMETIMES JANITORS ARE GIVEN AUTHORITY ON THE WEEKENDS TO SUPERVISE STUDENTS. 567 00:48:50.131 --> 00:48:55.306 BECAUSE THE CRUX OF HARDWICKE SL REALLY THE USE OF THE AIDED 568 00:48:55.306 --> 00:49:05.687 AGENCY AND THE APPARENT AUTHORITY AND I THINK THAT'S A. APPLIES 569 00:49:05.687 --> 00:49:11.679 ONLY TO SCHOOLS, THEY NEVER MENTION APPLYING TO OTHER PUBLIC ENTITIES, BUT IT 570 00:49:11.679 --> 00:49:15.827 WOULD NOT APPLY TO, FOR EXAMPLE, A PRIVATE SCHOOL SO YOU HAVE A SITUATION 571 00:49:15.827 --> 00:49:21.544 WHERE THIS RULE WOULD ONLY APPLY TO PUBLIC SCHOOL ADMINISTRATORS BUT A PRIVATE 572 00:49:21.544 --> 00:49:26.672 SCHOOL WOULD STILL BE SUBJECT TO VICARIOUS LIABILITY UNDER HARDWICKE FOR THEIR 573 00:49:26.672 --> 00:49:33.816 TEACHERS FOR INSTANCE; THAT'S NOT WHAT GOVERNOR MUR INTENDED HE WANTED THE LIABILITY 574 00:49:33.816 --> 00:49:36.940 TO BE THE SAME. JUSTICE WAINER APTER: CAN YOU REMIND US WHICH 575 00:49:36.940 --> 00:49:41.475 CLAIMS ARE AT ISSUE AND WHICH CLAIMS ARE NOT BEFORE US, YOU STILL HAVE OTHER LAD 576 00:49:41.475 --> 00:49:44.795 CLAIMS NOT BEFORE, NEGLIGENCE HIRING AND RETENTION. GABRIEL C. 577 00:49:44.795 --> 00:49:47.222 MAGEE: AND SUPERVISION, CORRECT. JUSTICE WAINER APTER: NOT BEFORE 578 00:49:47.222 --> 00:49:48.901 US. GABRIEL C. MAGEE: CORRECT. JUSTICE WAINER 579 00:49:48.901 --> 00:49:53.012 APTER: THE ONLY THING THAT WE ARE TALKING ABOUT IS VICARIOUS LIABILITY ON THE PURE 580 00:49:53.012 --> 00:49:57.834 NEGLIGENCE CLAIM AND ON THE GROSS NEGLIGENCE CLAIM? 581 00:49:57.834 --> 00:50:03.997 GABRIEL C. MAGEE: CORRECT. AND WE BRING NEGLIGENCE INFLICTION OF EMOTIONAL DISTRESS 582 00:50:03.997 --> 00:50:09.768 CLAIMS. I JUST POINT OUT THERE IS NO PREDICATE LIABILITY ANYWHERE IN THE 583 00:50:09.768 --> 00:50:14.131 STATUTE FOR THAT BUT NO ONE HAS EVER CHALLENGED US. JUSTICE 584 00:50:14.131 --> 00:50:21.493 HOFFMAN: YOU SAID BEFORE HARDWICKE RESTED UPON THE AIDED BY AIDED WHERE IN THE 585 00:50:21.493 --> 00:50:26.400 AIDED BY AGENCY PRINCIPAL IS THE AUTHORITY TO THE SUPERVISOR TO CONTROL 586 00:50:26.400 --> 00:50:31.754 THE SITUATION? GABRIEL C. MAGEE: I THINK IT'S -- IN OUR 587 00:50:31.754 --> 00:50:35.573 OPINION, FIRST IT'S I'M POLICE SITS IN THAT SITUATION. I DON'T THINK THOSE WORDS 588 00:50:35.573 --> 00:50:44.765 EXIST IN 2192 D BUT IN HARDWICKE ITSELF THEY TALK ABOUT THAT FACT AND IN 589 00:50:44.765 --> 00:50:48.432 SUBSEQUENT CASE LAW THEY TALK ABOUT IT HOVR HOVR I KNOW HARDWICKE TALKS ABOUT IT. 590 00:50:48.432 --> 00:50:54.793 MY QUESTION IS YOU'RE TYING HARDWICKE TO THE AGENT BY AGENCY THEORY AND I AM LOOKING 591 00:50:54.793 --> 00:51:00.077 AT THE AIDEDED BY AGENCY THEORY AND I DON'T NECESSARILY SEE THE REQUIREMENT 592 00:51:00.077 --> 00:51:07.050 THAT AN EMPLOYER GIVE THE AUTHORITY TO THE SUPERVISOR TO CONTROL THE SITUATION 593 00:51:07.050 --> 00:51:12.378 AS THE PART AND PARSZ SELL OF THE AIDED BY AGENCY THEORY. LET 594 00:51:12.378 --> 00:51:16.987 ME TELL YOU WHERE I AM GOING WITH THIS, RESPOND TO THE NOTION THAT THE TEST IN 595 00:51:16.987 --> 00:51:21.354 HARDWICKE IS ACTUALLY BROADER THAN THE AIDED BY AGENCY THEORY DO YOU AGREE 596 00:51:21.354 --> 00:51:24.302 WITH THAT OR NOT AGREE WITH THAT. GABRIEL C. MAGEE: I DISAGREE 597 00:51:24.302 --> 00:51:28.092 IT'S MORE LIMITED FOR THAT VERY REASON BECAUSE THERE IS NOTHING ABOUT AIDED 598 00:51:28.092 --> 00:51:34.265 BY AGENCY THAT TALKS ABOUT IN LOCO PARENTIS. THERE IS NO NOTHING, AN AIDED AGENCY 599 00:51:34.265 --> 00:51:40.163 COULD APPLY TO ANY SORT OF ABUSE NOT JUST SEXUAL ABUSE, IT COULD APPLY TO ANY 600 00:51:40.163 --> 00:51:45.039 ACT THAT IS OUTSIDE THE SCOPE THAT IS INTENTIONAL, HARDZ IS MORE LIMITED. 601 00:51:45.039 --> 00:51:49.289 IT ONLY APPLIES TO CHILD SEXUAL ABUSE THAT'S WHAT I BELIEVE IT STANDS FOR AND I 602 00:51:49.289 --> 00:51:53.049 BELIEVE IT ADOPTS THIS NOTION THAT IN ADDITION TO USING AIDED AGENCY WE'RE 603 00:51:53.049 --> 00:51:58.852 GOING TO REQUIRE THAT IT HAS TO BE BASE THE EMPLOYER DELEGATED THAT EMPLOYER TO YOU. 604 00:51:58.852 --> 00:52:02.982 WE SEE THOSE AS FUNDAMENTAL GUARDRAILS. JUSTICE PATTERSON: YOU'RE 605 00:52:02.982 --> 00:52:09.028 NOT ASKING FOR A STRAIGHT APPLICATION OF 2 SPACE 19 SPACE ONE, YOU'RE ASKING 606 00:52:09.028 --> 00:52:16.592 FOR SOMETHING MORE LIMITED? GABRIEL C. MAGEE: OF 2192 D. 607 00:52:16.592 --> 00:52:19.787 JUSTICE PATTERSON: I'M SORRY, 2192 D. GABRIEL C. MAGEE: NO 608 00:52:19.787 --> 00:52:24.560 WE'RE NOT ASKING FOR A STRAIGHT APPLICATION OF THAT. WE THINK 2192 D HAS 609 00:52:24.560 --> 00:52:30.655 BEEN MODIFIED BY HARDWICKE, BY THE E S DECISION AND OTHER DECISIONS IN SUCH 610 00:52:30.655 --> 00:52:35.430 A WAY TO PROVIDE IMPORTANT GUARDRAILS. JUSTICE PATTERSON: ONE MEANINGFUL 611 00:52:35.430 --> 00:52:40.341 GUARDRAIL IT ONLY APPLIES TO SEXUAL ABUSE BUT EVERYTHING WE'RE TALKING ABOUT 612 00:52:40.341 --> 00:52:45.552 IS THAT AND THAT WHOA INCLUDE ANY SEXUAL ABUSE CASE SO I WOULD RESPECTFULLY ASK YOU 613 00:52:45.552 --> 00:52:50.424 WHY IS THAT LIMITING SINCE ALL WE'RE TALKING ABOUT HERE ARE SEXUAL ABUSE 614 00:52:50.424 --> 00:52:53.047 CASES? GABRIEL C. MAGEE: BECAUSE THERE ARE OTHER ACTS OUTSIDE 615 00:52:53.047 --> 00:52:58.080 THE SCOPE OF EMPLOYMENT THAT SOMEONE COULD PRESUMABLY LOOK TO HARDWICKE AND SAY 616 00:52:58.080 --> 00:53:01.119 WE THINK HARDWICKE AUTHORIZED US TO BRING A CLAIM. JUSTICE 617 00:53:01.119 --> 00:53:06.552 PATTERSON: WHAT ARE THE MEANINGFUL GUARDRAILS THAT APPLY TO SEXUAL ABUSE CASES. 618 00:53:06.552 --> 00:53:10.032 GABRIEL C. MAGEE: THE FIRST ONE IS THAT YOU'RE MOVING PURSUANT 619 00:53:10.032 --> 00:53:12.664 TO EFFECTUATE REMEDIAL LEGISLATION. JUSTICE WAINER APTER: 620 00:53:12.664 --> 00:53:18.216 YOU'RE NOT ACTUALLY SUING UN THE REMEDIAL LEGISLATION. GABRIEL C. 621 00:53:18.216 --> 00:53:21.539 MAGEE: IN THIS INSTANCE, NO. JUSTICE PATTERSON: THERE HAS TO BE 622 00:53:21.539 --> 00:53:24.940 REMEDIAL LEGISLATION AT PLAY SOMEHOW. GABRIEL C. MAGEE: THAT'S 623 00:53:24.940 --> 00:53:28.522 FAIR. JUSTICE PATTERSON: I AM WONDERING HOW MEANINGFUL A 624 00:53:28.522 --> 00:53:31.729 LIMITATION THAT IS BECAUSE ALL OF THESE CASES NO MATTER WHAT THE CIRCUMSTANCES 625 00:53:31.729 --> 00:53:36.499 ARE GOING TOVR SOME REFERENCE TO THE FACT THAT THE STATUTE OF LIMITATIONS 626 00:53:36.499 --> 00:53:42.016 HAS BEEN REOPENED AND IT WOULDN'T EXIST SFOR THAT 219 SO WHY IS IT A GUARDRAIL 627 00:53:42.016 --> 00:53:46.614 WHEN IT WOULD APPLY TO ALMOST EVERY CASE THAT IS NOW BEING BROUGHT. 628 00:53:46.614 --> 00:53:50.209 GABRIEL C. MAGEE: IT CERTAINLY WOULD APPLY TO ALL THE CASES -- 629 00:53:50.209 --> 00:53:53.180 JUSTICE PATTERSON: WHAT IS THE MEANINGFUL GUARDRAIL THAT WOULD DISTINGUISH SOME 630 00:53:53.180 --> 00:53:56.775 CASES THAT HAVE BEEN BROUGHT THAN OTHERS. GABRIEL C. MAGEE: 631 00:53:56.775 --> 00:54:02.823 I THINK IT GOES TO JUSTICE HOV'S POINT THAT YOU MUST IDENTIFY OR THERE MUST 632 00:54:02.823 --> 00:54:06.941 BE AN ELEMENT WHERE THE EMPLOYER DEG LEG GATES THE AUTHORITY TO SUPERVISE CHILDREN 633 00:54:06.941 --> 00:54:12.925 TO THE EMPLOYEE AND FINALLY THAT EMPLOYEE USES EITHER AN AIDED AGENCY OR A 634 00:54:12.925 --> 00:54:15.070 PARENT AUTHORITY TO COMMIT THE SEXUAL ABUSE. CHIEF JUSTICE RABNER: 635 00:54:15.070 --> 00:54:24.477 OTHER QUESTIONS GENERAL ONE. WE WILL HAVE YOU RESPECT. 636 00:54:24.477 --> 00:54:39.200 VERY WELL. A. JOHN W. BALDANTE: GOOD MORNING JUSTICES. IF 637 00:54:39.200 --> 00:54:44.599 IT PLEASE THE COURT, I'D LIKE TO RESERVE SOME TIME FOR REBUTTAL. THANK YOU FOR THE BRIDGE 638 00:54:44.599 --> 00:54:51.522 TO ADDRESS AND DISCUSS THESE IMPORTANT ISSUES WITH YOU TODAY. TO AVOID 639 00:54:51.522 --> 00:54:56.252 REDUNDANCY, LIKE MY PARTNER SUGGESTED, I'M GOING TO STICK TO THE FORMAT WE PROPOSED AND 640 00:54:56.252 --> 00:55:06.046 FOCUS MY COMMENTS ON THE ISSUES RE-LATED TO HARDWICKE AND SOME OF THE ALTERNATIVE 641 00:55:06.046 --> 00:55:12.340 OPTIONS. I WOULD LIKE TO BRIEFLY ECHO HIS COMMENTS EXPRESSING GRATITUDE TO THE 642 00:55:12.340 --> 00:55:19.825 PLAINTIFF HERE AND THE OTHER SURVIVORS OF SEXUAL ABUSE. I THINK I SPEAK FOR MANY OF US 643 00:55:19.825 --> 00:55:27.568 INVOLVED IN THIS TYPE OF LITIGATION WHEN I SAY THAT WITNESSING THESE SURVIVORS WHEN THEY 644 00:55:27.568 --> 00:55:36.673 COME TO US AND THEY TELL US THEIR NARRATIVES AND SHARE THEIR PAIN AND THEIR BODIES BEGIN 645 00:55:36.673 --> 00:55:45.336 TO SHAKE AND THEIR VOICES BEGIN TO KRAKORA AND THEIR EYES SWELL WITH TIERS AND THEY START 646 00:55:45.336 --> 00:55:54.874 TO CRY LIKE THE ADOLESCENT CHILD WHO IS SEXUALLY ABUSED SHGSR, IT'S IMPOSSIBLE TO NOT 647 00:55:54.874 --> 00:56:01.207 BE AFFECTED AND OPEN OUR EYES TO WHAT OUR COLLECTIVE OBLIGATION IS AS A SOCIETY TO DO 648 00:56:01.207 --> 00:56:07.104 EVERYTHING POSSIBLE TO PROTECT THESE CHILDREN AND PROTECT THEIR -- AND PREVENT THIS BEHAVIOR. 649 00:56:07.104 --> 00:56:19.625 THE CHILD VICTIM's ACT IN NEW JERSEY IS ONE OF THE MOST AMBITIOUS AND PROGRESSIVE 650 00:56:19.625 --> 00:56:27.652 PIECES OF LEGISLATIVE PER TAK TO CHILD SEXUAL ABUSE IN THE COUNTRY. IT MODIFIED A STATUTE 651 00:56:27.652 --> 00:56:33.771 OF LIMITATIONS WINDOW THAT LOOKED RETROACTIVELY AND ALLOWED CLAIMS FROM MANY DECADES PRIOR. 652 00:56:33.771 --> 00:56:40.308 AS WELL AS EXTENDING THE STATUTE OF LIMITATIONS TO AGE 55 AND EVEN ON SOME OCCASIONS 653 00:56:40.308 --> 00:56:45.786 HIGHER. AMONG OTHER THINGS AND RELEVANT TO THE ISSUE THAT WE'RE HERE TO DISCUSS 654 00:56:45.786 --> 00:56:56.144 HERE TODAY, THE CHILD VICTIM's ACT ABOLISHED IMMUNITY UNDER THE TORT CLAIMS ACT FOR CHILD 655 00:56:56.144 --> 00:57:04.028 SEXUAL ABUSE. AND NOTED THAT THE LEGISLATIVE REASON FOR THIS IS THAT THEY WANTED TO HOLD 656 00:57:04.028 --> 00:57:12.852 ENTITIES THAT HARBOR PREDATORIES ACCOUNTABLE BECAUSE THEY ARE IN THE BEST POSITION TO 657 00:57:12.852 --> 00:57:19.106 STOP IT. AND WITH IMMUNITY ABOLISHED, IF THE JUSTICES WERE INCLINED TO DO THAT TODAY, 658 00:57:19.106 --> 00:57:32.853 WE WOULD PROCEED TO THE COMMON LAW. AND IN THE COMMON LAW WE WOULD BE LED TO HARDWICKE, 659 00:57:32.853 --> 00:57:39.622 WHICH IS THE SEMINAL CASE REGARDING SEXUAL ABUSE IN THE STATE OF NEW JERSEY FOR THE LAST 660 00:57:39.622 --> 00:57:45.991 20 YEARS. NOW, THE DEFENDANTS AND THE DEFENSE AMICI CURIAE ARMS THIS COURT 661 00:57:45.991 --> 00:57:53.760 SHOULD ESSENTIALLY CIRCUMVENT HARDWICKE, AND THEY SUGGEST SOME ALTERNATIVE OPTIONS. 662 00:57:53.760 --> 00:58:02.904 BUT WHAT GETS LOST IN THIS DISCUSSION IS THAT THE VALIDITY OF HARDWICKE REALLY IS NOT AT 663 00:58:02.904 --> 00:58:07.830 ISSUE ON APPEAL BEFORE THIS COURT. NOW, I UNDERSTAND THE COURT HAS THE RIGHT AND THE 664 00:58:07.830 --> 00:58:15.742 DISCRETION TO DECIDE HOW TO IMPLEMENT HARDWICKE AND MODIFY IT IF IT SO WISHES. BUT THE 665 00:58:15.742 --> 00:58:23.405 ONLY REAL ISSUE THAT WAS EVER BROUGHT UP ON APPEAL UNTIL RECENTLY IN THESE AMICUS BRIEFS, 666 00:58:23.405 --> 00:58:33.739 ACTUALLY, IS CAN PLAINTIFFS BRING A CLAIM FOR VICARIOUS LIABILITY UNDER THE TORT CLAIMS 667 00:58:33.739 --> 00:58:40.504 ACT FOR THE WILLFUL OR WANTON ACT OF CHILD SEXUAL ABUSE BY A PUBLIC AGENT. ALL 668 00:58:40.504 --> 00:58:45.970 THE PARTIES ACKNOWLEDGE AND AGREE THAT HARDWICKE IS THE PREVAILING LAW IN NEW JERSEY. 669 00:58:45.970 --> 00:58:58.485 AND THESE ALTERNATIVE OPTIONS WERE NOT RAISED UNTIL THE AG'S AMICUS BRIEF SUGGESTED THESE 670 00:58:58.485 --> 00:59:05.830 ALTERNATIVE OPTIONS AS AFFIRMATIVE DEFENSES. THE COURT HAS DEALT WITH THIS DYNAMIC BEFORE. 671 00:59:05.830 --> 00:59:18.280 IN STATE VERSUS MOSLEY IN 2018 AND W S IN 2023, IT NOTED AND I'LL QUOTE, WE GENERALLY 672 00:59:18.280 --> 00:59:28.711 DECLINE TO CONSIDER ARGUMENTS RAISED FOR THE FIRST TIME BY AN AMICUS BEFORE THIS COURT. 673 00:59:28.711 --> 00:59:37.285 BUT NOT ONLY WOULD IT BE IN-APPROPRIATE TO ABANDON OR CIRCUMVENT 674 00:59:37.285 --> 00:59:42.368 HARDWICKE, THERE'S ALSO REALLY NO REASON TO DO IT. HARDWICKE HAS BEEN THE LAW IN THIS 675 00:59:42.368 --> 00:59:49.764 STATE FOR 20 YEARS AND HAS WORKED DESPITE US BEING HERE TODAY. IT HAS WORKED RELATIVELY 676 00:59:49.764 --> 00:59:58.533 SEAMLESSLY. THROUGH ITS PROGENY OVER THE YEARS, IT HAS BEEN REFINED. IT HAS BEEN LIMITED 677 00:59:58.533 --> 01:00:04.504 AND NARROWLY TAILORED. YOU HAD SPOKEN EARLIER WITH MY PARTNER ABOUT WHAT ARE 678 01:00:04.504 --> 01:00:12.095 THE ELEMENTS OR CONDITIONS OF HARDWICKE. AND THERE ARE REALLY FIVE OF THEM. ONE IS THAT 679 01:00:12.095 --> 01:00:18.938 IT HAS TO DERIVE -- IT HAS TO BE AN ISSUE THAT DERIVES FROM REMEDIAL LITIGATION. AND 680 01:00:18.938 --> 01:00:28.910 WE SEE THAT NOT JUST THROUGH HARDWICKE BUT THROUGH DAVIS AND ES VERSUS BRUNSWICK AT THE 681 01:00:28.910 --> 01:00:35.143 APPELLATE LEVEL. THE SECOND THING IS THAT HARDWICKE ONLY DEALT WITH CHILD SEXUAL 682 01:00:35.143 --> 01:00:42.443 ABUSE. AND SO THAT'S REALLY BEEN ONE OF THE LIMITATIONS WITH REGARD TO THE APPLICATION 683 01:00:42.443 --> 01:00:52.560 OF HARDWICKE AND WHAT IT SAYS. THE CHILD VICTIM's ACT NOW HAS SUBSEQUENTLY DEFINED 684 01:00:52.560 --> 01:00:58.273 WHAT A CHILD IS AND A CHILD FOR CIVIL LITIGATION LIKE THIS IS UNDER THE AGE OF 18. BUT 685 01:00:58.273 --> 01:01:05.660 THIS IS REALLY BORN OUT OF THE RECOGNITION THAT CHILDREN ARE EXTREMELY VULNERABLE. AND 686 01:01:05.660 --> 01:01:12.745 WITH REGARD TO SEXUAL ABUSE, THEIR BRAINS ARE VERY IMMATURITY IN THE FRONTAL VORTEX IS NOT 687 01:01:12.745 --> 01:01:20.859 FULLY DEVELOPED. SO WHEN THESE TRAGEDIES OCCUR AND THESE TRAUMAS OCCUR, THE SYSTEM OF 688 01:01:20.859 --> 01:01:30.821 THEIR BRAIN THAT REGULATES OUR EMOTIONS BECAUSE DIS REGULATED. LIFE LONG PROBLEMS. SO 689 01:01:30.821 --> 01:01:38.897 VULNERABLE VICTIM IS SOMETHING THAT WE SAY NOT JUST IN HARDWICKE AND THE PROGENY THAT 690 01:01:38.897 --> 01:01:44.562 DEVELOPED OVER THE YEARS, BUT WE SEE IT EVEN BEING DISCUSSED IN RECENT LEGAL TREATISES 691 01:01:44.562 --> 01:01:51.512 LIKE THE RESTATEMENT THIRD OF AGENCY AND THE RESTATEMENT THIRD OF TORTS WHICH NOW HAS 692 01:01:51.512 --> 01:01:56.677 THESE MISCELLANEOUS PROVISIONS THAT WERE RECENTLY ADOPTED. THE THIRD ELEMENT 693 01:01:56.677 --> 01:02:13.785 OR CONDITION OF HARDWICKE IS IN-PARENT ADVERTISE AND THESE ARE ISSUES THAT HAVE EVOLVED 694 01:02:13.785 --> 01:02:21.622 OVER TIME IN OTHER CASES. MY PARTNER MR. MAGEE MENTIONED DAVIS SETS BOUNDARIES ON THAT. 695 01:02:21.622 --> 01:02:28.823 AND THE ES VERSUS BRUNSWICK CASE ALSO DISCUSSES THIS. BUT THIS IS REALLY IN 696 01:02:28.823 --> 01:02:37.650 RECOGNITION ABOUT WHERE CHILD SEXUAL ABUSE OCCURS. THE CULTURE, THE ENVIRONMENT IT 697 01:02:37.650 --> 01:02:45.360 DEVELOPS IN. THERE ARE CIRCUMSTANCES THAT WE KNOW THROUGH HISTORY, THROUGH ACADEMIC LITERATURE, 698 01:02:45.360 --> 01:02:54.552 WHERE CHILDREN ARE MORE LIKELY TO BE SEXUALLY ABUSED AND IT'S SITUATIONS WHERE PEOPLE 699 01:02:54.552 --> 01:03:00.461 ARE SERVING IN A SPECIAL RELATIONSHIP. BECAUSE OF THE POWER DYNAMIC AND THE WAY THESE 700 01:03:00.461 --> 01:03:05.795 CHILDREN VERNIERO RATE AND LOOK UP TO THAT AUTHORITY. WHETHER IT'S A TEACHER. WHETHER 701 01:03:05.795 --> 01:03:11.231 IT'S A PRIEST. WHETHER IT'S A COACH IN A YOUTH ORGANIZATION. IT'S THE ENVIRONMENT THAT 702 01:03:11.231 --> 01:03:17.059 THEY'RE LOOKING AT FOR THAT. THAT'S EVEN RECOGNIZED IN SOME OF THESE RECENT 703 01:03:17.059 --> 01:03:24.902 TREATISES WITH THE CONCEPT OF GENERAL FORESEEABILITY AS DISTINGUISHED FROM SPECIFIC 704 01:03:24.902 --> 01:03:30.133 FORESEEABILITY. OF COURSE SPECIFIC FORESEEABILITY WOULD SAY IT WOULD HAVE TO BE FORESEEABLE 705 01:03:30.133 --> 01:03:43.326 THAT THIS PARTICULAR WOULD BE MOLESTING THIS PARTICULAR VICTIM IN THIS PARTICULAR FASHION. 706 01:03:43.326 --> 01:03:47.320 THEY DON'T LOOK AT THAT. THEY LOOK AT GENERALLY WHAT'S THE CULTURE, WHAT'S THE ENVIRONMENT 707 01:03:47.320 --> 01:03:54.755 THIS IS TAKING PLACE IN. IS IT FORESEEABLE THAT CHILDREN ARE AT RISK OF THIS HARM. AND 708 01:03:54.755 --> 01:04:00.326 IN THE CONTEXT OF SCHOOLS AND YOUTH SERVING ORGANIZATIONS AND PRIESTS IN PARTICULAR, YES, 709 01:04:00.326 --> 01:04:09.418 THERE IS THAT FORESEEABILITY AND WE'VE KNOWN THAT FOR LITERALLY AN ESSENTIAL TOUR RI NOW 710 01:04:09.418 --> 01:04:13.539 IN THE LITERATURE THAT EXISTS ON THIS. THE NEXT ISSUE IS THE EMPLOYER DELEGATES 711 01:04:13.539 --> 01:04:20.689 SUPERVISION OF CHILDREN TO THE AGENT WHO COMMITS THE VIOLATION. THE PERPETRATOR HIMSELF. 712 01:04:20.689 --> 01:04:28.487 THIS IS ESTABLISHED IN HARDWICKE, OF COURSE. AND IT DEALS WITH THIS CONCEPT OF DELEGATING 713 01:04:28.487 --> 01:04:39.748 UN-TETHERED POWER TO SOMEONE IN AUTHORITY. AND IN THE LAST OF COURSE IS THE PARENT AUTHORITY 714 01:04:39.748 --> 01:04:49.272 IN AIDED AGENCY IN HARDWICKE's ADOPTION OF THE RESTATEMENT SECOND OF TORTS 2192D. 715 01:04:49.272 --> 01:04:53.894 NOW, THE DEFENDANTS IN THIS CASE -- JUSTICE PATTERSON: CAN I STEP BACK TO 716 01:04:53.894 --> 01:04:59.615 YOUR FIRST ONE? YOUR CLAIM WAS NOT BARRED BY THE STATUTE OF LIMITATIONS BY VIRTUE OF THE 717 01:04:59.615 --> 01:05:07.041 2019 AMENDMENTS CLEARLY. BUT IS YOUR CLAIM -- AND I'M JUST READING FROM MY NOTES OF WHAT 718 01:05:07.041 --> 01:05:15.148 YOU JUST SAID -- DERIVED FROM REMEDIAL LITIGATION AND IF SO WHAT IS THAT LITIGATION? 719 01:05:15.148 --> 01:05:19.074 JOHN W. BALDANTE: THE CHILDREN'S VICTIM's ACT IS THE REMEDIAL LITIGATION. 720 01:05:19.074 --> 01:05:25.336 JUSTICE PATTERSON: YOUR CLAIM IS BROUGHT PURSUANT TO THAT STATUTE? 721 01:05:25.336 --> 01:05:29.547 JOHN W. BALDANTE: IT IS BROUGHT PURSUANT TO THAT STATUTE BY VIRTUE OF THE STATUTE OF 722 01:05:29.547 --> 01:05:42.926 LIMITATIONS. JUSTICE WAINER APTER: WHICH STATUTE ARE YOU SUING PURSUANT TO? 723 01:05:42.926 --> 01:05:48.031 NOT WHICH LAW, WHICH STATUTE? JOHN W. BALDANTE: IN THIS PARTICULAR INSTANCE 724 01:05:48.031 --> 01:05:53.573 AGAINST THE SCHOOL BOARDS OF EDUCATION WE'RE PURSUING UNDER THE TORT ACT BECAUSE THAT'S 725 01:05:53.573 --> 01:05:57.833 THE OBLIGATION WE WOULD HAVE TO FILE UNDER. JUSTICE WAINER APTER: IT SEEMS 726 01:05:57.833 --> 01:06:03.041 FROM YOUR BRIEFING AND ALSO THE PRECEDING ARGUMENT THAT YOUR ADVERSARIES ARE VIEWING 727 01:06:03.041 --> 01:06:10.044 THAT THE TORTS CLAIM ACT IS NOT CREATING LIABILITY. IT IS ONLY ISSUING IMMUNITY. AND 728 01:06:10.044 --> 01:06:15.700 IT SEEMED LIKE YOUR ARGUMENT WAS, YES, WE ARE SUING PURSUANT TO THE COMMON LAW. 729 01:06:15.700 --> 01:06:18.023 JOHN W. BALDANTE: CORRECT. JUSTICE WAINER APTER: SO ARE YOU SUING PURSUANT 730 01:06:18.023 --> 01:06:23.180 TO A STATUTE OR ARE YOU SUING PURSUANT TO THE COMMON LAW? IS IT THE SAME ANSWER -- 731 01:06:23.180 --> 01:06:26.874 JOHN W. BALDANTE: WELL, IT'S A COMBINATION OF THOSE TWO THINGS. SO BY VIRTUE OF THE 732 01:06:26.874 --> 01:06:33.415 CHILD VICTIM's ACT AND THE CHANGES IN THE LAW IN THE STATUTE OF LIMITATIONS, WE CAN BRING 733 01:06:33.415 --> 01:06:37.444 THIS CLAIM. JUSTICE PATTERSON: BUT IF YOU'RE TALKING ABOUT YOUR CAUSE OF ACTION 734 01:06:37.444 --> 01:06:48.533 BEING DERIVED -- THERE ARE MANY, MANY STATUTES THAT CREATE CAUSES OF ACTION. LAD, CEPA. 735 01:06:48.533 --> 01:06:54.053 THEY CREATE A CAUSE OF ACTION. SAYING THAT BY VIRTUE OF THE LAW -- AND YOU SPOKE MORE 736 01:06:54.053 --> 01:07:01.269 PRECISELY JUSTICE THAN I DID. BUT A LAW AMENDING THE STATUTE OF LIMITATIONS DOESN'T -- 737 01:07:01.269 --> 01:07:06.118 YOUR CLAIM IS NO LONGER BARRED BY THE STATUTE OF LIMITATIONS. DOESN'T MEAN THAT THE 738 01:07:06.118 --> 01:07:11.678 LAW CREATED A CAUSE OF ACTION. DO YOU SEE THE DISTINCTION I'M MAKING? SO WHEN YOU SAY 739 01:07:11.678 --> 01:07:19.723 THAT THE FIRST LIMITATION OF HARDWICKE AND ITS PROGENY IS THAT THE CAUSE OF ACTION MUST BE 740 01:07:19.723 --> 01:07:27.130 DERIVED FROM REMEDIAL LITIGATION, ARE YOU SAYING THAT THAT'S BECAUSE BY VIRTUE OF LITIGATION 741 01:07:27.130 --> 01:07:30.740 YOUR CLAIM IS NOT BARRED BY THE STATUTE OF LIMITATIONS? JOHN W. BALDANTE: 742 01:07:30.740 --> 01:07:35.158 WELL, THAT'S ONE OF THE THINGS. BUT WHEN I REALLY SPEAK IN TERMS -- AND MAYBE I USED 743 01:07:35.158 --> 01:07:42.512 MY LANGUAGES A LITTLE UN-PRECISE. BUT WHEN I SAY DERIVES FROM REMEDIAL LITIGATION, WHAT 744 01:07:42.512 --> 01:07:51.052 I'M INDICATING AND I THINK IS WHAT THE GIST OF WHAT HARDWICKE TALKS ABOUT AND OTHERS HAVE 745 01:07:51.052 --> 01:07:57.672 RECOGNIZED THIS, IS THAT IT HAS TO ADVANCE A SOCIAL POLICY THAT'S IMPORTANT. OF PUBLIC 746 01:07:57.672 --> 01:08:01.316 IMPORTANCE. JUSTICE PATTERSON: IT IS WHAT, THE LAW? JOHN W. BALDANTE: 747 01:08:01.316 --> 01:08:07.704 THE LAW AND THE NOTION THAT WE HAVE TO TAKE STEPS TO PROTECT CHILDREN FROM CHILD SEXUAL ABUSE. 748 01:08:07.704 --> 01:08:13.672 JUSTICE PATTERSON: I GET THAT. BUT ARE YOU SAYING THAT YOUR CLAIM IS DERIVED 749 01:08:13.672 --> 01:08:18.501 FROM ANY NEW JERSEY STATUTE? JOHN W. BALDANTE: I BELIEVE IT'S DERIVED THROUGH 750 01:08:18.501 --> 01:08:24.339 THE CHILD VICTIM's ACT RS BUT -- JUSTICE PATTERSON: NOT BARRED BY. 751 01:08:24.339 --> 01:08:29.075 JOHN W. BALDANTE: NOT BARRED BY IT. BECAUSE THE CHILD VICTIM's ACT HAS ABOLISHED THESE 752 01:08:29.075 --> 01:08:35.225 IMMUNITIES. BUT THE CLAIMS ARE GROUNDED IN COMMON LAW CLAIMS. THAT'S WHAT THEY'RE -- 753 01:08:35.225 --> 01:08:38.574 JUSTICE PATTERSON: JUST TO BE VERY CLEAR -- JOHN W. BALDANTE: 754 01:08:38.574 --> 01:08:46.698 UNDER 82 FOR EXAMPLE IS A STANDARD COMMON LAW CLAIM. UNDER A-ONE IT'S A CLAIM FOR WILLFUL, 755 01:08:46.698 --> 01:08:56.286 WANTON AND GROSSLY NEGLIGENT BEHAVIOR OF EITHER THE PUBLIC ENTITY OR THE PUBLIC EMPLOYEE. 756 01:08:56.286 --> 01:09:01.731 SO THAT CONSTITUTES VICARIOUS LIABILITY UNDER COMMON LAW. JUSTICE PATTERSON: 757 01:09:01.731 --> 01:09:07.898 WHAT YOU'RE TELLING US IS HARDWICKE PROVIDES LIMITING PRINCIPLES OUTSIDE OF WHICH THERE 758 01:09:07.898 --> 01:09:13.383 CAN BE NO CAUSE OF ACTION. AND THE FIRST IT'S DERIVED FROM A STATUTE. BUT I THINK YOU 759 01:09:13.383 --> 01:09:17.553 JUST TOLD US AND I THINK IT'S CONSISTENT WITH WHAT YOUR CLEEK SAID, THAT WE ARE TALKING 760 01:09:17.553 --> 01:09:20.834 ABOUT COMMON LAW CLAIMS. JOHN W. BALDANTE: CORRECT. WE'RE TALKING ABOUT 761 01:09:20.834 --> 01:09:25.038 -- JUSTICE PATTERSON: IF YOU HAD A LAD CLAIM FOR EXAMPLE. AND OFTEN WE SEE 762 01:09:25.038 --> 01:09:31.224 IN OPINIONS THAT THIS IS -- THE LEGISLATURE HAS INDICATED CAUSES OF ACTION SHOULD BE BROADLY 763 01:09:31.224 --> 01:09:37.721 CONSTRUED BECAUSE OF THE REMEDIAL PURPOSE OF LAD. THAT CLAIM WOULDN'T EXIST PUT FOR LAD. 764 01:09:37.721 --> 01:09:43.396 AND I THINK WHAT YOU'RE TELLING US IS THAT BOTTOM LINE IS YOUR CLAIMS ARE COMMON LAW CLAIMS. 765 01:09:43.396 --> 01:09:46.269 JOHN W. BALDANTE: CORRECT. JUSTICE WAINER APTER: YOU DO HAVE 766 01:09:46.269 --> 01:09:49.980 A LAD CLAIM ALSO, RIGHT? JUSTICE PATTERSON: YES. JOHN W. 767 01:09:49.980 --> 01:09:54.368 BALDANTE: I'M SORRY? JUSTICE WAINER APTER: THERE ARE SEVERAL CLAIMS GOING 768 01:09:54.368 --> 01:09:59.798 FORWARD REGARDLESS. YOU DO HAVE A LAD CLAIM. WE'RE TALKING ABOUT A CLAIM NADZ TO A LAD 769 01:09:59.798 --> 01:10:07.889 CLIM AND NADZ TO IF THERE IS A C S AA CLAIM THAT EXISTS THERE IS A SEPARATE CLAIM. 770 01:10:07.889 --> 01:10:12.247 JOHN W. BALDANTE: . BUT YOU'RE RIGHT, THE ESSENTIAL CLAIMS UNDER HARDWICKE AS WE'RE 771 01:10:12.247 --> 01:10:17.749 RECOGNIZING ARE COMMON LAW CLAIMS FOR WILLFUL, WANTON AND GROSSLY NEGLIGENT ACTS THAT WERE 772 01:10:17.749 --> 01:10:25.417 PREVIOUSLY BARRED UNDER THE TORT CLAIMS ACT UNTIL A-ONE WAS PASSED PURSUANT TO THE CHILD 773 01:10:25.417 --> 01:10:29.384 VICTIM's ACT. JUSTICE PATTERSON: SO DO THEY DERIVE -- I UNDERSTAND THEY'RE 774 01:10:29.384 --> 01:10:37.184 NOT BARRED BY THE STATUTE OF LIMITATIONS ANYMORE BECAUSE OF THE CHILD VICTIM's ACT ACT. 775 01:10:37.184 --> 01:10:41.191 BUT DO THEY DERIVE FROM A REMEDIAL STATUTE? JOHN W. BALDANTE: THEY SERVE 776 01:10:41.191 --> 01:10:44.362 THE PURPOSE OF A REMEDIAL STATUTE. JUSTICE PATTERSON: DIFFERENT QUESTION. 777 01:10:44.362 --> 01:10:48.494 JOHN W. BALDANTE: I THINK THERE MAY BE A BETTER WAY TO PHRASE IT. I THINK 778 01:10:48.494 --> 01:10:52.724 THEY SERVE THE PURPOSE OF THE REMEDIAL STATUTE. JUSTICE PATTERSON: THE COMMON 779 01:10:52.724 --> 01:11:00.018 LAW CLAIMS AND STATUTORY CLAIMS MAY SERVER SALUTARY PURPOSES AND BE DOING THAT IN 780 01:11:00.018 --> 01:11:08.707 PARALLEL. WHEN YOU SAY IT DERIVES FROM THE CLAIM, DOES A COMMON LAW CAUSE OF ACTION DERIVE 781 01:11:08.707 --> 01:11:13.316 FROM A STATUTE? I THINK THE ANSWER IN GENERAL IS NO. JOHN W. BALDANTE: NO. 782 01:11:13.316 --> 01:11:19.157 I THINK WE'RE GIVEN PERMISSION THROUGH THE CHILD VICTIM's ACT, WHICH IS ITSELF A REMEDIAL 783 01:11:19.157 --> 01:11:29.207 PIECE OF LITIGATION. IT REMEDY's A PROBLEM IN ASSET. THAT GIVES US THE -- IT SERVES A 784 01:11:29.207 --> 01:11:36.651 REMEDIAL LEGISLATIVE PURPOSE. IT'S A BIG SOCIAL EPIDEMIC OF CHILD SEXUAL ABUSE THAT HAS 785 01:11:36.651 --> 01:11:40.580 OCCURRED IN THE STATE OF NEW JERSEY THROUGHOUT THE COUNTRY QUITE FRANKLY. AND THAT'S 786 01:11:40.580 --> 01:11:45.318 WHAT THIS WAS -- THE PURPOSE OF THIS LITIGATION WAS TO ADDRESS THAT. SO IT 787 01:11:45.318 --> 01:11:52.659 SERVES THAT PURPOSE. WHETHER IT TECHNICALLY DERIVES FROM REMEDIAL LITIGATION, I -- YOU 788 01:11:52.659 --> 01:11:59.509 MAY BE EXACTLY CORRECT. AND I'M NOT MARRIED TO NECESSARILY THAT LANGUAGE. BUT I THINK 789 01:11:59.509 --> 01:12:05.782 ADVANCING THE PURPOSE OF REMEDIAL LITIGATION IS ONE OF THE CRITERIA OR ONE OF THE ELEMENTS 790 01:12:05.782 --> 01:12:11.527 THAT HAS EVOLVED IN DEFINING HARDWICKE. JUSTICE PATTERSON: ISN'T IT IMPORTANT 791 01:12:11.527 --> 01:12:17.374 WHETHER IT TECHNICALLY DERIVES FROM -- I HATE TO BE TECHNICAL ABOUT IT. JOHN W. 792 01:12:17.374 --> 01:12:22.213 BALDANTE: IF WE'RE USING THE WORD DERIVES FROM REMEDIAL LITIGATION, I DON'T THINK 793 01:12:22.213 --> 01:12:27.495 TECHNICALLY IT'S IMPORTANT THAT IT DOES. BUT IT HAS TO SERVE THE PURPOSE OF A REMEDIAL 794 01:12:27.495 --> 01:12:31.299 LITIGATION. JUSTICE PATTERSON: THAT WAS -- THAT'S IN YOUR BRIEF AND THAT'S 795 01:12:31.299 --> 01:12:36.544 WHAT YOU -- YOU KNOW, THE LANGUAGE YOU GAVE US TODAY. AND I'M NOT SUGGESTING THAT THAT'S 796 01:12:36.544 --> 01:12:42.796 THE WRONG WAY TO FORMULATE IT. BUT I'M JUST SUGGESTING THAT PERHAPS YOUR CASE DOESN'T 797 01:12:42.796 --> 01:12:47.940 FIT INTO THAT. OR THIS CLAIM DOESN'T FIT INTO THAT, THE COMMON LAW CLAIMS. JOHN 798 01:12:47.940 --> 01:12:50.976 W. BALDANTE: BECAUSE IT DOESN'T DERIVE YOU'RE SAYING? JUSTICE PATTERSON: 799 01:12:50.976 --> 01:12:56.866 IT'S A COMMON LAW CLAIM. JOHN W. BALDANTE: IT'S A SXHON LAW CLAIM. THERE'S 800 01:12:56.866 --> 01:13:01.771 NO QUESTION ABOUT THAT. BUT THE REMEDIAL LITIGATION THAT GIVES US THE ABILITY TO BRING 801 01:13:01.771 --> 01:13:08.895 THEM THROUGH THE ABOLISHMENT OF IMMUNITIES UNDER THE TORT CLAIMS ACT. JUSTICE 802 01:13:08.895 --> 01:13:12.576 WAINER APTER: I THINK JUST TO TAKE A STEP BACK, THE REASON I'VE BEEN FOCUSING ON THIS 803 01:13:12.576 --> 01:13:17.238 IS WHEN YOU TALK ABOUT REMEDIAL LITIGATION, THE LEGISLATURE CAN BE VERY PRECISE AND THEY CAN 804 01:13:17.238 --> 01:13:22.542 ENACT A STATUTE EXACTLY AS THEY WANT TO ENACT IT AND THEY CAN PROVIDE FOR LIABILITY OR 805 01:13:22.542 --> 01:13:27.740 NO LIABILITY, PUBLIC ENTITIES HAVE TO PAY, PUBLIC ENTITIES DO NOT HAVE TO PAY. THAT 806 01:13:27.740 --> 01:13:32.246 IS WHAT THE LEGISLATURE DOES. THEY ARE THE ONES WHO CREATE THE PUBLIC POLICY OF THIS STATE. 807 01:13:32.246 --> 01:13:36.786 THE COMMON LAW IS NOT CREATED BY THE LEGISLATURE. CORRECT? JOHN W. 808 01:13:36.786 --> 01:13:40.718 BALDANTE: CORRECT. JUSTICE WAINER APTER: IT'S JUDGE MADE LAW AND IT IS NOT 809 01:13:40.718 --> 01:13:46.563 BEING ENACTED DEMOCRATIC KELLY WHERE THERE IS A VOTE ON EVERY SINGLE PROVISION. IT IS 810 01:13:46.563 --> 01:13:52.402 JUDGE MADE LAW. SO IT IS DIFFERENT TO SAY THAT THERE IS REMEDIAL LITIGATION CREATING 811 01:13:52.402 --> 01:14:00.473 PUBLIC ENTITY LIABILITY IN THIS CIRCUMSTANCE VERSUS JUDGES SAY THAT A PUBLIC ENTITY SHOULD 812 01:14:00.473 --> 01:14:06.167 BE LIABLE IN THIS CIRCUMSTANCE. IT IS JUST NOT THE SAME WHEN YOU'RE TALKING ABOUT A PUBLIC 813 01:14:06.167 --> 01:14:11.426 ENTITY PAYING HUGE AMOUNTS OF MONEY TO SAY THAT IS UP TO THE LEGISLATURE VERSUS THAT IS 814 01:14:11.426 --> 01:14:21.260 UP TO A JUDGE. JOHN W. BALDANTE: UNDERSTOOD. I UNDERSTAND YOUR JUSTICE's 815 01:14:21.260 --> 01:14:27.359 POINT BUT WITHOUT THE REMEDIAL LITIGATION OF THE CHILD VICTIM's ALBEIT, THIS IMMUNITY 816 01:14:27.359 --> 01:14:32.361 WOULD NOT HAVE BEEN ABOLISHED. SO THAT'S WHAT GIVES US THE ACCESS AND THE AVAILABILITY 817 01:14:32.361 --> 01:14:39.051 OF THE COMMON LAW. SO WHETHER IT DERIVES FROM OR SERVES THE PURPOSE OF 818 01:14:39.051 --> 01:14:46.930 REMEDIAL LITIGATION, I THINK IS A NUANCE THAT DOESN'T -- SHOULDN'T PROHIBIT US FROM BEING 819 01:14:46.930 --> 01:14:55.759 ABLE TO GO FORWARD WITH THESE CLAIMS. THE LEGISLATORS OBVIOUSLY INTENDED FOR US TO HAVE 820 01:14:55.759 --> 01:15:09.124 CLAIMS FOR THE WILLFUL AND WANTON SEXUAL ABUSE OF CHILDREN IN THE CONTEXT OF A TORT CLAIMS 821 01:15:09.124 --> 01:15:14.898 ACT. THAT'S WHAT THEY WANTED US TO HAVE HERE. SO, YES, HAVING ITS ORIGINS 822 01:15:14.898 --> 01:15:21.167 RE-LATED TO REMEDIAL LITIGATION HAS BEEN ONE OF THOSE CRITERIAS THAT HAVE BEEN HONED THROUGH 823 01:15:21.167 --> 01:15:29.390 HARDWICKE AND ITS PROGENY OVER THE YEARS. JUSTICE HOFFMAN: SIT YOUR POSITION 824 01:15:29.390 --> 01:15:34.450 THAT IF A CLAIM IS MADE POSSIBLE FOR THE FIRST TIME BY REMEDIAL LITIGATION THAT THAT CLAIM 825 01:15:34.450 --> 01:15:39.483 IS DERIVED FROM THAT REMEDIAL LITIGATION? JOHN W. BALDANTE: THAT'S KIND OF 826 01:15:39.483 --> 01:15:44.557 HOW I'VE ALWAYS THOUGHT OF IT. THAT'S AN APPROPRIATE WAY TO FWRAZ IT, JUSTICE HOFFMAN. 827 01:15:44.557 --> 01:15:56.307 THIS WAS OBVIOUSLY DONE SO WE COULD ENACT LAWS TO PROTECT CHILDREN. JUSTICE 828 01:15:56.307 --> 01:16:02.814 PATTERSON: BUT THIS CLAIM WAS NOT INVENTED BY THE LITIGATION. THE STATUTE HAD RUN. AND 829 01:16:02.814 --> 01:16:11.636 THERE WAS A REVIVAL OF THE CAUSE OF ACTION VIA THE TWO-YEAR WINDOW. WHICH ALLOWED CLAIMS 830 01:16:11.636 --> 01:16:16.525 THAT MIGHT HAVE BEEN BROUGHT A LONG TIME AGO TO BE BROUGHT NOW. JOHN W. BALDANTE: 831 01:16:16.525 --> 01:16:20.583 CORRECT. JUSTICE PATTERSON: SO -- YOU KNOW, YOU COULD HAVE -- PERSONAL INJURY 832 01:16:20.583 --> 01:16:27.225 STATUTE OF LIMITATIONS COULD BE EXTENDED FOR SLIPS AND FALLS IF THE LEGISLATURE SO DEEMED 833 01:16:27.225 --> 01:16:32.973 IT. BUT THAT DOESN'T MEAN THE CAUSE OF ACTION FOR A PERSONAL INJURY IN A SLIP AND FALL 834 01:16:32.973 --> 01:16:36.609 HAS BEEN CREATED IN THAT STATUTE. JOHN W. BALDANTE: NO. AND THE LEGISLATORS 835 01:16:36.609 --> 01:16:42.306 OBVIOUSLY WERE AWARE THAT THERE WAS A TORT CLAIMS ACT AND THEY WERE GOING TO MODIFY THAT 836 01:16:42.306 --> 01:16:48.623 TORT CLAIMS ACT TO PERMIT THESE CLAIMS TO GO FORWARD. SO THOSE MODIFICATIONS OR 837 01:16:48.623 --> 01:16:57.872 ADDITIONS, SECTION 1.3A ONE AND A-TWO, WERE ADDED TO THE TORT CLAIMS ACT TO ACCOMMODATE 838 01:16:57.872 --> 01:17:04.607 THAT. I DON'T BELIEVE 1.3 EXISTED BEFORE. BUT IT'S AN AMENDMENT TO THE TORT CLAIMS ACT. 839 01:17:04.607 --> 01:17:11.735 AND THE JUSTICES ARE EXACTLY CORRECT. THAT'S FROM A FUNCTIONAL STANDPOINT EXACTLY WHAT 840 01:17:11.735 --> 01:17:16.869 HAPPENED. BUT ALL OF THAT HAPPENED TO SERVE THIS REMEDIAL PURPOSE. MAYBE THAT'S 841 01:17:16.869 --> 01:17:22.840 THE APPROPRIATE WAY TO PUT IT. IT SERVES A REMEDIAL PURPOSE THAT THE LEGISLATORS ARE 842 01:17:22.840 --> 01:17:30.321 SEEKING TO ACHIEVE. SO THAT'S ONE OF THE ELEMENTS OR GUARDRAILS IF YOU WANT THAT IS 843 01:17:30.321 --> 01:17:41.234 REQUIRED UNDER HARDWICKE. JUSTICE HOFFMAN: I DON'T UNDERSTAND REALLY WHY 844 01:17:41.234 --> 01:17:48.413 YOU'RE TAKING THE POSITION THAT AN PARENT RELATIONSHIP IS A PREREQUISITE FOR A COMMON 845 01:17:48.413 --> 01:17:57.363 LAW CLAIM UNDER HARDWICKE WHEN HARDWICKE ONLY TOOK THAT POSITION VIA THE C S AA. JOHN 846 01:17:57.363 --> 01:18:01.542 W. BALDANTE: IT'S ACTUALLY BECAUSE OF THE CULTURE AND ENVIRONMENT IN WHICH CHILD SEXUAL ABUSE 847 01:18:01.542 --> 01:18:07.335 OCCURS. IF YOU'RE REALLY LOOKING TO TRY TO DETER THAT FROM HAPPENING, YOU HAVE TO LOOK 848 01:18:07.335 --> 01:18:16.380 AT THE CULTURES WHERE IT'S MOST LIKELY TO HAPPEN. SO IN PARENT ROIMS AND SPECIAL RELATIONSHIPS 849 01:18:16.380 --> 01:18:22.610 THAT HAVE ALSO BEEN TALKED ABOUT IN SOME OF THE CASES IS REALLY WHERE THIS HAPPENS MOST 850 01:18:22.610 --> 01:18:28.860 FREQUENTLY. SO THIS LITIGATION IS REALLY GEARED AT TRYING TO STOP THIS. AND THAT'S WHY 851 01:18:28.860 --> 01:18:34.358 VICARIOUS LIABILITY IS SO IMPORTANT. BECAUSE IT PLACES THE BURDEN ON THE EMPLOYER TO 852 01:18:34.358 --> 01:18:44.554 STOP THIS BEHAVIOR, WHICH IS THE ONLY ENTITY OR PERSON THAT CAN POSSIBLY STOP IT. THE 853 01:18:44.554 --> 01:18:51.250 PERPETRATORS ARE PEDOPHILES. THEY SUFFER FROM A SICKNESS THAT MAKES THEM COMMIT THESE 854 01:18:51.250 --> 01:18:57.712 HORRIFIC ACTS. WE CAN'T RELY UPON THEM. IT IS THE ENTITIES THAT HARBOR THEM THAT HAVE 855 01:18:57.712 --> 01:19:04.330 THAT RESPONSIBILITY. AND THAT'S WHERE -- I HOPE THAT ANSWERS YOUR QUESTION. 856 01:19:04.330 --> 01:19:07.664 JUSTICE HOFFMAN: IF UNDER HARDWICKE THE EMPLOYER GAVE THE AUTHORITY TO THE SUPERVISOR 857 01:19:07.664 --> 01:19:13.466 TO CONTROL THE SITUATION, CHECK YES, THE SUPERVISOR EXERCISED THAT AUTHORITY, CHECK 858 01:19:13.466 --> 01:19:19.281 YES. THE EXERCISE OF THAT AUTHORITY RESULTED IN A VIOLATION OF WHATEVER CLAIM YOU'RE BRINGING. 859 01:19:19.281 --> 01:19:26.208 THE AUTHORITY DELEGATED BY THE EMPLOYEE TO THE SUPERVISOR AIDED THE SUPERVISOR IN INJURING 860 01:19:26.208 --> 01:19:32.638 THE PLAINTIFF. IF YOU CHECK ALL THOSE YESES, YOU WOULD SAY, NO, NO, BUT UNLESS YOU HAVE 861 01:19:32.638 --> 01:19:36.653 A PARENTAL RELATIONSHIP YOU STILL DON'T HAVE A CLAIM. JOHN W. BALDANTE: I 862 01:19:36.653 --> 01:19:41.367 BELIEVE THAT'S CORRECT. OR SPECIAL RELATIONSHIP. THERE'S THIS CONCEPT, YOU KNOW, THE 863 01:19:41.367 --> 01:19:47.101 RESTATEMENT THIRD OF AGENCY NOW REALLY REFERS TO IT AS A SPECIAL RELATIONSHIP, WHICH INCLUDES 864 01:19:47.101 --> 01:19:53.328 TEACHERS AND CHILDREN AND SCHOOLS AND CHILDREN. BUT THAT CAN INCLUDE OTHER THINGS. IT 865 01:19:53.328 --> 01:20:00.164 COULD INCLUDE HEALTHCARE WORKERS OF PEOPLE WHO ARE INFORMED. RIGHT? IT CAN INCLUDE PEOPLE 866 01:20:00.164 --> 01:20:06.626 WHO INTERACT WITH INDIVIDUALS WHO HAVE IMPAIRED MENTAL CAPACITIES. THERE'S 867 01:20:06.626 --> 01:20:13.107 ALL TYPES OF SPECIAL RELATIONSHIPS THAT WE MIGHT LOOK AT AND SOME OF THESE MORE RECENT 868 01:20:13.107 --> 01:20:19.687 REVISIONS TO THE RE-STATEMENTS BROADEN THAT A LITTLE BIT. AND THEY EXPAND THAT A LITTLE 869 01:20:19.687 --> 01:20:25.337 BIT. BUT ONE THING -- AND THIS IS WHY WE PUSH BACK ON THIS CHARACTERIZATION 870 01:20:25.337 --> 01:20:34.931 OF STRICT LIABILITY. HARDWICKE AND ITS PROGENY AND WHAT'S EVOLVED AND THESE CONDITIONS 871 01:20:34.931 --> 01:20:40.621 OR ELEMENTS WE'RE TALKING ABOUT ARE VERY NARROWLY TAILORED. THEY'RE VERY REFINED AND 872 01:20:40.621 --> 01:20:45.625 LIMITED. AND THEY DEAL JUST REALLY RIGHT NOW IN NEW JERSEY WITH CHILD SEXUAL ABUSE CASES. 873 01:20:45.625 --> 01:20:54.196 SO THERE ARE MORE THAN ADEQUATE GUARDRAILS ON THESE KINDS OF CASES TO PREVENT 874 01:20:54.196 --> 01:21:01.595 STRICT LIABILITY. WE HAVE -- JUSTICE PATTERSON: IF A SCHOOL HAS A STRICT 875 01:21:01.595 --> 01:21:09.789 POLICY AGAINST ANY KIND OF SEXUAL ACTIVITY WITH REGARD TO CHILDREN AND IT HAS NO INFORMATION 876 01:21:09.789 --> 01:21:15.906 THAT WOULD SUGGEST THAT A TEACHER IS A PEDOPHILE AS YOU'VE DESCRIBED, WHY SHOULD THE SCHOOL 877 01:21:15.906 --> 01:21:22.109 BE CONSIDERED TO BE HARBORING THAT INDIVIDUAL BY CONTINUING THEIR EMPLOYMENT UNTIL THE 878 01:21:22.109 --> 01:21:26.308 ABUSE IS DISCOVERED? JOHN W. BALDANTE: WELL, BECAUSE THERE'S A DIFFERENCE 879 01:21:26.308 --> 01:21:31.930 BETWEEN VICARIOUS LIABILITY AND NEGLIGENT SUPERVISION. THAT'S EXACTLY WHAT THE 880 01:21:31.930 --> 01:21:35.778 DIFFERENCE IS. ALL THE EFFORTS -- THAT'S ONE OF THE PROBLEMS WITH A LOT OF THESE ALTERNATIVE 881 01:21:35.778 --> 01:21:45.834 OPTIONS. YOU KNOW, THERE'S PROBLEMS WITH, ONE, THAT IT'S STRUCTURALLY TRYING TO ELEMENT 882 01:21:45.834 --> 01:21:51.656 LAD STRUCTURES WITH REGARD TO REPORTING THE DISCRIMINATION UNDER -- JUSTICE 883 01:21:51.656 --> 01:21:59.182 PATTERSON: LET ME SHARPEN MY QUESTION A LITTLE BIT. WHAT I'M GETTING AT IS, HARDWICKE 884 01:21:59.182 --> 01:22:07.387 TALKED ABOUT HARBORING AN INDIVIDUAL WHERE THE MUSIC DIRECTOR HAD SUCH CONTROL OVER 24 885 01:22:07.387 --> 01:22:14.494 -HOUR A DAY LIFE IN THAT SCHOOL APPARENTLY. ACCORDING TO THE ALLEGATIONS. BUT -- SO THE 886 01:22:14.494 --> 01:22:21.078 WORD HARBORING HAS SOME RELEVANCE IN THAT SETTING. BUT HARBORING SUGGESTS 887 01:22:21.078 --> 01:22:27.541 INFORMATION THE SCHOOL HAS AND KNOWLEDGE THAT THE INDIVIDUAL MAY BE A PEDOPHILE, WHICH, 888 01:22:27.541 --> 01:22:33.038 YOU KNOW, I'M ASKING YOU, DOES THAT APPLY TO A SCHOOL -- AND I'M NOT TALKING ABOUT THE 889 01:22:33.038 --> 01:22:41.067 FACTS HERE. BUT TO A SCHOOL THAT HAS A POLICY AGAINST THIS AND WHICH HAS NO IDEA THAT 890 01:22:41.067 --> 01:22:48.459 ANYTHING IS OCCURRING UNTIL AFTER SOME TIME, SOME INCIDENTS OF SEXUAL ABUSE? JOHN 891 01:22:48.459 --> 01:22:52.827 W. BALDANTE: WELL, THIS GOES FO THE ISSUE THAT WE DISCUSSED A LITTLE BIT IN TALKING ABOUT 892 01:22:52.827 --> 01:23:00.803 THESE CRITERIA. OF GENERAL FORESEEABILITY. GENERAL FORESEEABILITY LOOKS AT THE CULTURE. 893 01:23:00.803 --> 01:23:08.208 THAT'S WHERE PARENTAL IS REALLY IMPORTANT IN THE CONCEPT OF THIS APPLICATION. THAT'S 894 01:23:08.208 --> 01:23:15.931 WHY A SPECIAL RELATIONSHIP IS REALLY IMPORTANT. IS THIS THE TYPE OF SITUATION WHERE 895 01:23:15.931 --> 01:23:22.324 IT IS GENERALLY FORESEEABLE, DISTINGUISHABLE FROM SPECIFIC FORESEEABLE. NOT FORESEEABLE 896 01:23:22.324 --> 01:23:30.166 THAT THIS PARTICULAR TEACHER NECESSARILY. BUT THAT IN A SCHOOL SETTING WHERE GROWN ADULT 897 01:23:30.166 --> 01:23:37.370 TEACHERS ARE WITH ADOLESCENT CHILDREN AND SOMETIMES ISOLATED WITH THEM, IS IT 898 01:23:37.370 --> 01:23:43.667 FORESEEABLE THAT SEXUAL ABUSE WILL OCCUR? AND THE ANSWER TO THAT IS A RE-SOUNDING YES. 899 01:23:43.667 --> 01:23:50.305 WE'VE KNOWN THAT FOR OVER A CENTURY. JUSTICE WAINER APTER: WHEN WE TALK ABOUT 900 01:23:50.305 --> 01:23:57.090 FORESEEABILITY AS FAR AS I CAN TELL NOT ALLEGED HERE AT ALL. AND I'M PULLING THIS DIRECTLY 901 01:23:57.090 --> 01:24:04.099 FROM HARDWICKE. PAGE 76 I BELIEVE. THE ALLEGATIONS ARE THAT SCHOOL STAFF AND TWO OF 902 01:24:04.099 --> 01:24:11.007 THE MUSIC DIRECTORS FRIENDS ALSO ABUSED HARDWICKE. THAT THE SCHOOL NOT ONLY CONDONED 903 01:24:11.007 --> 01:24:17.178 THE BEHAVIOR BUT FESTERED THE ATMOSPHERE AND THAT THE MUSIC DIRECTOR WAS HIRED EVEN THOUGH 904 01:24:17.178 --> 01:24:23.529 IT WAS KNOWN HE WAS A PEDOPHILE OR SHOULD HAVE BEEN KNOWN. THAT HIS ABUSE OF STUDENTS 905 01:24:23.529 --> 01:24:30.843 WAS OPEN, FREQUENT AND PROLONGED. THAT OTHER STUDENTS REPORTED THE ABUSE AND THE SCHOOL 906 01:24:30.843 --> 01:24:36.462 THEN COVERED IT UP AND THE SCHOOL DIDN'T DISCLOSE ANYTHING UNTIL 20 YEARS LATER. IT 907 01:24:36.462 --> 01:24:42.508 SEEMS LIKE THAT IS A VERY HIGH STANDARD THAT HARDWICKE IS APPLYING. AND YOU ARE 908 01:24:42.508 --> 01:24:49.288 REQUESTING A MUCH MORE LENIENT STANDARD OF FORESEEABILITY THAT'S ANY TIME AN ADULT IS 909 01:24:49.288 --> 01:24:54.663 GIVEN AUTHORITY OVER A CHILD AND PUT IN A SITUATION WHERE THEY'RE ALONE WITH A CHILD. 910 01:24:54.663 --> 01:24:59.584 JOHN W. BALDANTE: CORRECT. THAT IS CORRECT. I MEAN, THE HARDWICKE FACTUAL 911 01:24:59.584 --> 01:25:07.433 SKEN -- AND ALL THESE CASES ARE VERY FACT SPECIFIC. IS A VERY EXTREME EXAMPLE. IT 912 01:25:07.433 --> 01:25:12.691 ACTUALLY MIRRORS VERY MUCH WHAT HAPPENED IN THE SOUTH ORANGE MAPLEWOOD BOARD OF EDUCATION 913 01:25:12.691 --> 01:25:21.628 CASES. THE SIMPKINS CASES WE'RE HERE TODAY ABOUT. IN THAT SITUATION, THE SEXUAL ABUSE 914 01:25:21.628 --> 01:25:25.842 HAD A NUMBER OF RED FLAG BEHAVIORS THAT OCCURRED RIGHT IN THE SCHOOL. THE TEACHER WOULD 915 01:25:25.842 --> 01:25:33.696 MARSHALL ALL THE KIDS TO THE LIBRARY, BRING THEM ONE AT A TIME TO HER CLASSROOM AND SEXUALLY 916 01:25:33.696 --> 01:25:39.630 ABUSE THEM. EVENTUALLY IT WAS CAUGHT AFTER YEARS OF THIS BEHAVIOR GOING ON IN THIS SCHOOL. 917 01:25:39.630 --> 01:25:45.346 THAT'S JUST ONE OF THE MANY MANY RED FLAGS. BUT NOT EVERY CASE HAS RED FLAGS 918 01:25:45.346 --> 01:25:50.600 LIKE THAT. SOME OF THESE CASES ARE MORE SUBTLE. BUT THERE ARE THINGS GOING ON. THERE ARE 919 01:25:50.600 --> 01:25:55.683 TEACHERS -- THIS IS OFTEN DONE, THE SEXUAL ABUSE OF CHILDREN, IF YOU REALLY WANT TO STOP 920 01:25:55.683 --> 01:26:02.146 IT, YOU HAVE TO CATCH THESE PERPETRATORS WHO ARE MORE SUBTLE M THEIR BEHAVIORS. THEY 921 01:26:02.146 --> 01:26:09.551 SEXUALLY ABUSE KIDS UNDER THE GUISE OF LOVE AND MENTORSHIP AND CARING ABOUT THESE KIDS. 922 01:26:09.551 --> 01:26:18.028 AND THEN THEY VIOLATE P THERE'S LINES WHERE THEY OVERSTEP THOSE BOUNDARIES. WHERE THESE 923 01:26:18.028 --> 01:26:24.604 ADULT TEACHERS, PRIESTS, WHATEVER THEY MIGHT BE, ARE JUST A LITTLE TOO INTERESTED IN THESE 924 01:26:24.604 --> 01:26:33.034 KIDS. IN THE PAST, A LOT OF THAT WAS BRUSHED ASIDE AND, WELL, HE'S JUST A 925 01:26:33.034 --> 01:26:42.187 REALLY NICE GUY WHO LOVES CHILDREN. WE NOW KNOW THAT'S NOT WHAT THEY ARE. THEY'RE MAN 926 01:26:42.187 --> 01:26:47.343 IPULATING THESE KIDS AND THEY'RE MANIPULATING THEIR ENVIRONMENT AROUND THEM. AND GOOD 927 01:26:47.343 --> 01:26:52.235 POLICIES AND PROCEDURES TAKE STEPS NOT JUST TO EDUCATE THE ADMINISTRATORS ABOUT THIS. 928 01:26:52.235 --> 01:26:58.174 NOT JUST TO EDUCATE THE TEACHERS ABOUT THIS. BUT TO EDUCATE THE PARENTS ABOUT THIS. 929 01:26:58.174 --> 01:27:05.547 AND TO EDUCATE THE STUDENTS ABOUT THESE THINGS SO THAT EVERYONE IS INFORMED ABOUT WHAT'S 930 01:27:05.547 --> 01:27:10.185 APPROPRIATE BEHAVIORS AND WHAT'S NOT AND WHAT TO DO IN THE EVENT THAT THESE IN-APPROPRIATE 931 01:27:10.185 --> 01:27:19.614 BEHAVIORS OCCUR. THE ROMAN CATHOLIC CHURCH SEXUAL ABUSES ARE STAGGERING LEE 932 01:27:19.614 --> 01:27:26.327 HIGH BUT THEY'VE GOT DOWN SINCE CERTAIN MEASURES WERE TAKEN. NOT JUST BECAUSE THEY 933 01:27:26.327 --> 01:27:34.750 IMPLEMENTED POLICIES AND PROCEDURES. BUT BECAUSE THE PARISHIONERS BECAME EDUCATED. THEY 934 01:27:34.750 --> 01:27:42.484 BECAME KNOWLEDGEABLE WHAT TO PROTECT. THEY TOOK STEPS SO THEIR KIDS DIDN'T GO TO SLEEP 935 01:27:42.484 --> 01:27:46.877 OVERS WITH THE PRIESTS. I KNOW THE CONCERNS. I'M HEARING THE CONCERNS OF 936 01:27:46.877 --> 01:27:52.264 THIS BENCH. AND I UNDERSTAND THAT WE DON'T WANT TO IMPLEMENT A STANDARD THAT IS STRICTLY 937 01:27:52.264 --> 01:28:02.256 LIABLE. BUT IF YOU WANT TO STOP CHILD SEXUAL ABUSE, YOU NEED TO HAVE VICARIOUS LIABILITY 938 01:28:02.256 --> 01:28:10.033 BECAUSE IT PLACES THE BURDEN ON THE ENTITY AND THE INSTITUTION WHO HIRES THESE INDIVIDUALS. 939 01:28:10.033 --> 01:28:16.779 THAT'S WHY YOU HAVE TO DO IT. BECAUSE THEY'RE THE ONES WHO CAN STOP IT. THE STEPS THAT 940 01:28:16.779 --> 01:28:24.194 NEED TO BE -- AND YOU CAN'T RAD INDICATE IT ALL OF COURSE, BUT IF YOU HAVE PROPER POLICIES 941 01:28:24.194 --> 01:28:28.191 AND PROCEDURES. IF YOU EDUCATE EVERYONE INVOLVED IN THIS PROCESS, YOU CAN REDUCE THESE 942 01:28:28.191 --> 01:28:34.860 NUMBERS SUBSTANTIALLY AND ACHIEVE THE GOALS OF THE CHILD'S VICTIM's ACT. JUSTICE 943 01:28:34.860 --> 01:28:40.247 HOFFMAN: THAT SOUNDS LIKE THE ATTORNEY GENERAL'S THEORY. WHAT YOU JUST EXPLAINED SOUNDS 944 01:28:40.247 --> 01:28:45.138 EXACTLY -- JOHN W. BALDANTE: HERE'S THE PROBLEM -- THESE ARE PART OF THE PROBLEMS 945 01:28:45.138 --> 01:28:54.335 OF THE ALTERNATIVE OF OPTIONS. SO THOSE ALTERNATIVE OPTIONS -- LET ME GET TO THAT 946 01:28:54.335 --> 01:29:01.041 PART OF MY -- THE ATTORNEY GENERAL EVEN ACKNOWLEDGES IN THEIR OWN BRIEF THAT THEIR 947 01:29:01.041 --> 01:29:06.218 SUGGESTIONS ARE FRAUGHT WITH PROBLEMS. AND THAT'S PROBABLY AN UNDERSTATEMENT, TO BE HONEST. 948 01:29:06.218 --> 01:29:10.364 AND IT'S FRAUGHT WITH PROBLEMS FOR A NUMBER OF REASONS. JUSTICE PATTERSON: 949 01:29:10.364 --> 01:29:14.904 I'M NOT SURE THEY QUITE SAID THAT. JOHN W. BALDANTE: WELL, SOMETHING ALONG 950 01:29:14.904 --> 01:29:19.334 THOSE LINES. THEY'LL CORRECT ME I'M SURE WHEN THEY COME UP. JUSTICE PATTERSON: 951 01:29:19.334 --> 01:29:24.265 I HAVE A FEELING THAT'S COMING. JOHN W. BALDANTE: BUT THERE'S AN ACKNOWLEDGEMENT 952 01:29:24.265 --> 01:29:27.083 THAT THERE'S PROBLEMS WITH WHAT THEY PROPOSE. CHIEF JUSTICE RABNER: TELL US WHAT 953 01:29:27.083 --> 01:29:30.672 THOSE ARE. JOHN W. BALDANTE: THE PROBLEMS ARE, IF YOU'RE GOING TO IMPLEMENT 954 01:29:30.672 --> 01:29:37.366 A STRUCTURE SIMILAR TO THE LAD, FIRST OF ALL, THE LAD HAD A SITUATION FOR EXAMPLE WHERE 955 01:29:37.366 --> 01:29:43.761 EMPLOYEES TO BE QUALIFIED FOR A CAUSE OF ACTION HAVE TO REPORT THE HARASSMENT THAT THEY 956 01:29:43.761 --> 01:29:48.962 SUFFERED. WELL, THAT DOESN'T HAPPEN IN CHILD SEXUAL ABUSE. AND THESE POLICIES AND EVEN 957 01:29:48.962 --> 01:29:56.259 THE ABILITY TO REPORT IT TEN, 15, 20, 50 YEARS AGO, DIDN'T EXIST IN THESE SCHOOLS AT 958 01:29:56.259 --> 01:29:59.785 THAT TIME. SO -- JUSTICE PATTERSON: AND THEY ACKNOWLEDGE THAT. 959 01:29:59.785 --> 01:30:04.983 AND PUT OUT AN ALTERNATIVE. JOHN W. BALDANTE: THEY'VE ACKNOWLEDGED IT. 960 01:30:04.983 --> 01:30:09.262 THAT'S ONE OF THE PROBLEMS. THE OTHER IS, TOO MANY OF THEIR SUGGESTIONS PLACE THE BURDEN 961 01:30:09.262 --> 01:30:14.329 ON THE CHILD. THAT'S NOT FAIR. IT'S NOT FAIR AND THAT'S NOT WHAT THE LEGISLATORS INTEND 962 01:30:14.329 --> 01:30:19.514 ED. THEY WANT THE BURDEN TO BE ON THE ENTITY OR THE EMPLOYER. THE THIRD THING 963 01:30:19.514 --> 01:30:26.173 IS THAT ALL THEIR SOLUTIONS ALL NULLIFY A-ONE OF THE TORT CLAIMS ACT THAT WE'RE DISCUSSING 964 01:30:26.173 --> 01:30:33.305 HERE TODAY. THEY ALL NULLIFY WILLFUL, WANTON AND GROSSLY NEGLIGENT BEHAVIOR WHICH ALSO 965 01:30:33.305 --> 01:30:39.107 CAN BE INTENTIONAL AT TIMES, WHICH WAS SPECIFICALLY CARVED OUT AND ABOLISHED AS AN 966 01:30:39.107 --> 01:30:44.848 IMMUNITY ALLOWING THESE COMMON LAW CLAIMS TO GO FORWARD. AND THEY CONVERT THEM ALL IN 967 01:30:44.848 --> 01:30:50.941 NEGLIGENT SUPERVISION CLAIMS. THAT'S WHAT THEY END UP DOING. THIS IS A B. AND 968 01:30:50.941 --> 01:31:00.813 INTERESTINGLY, THE PREDICATE LIABILITY ARGUMENT DIDN'T ABOLISH A B BUT SOMEHOW MAGICALLY 969 01:31:00.813 --> 01:31:11.145 DIS CARDS AND VIFR RATES A-ONE ACCORDING TO THE DEFENDANTS. THE LAST THING 970 01:31:11.145 --> 01:31:16.462 IS THE SUGGESTIONS THEY MAKE DON'T PROTECT CHILDREN. THAT'S THE PRIMARY PURPOSE OF THE 971 01:31:16.462 --> 01:31:22.623 CHILD VICTIM's ACT IS TO PROTECT KIDS. AND WE LOSE SIGHT OF THAT. THEIR SUGGESTIONS 972 01:31:22.623 --> 01:31:27.709 WOULD MAKE IT MORE DANGEROUS FOR KIDS AND WOULD INCREASE THE NUMBER OF SEXUAL ABUSE. 973 01:31:27.709 --> 01:31:34.578 MY PARTNER MENTIONED THAT THE AG'S OFFICE WANTED TO SUGGEST THAT ONLY SUPERVISORS COULD BE 974 01:31:34.578 --> 01:31:41.999 LIABLE AND THEY DEFINE SUPERVISORS BY EXCLUDING TEACHERS. WELL, THAT'S A CONVENIENT 975 01:31:41.999 --> 01:31:49.005 DEFINITION OF SUPERVISORS, SINCE TEACHERS ARE THE PRIMARY SUPERVISORS OF CHILDREN. 976 01:31:49.005 --> 01:31:54.001 JUSTICE PATTERSON: I DON'T THINK THEY SUGGESTED THAT THEY WERE EXCLUDING LIABILITY FOR 977 01:31:54.001 --> 01:31:58.310 TEACHERS. THEY'RE TALKING ABOUT PRECARIOUS LIABILITY. JOHN W. BALDANTE: 978 01:31:58.310 --> 01:32:05.316 VICARIOUS LIABILITY. EXACTLY. HAVING LIABILITY AGAINST AN INDIVIDUAL TEACHER IS WORTHLESS. 979 01:32:05.316 --> 01:32:11.796 THERE'S NO ACCOUNTABILITY THERE. THERE'S NOTHING TO RECOVER AGAINST AN INDIVIDUAL 980 01:32:11.796 --> 01:32:18.043 TEACHER. AGAIN, THE FOCUS OF THIS LITIGATION WAS TO PLACE RESPONSIBILITY ON THE INSTITUTIONS 981 01:32:18.043 --> 01:32:26.513 THAT HIRE THESE PERPETRATORS. THAT'S THE PURPOSE OF IT. SO IF YOU'RE GOING 982 01:32:26.513 --> 01:32:34.023 TO EXCLUDE TEACHERS, YOU'RE EXCLUDING OVER 95 PERCENT OF ALL THE CLAIMS OF CHILD SEXUAL 983 01:32:34.023 --> 01:32:39.427 ABUSE IN THE SCHOOLS. IS THAT GOING TO MAKE STUDENTS SAFER? OF COURSE NOT. THEY WANT 984 01:32:39.427 --> 01:32:47.021 TO HAVE A POSITION WHERE THE SCHOOL WOULD HAVE TO TACITLY APPROVE IT. IF WE GO BACK TO 985 01:32:47.021 --> 01:33:01.280 THIS, IF WE ABANDON HARDWICKE AND THE RESTATEMENT OF AGENCY SECOND -- SECTION 2192D, WHERE 986 01:33:01.280 --> 01:33:06.243 WE'VE HONED THAT LAW FOR 20 YEARS AND HAVE RESOLVED MANY OF THESE CASES, WE'RE GOING TO 987 01:33:06.243 --> 01:33:11.772 HAVE TO START ALL OVER AGAIN. WE'LL HAVE TO CREATE NEW CONFUSION AT THE TRIAL COURT LEVEL 988 01:33:11.772 --> 01:33:16.449 AND THEN WE'RE GOING TO HAVE TO RE-LITIGATE ALL THESE LEGAL ISSUES THROUGH THE APPELLATE 989 01:33:16.449 --> 01:33:23.268 PROCESS, MANY OF WHICH WE'VE ALREADY WRESTLED WITH WITH HARDWICKE. HARDWICKE IS ACTUALLY 990 01:33:23.268 --> 01:33:29.473 -- WHEN YOU LOOK AT SOME OF THESE RECENT TREATISES AND THE RESTATEMENT, IS ACTUALLY 991 01:33:29.473 --> 01:33:35.553 BETTER THAN ANYTHING THAT'S PROPOSED BY SOME OF THESE RECENT SUGGESTIONS. AND THE REASON 992 01:33:35.553 --> 01:33:39.664 IS BECAUSE -- JUSTICE WAINER APTER: IF THE LEGISLATURE AGREED WITH YOU AND 993 01:33:39.664 --> 01:33:44.351 THOUGHT THAT HARDWICKE WAS -- SHOULD BE THE ONLY STANDARD AND IT'S THE ONLY THING WE 994 01:33:44.351 --> 01:33:50.923 NEED, WHY DOES THE C S AA EXIST? AND IT WAS SPECIFICALLY AMENDED IN 2019 TO RE-MOVE THE 995 01:33:50.923 --> 01:33:57.437 WORD IN THE HOUSEHOLD. SO THE LEGISLATURE OBVIOUSLY THOUGHT A LOT ABOUT THE C S AA AND 996 01:33:57.437 --> 01:34:02.709 HOW IMPORTANT IT WAS. WHY? IF ALL OF THESE CLAIMS SHOULD JUST BE BROUGHT UNDER THE 997 01:34:02.709 --> 01:34:08.077 COMMON LAW, IT'S BROAD, YOU CAN GET LIABILITY MORE OFTEN, THAT'S ALL THE LEGISLATURE WANT 998 01:34:08.077 --> 01:34:13.376 ED, WHY AMEND THE C S AA? WHY EVEN HAVE THE C S AA? JOHN W. BALDANTE: WELL, 999 01:34:13.376 --> 01:34:19.593 I'M NOT QUITE SURE WHAT PURPOSE OF THE C S AA IS ANYMORE AND I KIND OF AGREE WITH YOU. 1000 01:34:19.593 --> 01:34:26.210 I THINK THE C S AA CAN BE HELPFUL IN CERTAIN CLAIMS AND MANY ATTORNEYS INCLUDING OURSELVES 1001 01:34:26.210 --> 01:34:33.423 REGISTER THOSE TYPES OF CLAIMS. BUT IT IS REDUNDANT IN SOME RESPECTS. 1002 01:34:33.423 --> 01:34:38.290 JUSTICE WAINER APTER: I MISS PHRASED THE QUESTION, I GUESS. MY QUESTION IS, IF I WERE 1003 01:34:38.290 --> 01:34:42.866 A LEGISLATOR AND I THOUGHT THAT ALL THESE CLAIMS ARE GOING UNDER THE COMMON LAW, WE DON'T 1004 01:34:42.866 --> 01:34:49.977 NEED THE RESTRICTIONS OF THE C S AA, HARDWICKE IS THE BE ALL AND END ALL AND THAT'S WHAT 1005 01:34:49.977 --> 01:34:55.680 CLAIMS SHOULD BE BROUGHT UNDER, WHY AMEND THE C S AA? IT JUST DOES NOT SEEM LIKE IN 1006 01:34:55.680 --> 01:35:01.557 THE 2019 ACTS THE LEGISLATURE THOUGHT THAT ALL OF THESE SHOULD GO THROUGH HARDWICKE AND 1007 01:35:01.557 --> 01:35:06.478 THAT THE C S AA IS IRRELEVANT. JOHN W. BALDANTE: WELL, I THINK PART OF THE 1008 01:35:06.478 --> 01:35:12.129 REASON THE C S AA HAS RECENTLY BEEN AMENDED IS BECAUSE DEFENSE LAWYERS HAVE USED SOME 1009 01:35:12.129 --> 01:35:18.834 OF THE LANGUAGE IN THE C S AA TO TRY TO RESTRICT OR LIMIT THE CLAIMS THAT PLAINTIFFS CAN 1010 01:35:18.834 --> 01:35:26.976 MAKE UNDER THE CHILD'S VICTIM's ACT. THEY'RE TRYING TO AMEND THE C S AA TO CONFORM WITH 1011 01:35:26.976 --> 01:35:34.922 WHAT THEIR PURPOSE IS IN EXECUTING THE CHILD'S VICTIM's ACT. I THINK WE SEE THAT HAPPEN 1012 01:35:34.922 --> 01:35:39.260 OVER AND OVER AGAIN. RECENTLY WITH REGARD TO -- JUSTICE WAINER APTER: IT 1013 01:35:39.260 --> 01:35:46.383 DOES SEEM LIKE A MORE NARROW PURPOSE IN THAT IT ALLOWS LIABILITY FOR WHAT THE LEGISLATURE 1014 01:35:46.383 --> 01:35:53.102 CALLS THE PASSIVE ABUSER ONLY IF THEY KNOWINGLY PERMIT OR ACQUIESCE IN SEXUAL ABUSE, NOT 1015 01:35:53.102 --> 01:35:57.644 JUST IF THEY SHOULD HAVE FORESEEN THAT SEXUAL ABUSE WOULD HAPPEN. JOHN W. 1016 01:35:57.644 --> 01:36:03.482 BALDANTE: I AGREE. THE CHILD SEX ABUSE ACT I THINK IS MORE RESTRICTIVE THAN WHAT THE 1017 01:36:03.482 --> 01:36:09.897 COMMON LAW OF RIGHTS NOW AFFORD US UNDER THE CHILD VICTIM's SINCE THE CHILD'S VICTIM's 1018 01:36:09.897 --> 01:36:14.682 ACT. I THINK THAT'S ACCURATE. THAT'S ONE OF THE REASONS WHY I PERSONALLY DON'T PURSUE 1019 01:36:14.682 --> 01:36:24.594 THE CHILD SEXUAL ABUSE ACT AS VIGOROUSLY AS I DO THE CHILD VICTIM's ACT. I REALLY FOCUS 1020 01:36:24.594 --> 01:36:31.788 MY CLAIMS ON THE CHILD VICTIM's ACT AND THE COMMON LAW CLAIMS THAT EXIST. 1021 01:36:31.788 --> 01:36:35.792 JUSTICE WAINER APTER: . WHEN YOU SAY THE CHILD VICTIM's ACT, YOU'RE REFERRING TO A BUNCH 1022 01:36:35.792 --> 01:36:41.160 OF DIFFERENT STATUTES, NONE OF WHICH IS SPECIFICALLY GRANTING YOUR CAUSE OF ACTION. 1023 01:36:41.160 --> 01:36:47.607 WHEREAS THE C S AA IS ONE THAT GRANTS A CAUSE OF ACTION. THE LEGISLATURE INTENDED HERE 1024 01:36:47.607 --> 01:36:51.556 IS A LAWSUIT THAT YOU CAN BRING. BALDANTE BILLION CORRECT. I THINK THAT'S ACCURATE AND 1025 01:36:51.556 --> 01:36:59.243 I THINK THAT THE CLAIMS UNDER THE CHILD VICTIM's ACT REALLY ARE GROUNDED IN COMMON LAW 1026 01:36:59.243 --> 01:37:06.752 AND SERVE A REMEDIAL PURPOSE. I THINK THAT'S THE PROPER WAY TO VIEW THAT. CHIEF 1027 01:37:06.752 --> 01:37:10.872 JUSTICE RABNER: ANY QUESTIONS, ANYONE? ANYTHING YOU'D LIKE TO ADD THAT YOU HAVEN'T COVERED? 1028 01:37:10.872 --> 01:37:18.646 JOHN W. BALDANTE: I DO BUT I HAVE A FEW MINUTES FOR REBUTTAL AND I CAN COME 1029 01:37:18.646 --> 01:37:23.551 BACK AND ADDRESS SOME OF THOSE. THE SUBJECT THAT I THINK MUST BE INTERESTING FOR US TO 1030 01:37:23.551 --> 01:37:28.576 DISCUSS IS WHERE ALL OF THIS IS HEADED UNDER SOME OF THE RECENT REVISIONS TO THE RE-STATEMENTS. 1031 01:37:28.576 --> 01:37:34.081 THE RESTATEMENT THIRD OF AGENCY AND THE RESTATEMENT THIRD OF TORTS. AND WHY IS IT 1032 01:37:34.081 --> 01:37:39.064 IMPORTANT TO LOOK AT THAT TO SEE WHERE ALL OF THIS IS HEADED. BECAUSE IT'S ALL TRENDING 1033 01:37:39.064 --> 01:37:46.859 TOWARDS VICARIOUS LIABILITY AND I THINK IT HELPS RE-ASSURE US THAT WHAT WE HAVE HERE WITH 1034 01:37:46.859 --> 01:37:55.436 HARDWICKE AND ITS PROGENY AS IT HAS MATURED AND EVOLVED AND BEEN LIMITED OVER THE YEARS 1035 01:37:55.436 --> 01:38:00.703 IS REALLY ONE OF THE BEST OPTIONS. AND I THINK THE NATIONAL VOICE ON THIS THROUGH THESE 1036 01:38:00.703 --> 01:38:08.087 TREATISES IS THE -- THE ARC OF IT IS BENDING TOWARDS HARDWICKE I BELIEVE IS WHERE IT'S 1037 01:38:08.087 --> 01:38:12.285 HEADING. I'M GOING TO ADDRESS THAT ON REBUTTAL. CHIEF JUSTICE RABNER: I'M 1038 01:38:12.285 --> 01:38:18.958 GOING TO SUGGEST YOU ADDRESS THAT NOW. JOHN W. BALDANTE: IN LOOKING AT THE 1039 01:38:18.958 --> 01:38:28.916 RESTATEMENT OF -- AND I'LL START WITH THE RESTATEMENT THIRD OF TORTS WHICH IS THESE 1040 01:38:28.916 --> 01:38:34.447 RECENT MISCELLANEOUS PROVISIONS THAT WERE ADOPTED IN APRIL AND WILL SOON BE PUBLISHED AND 1041 01:38:34.447 --> 01:38:39.966 AVAILABLE TO ALL OF US. RIGHT NOW THAT'S A DRAFT THAT'S AVAILABLE. WHAT WE 1042 01:38:39.966 --> 01:38:44.608 SEE THEM -- JUSTICE WAINER APTER: IT WAS ADOPTED IN APRIL OF TWFT? 1043 01:38:44.608 --> 01:38:48.126 JOHN W. BALDANTE: APRIL OF TWFT I THINK IS WHEN IT WAS ADOPTED. THAT'S CORRECT. 1044 01:38:48.126 --> 01:38:51.687 WHAT WE SEE IS THAT THEY ACKNOWLEDGE -- JUSTICE PATTERSON: THE SUBJECT OF YOUR 1045 01:38:51.687 --> 01:38:56.106 RECENT LETTER? JOHN W. BALDANTE: THAT'S CORRECT. THERE'S A CHAPTER 11 THAT 1046 01:38:56.106 --> 01:39:02.322 DEALS WITH VICARIOUS LIABILITY IN THAT. I BELIEVE IT STARTS AT PAGE 150. 1047 01:39:02.322 --> 01:39:07.327 CHIEF JUSTICE RABNER: FORGIVE FOR CAUTIONING UP FRONT. PLEASE TRY TO GO THROUGH THIS 1048 01:39:07.327 --> 01:39:13.627 AS RAPIDLY AS YOU CAN. JOHN W. BALDANTE: THEY ACKNOWLEDGE ALL THESE 1049 01:39:13.627 --> 01:39:22.178 DISPARATE OPINIONS THROUGHOUT THE COUNTRY TOWARDS VICARIOUS LIABILITY. THESE ARE MUCH 1050 01:39:22.178 --> 01:39:27.230 BROADER THAN HARDWICKE WHICH FOCUSES ON CHILD SEXUAL ABUSE. THESE DEALS WITH ABUSE AT 1051 01:39:27.230 --> 01:39:33.555 EVERY LEVEL INCLUDING ADULTS. THE RESTATEMENT ALSO ADMITS THAT THIS LAW HAS 1052 01:39:33.555 --> 01:39:39.387 BEEN VERY FLUID. AND ACTUALLY IN ONE OF THE COMMENTS CAUTIONS STATES THAT THEY MAY NOT 1053 01:39:39.387 --> 01:39:44.960 WANT TO ADOPT IT BECAUSE IT'S LIKELY TO CHANGE SOON. BUT WHEN YOU LOOK AT THE SPECIFIC 1054 01:39:44.960 --> 01:39:53.013 CRITERIA IN THIS RECENT RESTATEMENT OF TORTS, IT HAS FOUR CRITERIA. AND THEY'RE VERY, 1055 01:39:53.013 --> 01:40:02.489 VERY SIMILAR TO WHAT WE NOW HAVE ALREADY WITH HARDWICKE AND ITS PROGENY. THE 1056 01:40:02.489 --> 01:40:11.332 FIRST ONE, A, IS EMPLOYMENT CREATES A REASONABLE RISK OF SEXUAL ASSAULT. ALL THAT'S TALKING 1057 01:40:11.332 --> 01:40:16.163 ABOUT IS THE CULTURE AND ENVIRONMENT WHERE IT TAKES PLACE. THAT'S SIMILAR OR ALMOST 1058 01:40:16.163 --> 01:40:21.705 IDENTICAL TO PARENTAL IN A SPECIAL RELATIONSHIP. IT'S ALSO CONSISTENT WITH GENERAL 1059 01:40:21.705 --> 01:40:27.261 FORESEEABILITY. IS THIS AN ENVIRONMENT OR CULTURE WHERE SEXUAL ABUSE OF CHILDREN IS LIKELY 1060 01:40:27.261 --> 01:40:34.600 TO OCCUR? B. THEIR SECOND CRITERIA IS, IS IT A VULNERABLE VICTIM. NOW, UNDER 1061 01:40:34.600 --> 01:40:40.948 THIS RESTATEMENT OF TORTS IT'S MUCH BROADER AND IT INCLUDES AGE AS ONE OF THOSE VALUE 1062 01:40:40.948 --> 01:40:47.010 IRREPARABLE VICTIMS. THAT COULD BE A CHILD BY DEFINITION OR IT COULD BE AN ELDERLY PERSON. 1063 01:40:47.010 --> 01:40:53.767 MENTAL CAPACITY. DISABILITY. PEOPLE INCARCERATED. IT GOES ON WITH A LONG LIST. 1064 01:40:53.767 --> 01:40:57.892 C. EMPLOYER PROVIDED EMPLOYEE WITH POWER, AUTHORITY OR INFLUENCE OVER THE CHILD. 1065 01:40:57.892 --> 01:41:04.585 THAT'S 100 PERCENT CONSISTENT WITH WHAT WE HAVE IN HARDWICKE. AND, D, SEXUAL 1066 01:41:04.585 --> 01:41:10.746 ABUSE OCCURS WHEN ENGAGING IN CONDUCT SUBJECT TO EMPLOYER'S CONTROL AND THE COMMENTS NOTE 1067 01:41:10.746 --> 01:41:16.033 THAT EVEN IF IT'S OUTSIDE THE SCOPE OF EMPLOYMENT. WELL, THAT'S VERY, VERY SIMILAR 1068 01:41:16.033 --> 01:41:23.460 TO AIDED AGENCY UNDER THE 2192D. JUSTICE PATTERSON: THE THIRD RESTATEMENT 1069 01:41:23.460 --> 01:41:28.765 ACTUALLY ADOPTED BY THE A L I HAS ELIMINATED AIDED BY AGENCY. JOHN W. BALDANTE: 1070 01:41:28.765 --> 01:41:35.337 HERE'S WHAT THEY DID. THE THIRD ONE IS ACTUALLY -- BECAUSE YOU HAVE TO LOOK TO 705, COMMENT 1071 01:41:35.337 --> 01:41:42.517 E, BECAUSE 708 DIRECTS YOU THERE. BUT WHAT THAT CREATED WAS EVEN STRICTER THAN WHAT YOU HAVE 1072 01:41:42.517 --> 01:41:48.766 NOW. IF YOU WANT STRICT LIABILITY, THAT'S WHERE YOU GO, TO THE RESTATEMENT THIRD OF AGENCY. 1073 01:41:48.766 --> 01:42:02.808 BECAUSE WHAT THAT HAS IS THAT HAS A DIRECT NON-DELICABLE. JUSTICE WAINER 1074 01:42:02.808 --> 01:42:06.333 APTER: NOW IT SEEMS LIKE YOU WERE REFERRING TO SOMETHING ELSE. JOHN W. BALDANTE: 1075 01:42:06.333 --> 01:42:11.043 WE'RE TALKING ABOUT THE RESTATEMENT THIRD OF AGENCY. JUSTICE WAINER APTER: 1076 01:42:11.043 --> 01:42:14.869 CORRECT. WITH LOTS AND LOTS OF PROVISIONS. JOHN W. BALDANTE: THE RESTATEMENT 1077 01:42:14.869 --> 01:42:21.159 THIRD OF AGENCY THAT REALLY ADOPTED OR EMBRACED -- THEY DIDN'T ADOPT IT BUT THEY EMBRACED 1078 01:42:21.159 --> 01:42:30.911 THE CONCEPT OF IT. SECTION 705 AND COMMENT E OF 705 IS REALLY WHAT FOCUSES ON THIS SPECIAL 1079 01:42:30.911 --> 01:42:33.970 RELATIONSHIP THAT THEY'RE TALKING ABOUT. CHIEF JUSTICE RABNER: COUNSEL, YOU 1080 01:42:33.970 --> 01:42:39.078 BEGAN BY SAYING YOU WANTED TO DISCUSS WHERE YOU THINK THE LAW IS HEADED. WHAT ARE YOU 1081 01:42:39.078 --> 01:42:43.174 ASKING THE COURT TO DO WITH RESPECT TO THE RESTATEMENT THIRD THAT YOU'RE COVERING WITH 1082 01:42:43.174 --> 01:42:47.334 US NOW? JOHN W. BALDANTE: I HAPPEN TO FEEL THAT THE RESTATEMENT THIRD WOULD BE 1083 01:42:47.334 --> 01:42:56.756 THE BEST FOR VICTIM'S. THE RESTATEMENT THIRD OF AGENCY WITH THIS NON-DELICABLE DUTY THAT 1084 01:42:56.756 --> 01:43:03.227 THE EMPLOYER HAS DIRECTLY TO THE VICTIMS. BUT -- AND I'M NOT OPPOSED TO THE RESTATEMENT 1085 01:43:03.227 --> 01:43:09.539 THIRD OF TORTS EITHER. THEY'RE JUST MORE GENERAL AND BROAD. I DON'T THINK THEY'RE AS 1086 01:43:09.539 --> 01:43:17.883 WELL SUITED AS HARDWICKE IN THE RESTATEMENT SECTION 2192D. I THINK BECAUSE THE LAW IN 1087 01:43:17.883 --> 01:43:22.620 NEW JERSEY, THE COMMON LAW IN NEW JERSEY THAT WE'RE RELYING UPON REALLY IS FOCUSED ONLY 1088 01:43:22.620 --> 01:43:28.602 ON CHILD SEXUAL ABUSE AND IS VERY NARROW AND LIMITED IN THAT WAY. IT'S NOT STRICT 1089 01:43:28.602 --> 01:43:34.796 LIABILITY. VERY NARROW AND LIMITED. THAT'S ACTUALLY THE BEST OPTION FOR US. AND I THINK 1090 01:43:34.796 --> 01:43:42.668 THAT'S WHAT THE LEGISLATORS INTENDED. THEY WANTED THIS TO BE BOUNCED BACK TO THE COMMON 1091 01:43:42.668 --> 01:43:48.620 LAW TO BE DECIDED UNDER THE COMMON LAW, BECAUSE THESE THINGS ARE FLUID AND THEY SOMETIMES 1092 01:43:48.620 --> 01:43:55.141 CHANGE AND THEY ARE MODERATED. BUT THAT'S WHAT I THINK THEY WANTED TO ACHIEVE. SO 1093 01:43:55.141 --> 01:44:04.705 I'M HERE ADVOCATING TODAY THAT WE JUST RECOGNIZE THAT THE TORT -- THAT THE CHILD'S VICTIM 1094 01:44:04.705 --> 01:44:13.166 ACT ABOLISHED IMMUNITY FOR WILLFUL, WANTON AND GROSSLY NEGLIGENT BEHAVIOR IN COMMITTING 1095 01:44:13.166 --> 01:44:19.364 CHILD SEXUAL ABUSE UNDER THE TORT CLAIMS ACT. AND THEN LET HARDWICKE AND THE CASE LAW 1096 01:44:19.364 --> 01:44:27.428 IN NEW JERSEY DECIDE HOW TO RUN WITH THAT. BECAUSE I THINK WE HAVE A GOOD SYSTEM AS IT 1097 01:44:27.428 --> 01:44:35.211 IS. I'M NOT OPPOSED TO SOME OF THESE RECENT RESTATEMENT THIRDS THAT WE'RE TALKING ABOUT, 1098 01:44:35.211 --> 01:44:45.457 BUT I AM VEHEMENTLY OPPOSED TO THESE OTHER ALTERNATIVE OPTIONS THAT WERE SUGGESTED BY 1099 01:44:45.457 --> 01:44:52.586 THESE DEFENDANTS. THEY TAKE RIGHTS AWAY FROM THESE PLAINTIFFS AND THEY MAKE THEM MORE 1100 01:44:52.586 --> 01:44:58.635 VULNERABLE AND MORE LIKELY TO BE SEXUALLY ABUSED. WHICH IS EXACTLY THE OPPOSITE OF WHAT 1101 01:44:58.635 --> 01:45:05.549 THE CHILD'S VICTIMS ACT WAS ATTEMPTING TO ACHIEVE AND WHAT THE LEGISLATORS WANTED TO ACHIEVE 1102 01:45:05.549 --> 01:45:13.862 WITH THIS. CHIEF JUSTICE RABNER: THANK YOU, COUNSEL. WE'RE GOING TO TAKE 1103 01:45:13.862 --> 01:52:38.770 A BRIEF RECESS AND WE'LL BE BACK IN A FEW MOMENTS. BREAK. 1104 01:52:38.770 --> 01:52:42.226 (TIME NOTED: 11:52 a.m.). THE COURT CLERK: ALL RISE. CHIEF JUSTICE 1105 01:52:42.226 --> 01:52:59.272 RABNER: YOU MAY BE SEATED, EVERYONE. MS. LONG. AMBER R. LONG: 1106 01:52:59.272 --> 01:54:10.639 THANK YOU. MAY IT PLEASE THE COURT, I AM HERE ON BEHALF OF THE NEW JERSEY 1107 01:54:10.639 --> 01:54:16.090 COALITION AGAINST SEXUAL ASSAULT AND I THANK YOU FOR THE OPPORTUNITY TO ADDRESS YOU ON 1108 01:54:16.090 --> 01:54:23.359 THIS ISSUE THAT IS CENTRAL TO THE COALITION'S MISSION OF PROTECTING SURVIVORS -- PROTECTING 1109 01:54:23.359 --> 01:54:32.666 CHILDREN FROM SEXUAL ABUSE AND SUPPORTING SURVIVORS OF THE SEXUAL ASSAULT. 1110 01:54:32.666 --> 01:54:37.411 I WANT TO JUMP RIGHT IN AND ADDRESS SOME OF THE THINGS THAT HAVE COME UP DURING PLAINTIFF 1111 01:54:37.411 --> 01:54:44.390 COUNSEL'S ARGUMENT. SPECIFICALLY THE TEST ADVOCATED FOR BY THE ATTORNEY GENERAL. 1112 01:54:44.390 --> 01:54:52.163 I THINK WHEN THE COURT IS ADOPTING -- DAPTING THIS TEST IT ORIGINALLY CAME 1113 01:54:52.163 --> 01:54:59.408 IN THE LAD CONTEXT AND THE SEEP PA CONTEXT, ONE THING TO KEEP IN MIND IS TO ASK YOURSELF 1114 01:54:59.408 --> 01:55:06.410 ARE WE CRAFTING A TASK THAT IS MAKING IT MORE DIFFICULT FOR VICTIMS OF CHOOILD SEXUAL 1115 01:55:06.410 --> 01:55:14.132 ABUSE THAN ADULTS WHO ARE SUBJECT TO BAD BEHAVIOR IN THE WORKPLACE, BUT ARE ADULTS. 1116 01:55:14.132 --> 01:55:19.905 I THINK THE ANSWER TO THAT QUESTION SHOULD ALWAYS BE NO. YOU SHOULD ALWAYSER ON THE SIDE 1117 01:55:19.905 --> 01:55:25.465 OF BEING MORE PROTECTIVE OF CHILDREN. RESPECTFULLY THE ATTORNEY GENERAL WHILE 1118 01:55:25.465 --> 01:55:32.031 THEY GET IT RIGHT THAT VL SET FORTH IN HARDWICKE SHOULD APPLY AND THAT WAS THE PLAIN LANGUAGE 1119 01:55:32.031 --> 01:55:38.488 OF THE STATUTE, THE INTENTION OF THE LEGISLATURE AND ADVANCES NEW JERSEY'S OFTEN STATED 1120 01:55:38.488 --> 01:55:45.995 PUBLIC POLICY, THEY GET IT WRONG WHEN IT COMES TO THE WAY THEY TRY TO LIMIT THE TASK WHICH 1121 01:55:45.995 --> 01:55:53.518 AT EVERY TURN MAKES IT MORE RESTRICTIVE FOR CHILDREN SEEK REDRESS IN THE COURT AND BE 1122 01:55:53.518 --> 01:56:00.212 PROTECTED FROM SEXUAL BECAUSE THAN ADULTS IN THEIR EMPLOYMENT CONTEXT. THAT 1123 01:56:00.212 --> 01:56:06.220 STARTS WITH THE DEFINITION OF SUPERVISOR, THAT THE ATTORNEY GENERAL ADVANCES. 1124 01:56:06.220 --> 01:56:12.106 THIS DEFINITION IS CONTRARY TO THIS COURT'S PRECEDENT IN THE LAD CONTEXT. IN 1125 01:56:12.106 --> 01:56:21.465 THE AK AUK WAS CASE, THE COURT IN AN OPINION OFFERED BY JUSTICE PATTERSON DEFINED A 1126 01:56:21.465 --> 01:56:28.869 SUPERVISOR AS THE AUTHORITY TO CONTROL THE DAY-TO-DAY ACTIVITIES OF THE COMPLAINANT. 1127 01:56:28.869 --> 01:56:34.585 AND IN ADOPTING THAT DEFINITION, THE COURT ACTUALLY REJECTED A MORE NARROW DEFINITION 1128 01:56:34.585 --> 01:56:39.953 THAT HAD BEEN ADOPTED BY THE U.S. SUPREME COURT THAT WOULD HAVE LIMITED A SUPERVISOR TO 1129 01:56:39.953 --> 01:56:46.800 THE PEOPLE WHO HAD THE AUTHORITY TO HIRE AND FIRE, I.E., THE UPPER MANAGEMENT AND SAID 1130 01:56:46.800 --> 01:56:53.994 THAT THE BETTER DEFINITION IS ONE THAT IS -- THE PEOPLE WHO ACTUALLY CONTROL THE DAY-TO-DAY 1131 01:56:53.994 --> 01:57:00.779 ACTIVITIES. IN THE CONTEXT OF CHILDHOOD SEXUAL ABUSE, THAT WOULD BE 1132 01:57:00.779 --> 01:57:06.350 TEACHERS, COACHES, PEOPLE BESIDES JUST THE DIRECTOR SZ, SUPERINTENDENTS AND PRINCIPALS 1133 01:57:06.350 --> 01:57:14.906 THAT THE ATTORNEY GENERAL ADVOCATES FOR. ADDITIONALLY, THE WHOLE PREMISE OF 1134 01:57:14.906 --> 01:57:21.414 NARROWING THE TEST TO AVOID STRICT LIABILITY GOES AGAINST THIS COURT'S HOLDING IN LEHMANN. 1135 01:57:21.414 --> 01:57:28.411 IN LEHMANN THE COURT REJECTED STRICT LIABILITY IN FAVOR OF IMPOSING COMMON LAW PRINCIPLES 1136 01:57:28.411 --> 01:57:34.398 OF AGENCY, INCLUDING THOSE SET FORTH IN SECTION 219 OF THE SECOND RESTATEMENT OF AGENCY. 1137 01:57:34.398 --> 01:57:40.870 AND, IN DOING SO, THE COURT ACKNOWLEDGED THAT IT WAS ADOPTING A TASK THAT 1138 01:57:40.870 --> 01:57:47.211 WOULD OFTEN AND IN MOST CASES RESULT IN VICARIOUS LIABILITY BEING IMPOSED ON THE EMPLOYER. 1139 01:57:47.211 --> 01:57:54.142 SO THE GOAL OF THE ATTORNEY GENERAL TO LIMIT THE AMOUNT OF TIME THAT AN EMPLOYER 1140 01:57:54.142 --> 01:58:02.758 WILL BE VICARIOUSLY LIABLE IS ENTIRELY CONTRARY TO THE WHOLE POINT OF ADOPTING THE VICARIOUS 1141 01:58:02.758 --> 01:58:08.465 LIABILITY AS SET FORTH BY THE COURT IN LEHMANN. IN DOING THAT, IN ADOPTING 1142 01:58:08.465 --> 01:58:14.727 THE VICARIOUS LIABILITY TEST IN LEHMANN, THE COURT LOOKED AT THE QUESTION AS A POLICY 1143 01:58:14.727 --> 01:58:22.477 QUESTION AND FOUND THAT THE MOST CRITICAL ISSUE WAS WHAT WOULD BE MOST PROTECTIVE AND 1144 01:58:22.477 --> 01:58:28.908 MOST AFFECT I HAVE AT EE RAD INDICATING EMPLOYMENT DISCRIMINATION. HERE, 1145 01:58:28.908 --> 01:58:36.374 THE COURT SHOULD VIEW THIS QUESTION THROUGH THE LENS OF WHAT WOULD BE MOST PROTECTIVE AND 1146 01:58:36.374 --> 01:58:46.124 MOST AFFECT I HAVE AT EFFECTIVE AT ERADICATING CHILDHOOD SEXUAL ABUSE. FURTHER, 1147 01:58:46.124 --> 01:58:52.043 THE ATTORNEY GENERAL'S THIRD PRONG OF THEIR TEST IS, WHICH IS INTENDED TO REPLACE THE 1148 01:58:52.043 --> 01:58:59.867 AFFIRMATIVE DEFENSE THAT IS AVAILABLE TO EMPLOYERS IN THE LAD CONTEXT IS FUNDAMENTALLY 1149 01:58:59.867 --> 01:59:06.002 FLAWED. FIRST, TAKING SOMETHING THAT WAS AN AFFIRMATIVE DEFENSE, AVAILABLE 1150 01:59:06.002 --> 01:59:11.706 TO DEFENDANTS, BUT THEIR BURDEN TO PROVE AND THEN FLIPPING THAT TO MAKE THAT SOMETHING 1151 01:59:11.706 --> 01:59:19.895 THAT PLAINTIFF NOW ARE RESPONSIBLE FOR PROVING IS AN INCREDIBLE AMOUNT OF BURDEN SHIFTING 1152 01:59:19.895 --> 01:59:26.305 THAT, AGAIN, MAKES IT EASIER FOR ADULTS IN AN EMPLOYMENT CONTEXT TO PROVE THEIR CASES 1153 01:59:26.305 --> 01:59:38.829 THAN CHILDREN WHO WERE ABUSED BY ADULTS IN THE SCHOOL CONTEXT OR SIMILAR CONTEXT. 1154 01:59:38.829 --> 01:59:47.136 NOW, I UNDERSTAND THE COURT'S DESIRE TO PUT GUARDRAILS ON, AS HAS BEEN SPOKEN ABOUT, OR 1155 01:59:47.136 --> 01:59:54.299 TO MAKE SURE THAT THIS ISN'T STRICT LIABILITY, BUT EVEN IN THE LAD CONTEXT, WHEN ADOPTED 1156 01:59:54.299 --> 02:00:02.011 IN AGO WAU, WHEN THE COURT ADOPTED THE AFFIRMATIVE DEFENSE IT RECOGNIZED THAT IT IS 1157 02:00:02.011 --> 02:00:06.824 NOT ALWAYS AVAILABLE TO EMPLOYERS. FOR INSTANCE IN EMPLOYERS TOOK AFFIRMATIVE 1158 02:00:06.824 --> 02:00:12.784 ACTION AGAIN THE EMPLOYEE THEY CANNOT ASSERT THE AFFIRMATIVE DEFENSE. IT MAY BE A CHILD 1159 02:00:12.784 --> 02:00:20.284 SEXUAL ABUSE IS JUST ONE AREA WHERE AN AFFIRMATIVE DEFENSE CANNOT BE AVAILABLE TO AN 1160 02:00:20.284 --> 02:00:25.264 EMPLOYER, BUT IF THE COURT IS DETERMINED TO ADOPT AN AFFIRMATIVE DEFENSE IN THIS CONTEXT, 1161 02:00:25.264 --> 02:00:30.950 I THINK WE ALL AGREE THAT THE SECOND PRONG OF THE AFFIRMATIVE DEFENSE WHICH WOULD BE IN 1162 02:00:30.950 --> 02:00:37.024 THE LAD CONTEXT, IT IS THE EMPLOYEE, HERE, IT WOULD BE THE STUDENT OR THE CHILD, 1163 02:00:37.024 --> 02:00:43.729 UNREASONABLY FAILED TO TAKE ADVANTAGE OF EFFECTIVE ANTI-HARASSMENT POLICIES. I 1164 02:00:43.729 --> 02:00:49.739 THINK WE ALL AGREE THAT THAT CANNOT APPLY TO CHILDREN GIVEN THEIR UNIQUE CIRCUMSTANCES 1165 02:00:49.739 --> 02:00:58.679 AND THE OVERWHELMING AMOUNT OF RESEARCH THAT SHOWS THAT CHILDREN OFTEN DO NOT REPORT 1166 02:00:58.679 --> 02:01:05.654 CHILDHOOD SEXUAL ABUSE. AND GIVEN THE CIRCUMSTANCE WHERE THEY ARE OFTEN BEING 1167 02:01:05.654 --> 02:01:11.744 GROOMED BY ADULTS INTO NOT TELLING OR REPORTING THE ABUSE. BUT THAT AFFIRM 1168 02:01:11.744 --> 02:01:18.449 ATIVE DEFENSE RELIES ON THOSE TWO PRONGS, NOT ONLY THAT THE EMPLOYER HAD EFFECTIVE AND 1169 02:01:18.449 --> 02:01:22.760 JUSTICE PATTERSON, YOU WERE VERY CLEAR THAT THOSE HAVE TO BE EFFECTIVE, WELL-ENFORCED 1170 02:01:22.760 --> 02:01:30.378 POLICIES AGAINST HARASSMENT, NOT ONLY IS THAT REQUIRED, BUT, ALSO, THAT THE EMPLOYEES 1171 02:01:30.378 --> 02:01:35.808 FAILED TO TAKE ADVANTAGE OF THEM. IF YOU TAKE AWAY THE PRONG THAT WE ALL AGREE 1172 02:01:35.808 --> 02:01:42.800 CAN'T APPLY TO CHILDREN THEN YOU HAVE AN AFFIRMATIVE DEFENSE THAT IS UNBALANCED, SO, 1173 02:01:42.800 --> 02:01:47.736 AGAIN, THIS LEADS TO A CONCLUSION THAT PERHAPS AN AFFIRMATIVE DEFENSE ASK JUST NOT AVAILABLE 1174 02:01:47.736 --> 02:01:55.367 HERE, BUT CERTAINLY, THE FIX FOR THAT CANNOT BE TO MAKE IT MORE DIFFICULT AND TO PUT AN 1175 02:01:55.367 --> 02:02:01.924 ADDITIONAL BURDEN ON PLAINTIFF TO PROVE THAT IT REASONABLY APPEARED THAT THE ABUSE WAS 1176 02:02:01.924 --> 02:02:10.126 TACITLY APPROVED BY THE SCHOOL; THAT WOULD REINTRODUCE BASICALLY A NEGLIGENCE STANDARD 1177 02:02:10.126 --> 02:02:15.201 AND WE ALREADY HAVE A NEGLIGENCE CLAIM. THE VICARIOUS LIABILITY CLAIM HAS 1178 02:02:15.201 --> 02:02:20.398 TO MEAN SOMETHING. IT HAS TO BE DIFFERENT FROM NEGLIGENCE AND SO THE ATTORNEY GENERAL'S 1179 02:02:20.398 --> 02:02:24.242 THIRD PRONG. JUSTICE WAINER APTER: YOU SAY THAT THE VICARIOUS LIABILITY 1180 02:02:24.242 --> 02:02:29.737 CLAIM HAS TO MEAN SOMETHING DITCH FROM NEGLIGENCE AND I UNDERSTAND IN THE CONTEXT OF THE 1181 02:02:29.737 --> 02:02:33.879 LAD, OF COURSE THERE IS A STATUTE AN SO THE COURT IS INTERPRETING A STATUTE AND THERE ARE 1182 02:02:33.879 --> 02:02:41.462 RULES OF STATUTORY INTERPRETATION OF EFFECT AND SO WE DON'T WANT TO READ LEAVE ANY PROVISION 1183 02:02:41.462 --> 02:02:46.431 OUT. WHERE ARE YOU REFERRING TO THAT IT SAYS THAT THERE HAS TO BE VICARIOUS 1184 02:02:46.431 --> 02:02:52.702 LIABILITY THAT IS DIFFERENT FROM NEGLIGENCE AND THAT THAT HAS TO COME IN THE FORM OF A 1185 02:02:52.702 --> 02:02:58.611 COMMON LAW CLAIM RATHER THAN A STATUTORY TORE RECLAIM, FOR EXAMPLE UNDER THE LAD OR THE 1186 02:02:58.611 --> 02:03:04.241 CSAA OR ANY OTHER STATUTE? AMBER R. LONG: SURE. THE SEXUAL 1187 02:03:04.241 --> 02:03:12.835 ABUSE CLAMGS ARE A COMBINATION OF THE COMMON LAW AND THE STATUTE. HARD R HARDWICKE ACTUALLY 1188 02:03:12.835 --> 02:03:21.831 TALKS ABOUT THAT INTERPLAY PRETTY WELL, IN PAGES 101 TO 102, THE HARDWICKE COURT WAS 1189 02:03:21.831 --> 02:03:27.192 SPECIFICALLY DISCUSSING THE PLAINTIFF'S COMMON LAW CLAIMS AN THEY TALKED ABOUT AND THIS WAS 1190 02:03:27.192 --> 02:03:32.570 IN THE CONTEXT OF DISCUSSING THE TATTOO OF LIMITATIONS, THEY TALKED ABOUT THAT THE 1191 02:03:32.570 --> 02:03:40.212 STATUTE OF LIMITATIONS WOULD BE TOLD IN THE SAME WAY FOR THE COMMON LAW CLAIMS AS THE C 1192 02:03:40.212 --> 02:03:47.224 SAA CLAIMS BECAUSE IT WAS THE SAME DEFINITION OF SEXUAL ABUSE, THOSE WERE COMMON LAW CLAIMS 1193 02:03:47.224 --> 02:03:54.945 BASED ON THE DEFINITION OF SEXUAL ABUSE THAT'S FOUND IN THE CSAA AND THE COURT NOTED THAT 1194 02:03:54.945 --> 02:04:06.209 THAT COMMON LAW CLAIMS THAT -- EXTENDING LAYMAN AND ABBAMONT TO THE PLAINTIFF'S COMMON 1195 02:04:06.209 --> 02:04:15.609 LAW CLAIMS ADVANCES THE SAME LEGISLATIVE INTENT AS THE CSAA, SO IT WAS THE HARDWICKE 1196 02:04:15.609 --> 02:04:21.328 COURT THAT REALLY TALKED ABOUT THAT THESE COMMON LAW CLAIMS ADVANCE THE INTENT AND THE 1197 02:04:21.328 --> 02:04:30.649 POLICY THAT UNDERLIES THE CSAA. SO WHILE THE COMMON LAW CLAIMS WERE NOT SET 1198 02:04:30.649 --> 02:04:36.227 FORTH IN THE CSAA, THEY DON'T ARISE OUT OF IT, THEY ARE COMMON LAW, THEY ARE EFFECTUATING 1199 02:04:36.227 --> 02:04:44.214 THE EXACT SAME POLICIES, WHICH THIS COURT HAS SAID IS OF PARAMOUNT IMPORTANCE AND TO NOT 1200 02:04:44.214 --> 02:04:52.990 BE -- YOU KNOW, IS ALMOST BEYOND CONTENTION THAT PREVENTING CHILDHOOD SEXUAL ABUSE IS 1201 02:04:52.990 --> 02:04:59.444 OF PARAMOUNT IMPORTANCE TO THE STATE. AND SO WHILE THE CLAIMS ARISE OUT OF 1202 02:04:59.444 --> 02:05:05.341 COMMON LAW, THEY ARE BASED ON THAT SAME JUSTIFICATION AND THE COURTS HAVE TREATED 1203 02:05:05.341 --> 02:05:10.646 THEM SIMILARLY AS THE PRECEDENT HAGS EVOLVED THROUGH THE COURT. JUSTICE 1204 02:05:10.646 --> 02:05:15.010 WAINER APTER: THERE ARE OTHER EXAMPLES WHERE SOMEONE CAN BRING A COMMON LAW CLAIM TO 1205 02:05:15.010 --> 02:05:20.791 EFFECTUATE A STATUTE WITHOUT MEETING THE REQUIREMENTS OF THAT STATUTE. 1206 02:05:20.791 --> 02:05:30.287 AMBER R. LONG: AGAIN, THE COMMON LAW CLAIMS ARE -- DON'T HAVE TO MEET THE REQUIREMENTS 1207 02:05:30.287 --> 02:05:36.763 OF THE STATUTE BECAUSE THOSE STATUTES ARE VERY SPECIFIC. JUSTICE WAINER APTER: 1208 02:05:36.763 --> 02:05:42.133 I AM JUST ASKING ARE THERE OTHER SIMILAR COMMON LAW CLAIMS WHERE YOU ARE SUING TO EFFECTUATE 1209 02:05:42.133 --> 02:05:47.159 THE PURPOSE OF A STATUTE AND THE COURT SAYS THAT IS VERY IMPORTANT, BUT YOU DO NOT HAVE 1210 02:05:47.159 --> 02:05:52.127 TO MEET THE REQUIREMENTS OF THE STATUTE BECAUSE YOU'RE SUING AT THE COMMON LAW. 1211 02:05:52.127 --> 02:05:56.671 AMBER R. LONG: I DON'T HAVE AN EXAMPLE BECAUSE I HAVEN'T LOOKED AT THE QUESTION, BUT WHEN 1212 02:05:56.671 --> 02:06:02.653 THE HARDWICKE COURT ADDRESSED THOSE COMMON LAW CLAIMS, THE VICARIOUS LIABILITY RULING 1213 02:06:02.653 --> 02:06:09.479 WAS ON THE COMMON LAW CLAIM. AND, WHEN WE LOOK AT THE AMENDMENT TO THE TCA, 1214 02:06:09.479 --> 02:06:16.298 WHICH IS CONTAINED WITHIN THE 2019 AMENDMENT, WHAT COUNSEL SHORT HANLDED AS 1 A, IT DOES 1215 02:06:16.298 --> 02:06:22.613 HAVE TWO SECTIONS, ONE THAT APPLIES TO THE NEGLIGENT RETENTION, HIRING, SUPERVISION AND 1216 02:06:22.613 --> 02:06:30.192 THE OTHER THAT APPLIES TO THE GROSSLY -- THE WILLFUL, WANT TON AN GROSS BEHAVIOR. 1217 02:06:30.192 --> 02:06:35.960 AGAIN, THERE ARE TWO SECTIONS AND THAT LISTING OF IMMUNITY HAS TO MEAN SOMETHING IN 1218 02:06:35.960 --> 02:06:42.405 BOTH SECTIONS. THE INTERPRETATION THAT WOULD SAY THAT DOESN'T ALLOW STRICT 1219 02:06:42.405 --> 02:06:49.370 LIABILITY, DOESN'T TAKE AWAY THE IMMUNITY OR DOESN'T ALLOW VICARIOUS LIABILITY, DOESN'T 1220 02:06:49.370 --> 02:06:56.555 TAKE AWAY THE IMMUNITY FOR THAT WOULD RENDER THAT STATUTE ANNULITY. JUSTICE 1221 02:06:56.555 --> 02:07:03.551 WAINER APTER: WOULDN'T IT NOT JUST BE REMOVING THE FOR A CSAA CLAIM WHICH IS ALSO ON THE 1222 02:07:03.551 --> 02:07:09.210 SAME WILLFUL BEHAVIOR. AMBER R. LONG: THE CSAA CLAIM FOR A PASSIVE ABUSER 1223 02:07:09.210 --> 02:07:16.080 I THINK YOU'RE REFERRING TO ACTUALLY REQUIRES KNOWING OR ACQUIESCING IN THE ABUSE WHICH IS 1224 02:07:16.080 --> 02:07:23.257 A DIFFERENT STANDARD. I THINK THERE IS SOME OVERLAP. I THINK YOU COULD IDENTIFY CONDUCT 1225 02:07:23.257 --> 02:07:27.547 THAT MEETS BOTH THOSE STANDARDS BUT THEY ARE DIFFERENT STANDARDS. JUSTICE 1226 02:07:27.547 --> 02:07:33.911 WAINER APTER: THE TCA NEEDS TO GET RID OF IMMUNITY IF YOU WANT TO BRING A CSAA CLAIM 1227 02:07:33.911 --> 02:07:37.491 AGAINST AN ENTITY, CORRECT? AMBER R. LONG: CORRECT. JUSTICE WAINER 1228 02:07:37.491 --> 02:07:41.908 APTER: THAT WOULDN'T BE A 2 BECAUSE IT IS NOT A CLAIM OF NEGLIGENT SUPERVISION SO COULDN'T 1229 02:07:41.908 --> 02:07:47.322 A1 BE SEEN AS REMOVING LIABILITY FOR A CSAA CLAIM. AMBER R. LONG: I THINK 1230 02:07:47.322 --> 02:07:52.060 IF THAT WAS THE LEGISLATURE'S INTENT, THEY WOULD HAVE USED THE SAME LANGUAGE THAT IS USED 1231 02:07:52.060 --> 02:07:58.568 IN THE DEFINITION OF A PASSIVE ABUSER RATHER THAN SAY WILLFUL, WANT TON AND GROSSLY NEGLIGENT, 1232 02:07:58.568 --> 02:08:06.050 THEY COULD HAVE SAID, WE'RE LIFTING THE IMMUNITY FOR SOMEONE WHO KNOWINGLY ACQUIESCES 1233 02:08:06.050 --> 02:08:11.304 IN THE ABUSE. I THINK IF THAT WAS THE INTENTION THEY WOULD HAVE MIRRORED THE 1234 02:08:11.304 --> 02:08:16.681 LANGUAGE MORE SPECIFICALLY. I THINK THEIR LISTING OF IMMUNITY WAS MORE BROAD. 1235 02:08:16.681 --> 02:08:24.322 IT WOULD ENCOMPASS THAT CSAA CLAIM, BUT IT WOULD ALSO ENCOMPASS THE COMMON LAW CLAIMS 1236 02:08:24.322 --> 02:08:28.733 BASED ON WILLFUL WANT TON. JUSTICE WAINER APTER: THAT WAS MY POINT, THAT 1237 02:08:28.733 --> 02:08:33.508 IT WOULDN'T BE FOR NOTHING, A1. AMBER R. LONG: CORRECT. JUSTICE 1238 02:08:33.508 --> 02:08:37.269 WAINER APTER: OKAY. AMBER R. LONG: THE OTHER PART OF THE ATTORNEY GENERAL'S 1239 02:08:37.269 --> 02:08:43.576 TEST THAT I WANT TO ADDRESS JUST BRIEFLY IS THE ARGUMENT THAT THE PLAINTIFF SHOULD HAVE 1240 02:08:43.576 --> 02:08:52.107 TO PROVE THAT THE SUPERVISOR WAS EXERCISING THE AUTHORITY DELEGATED TO HIM WHEN THEY 1241 02:08:52.107 --> 02:08:57.397 COMMITTED THE SEXUAL ABUSE. I THINK THIS, AGAIN, IS LIMITING IN A WAY THAT 1242 02:08:57.397 --> 02:09:05.556 THE COURT SHOULD NOT EMBRACE AND IT GIVES IT BACK TO THE ABUSE HAPPENED TO BE WITHIN THE 1243 02:09:05.556 --> 02:09:10.394 SCOPE OF THE EMPLOYMENT SO IF WE'RE TALKING ABOUT VICARIOUS LIABILITY WE'RE ALREADY OUTSIDE 1244 02:09:10.394 --> 02:09:15.582 THE SCOPE OF THE EMPLOYMENT AN WE RECOGNIZE THAT SEXUAL ABUSE IS VIRTUALLY NEVER GOING 1245 02:09:15.582 --> 02:09:23.941 TO BE WITHIN THE SCOPE OF EMPLOYMENT. AND THAT THE STANDARD SHOULD BE AS IT IS SET FORTH 1246 02:09:23.941 --> 02:09:31.311 IN LEHMANN AN AK WAUS AND OTHER CASES THAT THE ABUSER, THE EMPLOYEE WAS DELEGATED AUTHORITY 1247 02:09:31.311 --> 02:09:39.020 TO CONTROL THE DAY-TO-DAY ACTIVITIES OF THE COMPLAINANT, OF THE PLAINTIFF THAT WAS ABUSED 1248 02:09:39.020 --> 02:09:46.381 AND THAT THE AUTHORITY DELEGATED TO THAT EMPLOYEE AIDED IN THEIR ACCOMPLISHING THE ABUSE. 1249 02:09:46.381 --> 02:09:49.495 JUSTICE HOFFMAN: THAT DEVIATES FROM HARDWICKE. AMBER R. LONG: 1250 02:09:49.495 --> 02:09:55.740 HARDWICKE DISCUSSES WEIGHS OUT THAT FOUR-PART LEHMANN TEST. JUSTICE HOFFMAN: 1251 02:09:55.740 --> 02:10:01.156 YOU JUST DEVIATED IN THE SECOND PARTED BECAUSE HARDWICKE SPECIFICALLY ADOPTS LAYMAN WHICH 1252 02:10:01.156 --> 02:10:06.239 SAYS THE SUPERVISOR EXERCISE THAT AUTHORITY THAT HAS BEEN DELEGATED? AMBER R. 1253 02:10:06.239 --> 02:10:11.780 LONG: CORRECT, SO THEY ARE EXERCISING THE AUTHORITY TO CONTROL THE DAY-TO-DAY 1254 02:10:11.780 --> 02:10:18.849 ACTIVITIES OF THE STUDENT. SO I THINK THE DISTINCTION IS IN THE WAY THAT THE ATTORNEY 1255 02:10:18.849 --> 02:10:28.736 GENERAL PHRASES IT IN THEIR TEST, THE ABUSER WOULD HAVE TO BE SPECIFICALLY IN THE THROWS 1256 02:10:28.736 --> 02:10:38.944 OF USING THAT AUTHORITY WHILE THEY ARE ABUSING, WHEREAS THE TEST. JUSTICE 1257 02:10:38.944 --> 02:10:44.645 HOFFMAN: LET'S SAY YOU HAVE A CLASSROOM. IF YOU HAVE THE AUTHORITY TO CONTROL THE CLASSROOM 1258 02:10:44.645 --> 02:10:51.864 AND THE SEXUAL ABUSE OCCURS IN THE CLASSROOM, YOU'RE NOT USING THAT -- THERE IS NO 1259 02:10:51.864 --> 02:10:57.176 AUTHORITY RELATED TO SEXUAL ABUSE. THE AUTHORITY IS THE CONTROL OF THE CLASSROOM. 1260 02:10:57.176 --> 02:11:01.619 AMBER R. LONG: CORRECT. AND I THINK THE WAY THAT THE ATTORNEY GENERAL HAS PHRASED THE 1261 02:11:01.619 --> 02:11:08.417 TEST, IT COULD BE INTERPRETED THAT WHEN YOU STOP TEACHING AND START SEXUALLY ABUSING, 1262 02:11:08.417 --> 02:11:14.175 YOU'RE NOT OUTSIDE OF THE AUTHORITY THAT WAS DELEGATED TO YOU AND WE'RE BACK TO THE SCOPE 1263 02:11:14.175 --> 02:11:18.681 OF EMPLOYMENT. JUSTICE HOFFMAN: I DON'T THINK HARDWICKE SAYS THAT. 1264 02:11:18.681 --> 02:11:26.251 AMBER R. LONG: AGREED. IT IS A VERY SMALL NUANCE IN THE PHRASING AND IT'S A VERY SMALL 1265 02:11:26.251 --> 02:11:30.501 PART OF THE ATTORNEY GENERAL'S BRIEF WHERE THEY SAID THEY HAD TO BE USING THE AUTHORITY 1266 02:11:30.501 --> 02:11:36.276 AT THE TIME THAT THEY COMMITTED THE ABUSE; WHEREAS, I THINK THE MORE APPROPRIATE 1267 02:11:36.276 --> 02:11:41.811 PHRASING IS IF THEY WERE AIDED IN COMMITTING THE ABUSE BY THE AUTHORITY THAT WAS DELEGATED 1268 02:11:41.811 --> 02:11:47.873 TO THEM BY THE EMPLOYER. JUSTICE PATTERSON: AND WHERE ARE THE PARAMETERS 1269 02:11:47.873 --> 02:11:53.722 OF THAT BECAUSE THAT COULD LITERALLY APPLY IN ANY SITUATION WHERE A STAFF MEMBER AT A 1270 02:11:53.722 --> 02:11:59.198 SCHOOL BE IT A TEACHER OR A COACH OR WHOMEVER WHO WAS INTRODUCED TO STUDENTS BY VIRTUE 1271 02:11:59.198 --> 02:12:10.390 OF THE RESPONSIBILITIES OF EMPLOYMENT HAS SEXUALLY ABUSED A STUDENT ANYWHERE, IN THE 1272 02:12:10.390 --> 02:12:20.284 WEEKENDS, AT THE SHORE HOUSE, THE CLASSROOM, ANYWHERE, SO WHAT IS THE LIMIT? 1273 02:12:20.284 --> 02:12:24.159 AMBER R. LONG: I THINK THAT WILL BE, AS PLAINTIFF'S COUNSEL HAS SUGGESTED, THE WAY WE 1274 02:12:24.159 --> 02:12:29.472 FIND THE LIMITS OF SOME OF THESE THINGS ARE THROUGH THE PROCESS OF CASES COMING UP 1275 02:12:29.472 --> 02:12:32.328 THROUGH THE APPELLATE COURTS. JUSTICE PATTERSON: WE'RE BEING ASKED HERE 1276 02:12:32.328 --> 02:12:37.923 TO PROVIDE A TEST. AMBER R. LONG: A TEST. JUSTICE PATTERSON: 1277 02:12:37.923 --> 02:12:44.746 SO WHAT IS THE LIMITING PRINCIPLE IF ALL THAT IS REQUIRED THAT THE TEACHER MEET THE STUDENTS, 1278 02:12:44.746 --> 02:12:49.447 THIS COULD BE ABUSE THAT HAPPENS FIVE YEARS LATER, IT COULD BE ABUSE THAT HAPPENS IN A 1279 02:12:49.447 --> 02:12:55.686 NEIGHBORING TOWN. WHAT IS THE LIMIT ON IT? I THINK WHAT THE 1280 02:12:55.686 --> 02:13:01.823 ATTORNEY GENERAL IS TRYING TO PROPOSE SOME LIMIT WILLING PRINCIPLES, WHAT ARE YOURS? 1281 02:13:01.823 --> 02:13:06.931 AMBER R. LONG: SURE. I THINK THAT AIDED BY THE AUTHORITY DELEGATED 1282 02:13:06.931 --> 02:13:11.165 IS GOING TO STRETCH TOO FAR AT SOME POINTS YOUR HONOR. I DON'T THINK AT ONE 1283 02:13:11.165 --> 02:13:16.622 YOU'RE GOING TO REASONABLY FOUND THAT IF YOU HAD A TEACHER, YOU MET WITH THEM IN SCHOOL. 1284 02:13:16.622 --> 02:13:22.148 YOU INTERACTED WITH THEM COMPLETELY APPROPRIATE THERE, NO GROOMING STARTED, NO SKWLIN 1285 02:13:22.148 --> 02:13:26.482 APPROPRIATE CONDUCT AN THEN FIVE KWLEERS LATER YOU MEET THEM ON THE STREET THAT THEY WERE 1286 02:13:26.482 --> 02:13:32.875 ACTUALLY AIDED IN THE AUTHORITY OF BEING OF YOUR TEACHER FIVE YEARS AGO AND THEN ABUSING 1287 02:13:32.875 --> 02:13:42.726 YOU. JUSTICE PATTERSON: WHAT CONCEPT WOULD YOU PERHAPS SUBSTITUTE FOR THAT 1288 02:13:42.726 --> 02:13:51.219 BROAD CONCEPT OF AIDED BY AUTHORITY. AMBER R. LONG: I DON'T THINK WE SHOULD 1289 02:13:51.219 --> 02:13:56.336 FOLLOW THE THIRD RESTATEMENT TO THE EXTENT -- I KNOW PLAINTIFF HAS ADVANCED ARGUMENTS 1290 02:13:56.336 --> 02:14:01.108 THAT THAT WAS NOT ACTUALLY NOT REJECTED AND I DON'T THINK THAT THE COURT NEEDS TO 1291 02:14:01.108 --> 02:14:09.554 NECESSARILY FOLLOW -- IF INDEED YOU FIND THAT THE THIRD RESTATEMENT REJECTED THAT, I THINK 1292 02:14:09.554 --> 02:14:14.950 THAT THERE ARE INSTANCES WHERE THIS COURT DOES NOT FOLLOW THE RESTATEMENT WHEN IT CHANGES, 1293 02:14:14.950 --> 02:14:21.857 IT STICKS TO THE PRIOR VERSIONS OF THE RESTATEMENT, HARDWICKE AND LEHMANN AND 1294 02:14:21.857 --> 02:14:26.188 ABBAMONT ARE ALL GOOD LAW. JUSTICE PATTERSON: BUT YOU'RE TELLING US SOME 1295 02:14:26.188 --> 02:14:32.216 PROBLEMS WITH LEHMANN AND PRESUMABLY ABOUT ABBAMONT. I THINK WHAT YOU'RE 1296 02:14:32.216 --> 02:14:37.275 TELLING ME AND I UNDERSTAND YOU'RE AN ADVOCATE FOR VICTIMS HERE BUT I THINK YOU'RE SUGGESTING 1297 02:14:37.275 --> 02:14:44.499 WE SIMPLY SAY AIDED BY THOFRT AND LET FACTS DEVELOP, BUT IF WE STATE THAT'S ALL IT TAKES, 1298 02:14:44.499 --> 02:14:50.231 THAT'S GOING TO INCORPORATE REALLY EXTRAORDINARY FACTUAL CIRCUMSTANCES, SO WHAT CAN YOU 1299 02:14:50.231 --> 02:14:56.618 PROVIDE US AND IF THE ANSWER IS NONE, AS A LIMITING PRINCIPLE AS DIFFERENT LANGUAGE THAN 1300 02:14:56.618 --> 02:15:03.701 THE LANGUAGE THAT HAS BEEN REJECTED BY THE A L I IN THE CURRENT AGENCY RESTATEMENT THAT 1301 02:15:03.701 --> 02:15:13.540 WOULD IN YOUR VIEW STILL SERVE THE INTEREST THAT THE LEGISLATURE IS TRYING TO PRESERVE. 1302 02:15:13.540 --> 02:15:19.888 AMBER R. LONG: I THINK LEHMANN AND ABBAMONT, ALTHOUGH THERE IS AN ISSUE 1303 02:15:19.888 --> 02:15:28.296 WITH THE AFFIRMATIVE DEFENSE, IN GENERAL, THE TASK OR TEST DOES TRANSLATE TO THE SEXUAL 1304 02:15:28.296 --> 02:15:39.804 ABUSE REALM, AS THE COURT FOUND IN HARDWICKE AND THAT AS I SAID WITH THE AFFIRMATIVE 1305 02:15:39.804 --> 02:15:45.043 DEFENSE, IF THAT'S WHAT THE COURT THINKS THEY NEED TO PUT THOSE RAILS ON, THEN PERHAPS 1306 02:15:45.043 --> 02:15:51.448 THE WAY TO FIND AN AFFIRMATIVE DEFENSE THAT INCLUDES VERY CLEARLY THINGS HAVE TO BE VERY 1307 02:15:51.448 --> 02:16:00.349 EFFECTIVE, WELL ENFORCED, WELL PUBLICIZED TO THE STUDENTS, ANTI SEXUAL ABUSE POLICIES 1308 02:16:00.349 --> 02:16:07.390 AND IF THE COURT WANTS A SECOND SECTOR FOR THAT AFFIRMATIVE DEFENSE, PERHAPS THE SCHOOL 1309 02:16:07.390 --> 02:16:12.327 SHOULD HAVE TO PROVE THAT THOSE POLICIES HAVE BEEN EFFECTIVE IN CIRCUMSTANCES IN PREVENTING 1310 02:16:12.327 --> 02:16:18.799 SEXUAL ABUSE AND THE BENEFIT OF SOMETHING LIKE THAT, AS OPPOSED TO SOME OF THE OTHER 1311 02:16:18.799 --> 02:16:28.487 APPROACHES WOULD BE, AS THE COURT TALKED ABOUT IN AK WAUS IT WOULD ENCOURAGE EMPLOYERS, 1312 02:16:28.487 --> 02:16:33.241 PEOPLE WHO HAVE THE CHARGE OF STUDENTS TO DEFINITELY THOSE POLICIES; THAT IT INCENTIVE 1313 02:16:33.241 --> 02:16:38.375 ADVISE ES THAT. IT ALSO PUTS THE BURDEN ON THE EMPLOYER TO PROVE THAT THEY 1314 02:16:38.375 --> 02:16:45.664 DID THAT AS OPPOSED TO IMPOSING MORE HURDLES ON THE PLAINTIFF THE TO PROVE THAT VICARIOUS 1315 02:16:45.664 --> 02:16:51.079 LIABILITY SHOULD BLANK. JUSTICE PATTERSON: YOU MEAN THAT THE SCHOOL WOULD 1316 02:16:51.079 --> 02:17:00.989 HAVE TO PROVE THAT THE POLICIES THWARTED AN ATTEMPTED ABUSE OF A CHILD ON ONE OCCASION? 1317 02:17:00.989 --> 02:17:05.918 AMBER R. LONG: THAT MAY BE ONE WAY TO PROVE IT. IT IS HARD FOR ME TO PUT 1318 02:17:05.918 --> 02:17:10.565 MY DEFENDANT HAT ON AND FIND WAYS. JUSTICE PATTERSON: I AM NOT ASKING YOU 1319 02:17:10.565 --> 02:17:18.129 TO DO THAT. IT SOUNDED LIKE YOU WERE SAYING PERHAPS THE BEST POM CEASE ARE ONES THAT 1320 02:17:18.129 --> 02:17:24.021 PREVENT ANY ATTEMPT SO I AM NOT SURE THAT THE SECOND FACTOR YOU ARE SUGGEST WILLING IS 1321 02:17:24.021 --> 02:17:28.780 NECESSARILY GOING IN THE RIGHT DRERNGS. AMBER R. LONG: PERHAPS A SECOND 1322 02:17:28.780 --> 02:17:35.877 FACTOR WOULD HAVE TO DO WITH THE BEHAVIOR OF THE ABUSER AND HOW THEY CIRCUMVENT. 1323 02:17:35.877 --> 02:17:41.057 AGAIN, I REALLY STRESS THAT THE FIRST FACTOR HAS TO BE REALLY EFFECTIVE POLICIES THAT ARE 1324 02:17:41.057 --> 02:17:47.478 NOT IN NAME ONLY BECAUSE SOMETIMES THERE ARE POLICIES THAT JUST DON'T GET CARRIED OUT 1325 02:17:47.478 --> 02:17:53.975 AND I WOULD HATE TO ENDORSE AN AFFIRMATIVE DEFENSE THAT WOULD LET SOMEONE PUT SOMETHING 1326 02:17:53.975 --> 02:18:00.662 ON PAPER THAT NEVER WAS AFFECT I HAVE. JUSTICE PATTERSON: I THINK YOU SAID 1327 02:18:00.662 --> 02:18:05.477 THE AK WAUS FACTOR WAS APPROPRIATE IN THE PLAINTIFF SOCIETYING. AMBER R. 1328 02:18:05.477 --> 02:18:09.492 LONG: IT IS. AND AGAIN, AS YOU STRESSED JUSTICE PATTERSON IN WRITING THAT OPINION, I 1329 02:18:09.492 --> 02:18:15.552 THINK TWO OR THREE TIMES THAT THOSE CAN'T BE NAME ONLY POLICIES AND SO THAT'S TO SAY, 1330 02:18:15.552 --> 02:18:22.251 AGAIN, I WOULDN'T WANT TO ENDORSE ANYTHING THAT WOULD ALLOW NAME-ONLY POLICIES TO BE AN 1331 02:18:22.251 --> 02:18:27.462 AFFIRMATIVE DEFENSE, BUT I DO THINK SOMETHING OF THAT NATURE IS MORE APPROPRIATE THAN 1332 02:18:27.462 --> 02:18:34.934 PUTTING REQUIREMENTS ON PLAINTIFFS THAT WOULD ESSENTIALLY TURN THE CLAIM INTO A NEGLIGENCE 1333 02:18:34.934 --> 02:18:41.897 OR A -- WITHIN THE SCOPE OF EMPLOYMENT CLAIM. AND, AGAIN, I THINK FUNDAMENTALLY 1334 02:18:41.897 --> 02:18:50.442 WHAT WE SHOULD COME BACK TO HERE AS WE DEVELOP LAD, JURISPRUDENCE TO THE SITUATION OF 1335 02:18:50.442 --> 02:18:56.678 STUDENTS OR CHILDREN IS WHAT WILL BE MOST PROTECTIVE OF THEM. I THINK I'VE 1336 02:18:56.678 --> 02:19:02.768 PROBABLY USED MY FIVE MINUTES I HAVE MORE I WOULD SAY OR I WOULD LOVE TO ANSWER ANY QUESTIONS 1337 02:19:02.768 --> 02:19:05.768 OR I WILL SIT DOWN. THE COURT: THANK YOU, COUNSEL.