WEBVTT 2 00:00:15.096 --> 00:00:21.100 THE COURT. THE COURT HAS DEALT THIS MORNING WITH A LOT OF ISSUES. 3 00:00:21.100 --> 00:00:25.320 THE COURT: IF YOU CAN, TRY TO KEEP IR VOICE UP A LITTLE BIT. CHERYLEE O. 4 00:00:25.320 --> 00:00:30.060 MELCHER: SORRY ABOUT THAT. I WANT TO START OFF WITH THE HORNOR CASE, I REPRESENT 5 00:00:30.060 --> 00:00:35.372 THE SCHOOL DISTRICT, THERE ARE TWO ISSUES THAT NEED TO BE DECIDED, WHETHER THE SCHOOL 6 00:00:35.372 --> 00:00:43.313 HAS A FIDUCIARY DUTY TO A STUDENT AND MS THE VICARIOUS LIABILITY FOR A SCHOOL WITH SEXUAL 7 00:00:43.313 --> 00:00:49.168 MISCONDUCT. WITH RESPECT TO THE FIRST ISSUE, FIDUCIARY DUTY, THIS IS A NEW 8 00:00:49.168 --> 00:00:56.283 ISSUE, IT HAS NEVER BEEN DECIDED BY THIS COURT AND WE SUPPOSE THAT THE APPELLATE DIVISION 9 00:00:56.283 --> 00:01:01.800 GOT THE ANSWER COMPLETELY CORRECT THERE IS NO FIDUCIARY DUTY IN THIS SITUATION. 10 00:01:01.800 --> 00:01:08.922 FIDUCIARY DUTY'S INVOLVE CONFIDENTIAL RELATIONSHIPS, LOYALTY, TRUST, DUE CARE AND 11 00:01:08.922 --> 00:01:15.177 DISCLOSURE. IN THE SETTING OF A SCHOOL DISTRICT, A SCHOOL CANNOT POSSIBLY MEET 12 00:01:15.177 --> 00:01:21.362 THOSE ELEMENTS TOWARDS A STUDENT, SPECIFICLY WITH RESPECT TO CONFIDENTIALITY, A STOOL 13 00:01:21.362 --> 00:01:29.869 DISTRICT HAS TO BE OPEN, A PUBLIC ENTITY AND THE STUDENT, ITSELF, HYPOTHETICALLY MAKES 14 00:01:29.869 --> 00:01:36.600 A DISCLOSURE THAT IS AGAINST THE STUDENT'S INTEREST, AN INJURY, SEXUAL ABUSE FOR 15 00:01:36.600 --> 00:01:40.982 INSTANCE AN SAYS PLEASE DON'T TELL ANYBODY, THERE IS AN OBLIGATION TO TELL AND TO DISCLOSE 16 00:01:40.982 --> 00:01:45.404 THAT. THERE IS ABSOLUTELY NOTHING PRESENT WITHIN A SCHOOL DISTRICT AND A 17 00:01:45.404 --> 00:01:50.616 STUDENT OR EVEN A TEACHER AN A STUDENT RELATIONSHIP THAT CAN FALL WITHIN A FIDUCIARY 18 00:01:50.616 --> 00:01:55.262 DUTY. A FIDUCIARY DUTY WOULD ALSO COMPLETELY DISPEL THE REGULAR DUTY THAT WE 19 00:01:55.262 --> 00:02:01.116 KNOW THAT SCHOOL DISTRICTS HAVE TO STUDENTS, THE DUTY OF PROTECTION FOR REASONABLE CARE, 20 00:02:01.116 --> 00:02:10.937 REASONABLE SUPERVISION UNDERSTAND THE TOTALITY OF THE CIRCUMSTANCES TO PREVENT THEM FROM 21 00:02:10.937 --> 00:02:23.078 FORESEEABLE DANGERS. THE CASE OF F.G. MAK DOUL, BETWEEN A PRIEST AN A PARISH 22 00:02:23.078 --> 00:02:31.323 IN HER AND THAT SPECIFIC CASE FOUND IN THOSE SCENARIOS THAT IN THAT SETTING THAT PARISH 23 00:02:31.323 --> 00:02:36.761 IN HER AND THAT PLEASE ITSELF HAD THAT COUNSELING FIDUCIARY RELATIONSHIP, HOWEVER, THAT 24 00:02:36.761 --> 00:02:43.938 DIDN'T EXPAND IT TO THE ENTIRE CHURCH OR TO ALL PRIESTS AND PARISH NERS. 25 00:02:43.938 --> 00:02:51.951 LIKEWISE, YOU CAN'T HAVE A FIDUCIARY DUTY BETWEEN A STOOUNT AND A SCHOOL DISTRICT BECAUSE 26 00:02:51.951 --> 00:02:58.991 THOSE ELEMENTS OF LOYALTY AN CONFIDENTIALITY AS I DISCUSSED BEFORE SIMPLY ARE NOT PRESENT 27 00:02:58.991 --> 00:03:04.463 AND CAN NEVER BE PRESENT PARTICULARLY GIVEN THE COMPETING INTERESTS THAT OCCUR BETWEEN 28 00:03:04.463 --> 00:03:08.665 THE SCHOOL, THE BOARD OF EDUCATION, THE DUTIES TO THE TEACHER, THE DUTY TO THE PARENTS. 29 00:03:08.665 --> 00:03:14.701 IT IS JUST IMPOSSIBLE TO HAVE A FIDUCIARY DUTY AN THE COURT HERE SHOULD AFFIRM THE APPELLATE 30 00:03:14.701 --> 00:03:20.954 DIVISION ON THAT DECISION. MOVING FORWARD TO WHAT WE TALKED ABOUT PRIMARILY 31 00:03:20.954 --> 00:03:27.072 THIS MORNING, THE VICARIOUS LIABILITY ISSUE, PRIOR TO THE 2019 AMENDMENT, I THINK THAT 32 00:03:27.072 --> 00:03:32.904 QUESTION WAS VERY CLEAR. VICARIOUS LIABILITY ON A SCHOOL DISTRICT FOR ANY SEXUAL ABUSE 33 00:03:32.904 --> 00:03:39.057 BY A TEACHER OF A STUDENT, ABSOLUTELY NOT. NOW, WE'RE HERE AFTER 2019 AND 34 00:03:39.057 --> 00:03:45.525 THE CASE THAT I'M DEALING WITH HAS ALLEGED SEXUAL ABUSE THAT OCCURRED ONE TIME IN THE 35 00:03:45.525 --> 00:03:54.113 TEACHER'S APARTMENT IN 1979. AND THE PROVISIONS THAT WE'RE LOOKING AT THAT HAVE CHANGED 36 00:03:54.113 --> 00:03:59.483 INCLUDE THE PROVISIONS TO THE TORT CLAIMS ACT. NOT ONLY ARE WE LOOKING AT THE 37 00:03:59.483 --> 00:04:08.695 PROVISION OF 59-2.3 A1 AND A 2, AS WELL, BUT WE ALSO NEED TO LOOK AT WHICH HADN'T BEEN 38 00:04:08.695 --> 00:04:20.385 DISCUSSED THIS MORNING IS 59-2-2, VICARIOUS LIABILITY IS SPECIFICALLY DELINEATED IN THE 39 00:04:20.385 --> 00:04:30.778 TORT CLAIMS ACT FOR PUBLIC ENTITIES WITHIN 592-2 A, 592-1.3 A SIMPLY REMOVED IMMUNITY. 40 00:04:30.778 --> 00:04:37.154 IT REMOVED IMMUNITY FROM A PUBLIC ENTITY IN ORDER TO RELY UPON THAT PREVIOUS IMMUNITY 41 00:04:37.154 --> 00:04:43.405 THAT THEY HAD FOR ACTS OF WILLFUL, WANTON AN GROSSLY NEGLIGENT CONDUCT TO BE RESPONSIBLE 42 00:04:43.405 --> 00:04:51.018 FOR THOSE EMPLOYEES. SIMPLY BECAUSE 2-1.3 A SAYS THAT A PUBLIC ENTITY CAN 43 00:04:51.018 --> 00:04:57.815 NO LONGER RELY UPON THAT IMMUNITY, THAT DOES NOT CREATE LIABILITY FOR WILLFUL OR WANT 44 00:04:57.815 --> 00:05:03.114 TON ACTS, NOR DOES IT CREATE VICARIOUS LIABILITY OR A SEPARATE CAUSE OF ACTION IN AN OF 45 00:05:03.114 --> 00:05:09.658 ITSELF, NOR DO ANY OF THE 2019 AMENDMENTS CREATE ANY SEPARATE CAUSE OF ACTION, THEY SIMPLY 46 00:05:09.658 --> 00:05:17.356 AMENDED VARIOUS LAWS, VARIOUS STATUTES, INCLUDING THE CHARITABLE IMMUNITY ACT AND THE 47 00:05:17.356 --> 00:05:27.218 TORT CLAIMS ACT. AND AS A PUBLIC TORT CLAIMS ACT IS CERTAINLY BLANK HERE TO MY CLIENTS. 48 00:05:27.218 --> 00:05:31.542 THE LEGISLATURE COMPLETELY ACCOMPLISHED ITS GOALS AS THE APPELLATE 49 00:05:31.542 --> 00:05:38.536 DIVISION FOUND WHEN IT CREATED 2-1.3 A BECAUSE IT WANTED TO STRESS THE PUBLIC ENTITY OF 50 00:05:38.536 --> 00:05:46.189 ITS AVAILABLE IMMUNITIES IDENTICAL TO THE IMMUNITIES OF THE CHARITABLE IMMUNITY ACT FOR 51 00:05:46.189 --> 00:05:51.257 CHARITABLE ORGANIZATIONS AN THAT'S SPECIFICALLY WHAT THEY ACCOMPLISHED. WE 52 00:05:51.257 --> 00:05:56.047 UNDERSTAND FROM EARLIER COLLOQUY THAT THAT'S WHAT THE GOF NOR'S STATEMENT TO THE INITIAL 53 00:05:56.047 --> 00:06:00.909 BILL SAID BECAUSE THE INITIAL LANGUAGE WAS ESSENTIALLY IMPOSING STRICT LIABILITY UPON 54 00:06:00.909 --> 00:06:06.692 ANY PUBLIC ENTITY FOR SEXUAL ABUSE THAT HAD OCCURRED. THE GOVERNOR SAID THAT'S TOO MUCH. 55 00:06:06.692 --> 00:06:13.304 WE NEED THIS TO BE A DIFFERENT LIABILITY STANDARD TO PUT THEM ON EQUAL FOOTING WITH CHARITABLE 56 00:06:13.304 --> 00:06:17.851 ORGANIZATIONS SO THAT'S WHAT THE LEGISLATURE DID. THE LEGISLATURE LOOKED AT THE 57 00:06:17.851 --> 00:06:23.328 LANGUAGE IN THE CHAR RIT TABL IMMUNITY ACT, FOUND THAT IT HAD IMMUNITY FROM NEGLIGENCE 58 00:06:23.328 --> 00:06:32.378 AND SUPERVISION AND HIRING AND TRAINING OF THEIR EMPLOYEES SWEMS AS WELL AS THERE WAS 59 00:06:32.378 --> 00:06:38.333 A SPECIFIC IMMUNITY FOR THEIR EMPLOYEES FOR THEIR IMMUNITY UNDER WILLFUL AND WANT TON 60 00:06:38.333 --> 00:06:45.555 CONDUCT, INCLUDING FOR SEXUAL ABUSE AND THE LEGISLATURE SAID, OKAY, WE SEE THAT THIS 61 00:06:45.555 --> 00:06:50.872 IS WHAT THE IMMUNITIES HAVE IN THE CHARITABLE IMMUNITY ACT SHTHS WE NEED TO PUT THOSE SAME 62 00:06:50.872 --> 00:06:57.104 I'M MURNTS IN FOR THE TORT CLAIMS ACT SO NOW WE'VE PUT THEM ON EQUAL FOOTING AND THAT'S 63 00:06:57.104 --> 00:07:05.330 WHAT THE ENTIRE INTENT OF THOSE 2019 ACTS WERE. IT JUST SAYS YOU CAN'T RELY 64 00:07:05.330 --> 00:07:09.860 ON THOSE IMMUNITIES. THE COURT: SO BY PUTTING THESE IMMUNITIES INTO THE 65 00:07:09.860 --> 00:07:13.435 TCA WHAT WAS ACCOMPLISHED. CHERYLEE O. MELCHER: IT WAS ACCOMPLISHED THAT 66 00:07:13.435 --> 00:07:18.404 PREVIOUSLY IF YOU WERE TO GET A CLAIM SUCH AS A SEXUAL ABUSE CLAIM IN ANY REGARD BECAUSE 67 00:07:18.404 --> 00:07:24.902 THE AMENDMENTS, THEY DON'T ONLY APPLY TO CHILDREN. THEY APPLY TO ALL SEXUAL ABUSE 68 00:07:24.902 --> 00:07:32.769 VICTIMS. THERE ARE SOME PROVISIONS LIKE A12 THAT IS SPECIFIC TO MINORS HOWEVER 1.3 A1 69 00:07:32.769 --> 00:07:38.454 APPLIES TO ADULTS, AS WELL. SO WHEN THEY TOOK THAT IMMUNITY AND SAID SCHOOL 70 00:07:38.454 --> 00:07:42.771 DISTRICT OR PUBLIC ENTITIES IN GENERAL YOU CAN'T RELY ON THAT WE COULDN'T JUST FILE A 71 00:07:42.771 --> 00:07:50.197 MOTION TO DISMISS AND SAY SLINS WE'RE GOING TO RELY ON 59-2-10 BECAUSE WE CAN'T BE 72 00:07:50.197 --> 00:07:53.964 RESPONSIBLE FOR WILLFUL AN WANT TON AND INTENTIONAL CONDUCT. JUSTICE 73 00:07:53.964 --> 00:07:58.343 PATTERSON: SO DOES THAT LEAVE THE PLAINTIFFS WITH A COMMON LAW VICARIOUS LIABILITY CLAIM 74 00:07:58.343 --> 00:08:05.269 EVEN IF THE STATUTE ITSELF DOES NOT CREATE A STATUTORY CAUSE OF ACTION. 75 00:08:05.269 --> 00:08:13.149 CHERYLEE O. MELCHER: IT ABSOLUTELY DOES AS LONG AS THERE IS THE ELEMENT OF 59-2-2 A THAT 76 00:08:13.149 --> 00:08:19.057 THE ACTIONS OCCURRED WITHIN THE SCOPE OF EMPLOYMENT AND I THINK WHEN YOU LOOK AT 1.3 77 00:08:19.057 --> 00:08:24.817 A1 YOU CAN'T LOOK AT IT SO NARROWLY TO SAY THIS IS IMMUNITY FROM THE ACTUAL SEXUAL ABUSE 78 00:08:24.817 --> 00:08:30.160 BY THE ABUSER THEMSELVES. THIS APPLIES YOU CAN'T USE THE IMMUNITY FOR ANY 79 00:08:30.160 --> 00:08:35.613 TYPE OF #34R0E OR ITS INDEPENDENT PUBLIC ENTITY, WILLFUL, WANT TON AN GROSSLY NEGLIGENT 80 00:08:35.613 --> 00:08:41.662 CONDUCT. JUSTICE PIERRE-LOUIS: I WANTED TO FOLLOW UP ON THE QUESTION THE 81 00:08:41.662 --> 00:08:46.330 CHIEF JUSTICE ASKED, WHAT WAS ACCOMPLISHED WITH THE AMENDMENTS AND THE FIRST THING YOU 82 00:08:46.330 --> 00:08:53.880 SAID WAS IF CLAIMANTS FILED YOUR CLIENT WOULDN'T JUST BE ABLE TO FILE A MOTION TO DISMISS 83 00:08:53.880 --> 00:08:57.256 AND ANYTHING ELSE? CHERYLEE O. MELCHER: I WAS ACTUALLY JUST GETTING TO 84 00:08:57.256 --> 00:09:04.786 THAT, YES. JUST AS ONE EXAMPLE, SAY IN A SEXUAL ABUSE CONTEXT YOU HAVE OTHER 85 00:09:04.786 --> 00:09:12.568 EMPLOYEES WHO ARE AWARE OF THE ABUSE OR HAVE REASONABLE SUSPICION OF ABUSE, PART OF THEIR 86 00:09:12.568 --> 00:09:19.427 JOB DUTIES AND WITHIN THE SCOPE OF THEIR EMPLOYMENT IS TO REPORT THE ABUSE, TO TAKE 87 00:09:19.427 --> 00:09:24.908 ACTION. IF THAT PERSON WILLFULLY DOESN'T DO THAT BECAUSE THE ALLEGED ABUSER 88 00:09:24.908 --> 00:09:30.700 OR THE PERSON THEY THINK MAY BE ABUSING SOMEBODY IS THEIR FRIEND, THEIR COLLEAGUE, THEY 89 00:09:30.700 --> 00:09:35.890 DON'T WANT TO GET THEM IN TROUBLE, THAT IS SOMETHING THAT NOW SOMETHING PREVIOUSLY WE 90 00:09:35.890 --> 00:09:41.300 WOULD HAVE HAD I'M MIENT FOR AS A PUBLIC ENTITY BUT NOW WE CAN'T USE THAT IMMUNITY AND 91 00:09:41.300 --> 00:09:46.854 WE CAN BE RESPONSIBLE FOR THAT EMPLOYEE'S WILLFUL, WANT TON GROSSLY NEGLIGENT CONDUCT 92 00:09:46.854 --> 00:09:52.800 THAT RESULTED IN SEXUAL ABUSE OF A CHILD BECAUSE THEY WILLFULLY FAILED TO ENGAGE IN 93 00:09:52.800 --> 00:09:56.703 OBLIGATIONS THAT WERE WITHIN THE SCOPE OF THEIR EMPLOYMENT TO REPORT THIS REASONABLE 94 00:09:56.703 --> 00:10:02.601 SUSPICION OF ABUSE. JUSTICE PIERRE-LOUIS: SO THE REMOVAL OF IMMUNITY IN 95 00:10:02.601 --> 00:10:16.257 SECTION 1.2-1.3 A1 ALWAYS ONLY FITS WITH INSTANCES IN WHICH AN EMPLOYEE FAILED TO 96 00:10:16.257 --> 00:10:20.329 REPORT SEXUAL ABUSE. CHERYLEE O. MELCHER: NO, I THINK THAT'S JUST ONE 97 00:10:20.329 --> 00:10:25.013 EXAMPLE. IT CAN ALSO BE FOR WHEN YOU LOOK AT THE LANGUAGE ITSELF IT ALSO APPLIES TO THE 98 00:10:25.013 --> 00:10:31.082 PUBLIC ENTITIES ITSELF, WILLFUL AND WANT TON AN GROSSLY NEGLIGENT CONDUCT THAT YOU CAN'T 99 00:10:31.082 --> 00:10:37.510 HAVE IMMUNITY FOR SO IT DOESN'T HAVE TO BE JUST IMMUNITY FROM THAT EMPLOYEE OR AN EMPLOYEE 100 00:10:37.510 --> 00:10:42.896 AND I THINK WE HAVE TO LOOK AT IT FROM THE PERSPECTIVE THAT IT'S NOT JUST SCHOOL 101 00:10:42.896 --> 00:10:47.665 DISTRICTS, THE TORT CLAIMS ACT APPLIES TO ALL PUBLIC ENTITIES SO THERE COULD BE SCENARIOS 102 00:10:47.665 --> 00:10:53.350 WITHIN A POLICE DEPARTMENT OR A FIRE DEPARTMENT, ANY PUBLIC ENTITY WHERE THERE CAN BE 103 00:10:53.350 --> 00:11:00.610 SITUATIONS WHERE YOU CAN BE LIABLE OR THE PUBLIC ENTITY CAN BE LIABLE FOR AN EMPLOYEE'S 104 00:11:00.610 --> 00:11:07.124 WILLFUL, WANT TON AN GROSSLY NEGLIGENT CONDUCT SO LONG AS IT IS ACTION THAT OCCURRED WITHIN 105 00:11:07.124 --> 00:11:11.077 THE SCOPE OF THEIR EMPLOYMENT BECAUSE YOU NEED TO LOOK AT THE STATUTORY LANGUAGE OF NOT 106 00:11:11.077 --> 00:11:21.615 JUST ONE POINT 3 A1 BUT WE HAVE TO LOOK AT 59-2-A WHICH WAS NOT ALTERED BY THE 2019 AMENDMENTS 107 00:11:21.615 --> 00:11:28.992 NOR HAVE THERE BEEN ANY PROPOSED AMENDMENTS TO CHANGE THAT STATUTE UP UNTIL TODAY. 108 00:11:28.992 --> 00:11:34.184 CHIEF JUSTICE RABNER: IF YOU CAN, PUT THAT INTO TRANSLATE WHAT YOU JUST SAID FORTH 109 00:11:34.184 --> 00:11:41.187 INTO THE CONTEXT OF A BOARD OF EDUCATION. YOU HAVE A CLAIM THAT A WAS SEXUALLY ABUSED. 110 00:11:41.187 --> 00:11:45.663 WHO HAS THE LIABILITY AN FOR WHAT, POTENTIALLY? CHERYLEE O. 111 00:11:45.663 --> 00:11:52.294 MELCHER: POTENTIAL LIABILITY OF A STUDENT SEXUALLY ABUSED. SURE. 112 00:11:52.294 --> 00:11:58.713 YOU HAVE DIRECT LIABILITY AS A POTENTIAL UNDER COMMON LAW AND NEGLIGENT HIRING, TRAINING, 113 00:11:58.713 --> 00:12:04.382 SUPERVISION OF THE TEACHER. YOU CAN ALSO HAVE THE SCHOOL DISTRICT DIRECTLY 114 00:12:04.382 --> 00:12:10.154 LIABLE IF THERE WAS NEGLIGENT SUPERVISION OF THE STUDENT AND THEY DIDN'T ACHIEVE THEIR 115 00:12:10.154 --> 00:12:16.789 DUTY OF PROVIDING THE PROPER SUPERVISION UNDER THE TOTALITY OF THE CIRCUMSTANCES. 116 00:12:16.789 --> 00:12:22.323 THERE IS ALSO THE POTENTIAL LIABILITY OF THE SCHOOL DISTRICT, DEPENDING ON THE FACTS OF 117 00:12:22.323 --> 00:12:28.289 THE CASE AS TO WHAT OTHER INDIVIDUALS KNEW OR DID NOT KNOW AND WHETHER OR NOT THEY COULD BE 118 00:12:28.289 --> 00:12:33.457 LIABLE FOR THAT KNOWLEDGE, WHICH, AGAIN, RESULTED IN SEXUAL ABUSE SIMILAR TO THE EXAMPLE 119 00:12:33.457 --> 00:12:40.490 I GAVE EARLIER. CERTAINLY, THE ABUSER THEMSELVES THEY WOULD BE LIABLE OR 120 00:12:40.490 --> 00:12:47.778 HAVE LIABILITY, AND THE OTHER EMPLOYEE WHO HAD KNOWLEDGE THEY COULD BE DIRECTLY LIABLE 121 00:12:47.778 --> 00:12:53.273 IF THEY FAILED TO FOLLOW PROTOCOL, THEY COULD BE LIABLE. THERE ARE A LOT OF 122 00:12:53.273 --> 00:12:59.446 DIFFERENT AVENUES OF LIABILITY AS OPPOSED TO THIS ONE THOUGHT OF CAN I BE VICARIOUS LIABILITY 123 00:12:59.446 --> 00:13:04.187 FOR THE SEXUAL ABUSE BY THIS TEACHER. JUSTICE PATTERSON: SO YOUR CONTENTION 124 00:13:04.187 --> 00:13:10.039 IS THAT'S JUST NOT PART OF THIS. AM I RIGHT ABOUT THAT? CHERYLEE O. 125 00:13:10.039 --> 00:13:14.740 MELCHER: I THINK IN RARE CIRCUMSTANCES IT COULD BE -- AGAIN, IT HAS TO FALL WITHIN THE 126 00:13:14.740 --> 00:13:18.709 SCOPE OF EMPLOYMENT. JUSTICE PATTERSON: WHAT DO YOU MAKE OF ALL THIS 127 00:13:18.709 --> 00:13:22.675 DISCUSSION ABOUT HARDWICKE? CHERYLEE O. MELCHER: HARDWICKE IS NOT APPLICABLE. 128 00:13:22.675 --> 00:13:32.028 HARDWICKE DOESN'T APPLY AND THE RESTATEMENT 219-2 D DOES NOT APPLY FOR A COUPLE REASONS. 129 00:13:32.028 --> 00:13:39.133 FIRST, AS HAS BEEN DISCUSSED BEFORE 219-2 D WHICH IS PART OF THE RESTATEMENT 130 00:13:39.133 --> 00:13:46.552 SECOND HAS NOT BEEN ADOPTED AN THAT WAS FROM THE 1950s RESTATEMENT. RESTATEMENT THIRD 131 00:13:46.552 --> 00:13:56.051 WAS IN 2006 OF AGENCY HAS COMPLETELY ABOLISHED IT AND SAID AIDED BY AGENCY DOES NOT APPLY 132 00:13:56.051 --> 00:14:01.083 AND THAT HAS BEEN CARRIED FORWARD UNDER THE RESTATEMENT OF TORTS, WHICH IS A MORE RECENT 133 00:14:01.083 --> 00:14:12.800 RESTATEMENT THAT, AGAIN, DOES NOT ACKNOWLEDGE THE 2192 D AIDED BY AGENCY CONCEPT. 134 00:14:12.800 --> 00:14:17.804 FURTHERMORE, WHAT I THINK WE NEED TO REALIZE IS IN THE CONTEXT OF A PUBLIC ENTITY, IT IS 135 00:14:17.804 --> 00:14:22.898 THE STATUTORY LANGUAGE OF THE TORT CLAIMS ACT THAT EXISTS AND THAT'S CONTROLLING SO WHEN 136 00:14:22.898 --> 00:14:35.429 YOU LOOK AT 219--- EXCUSE ME, 2192 D, THAT PROVISION SPECIFICALLY REFLECTS THAT THE 137 00:14:35.429 --> 00:14:41.533 BEHAVIOR THAT IT IS ATTRIBUTING ANY TYPE OF LIABILITY TO AN EMPLOYER IS FOR CONDUCT THAT 138 00:14:41.533 --> 00:14:48.134 IS ALREADY OUTSIDE THE SCOPE OF EMPLOYMENT. SO, THAT, ALONE, MAKES IT INAPPLICABLE 139 00:14:48.134 --> 00:14:53.603 TO A PUBLIC ENTITY. GOING ON FURTHER WITH HARDWICKE, I DON'T THINK HARDWICKE 140 00:14:53.603 --> 00:15:02.009 WHEN I READ IT SAYS THAT 2192 D AIDED BY AGENCY APPLIES TO EVERY SINGLE SCENARIO WHERE 141 00:15:02.009 --> 00:15:10.073 THERE IS SEXUAL ABUSE. I THINK THAT WAS A VERY SPECIFIC FACTUAL SCENARIO, THAT EXTREMELY 142 00:15:10.073 --> 00:15:15.938 RARE CIRCUMSTANCES, I WOULD HOPE, THAT YOU HAD A SITUATION WHERE THE SEXUAL ABUSER AS 143 00:15:15.938 --> 00:15:27.686 JUSTICE PATTERSON AND JUSTICE WAINER APTER HAD POINTED OUT EARLIER, HE WAS THE ALTER EGO 144 00:15:27.686 --> 00:15:32.745 OF THE SCHOOL HE WAS IN CHARGE OF HIRING, FIRING, ADMISSION OF THE STUDENTS. IT WAS A 145 00:15:32.745 --> 00:15:38.016 BOARDING SCHOOL. HE LIVED IN THE SAME HOUSING WITH THE STUDENTS. HE WAS PRESENT 24/7 146 00:15:38.016 --> 00:15:45.413 AND HE WAS SEXUALLY ABUSING MULTIPLE STUDENTS ON A DAILY BASIS. THERE WERE 147 00:15:45.413 --> 00:15:52.281 OTHER INDIVIDUALS, HIS FRIENDS WHO ENGAGED IN THIS BEHAVIOR, IT WAS REPORTED TO THEIR 148 00:15:52.281 --> 00:15:58.562 BOARD AND THEY SAID WE WILL JUST KEEP HIM ON BECAUSE THE FINANCIAL STABILITY OF THE SKIEL 149 00:15:58.562 --> 00:16:04.943 DEPENDS UPON THE MUSICAL COMPETITION FOR LACK OF A BETTER WORD GOING FORWARD. SO 150 00:16:04.943 --> 00:16:11.379 THERE WERE SO MANY FACTORS AN SITUATIONS IN HARDWICKE SO WHEN THEY SAID IN THAT SCENARIO 151 00:16:11.379 --> 00:16:20.850 HERE, 2192 D CAN SERVE THE PURPOSE BECAUSE IN THAT SITUATION, THE ENTITY WAS IN THE PLACE 152 00:16:20.850 --> 00:16:27.785 TO BE ABUSED BECAUSE THAT ENTITY WAS ESSENTIALLY THE ABUSER SO THERE IS A VERY, VERY 153 00:16:27.785 --> 00:16:33.620 DISTINGUISHING FACTORS AND I HAVEN'T SEEN A CASE WHERE HARDWICKE WAS APPLIED OUTSIDE OF 154 00:16:33.620 --> 00:16:41.431 THOSE SPECIFIC FACTS FOR ANY TYPE OF VICARIOUS LIABILITY ON AN EMPLOYER; AND, ALSO, AS 155 00:16:41.431 --> 00:16:47.623 POINTED IDENTITY EARLIER IT EXTENSIVELY DEALT WITH THE CHILD SEXUAL ABUSE ACT. 156 00:16:47.623 --> 00:16:52.266 JUSTICE PATTERSON: WHAT DO WE MAKE OF THE LEGISLATIVE HISTORY OF THE 2019 AMENDMENTS 157 00:16:52.266 --> 00:16:57.679 THAT E STANDARDS APPLIED TO NONPROPHET ORGANIZATIONS ABANDON THEIR OEFRGS, EMPLOYERS 158 00:16:57.679 --> 00:17:03.008 AN OTHER AGENTS BASED ON EXCEPTIONS TO THE I'M MIENT UNDERSTAND THE CHARITABLE IMMUNITY 159 00:17:03.008 --> 00:17:06.845 ACT. CHERYLEE O. MELCHER: THAT'S EXACTLY WHAT HAPPENED HERE. AS 160 00:17:06.845 --> 00:17:16.824 I DESCRIBED EARLIER THE ASSEMBLY SAID THEY ACHIEVED THE GOAL BY STRIPPING BOTH THE TORT 161 00:17:16.824 --> 00:17:22.989 CLAIMS ACT AND THE PUBLIC ENTITIES OF THEIR IMMUNITIES SET FORTH IN THEIR STATUTORY 162 00:17:22.989 --> 00:17:26.917 PROVISIONS. SO, NOW BOTH OF THEM BECAUSE THE GENERAL RULE FOR VICARIOUS 163 00:17:26.917 --> 00:17:34.732 LIABILITY, RESPOND, YOU ARE ONLY VICARIOUS LIABILITY FOR EMPLOYEE CONDUCT THAT OCCURS 164 00:17:34.732 --> 00:17:39.835 WITHIN THE SCOPE OF MROIM SO SIMPLY BECAUSE THE TORT CLAIMS ACT SPELLS THAT OUT DOES NOT 165 00:17:39.835 --> 00:17:46.336 NEGATE THE FACT THAT CHARITABLE ORGANIZATIONS ARE EQUALLY SUBJECT TO THE SAME EXACT STANDARD. 166 00:17:46.336 --> 00:17:52.765 NOBODY HAS BEEN PUT ON A PEDESTAL. NOBODY HAS TAKEN ANY RIGHTS AWAY FROM 167 00:17:52.765 --> 00:17:59.317 ANYBODY ELSE. WE'RE SIMPLY GOING BACK TO HOW IT HAS ALWAYS BEEN THAT CHARITABLE 168 00:17:59.317 --> 00:18:04.146 ORGANIZATIONS, THEY NOW CAN'T RELY ON THOSE IMMUNITIES AN PUBLIC ENTITIES CANNOT RELY 169 00:18:04.146 --> 00:18:10.405 UPON THE IMMUNITIES FOR LCHL, WANT TON AN GROSS AND NEGLIGENT CONDUCT, YOU STILL HAVE TO 170 00:18:10.405 --> 00:18:16.640 HAVE WITHIN THE SCOPE OF EMPLOYMENT ACTIVITY TO OCCUR BEFORE THERE CAN BE VICARIOUS LIABILITY 171 00:18:16.640 --> 00:18:23.304 ON AN EMPLOYER FOR AN EMPLOYEE'S MISCONDUCT. I THINK THE PURPOSE OF THAT IS SET FORTH 172 00:18:23.304 --> 00:18:34.339 SPECIFICALLY WITHIN THE FACT THAT THE ENTIRE STANDARD FOR RESPONDENT P D R IS THAT THE 173 00:18:34.339 --> 00:18:39.992 EMPLOYER IS GAINING A BENEFIT FROM THE EMPLOYEE WHO PERFORMS ACTS AN THOSE ACTS HAPPEN 174 00:18:39.992 --> 00:18:45.914 TO CAUSE INJURY ON A THIRD PARTY; THAT'S WHY THERE IS VICARIOUS LIABILITY. IT IS NOT 175 00:18:45.914 --> 00:18:50.873 BECAUSE SOMEBODY IS GOING ROGUE, INTENTIONALLY COMMITTING DRIEMS. THE COURTS 176 00:18:50.873 --> 00:18:56.317 HAVE BEEN VERY CONSISTENT THAT INTENTION ACTS, CRIMES, ARE NOT SOMETHING THAT SHOULD BE 177 00:18:56.317 --> 00:19:03.959 SUBJECT TO VICARIOUS LIABILITY AND WITHIN THE SCOPE OF THE EMPLOYMENT AS NOTED BY DAVIS. 178 00:19:03.959 --> 00:19:08.845 JUSTICE PATTERSON: BUT IN HARDWICKE, THERE WAS AN ARGUMENT THAT THERE 179 00:19:08.845 --> 00:19:12.915 COULD NOT BE ANY VICARIOUS LIABILITY FOR ACTS THAT ARE OUTSIDE THE SCOPE OF EMPLOYMENT 180 00:19:12.915 --> 00:19:24.684 AND THE COURT CITED LAYMAN AS AN EXAMPLE UNDER THE LAD FOR THE IMPOSITION OF LIABILITY 181 00:19:24.684 --> 00:19:30.623 FOR ACTS THAT ARE NOT PART OF THE SCOPE OF EMPLOYMENT SUCH AS SEXUAL ACTS, RIGHT? 182 00:19:30.623 --> 00:19:34.315 CHERYLEE O. MELCHER: CORRECT AND I THINK THAT'S VERY SUCCINCT WHEN YOU ARE DEALING 183 00:19:34.315 --> 00:19:41.929 WITH A LAD STATUTE, THE SEEP PA, THE SEXUAL ABUSE ACT KS. NOW WE'RE DEALING WITH COMMON 184 00:19:41.929 --> 00:19:45.765 LAW, COMMON LAW VICARIOUS LIABILITY. JUSTICE PATTERSON: BUT THE HARDWICKE 185 00:19:45.765 --> 00:19:50.762 CLAIM WAS A COMMON LAW CLAIM, WAS IT IS NOT? CHERYLEE O. MELCHER: THAT WAS 186 00:19:50.762 --> 00:19:56.585 TOWARD THE END OF THE OPINION AND I AGREE THAT THEY DID APPLY 2192 D IN THAT PARTICULAR 187 00:19:56.585 --> 00:20:04.470 SITUATION AND I THINK IT WAS SOMETHING THAT OCCURRED THERE BECAUSE OF THE FACT FACTS 188 00:20:04.470 --> 00:20:09.913 OF THAT CASE, BECAUSE THEY WERE THE ALTER EGO BECAUSE STUDENTS WERE INTERVIEWED IN THAT 189 00:20:09.913 --> 00:20:15.871 CASE HAD REPORTED, WE THOUGHT HE WAS IN CONTROL OF THE SCHOOL. JUSTICE 190 00:20:15.871 --> 00:20:22.799 PATTERSON: TAKE A LITTLE BIT MORE OF A 30,000 BLANK VIEW OF IT. CHERYLEE O. 191 00:20:22.799 --> 00:20:25.905 MELCHER: ABSOLUTELY. JUSTICE PATTERSON: WE'RE BEING TOLD BY THE 192 00:20:25.905 --> 00:20:30.125 LEGISLATURE THAT THE LIABILITY OF A CHARITABLE ORGANIZATION AND THE LIABILITY OF A PUBLIC 193 00:20:30.125 --> 00:20:38.243 ENTITY IN CIRCUMSTANCES INVOLVING CHILD SEXUAL ABUSE SHOULD BE EQUIVALENT, NENS IN ESSENCE. 194 00:20:38.243 --> 00:20:43.869 AND WHAT DOES THAT MEAN? I THINK IT MAY BE A BIT OF AN OVER 195 00:20:43.869 --> 00:20:50.259 SIMPKINS MRIF IF I CAN INDICATION THAT IF THERE IS A LAD CLAIM THESE ARE THE RULES THAT 196 00:20:50.259 --> 00:20:58.428 APPLY. HARDWICKE DID SUGGEST THAT THE LAD STANDARD APPLIED TO WHAT IN HARDWICKE 197 00:20:58.428 --> 00:21:03.292 WAS A VIABLE CLAIM AM I CORRECT ABOUT THAT. CHERYLEE O. MELCHER: YOU ARE 198 00:21:03.292 --> 00:21:07.474 CORRECT AN LOOKING AT WHAT THE LEGISLATURE WAS AWARE OF AND KNEW AND OBVIOUSLY THEY WERE 199 00:21:07.474 --> 00:21:12.976 AWARE OF HARDWICKE BECAUSE THEY SPECIFICALLY AMENDED THE CHILD SEXUAL ABUSE ACT BECAUSE 200 00:21:12.976 --> 00:21:19.582 THEY WAFRNTD TO EX WANTED TO EXPOSE THE PUBLIC ENTITIES AN PUBLIC SCHOOLS TO GREATER 201 00:21:19.582 --> 00:21:25.840 LIABILITY BY THE MOVE WITHIN THE HOUSEHOLD PROVISION ON A PROSPECTIVE BASIS ONLY. 202 00:21:25.840 --> 00:21:32.366 THE FACT IS, THE LEGISLATIVE LANGUAGE THAT HAS BEEN ENACTED AS WELL AS THE COMMITTEE 203 00:21:32.366 --> 00:21:37.327 STATEMENT AN ASSEMBLY STATEMENT DOES NOT MENTION VICARIOUS LIABILITY. IT WAS LOOKING 204 00:21:37.327 --> 00:21:44.076 AT DIRECT LIABILITY. IT DOESN'T MAKE ANY CHANGES OR MENTION, I SHOULD SAY 205 00:21:44.076 --> 00:21:52.535 TO HARDWICKE AND HOW IT APPLIED AGENCY BY AGENCY TO THE COMMON LAW CLAIM. I 206 00:21:52.535 --> 00:21:57.968 THINK THAT IS TELLING. I THINK THE FACT IS THEY RECOGNIZE THAT WAS A VERY UNIQUE SITUATION 207 00:21:57.968 --> 00:22:02.386 AND THAT WASN'T SOMETHING THAT THEY WANTED TO IMPOSE. THERE IS NOTHING WITHIN THE LANGUAGE 208 00:22:02.386 --> 00:22:09.131 OF THE STATUTE OR THE HISTORY OF THE LEGISLATION TO INDICATE THAT THEY WANTED THE THAT. 209 00:22:09.131 --> 00:22:14.538 JUSTICE MICHAEL NORIEGA: WHY DIDN'T THE LANGUAGE IN A1, PUBLIC ENTITY OR 210 00:22:14.538 --> 00:22:22.972 PUBLIC EMPLOYEE ALLOW US TO READ IN VICARIOUS LIABILITY? BECAUSE UNDER WHAT 211 00:22:22.972 --> 00:22:28.438 CIRCUMSTANCES IS A PUBLIC ENTITY GOING TO ACT IN A WILLFUL, WANT TON OR GROSSLY NEGLIGENT 212 00:22:28.438 --> 00:22:35.760 ACT. CHERYLEE O. MELCHER: FOR EXAMPLE, LET'S SAY A PUBLIC ENTITY IS 213 00:22:35.760 --> 00:22:42.275 SUPPOSED TO PROVIDE SECURITY PURPOSES AND IT KNOWS IT'S SUPPOSED TO HAVE SECURITY FOR EVEN 214 00:22:42.275 --> 00:22:49.796 AN OUTSIDE VENDOR, LET'S SAY IT'S NOT EVEN FOR THEIR SCHOOL, THEIR STUDENTS, AND THEY 215 00:22:49.796 --> 00:22:55.990 MAKE A PURPOSEFUL SITUATION TO SAY THAT'S TOO EXPENSIVE, WE'RE NOT GOING TO DO THAT AND 216 00:22:55.990 --> 00:23:02.703 BECAUSE OF THAT WILLFUL DECISION, SEXUAL ABUSE NOW OCCURS ON THAT PREMISE; THAT'S A 217 00:23:02.703 --> 00:23:09.128 SITUATION WHERE A PUBLIC ENTITY COULD POTENTIALLY ACT IN A WILLFUL, WANT TON -- 218 00:23:09.128 --> 00:23:12.660 JUSTICE MICHAEL NORIEGA: BUT THEY ARE STILL BEING HELD RESPONSIBLE FOR THE ACTS OF THE 219 00:23:12.660 --> 00:23:15.249 PUBLIC EMPLOYEE. CHERYLEE O. MELCHER: CORRECT. JUSTICE 220 00:23:15.249 --> 00:23:18.686 MICHAEL NORIEGA: WOULDN'T THAT BE VICARIOUS LIABILITY? CHERYLEE O. MELCHER: 221 00:23:18.686 --> 00:23:24.252 AS LONG AS IT WAS WITHIN THE SCOPE OF THEIR EMPLOYMENT. JUSTICE MICHAEL 222 00:23:24.252 --> 00:23:32.365 NORIEGA: NOW YOU'RE LOOKING AT 2-2. WHAT IN 1.3 A1 TELLS US TO GO TO 2-2. 223 00:23:32.365 --> 00:23:36.007 CHERYLEE O. MELCHER: YOU HAVE TO LOOK AT THE ENTIRE TORT CLAIMS ACT. JUSTICE 224 00:23:36.007 --> 00:23:39.850 MICHAEL NORIEGA: I AGREE WITH YOU, EXCEPT THE FIRST LINE SAYS NOT WITH STANDING ANY 225 00:23:39.850 --> 00:23:42.855 PROVISION OF THE NEW JERSEY TORT CLAIMS ACT TO THE CONTRARY. CHERYLEE O. MELCHER: 226 00:23:42.855 --> 00:23:46.278 CORRECT. JUSTICE MICHAEL NORIEGA: IT SEEMS LIKE YOU'RE SUGGESTING THERE IS 227 00:23:46.278 --> 00:23:53.231 SORT OF AN EXCEPTION TO THAT STRIPPING OF THE IMMUNITY PROVISION THAT EXISTS IN 2-2. 228 00:23:53.231 --> 00:23:56.606 CHERYLEE O. MELCHER: 2-2 IS NOT AN IMMUNITY PROVISION. JUSTICE 229 00:23:56.606 --> 00:23:59.599 MICHAEL NORIEGA: IT'S A LIMITING PRINCIPLE. CHERYLEE O. MELCHER: RIGHT. 230 00:23:59.599 --> 00:24:06.198 EXACTLY. SO THAT'S WHY, YOU KNOW, WHEN YOU LOOK AT 1-2, ENTITIES CAN ONLY BE LIABLE FOR 231 00:24:06.198 --> 00:24:11.890 NEGLIGENCE WITHIN THE LIMITATIONS OF THE ACT. AND 2-1 A IS ACCEPTED OTHERWISE 232 00:24:11.890 --> 00:24:19.314 PROVIDED BY THE ACT. SO THOSE ARE THE PROVISIONS THAT DIRECT YOU TO LOOK AT 233 00:24:19.314 --> 00:24:24.169 OTHER PARTS OF THE TORT CLAIMS ACT AND WHEN YOU'RE LOOKING FOR VICARIOUS LIABILITY, 2-2 234 00:24:24.169 --> 00:24:30.841 A IS THE ONLY PROVISION THAT SPECIFICALLY DEALS WITH WHEN THE PUBLIC ENTITY CAN BE 235 00:24:30.841 --> 00:24:38.484 RESPONSIBLE FOR A PUBLIC EMPLOYEE'S ACTS OR OMISSIONS. JUSTICE PIERRE-LOUIS: 236 00:24:38.484 --> 00:24:43.017 WHAT IS YOUR INTERPRETATION OF WHAT THE LEGISLATURE MEANT BY THAT INTRODUCTORY CLAUSE 237 00:24:43.017 --> 00:24:49.031 NOTWITHSTANDING ANY BLANK TO THE CONTRARY? WHAT DOES THAT MEAN? YOU 238 00:24:49.031 --> 00:24:53.952 JUST RESPONDED TO JUSTICE NORIEGA'S QUESTION WITH REGARD TO 2-2 YOU HAVE TO LOOK TO 2-2, 239 00:24:53.952 --> 00:25:00.591 THAT'S NOT AN IMMUNITY PROVISION, THERE IS NOTHING IN 1.3 THAT SAYS NOTWITHSTANDING ANY 240 00:25:00.591 --> 00:25:07.327 OTHER IMMUNITY PROVISIONS OR I'M PRUDENT PROVISION JUST SAYS NOTWITHSTANDING ANY 241 00:25:07.327 --> 00:25:16.295 PROVISION TO THE TK A TO THE TCA TO THE KRAR CONTRARY. WHAT IS YOUR 242 00:25:16.295 --> 00:25:21.777 INTERPRETATION OF THIS INTRODUCTORY CLAUSE? WHAT DOES IT MEAN? 243 00:25:21.777 --> 00:25:26.079 CHERYLEE O. MELCHER: IT MEANS THAT IF THERE IS A PROVISION OF THE TORT CLAIMS ACT THAT IS 244 00:25:26.079 --> 00:25:30.685 CONTRARY TO IMMUNITY. JUSTICE PIERRE-LOUIS: WHERE DOES IT SAY IMMUNITY? 245 00:25:30.685 --> 00:25:37.238 IT SAYS NOTWITHSTANDING ANY PROVISION OF THE TCA TO THE CONTRARY. IT 246 00:25:37.238 --> 00:25:41.749 DOES NOT SAY ANY IMMUNITY PROVISION? CHERYLEE O. MELCHER: BUT YOU HAVE IMMUNITY 247 00:25:41.749 --> 00:25:47.529 IN SUBSECTIONS ONE AND SUBSECTIONS 2 SO I DON'T THINK THEY CAN BE READ IN A VACUUM, THE 248 00:25:47.529 --> 00:25:52.991 PROVISION OF NOTWITHSTANDING ANY PROVISION TO THE TCA LEAVES IT OPEN THAT THERE COULD 249 00:25:52.991 --> 00:25:59.351 BE IMMUNITIES AVAILABLE IN COMMON LAW, IN ANY OTHER AVENUE THAT MAY EXIST FOR A PUBLIC 250 00:25:59.351 --> 00:26:06.597 ENTITY THAT THEY COULD RELY ON. JUSTICE WAINER APTER: WHAT ABOUT 59:2-10, 251 00:26:06.597 --> 00:26:16.162 CLOP READ IT. THAT READS LIKE AN IMMUNITY BECAUSE IT IS SAYING THEY ARE NOT LIABILITY. 252 00:26:16.162 --> 00:26:18.225 CHERYLEE O. MELCHER: EXACTLY. JUSTICE WAINER APTER: SO A1 253 00:26:18.225 --> 00:26:23.241 WOULD EX STRESSLY DISABLE 2-10. CHERYLEE O. MELCHER: CORRECT; THAT'S EXACTLY 254 00:26:23.241 --> 00:26:30.561 WHAT IT DOES. JUSTICE FASCIALE: YOU TALKED A LITTLE BIT GUARDRAILS AND 255 00:26:30.561 --> 00:26:35.594 HOW IT WOULD ELIMINATE THE POTENTIAL FOR STRICT LIABILITY. ASSUMING THERE IS 256 00:26:35.594 --> 00:26:42.436 SUCH A THING AS A VICARIOUS LIABILITY CLAIM THAT IS VIABLE, CAN YOU THINK OF APPROPRIATE 257 00:26:42.436 --> 00:26:48.887 GUARDRAILS THAT SHOULD BE IMPOSED? ESPECIALLY IN THE CONTEXT OF RISK MANAGEMENT 258 00:26:48.887 --> 00:26:52.693 FOR THE DISTRICT? CHERYLEE O. MELCHER: THAT IS A HUGE CONCERN, FOR 259 00:26:52.693 --> 00:26:57.094 CERTAIN, ESPECIALLY WHEN YOU'RE DEALING WITH STATUTES THAT ALLOW CLAIMS TO GO BACK INTO 260 00:26:57.094 --> 00:27:05.516 THE '70S AND THE PARTICULAR CLAIM I AM DEALING WITH IS OVER 40 YEARS OLD WHEN THIS ALLEGED 261 00:27:05.516 --> 00:27:09.679 ABUSE OCCURRED. WITH RESPECT TO PUBLIC ENTITIES THE GUARDRAILS ARE ESSENTIAL 262 00:27:09.679 --> 00:27:14.035 LY THE STATUTORY LANGUAGE OF THE TORT CLAIMS ACT THAT IT HAS TO BE WITHIN THE SCOPE OF 263 00:27:14.035 --> 00:27:19.617 THE EMPLOYMENT. I DON'T THINK THE LEGISLATURE INTENDED TO CREATE A NEW CAUSE OF 264 00:27:19.617 --> 00:27:25.733 ACTION, TO CREATE SOME SPECIAL ACTION THAT WOULD APPLY TO JUST CHILD SEXUAL ABUSE EVENTS 265 00:27:25.733 --> 00:27:31.548 WITH RESPECT TO COMMON LAW VICARIOUS LIABILITY. I DON'T SEE THAT ANYWHERE 266 00:27:31.548 --> 00:27:35.965 IN THE STATUTE OF THE LEGISLATIVE HISTORY. THE PURPOSE OF THE 2019 AMENDMENTS 267 00:27:35.965 --> 00:27:41.996 WAS TO EXPAND THE ABILITY FOR SEXUAL ABUSE VICTIMS, ADULTS AND CHILDREN TO HAVE ACCESS 268 00:27:41.996 --> 00:27:51.861 TO THE COURTS, WHICH, IS THAT EXTENDED STATUTE OF LIMITATIONS AND IT ALSO IN THEIR KEEPING 269 00:27:51.861 --> 00:27:56.282 THIS GOAL HAD ALLOWED BY REMOVING THE NOTICE OF CLAIMS REQUIREMENTS OF THE TORT CLAIMS 270 00:27:56.282 --> 00:28:01.237 ACT ALLOWED ADDITIONAL CLAMGS TO BE BROUGHT AGAINST PUBLIC ENTITIES AS WELL AS THE FACT 271 00:28:01.237 --> 00:28:06.828 THAT THEY STRIPPED THESE IMMUNITIES DUE TO THE CHILD IMMUNITY ACT AND THE TORT CLAIMS 272 00:28:06.828 --> 00:28:12.084 ACT SO THEY EXPANDED THAT ACCESS. I DON'T THINK IT'S APPROPRIATE TO MAKE A 273 00:28:12.084 --> 00:28:19.874 WHOLE SEPARATE STANDARD FOR VICARIOUS LIABILITY IN SEXUAL ABUSE CASES BECAUSE WE HAVE 274 00:28:19.874 --> 00:28:26.585 VARIOUS AVENUES FOR INDIVIDUALS WHO ARE VICTIMS OF SEXUAL ABUSE TO HAVE RECOURSE, LAD, 275 00:28:26.585 --> 00:28:34.615 SEEP PA, CHILD SEXUAL ABUSE ACT, DIRECT CLAIMS FOR NEGLIGENCE HIRING SUPERVISION AND 276 00:28:34.615 --> 00:28:41.824 RETENTION WITH RESPECT TO MINORS UNDERSTAND THE AGE OF 18. SO, I THINK IT WOULD 277 00:28:41.824 --> 00:28:47.650 BE A STRETCH AND REALLY UNNECESSARY TO CREATE SOME SPECIAL TYPE OF STANDARD OR GUARDRAILS, 278 00:28:47.650 --> 00:28:54.313 HAVE YOU, FOR ACTIONS THAT ARE OUTSIDE THE SCOPE OF EMPLOYMENT, PARTICULARLY WHEN THAT 279 00:28:54.313 --> 00:29:01.293 LANGUAGE ITSELF IS CONTRARY AND NOT TO THE LANGUAGE OF THE TORT CLAIMS ACT. 280 00:29:01.293 --> 00:29:06.965 YOU CAN'T IGNORE THAT LANGUAGE. THE LEGISLATURE DID NOT INTEND FOR US TO IGNORE THAT 281 00:29:06.965 --> 00:29:13.719 LANGUAGE. CHIEF JUSTICE RABNER: AS SCHOOL DISTRICTS FACING SUBSTANTIAL 282 00:29:13.719 --> 00:29:17.460 SETTLEMENTS AN JUDGMENTS SINCE THE 2019 AMENDMENT. CHERYLEE O. MELCHER: 283 00:29:17.460 --> 00:29:22.203 ABSOLUTELY. ABSOLUTELY AND THESE CASES ARE DIFFICULT TO DEFEND. THERE IS DIFFICULTY IN 284 00:29:22.203 --> 00:29:29.612 FINDING INSURANCE COVERAGE, ESPECIALLY WHEN YOU'RE DEALING WITH EXTREMELY OLD CLAIMS 285 00:29:29.612 --> 00:29:35.752 THE COVERAGE BACK THEN IS NOT WHAT THE COVERAGE IS NOW. YOU HAVE ISSUES WITH 286 00:29:35.752 --> 00:29:41.385 FADING MEMORIES. MOST OF THE TIME PEOPLE ARE DECEASED. THERE ARE NO DOCUMENTS AND THAT 287 00:29:41.385 --> 00:29:47.732 DOESN'T MEAN THEY DIDN'T EXIST AT SOME POINT IN TIME BUT TRYING TO DEFEND THESE CLAIMS 288 00:29:47.732 --> 00:29:53.950 IS VERY COMPLICATED WHEN YOU'RE GOING BACK 30, 40 YEARS AND PEOPLE JUST DON'T EXIST, THE 289 00:29:53.950 --> 00:30:00.871 FACTS DON'T EXIST ANYMORE SO TO GO A STEP FURTHER AND TO SAY THAT, YOU KNOW, A SCHOOL 290 00:30:00.871 --> 00:30:06.732 DISTRICT CAN BE VICARIOUS LIABILITY FOR THE SEXUAL ABUSE BY A TEACHER THAT OCCURRED OFF 291 00:30:06.732 --> 00:30:18.789 CAMPUS ONE TIME IN THE PERSON'S APARTMENT IS A STRETCH THAT WAS NOT INTENDED AT ALL BY 292 00:30:18.789 --> 00:30:22.551 THE LEGISLATURE TO OCCUR AN THAT WOULD BE EXTREMELY TO THE SCHOOL DISTRICT AND TO ANY 293 00:30:22.551 --> 00:30:28.769 PUBLIC ENTITY FOR THAT MATTER IN A FACTUAL SCENARIO LIKE THAT. JUSTICE 294 00:30:28.769 --> 00:30:33.700 HOFFMAN: THAT'S ONE FACT PATTERN. THERE IS A FACT PATTERN WHERE THAT SEXUAL 295 00:30:33.700 --> 00:30:39.015 ABUSE OCCURRED ON MULTIPLE OCCASIONS WITHIN THE CLASSROOM. THAT'S A DIFFERENT FACT PATTERN. 296 00:30:39.015 --> 00:30:47.733 IS YOUR POSITION STILL IN A SITUATION WHERE THAT OCCURRED IN MULTIPLE SITUATIONS 297 00:30:47.733 --> 00:30:52.130 IN THE CLASSROOM THAT STILL COULDN'T BE WITHIN THE SCOPE OF EMPLOYMENT. 298 00:30:52.130 --> 00:30:56.673 CHERYLEE O. MELCHER: I THINK IT WOULD COME DOWN TO A FACTUAL ISSUE. JUSTICE 299 00:30:56.673 --> 00:31:01.251 HOFFMAN: TELL ME HOW IT WOULD CHANGE? HOW WOULD THEY PLAY OFF EACH OTHER? 300 00:31:01.251 --> 00:31:04.716 CHERYLEE O. MELCHER: I THINK YOU WOULD HAVE TO LOOK AT THE DATA FACTORS 301 00:31:04.716 --> 00:31:09.493 TO SEE IF ANY OF THIS WOULD BE WITHIN THE SCOPE OF THE EMPLOYMENT. SO IS A 302 00:31:09.493 --> 00:31:15.374 RAPE EVER GOING TO BE WITHIN THE SCOPE OF EMPLOYMENT, NO, BUT WHEN WE LOOK AT THE 303 00:31:15.374 --> 00:31:21.595 STATUTE WE LOOK AT THE LANGUAGE THAT ALLOWS FOR, YOU KNOW, SEXUAL ASSAULT, CRIME OF A SEXUAL 304 00:31:21.595 --> 00:31:30.268 NATURE, A PROHIBITED SEXUAL ACT OF DEFINED UNDER THE CHILD SEXUAL ABUSE ACT. 305 00:31:30.268 --> 00:31:34.858 JUSTICE PATTERSON: HOW COULD ANY OF THAT EVER BE WITHIN A TEACHER'S SCOPE OF EMPLOYMENT? 306 00:31:34.858 --> 00:31:40.406 SCOPE OF EMPLOYMENT, THE CONCEPT IS WE HIRE YOU TO DO CERTAIN THINGS AND 307 00:31:40.406 --> 00:31:47.382 THE QUESTION IS KWL WHATEVER OCCURRED, WHETHER IT'S AN INJURY IN THE CLASSROOM OR ON THE 308 00:31:47.382 --> 00:31:52.803 BALL FIELD OR WHATEVER IT MIGHT BE, DID THAT HAPPEN WITHIN YOUR SCOPE OF EMPLOYMENT, BUT 309 00:31:52.803 --> 00:32:02.038 HOW COULD SEXUAL ABUSE OF A CHILD TOO YOUNG TO CONSENT OR AFTER AN ADULT FOR THAT MATTER 310 00:32:02.038 --> 00:32:08.537 EVER BE WITHIN THE SCOPE OF EMPLOYMENT? I THINK THE ANSWER IT NEVER WOULD 311 00:32:08.537 --> 00:32:12.802 BE, RIGHT? CHERYLEE O. MELCHER: I THINK IT IS VERY LIKELY. I THINK THERE 312 00:32:12.802 --> 00:32:16.713 COULD BE RARE CIRCUMSTANCES THAT ARGUMENTS COULD BE MADE. FOR EXAMPLE, WHEN 313 00:32:16.713 --> 00:32:22.483 YOU LOOK AT THE DEFINITION OF A CRIME OF A SEXUAL NATURE, THERE COULD BE JUST A TOUCHING 314 00:32:22.483 --> 00:32:29.470 OF AN INNER THIGH AND, AGAIN, OBVIOUSLY HOW TEACHERS AN SCHOOLS OPERATE IN 2025 IS 315 00:32:29.470 --> 00:32:36.533 DRASTIC KALLY DIFFERENT FROM WHAT WAS TAKING PLACE BACK IN THE 70S AND 80S, TEACHERS WERE 316 00:32:36.533 --> 00:32:42.727 MUCH MORE FRIENDLY BACK THEN. THEY HAD MUCH MORE LEEWAY OF HAVING PHYSICAL CONTACT WITH 317 00:32:42.727 --> 00:32:48.060 STUDENTS. APPROPRIATE OR NOT. THESE THINGS WERE OCCURRING AND IF THERE IS A SITUATION, 318 00:32:48.060 --> 00:32:55.083 FOR EXAMPLE, WHERE A STUDENT SITS ON A TEACHER'S LAP, THAT'S WHAT THEY DO, THAT'S HOW 319 00:32:55.083 --> 00:33:01.524 HE IS TEACHING HER HOW TO LEARN A PROBLEM, SHOWING HER THE MATHEMATICS OR READING 320 00:33:01.524 --> 00:33:06.509 WHATEVER IT MAY BE AND DURING THE COURSE OF THAT, WHETHER HE DID IT INTENTIONALLY HE TOUCH 321 00:33:06.509 --> 00:33:12.315 ES HER INNER THIGH -- JUSTICE WAINER APTER: FOR EXAMPLE, SECTION IS 1 THAT 322 00:33:12.315 --> 00:33:19.707 YOUR 11 THAT YOUR ADVERSARY BROUGHT TO THE COURT THAT I THINK YOU RECEIVED A COPY OF TALKS 323 00:33:19.707 --> 00:33:25.449 ABOUT THE SEXUAL CONDUCT OCCURRING WHEN THE EMPLOYEE IS PERFORMING WORK ASSIGNED BY THE 324 00:33:25.449 --> 00:33:30.773 EMPLOYER SO FOR EXAMPLE, IN JUSTICE HOF MAN'S HYPOTHETICAL WHERE A TEACHER IS ALLEGED 325 00:33:30.773 --> 00:33:37.269 IN THIS CASE, IN THE SOUTH ORANGE SPECIFICS IS COMMITTING SEXUAL ABUSE IN THE CLASSROOM 326 00:33:37.269 --> 00:33:43.322 DURING THE SCHOOL DAY BY PURPOSELY USING HER AUTHORITY AS A TEACHER TO REMOVE OTHER 327 00:33:43.322 --> 00:33:48.146 STUDENTS, GET THE PERSON OUT OF BEING LATE TO OTHER CLASSES, CHANGE THE PERSON'S GRADES, 328 00:33:48.146 --> 00:33:55.407 ETC., WHY WOULD THAT NOT BE THE EMPLOYEE IS PERFORMING -- THE SEXUAL ASSAULT OCCURS WHEN 329 00:33:55.407 --> 00:34:00.432 THE EMPLOYEE IS PERFORMING WORK ASSIGNED BY THE EMPLOYER AND WHY WOULD THAT NOT BE ENOUGH 330 00:34:00.432 --> 00:34:04.698 TO BE WITHIN THE SCOPE OF HER EMPLOYMENT IN CERTAIN CASES. CHERYLEE O. 331 00:34:04.698 --> 00:34:09.799 MELCHER: THAT I THINK CHANGES THE DYNAMIC OF WHAT IS EMBODIED WITHIN OUR GENERAL KNOWLEDGE 332 00:34:09.799 --> 00:34:15.375 OF, OR UNDERSTANDING WITHIN THE SCOPE OF EMPLOYMENT. IF THAT STANDARD IS CHANGED 333 00:34:15.375 --> 00:34:21.058 UNDER THE COMMON LAW AND THIS NEW RESTATEMENT OF TORTS COMES INTO PLAY, IS IT POSSIBLE 334 00:34:21.058 --> 00:34:29.828 THAT A SCENARIO COULD OCCUR, THAT IT WOULD FALL WITHIN THAT SCOPE, APPLYING THAT SECTION 335 00:34:29.828 --> 00:34:37.725 IS 11 FROM THE TORTS, I GUESS IT'S POSSIBLE SO LONG AS WE FOLLOW THE DICTATES OF THE TORT 336 00:34:37.725 --> 00:34:42.910 CLAIMS ACT THAT IT IS WITHIN THE SCOPE OF EMPLOYMENT AND THEN HOW THAT IS DEFINED IS A 337 00:34:42.910 --> 00:34:48.861 DIFFERENT MANNER. JUSTICE HOFFMAN: I DON'T THINK JUSTICE WAINER APTER WAS 338 00:34:48.861 --> 00:34:54.772 TALKING ABOUT CHANGING THE SCENARIO I THINK SHE LAID OUT A FACTUAL SCENARIO AN YOU'RE 339 00:34:54.772 --> 00:34:58.867 SAYING IT HAS TO BE WITHIN THE SCOPE OF EMPLOYMENT AN ASKED ARE THOSE THINGS WITHIN 340 00:34:58.867 --> 00:35:01.777 THE SCOPE OF EMPLOYMENT. CHERYLEE O. MELCHER: I APOLOGIZE IF I MISUNDERSTOOD. 341 00:35:01.777 --> 00:35:07.158 I THOUGHT JUSTICE WAINER APTER WAS REFERRING TO THE NEW PROPOSAL FOR SEXUAL ABUSE FOR 342 00:35:07.158 --> 00:35:12.709 VICARIOUS LIABILITY WITHIN THE RESTATEMENT TORT. JUSTICE WAINER APTER: I 343 00:35:12.709 --> 00:35:18.933 DID READ THAT LANGUAGE BUT MY QUESTION WAS WHILE SOMEONE WHEN A SEXUAL ASSAULT OCCURS 344 00:35:18.933 --> 00:35:24.550 WHEN THE EMPLOYEE IS PERFORMING WORK ASSIGNED BY THE EMPLOYER AT THE EMPLOYER'S LOCATION 345 00:35:24.550 --> 00:35:30.729 BY USING THE TOOLS OF THAT PERSON'S WORK WHY CAN THAT NOT BE WITHIN THE SCOPE OF EMPLOYMENT? 346 00:35:30.729 --> 00:35:34.478 CHERYLEE O. MELCHER: I THINK THE BASIC ANSWER IS THAT YOU'RE NOT EMPLOYING 347 00:35:34.478 --> 00:35:39.687 THE PERSON TO COMMIT A SEXUAL ASSAULT; THAT'S NOT WHAT THEY ARE EMPLOYED TO DO SO THAT IS 348 00:35:39.687 --> 00:35:45.042 NOT TECHNICALLY THE SCOPE OF THEIR EMPLOYMENT. IS PART OF THEIR JOB TO BE 349 00:35:45.042 --> 00:35:52.822 IN THE CLASSROOM AND SUPERVISING STUDENTS, YES, BUT ABUSING STUDENTS IS NOT WITHIN THAT 350 00:35:52.822 --> 00:35:57.506 SCOPE. JUSTICE PATTERSON: DOES IT SEEM TOY THAT SECTION 1 REFLECTS THE 351 00:35:57.506 --> 00:36:03.762 A L I GETTING AWAY FROM THE CONCEPT OF OUTSIDE THE SCOPE OF HIS EMPLOYMENT AND USING 352 00:36:03.762 --> 00:36:10.867 THAT FOUR FACTOR TEST AS A MORE, PERHAPS, NUANCED DIVIDING LINE BETWEEN VICARIOUS LIABILITY 353 00:36:10.867 --> 00:36:14.435 AND NO VICARIOUS LIABILITY. CHERYLEE O. MELCHER: I THINK THAT THEY ARE 354 00:36:14.435 --> 00:36:22.338 TRYING TO PUT TOGETHER SOME TYPE OF A EE LIQUIDATE LIKE SITUATION OR FACTOR FOR THAT, YES, 355 00:36:22.338 --> 00:36:28.244 I DO. JUSTICE WAINER APTER: ONE OTHER QUESTION, I'M SORRY, NOOUG TO A 356 00:36:28.244 --> 00:36:34.285 DIFFERENT PIECE, YOUR ADVERSARY HAD ARGUED THAT UNDER A1, ONE OF THE MAIN GUARDRAILS IS 357 00:36:34.285 --> 00:36:40.015 THAT IT APPLIES ONLY TO CHILD SEXUAL ABUSE CASES AND THAT COMES DIRECTLY FROM HARDWICKE 358 00:36:40.015 --> 00:36:46.180 AND IT DOESN'T APPLY TO CASES WITH ADULTS AND YOU POIND OUT THAT A-1 ACTUALLY DOES APPLY 359 00:36:46.180 --> 00:36:52.435 TO ADULTS AND IT IS A 2 THAT APPLIES ONLY BEING COMMITTED AGAINST A MINOR UNDER THE AGE 360 00:36:52.435 --> 00:36:59.846 OF 18 WHEREAS A1 APPLIES TO ALL CASES OF A SEXUAL NATURE, PROHIBITED SEXUAL ACT, SEXUAL 361 00:36:59.846 --> 00:37:05.753 ABUSE, BEING COMMITTED AGAINST A PERSON. IT IS ONLY A 2 THAT SAYS BEING COMMITTED AGAINST 362 00:37:05.753 --> 00:37:11.779 A MINOR UNDER THE AGE OF 18 SO I WANTED TO JUST ASK WHERE DOES THIS PROPOSED LIMITATION 363 00:37:11.779 --> 00:37:19.023 THAT A1 ONLY APPLIES TO CHILDREN, SEXUAL ABUSE COMMITTED AGAINST CHILDREN, WAS THAT IN 364 00:37:19.023 --> 00:37:23.666 THE LEGISLATIVE HISTORY, DO YOU HAVE ANY IDEA WHERE THAT COMES FROM? CHERYLEE 365 00:37:23.666 --> 00:37:27.714 O. MELCHER: I HAVE NO IDEA. I DON'T THINK IT APPLIES JUST TO CHILDREN. I THINK THAT 366 00:37:27.714 --> 00:37:33.670 THE LEGISLATURE SPECIFICALLY INTENDED TO TAKE AWAY THAT IMMUNITY FOR SEXUAL ABUSE IN 367 00:37:33.670 --> 00:37:38.631 GENERAL WHETHER IT APPLIED TO A CHILD OR AN ADULT AN THE ONLY WAY THAT YOU CAN INDICATE 368 00:37:38.631 --> 00:37:46.338 IN HERE THAT APPLYING ONLY FOR CHILDREN IS IF YOU LOOK AT THE PROHIBITED SEXUAL -- OR 369 00:37:46.338 --> 00:37:52.945 SEXUAL ABUSE AS DEFINED IN SECTION C #109D, WHICH IS THE CHILD SEXUAL ABUSE ACT AS IT 370 00:37:52.945 --> 00:38:00.558 WAS DEFINED BACK IN THAT 1992 LAW WHICH HAPPENSTANCE STILL INCLUDES WITHIN THE 371 00:38:00.558 --> 00:38:03.722 HOUSEHOLD PROVISION. JUSTICE WAINER APTER: CAN YOU SAY THAT LAST PIECE ONE 372 00:38:03.722 --> 00:38:07.886 MORE TIME. CHERYLEE O. MELCHER: SURE. MY READING OF THAT IS 373 00:38:07.886 --> 00:38:13.958 THERE IS NOTHING IN THE LEGISLATURE THAT SAYS 1.3 A1 ONLY APPLIES TO CHILDREN. IT CLEARLY 374 00:38:13.958 --> 00:38:19.859 APPLIES TO ADULTS AN CHILDREN. THE ONLY THING WITHIN THE LANGUAGE OF SUBSECTION 1 WHERE 375 00:38:19.859 --> 00:38:26.616 YOU COULD PIECE OUT A PART THAT WOULD ONLY APPLY TO THE CHILDREN WOULD BE ONCE THE IMMUNITY 376 00:38:26.616 --> 00:38:36.220 IS STRIPPED OR THE DEFINITION OF OR SEXUAL ABUSE AS DEFINED IN SECTION 1 OF P L 1902 C 377 00:38:36.220 --> 00:38:42.368 109 REFERS TO THE CHILD SEXUAL ABUSE ACT AND THAT PARTICULAR DEFINITION THAT THEY SAY, 378 00:38:42.368 --> 00:38:51.852 1992 IS THE DEFINITION OF SEXUAL ABUSE AS IT IS DEFINED IN THE 1992 LAW, NOT THE 2019 379 00:38:51.852 --> 00:38:57.790 STANDARD SO THAT WOULD STILL INCLUDE THE WITHIN THE HOUSEHOLD PROVISION. JUSTICE 380 00:38:57.790 --> 00:39:05.238 WAINER APTER: THAT'S NEITHER HERE NOR THERE. ASSUMING THAT THE C I A THE CHARITABLE 381 00:39:05.238 --> 00:39:15.235 IMMUNITY ACT IN 2 A:53 A 7 THERE IS ALSO NOTHING IN THE FIRST PART THAT IS LIMITED TO 382 00:39:15.235 --> 00:39:22.039 CHILDREN, IT'S ONLY THE NEGLIGENT HIRING, SUPERVISION OR RETENTION THAT IS LIMITED TO 383 00:39:22.039 --> 00:39:27.246 CHILDREN, CORRECT SHTHS BUT THE WILLFUL, WANT TON OR GROSSLY NEGLIGENT APPLIES TO BOTH 384 00:39:27.246 --> 00:39:35.125 A CRIME AGAINST THE SEXUAL NATURE, WANT TON CLOP. CHERYLEE O. MELCHER: I BELIEVE 385 00:39:35.125 --> 00:39:39.664 THAT'S CORRECT. I DON'T HAVE THE STATUTE IN FRONT OF ME, BUT I TAKE YOUR WORD FOR IT. 386 00:39:39.664 --> 00:39:45.196 JUSTICE HOFFMAN: DO YOU SEE A SCOPE OF EMPLOYMENT RESTRICTION FOR CHARTS 387 00:39:45.196 --> 00:39:51.177 CHARITIES? CHERYLEE O. MELCHER: IT'S IN THE MONDAY LAW. IT IS THE GENERAL 388 00:39:51.177 --> 00:39:56.529 RULE TO HAVE VICARIOUS LIABILITY. IT IS GENERALLY FOR ACTS THAT OCCUR WITHIN THE 389 00:39:56.529 --> 00:40:01.273 SCOPE OF EMPLOYMENT SO YES, THEY DO. JUSTICE HOFFMAN: DO YOU MEAN THAT'S 390 00:40:01.273 --> 00:40:06.356 WHAT THE SUPREME COURT HELD IN HARDWICKE THAT THERE IS A SCOPE OF EMPLOYMENT RESTRICTION 391 00:40:06.356 --> 00:40:10.268 FOR A CHARITABLE ORGANIZATION? CHERYLEE O. MELCHER: I THINK THAT THEY 392 00:40:10.268 --> 00:40:16.663 RECOGNIZED THAT TYPICALLY YOU DEAL WITH ACTIVITY THAT IS WITHIN THE SCOPE OF EMPLOYMENT 393 00:40:16.663 --> 00:40:21.868 TO BE VICARIOUS LIABILITY, BUT THEY LOOKED AT THE SCENARIO AND THEN SAID IS THERE A WAY 394 00:40:21.868 --> 00:40:28.441 TO APPLY AN EXCEPTION HERE AND THAT'S WHY THEY LOOKED AT 2 #19D 2 D BASED UPON THE EXTREME 395 00:40:28.441 --> 00:40:34.909 EGREGIOUS FACTS OF NOT ONLY THE ABUSE BY THE ABUSER, BUT THE FACTS THAT EVERYBODY ELSE 396 00:40:34.909 --> 00:40:39.949 CLEARLY KNEW WHAT WAS GOING ON AND HIM HAVING SO MUCH CONTROL OVER THE SCHOOL THAT THEY 397 00:40:39.949 --> 00:40:46.696 WENT OUTSIDE AND SAID WELL, HOW CAN WE MAKE THE ENTITY LIABLE FOR SEXUAL ABUSE OUTSIDE 398 00:40:46.696 --> 00:40:56.156 THE SCOPE AND THAT'S WHY THEY RELIED ON 2192 D WHICH AT THAT TIME WAS WHAT WAS -- 399 00:40:56.156 --> 00:41:01.121 JUSTICE PATTERSON: THEY MAKE THE GENERAL COMMENT IN RESPONSE TO THE SCHOOL'S ARGUMENT 400 00:41:01.121 --> 00:41:07.300 THAT UNDER THE LAW OF AGENCY THERE CAN NOT BE LIABILITY OUTSIDE OF THE SCOPE OF EMPLOYMENT, 401 00:41:07.300 --> 00:41:19.023 OH, YES, THERE CAN, SEELY MAN, RIGHT SEE LAYMAN, THEY USELY MAN AS AN EXAMPLE OF WHERE, 402 00:41:19.023 --> 00:41:29.891 LEE MAN UNDERSTAND LEE MAN FOR UNDERSTAND LEE MAN FOR UNDER LEE MAN FOR LAD WERE MET. 403 00:41:29.891 --> 00:41:35.274 SO I THINK IF YOUR INTERPRETATION WERE CORRECT AS TO WHAT THE COURT WAS LOOKING 404 00:41:35.274 --> 00:41:43.806 AT HARDWICKE AND NONE OF US WERE HERE AT THE TIME, BUT, THE COURT WOULD HAVE SAID, IF 405 00:41:43.806 --> 00:41:52.861 YOU ARE CORRECT, OH, WELL, IS IT -- UNDER THE COMMON LAW THERE IS NO VICARIOUS LIABILITY 406 00:41:52.861 --> 00:42:02.887 OUTSIDE THE SCOPE OF EMPLOYMENT, BUT INSTEAD THEY SAID, OH, YES THERE IS, SEELY MAN. 407 00:42:02.887 --> 00:42:06.745 WHAT DO YOU MAKE OF THAT? CHERYLEE O. MELCHER: I MAKE OF IT 408 00:42:06.745 --> 00:42:15.335 THAT THEY LOOKED AT THE FACT THAT THEY PREMISED THELY MAN FACTORS ONTO 192 D BECAUSE THEY HAD 409 00:42:15.335 --> 00:42:21.707 UTILIZED THAT SO THEY SAID 2192 D IS WHAT CAN PROVIDE SOME AUTHORITY UNDER THE A COMMON 410 00:42:21.707 --> 00:42:28.784 LAW TO HAVE VICARIOUS LIABILITY FOR ACTIONS THAT OCCUR OUTSIDE THE SCOPE OF EMPLOYMENT 411 00:42:28.784 --> 00:42:35.736 AND LEHMANN AND I ADMIT THAT AT LEAST THE WAY I READ HARDWICKE IT DOESN'T SPECIFICALLY 412 00:42:35.736 --> 00:42:41.790 SAY THAT THEY WERE APPLYING THE APPARENT AUTHORITY OR JUST THE AGENCY BY AGENCY. IT'S 413 00:42:41.790 --> 00:42:49.375 VERY UNCLEAR AS TO WHAT THEY UTILIZED AND I WOULD THINK SUGGESTIVELY THAT THE FACTS LEAD 414 00:42:49.375 --> 00:42:54.593 CLOSER TO THE APPARENT AUTHORITY THAT WAS RELIED ON IN HARDWICKE BUT I THINK USING THE 415 00:42:54.593 --> 00:43:01.579 PREMISE OF 219 D IS WHY THEY LOOKED TO LEE MAN TO SAY HAS THIS OCCURRED IN OTHER SITUATIONS 416 00:43:01.579 --> 00:43:08.726 WHERE SOMEONE, A SUPERVISOR, WHICH HANS SON AND HARDWICKE WAS CERTAINLY THE SUPERVISOR 417 00:43:08.726 --> 00:43:21.621 OF THE SCHOOL WAS YOU CAN MAKE A LIABLE. JUSTICE PATTERSON: YOU'RE COLLEAGUE 418 00:43:21.621 --> 00:43:27.301 REPRESENTING THE ATTORNEY GENERAL'S OFFICE SUGGESTS WHAT THIS COURT SHOULD DO IS GRAFT 419 00:43:27.301 --> 00:43:35.038 ONTO THE LEHMANN STANDARD ONTO THE STANDARD HERE WITH ADJUSTMENTS BECAUSE OF THE DISTINCTIONS 420 00:43:35.038 --> 00:43:43.119 BETWEEN ADULTS AN CHILDREN AND THAT WAY LIMIT THE POTENTIAL LIABILITY OF PUBLIC ENTITIES 421 00:43:43.119 --> 00:43:49.266 FOR CHILD SEXUAL ABUSE. NOW, I KNOW FROM YOUR BRIEF YOU DON'T AGREE WITH THAT. 422 00:43:49.266 --> 00:43:54.747 WHY? CHERYLEE O. MELCHER: AGAIN, IT COMES DOWN TO THE 423 00:43:54.747 --> 00:43:59.941 STATUTORY LANGUAGE AND IT IS THE STATUTORY LANGUAGE IN THE TORT CLAIMS ACT THAT WE MUST 424 00:43:59.941 --> 00:44:04.303 FOLLOW AND THAT IS THAT THE ACTIONS HAVE TO BE WITHIN THE SCOPE OF THE EMPLOYMENT SO IF 425 00:44:04.303 --> 00:44:11.507 THOSE FACTORS ARE ALTERED, THAT'S ONE THING, IF THE COMMON LAW AND THE JUSTICES DECIDE 426 00:44:11.507 --> 00:44:16.843 THAT THE SCOPE OF EMPLOYMENT FACTORS CAN CHANGE, THAT'S SEPARATE AN APART FROM CREATING 427 00:44:16.843 --> 00:44:23.578 A WHOLE SEPARATE NUANCED STANDARD FOR CHILD SEXUAL ABUSE ESPECIALLY WHEN THE 2019 428 00:44:23.578 --> 00:44:30.513 AMENDMENT DID NOT APPLY TO JUST SEXUAL ABUSE, IT WAS SEXUAL ABUSE VICTIMS, IN GENERAL, 429 00:44:30.513 --> 00:44:37.837 AND I THINK THAT NEEDS TO BE TAKEN INTO ACCOUNT, THAT THERE WASN'T AN INTENT TO JUST PROTECT 430 00:44:37.837 --> 00:44:43.324 CHILDREN. THIS WAS FOR SEXUAL ABUSE VICTIMS IN GENERAL. SO TO NOW CREATE 431 00:44:43.324 --> 00:44:52.708 A STANDARD FOR CHILD ABUSE VICTIMS, WHICH IN AN OF ITSELF WOULD NOT PROTECT ALL STUDENTS 432 00:44:52.708 --> 00:44:57.321 THAT ARE ATTENDING PUBLIC, PRIVATE SCHOOLS IN GENERAL BECAUSE WHAT HAPPENS WHEN A STUDENT 433 00:44:57.321 --> 00:45:04.601 GOES OVER 18. NEW JERSEY SCHOOLS HAVE TO GIVE EDUCATION UP UNTIL LIKE 21, 434 00:45:04.601 --> 00:45:13.234 OFTEN WHEN THERE IS DISABILITIES SO IF THERE IS SOME NEW STANDARD THAT IS PROTECTIVE FOR 435 00:45:13.234 --> 00:45:19.580 CHILD SEXUAL ABUSE WHICH WOULD OCCUR NOT ONLY IN A SCHOOL, BUT SUMMER CAMPS, IN MANY DIFFERENT 436 00:45:19.580 --> 00:45:23.690 SITUATIONS, I DON'T THINK THAT WOULD BE A FAIR STANDARD AND THAT DOESN'T ACCOUNT FOR THE 437 00:45:23.690 --> 00:45:32.667 LEGISLATION'S INTENT TO PROTECT ALL SEXUAL ABUSE VICTIMS NOT JUST CHILDREN. 438 00:45:32.667 --> 00:45:38.227 JUSTICE PATTERSON: ONE LAST QUESTION. CHERYLEE O. MELCHER: SURE. 439 00:45:38.227 --> 00:45:44.526 JUSTICE PATTERSON: TO THE THE EXTENT THAT -- I TAKE IT YOU ARE GOING BACK TO THE 2-13 440 00:45:44.526 --> 00:45:53.856 A LANGUAGE, YOU ARE CONTENTING THAT THE PROVISION OF THE TCA THAT LIMITS LIABILITY TO 441 00:45:53.856 --> 00:46:00.199 THE SITUATIONS WITHIN THE SCOPE OF VICARIOUS LIABILITY TO THE SITUATIONS WITHIN THE SCOPE 442 00:46:00.199 --> 00:46:08.152 OF EMPLOYMENT IS NOT CONTRARY TO EITHER SUBSECTION 1 OR SUBSECTION 2 BECAUSE THEY 443 00:46:08.152 --> 00:46:17.614 ABROGATED IMMUNITY ONLY, BUT DON'T AFFECT LIABILITY AM I CORRECTLY SUMMING UP YOUR 444 00:46:17.614 --> 00:46:18.572 POSITION. CHERYLEE O. MELCHER: THAT'S CORRECT. THE COURT: 445 00:46:18.572 --> 00:46:24.093 OTHER QUESTIONS ANYONE? ANYTHING YOU WOULD LIKE TO ADD COUNSEL. 446 00:46:24.093 --> 00:46:55.952 CHERYLEE O. MELCHER: THANK YOU VERY FRP. (TIME NOTED: 1:50 p.m.) ROSHAN 447 00:46:55.952 --> 00:47:00.775 D. SHAH: MR. CHIEF JUSTICE AND MAY IT PLEASE THE COURT. IN 2019 THE LEGISLATURE ENACTED 448 00:47:00.775 --> 00:47:10.646 THE CVA WHICH RE-MOVED CERTAIN IMPEDIMENTS. IN THE CONNECTS OF CLAIMS AGAINST PUBLIC 449 00:47:10.646 --> 00:47:20.undefined ENTITIES, THE QUESTION BEFORE THIS COURT IS WHETHER N.J.S.A. 59:TWO-22 IS AN IMMUNITY 451 00:47:28.308 --> 00:47:36.849 ALMOST 40 YEARS AGO IN (CASE CITED) THIS COURT IDENTIFIED 2-2 AS A LIABILITY PROVISION 452 00:47:36.849 --> 00:47:43.543 ALONG WITH TWO OTHER PROVISIONS. FOUR-TWO AND TWO-THREE AS LIABILITY PROVISIONS. SOME 453 00:47:43.543 --> 00:47:50.700 PARTS OF TWO-THREE. 2-2 PROVIDES THAT TO HOLD A PUBLIC ENTITY VICARIOUS LIABILITY 454 00:47:50.700 --> 00:47:56.669 FOR THE ACTIONS OF ITS EMPLOYEES, THE PLAINTIFF MUST SHOW THAT THE EMPLOYEE WAS ACTING 455 00:47:56.669 --> 00:48:05.273 WITHIN THE SCOPE OF EMPLOYMENT. THE PLAINTIFFS IN THIS CASE CONCEDE THAT THE TEACHER 456 00:48:05.273 --> 00:48:10.290 WHO ABUSED THEM WAS ACTING OUTSIDE THE SCOPE OF THEIR EMPLOYMENT. THE APPELLATE DIVISION 457 00:48:10.290 --> 00:48:19.344 ACCEPTED THAT CONCESSION. AND BASED ON THE TEXT OF THE T C A, THE CB A, THE LEGISLATIVE 458 00:48:19.344 --> 00:48:27.922 HISTORY OF THE CB A AS WELL AS THIS COURT'S PRECEDENT HELD THE TRIAL COURT CORRECTLY 459 00:48:27.922 --> 00:48:32.625 DISMISSED THE VICARIOUS LIABILITY CLAIM. THIS COURT SHOULD AFFIRM THAT DECISION. 460 00:48:32.625 --> 00:48:38.407 I'D LIKE TO JUST THE ADDRESS TWO THINGS OR TWO QUESTIONS THAT WERE PREVIOUSLY 461 00:48:38.407 --> 00:48:44.258 ASKED WITH RESPECT TO THE STATUTE AND VICARIOUS LIABILITY. THE QUESTION WAS ASKED ABOUT 462 00:48:44.258 --> 00:48:51.248 WHETHER OR NOT A VICARIOUS LIABILITY CLAIM COULD BE FOUND WITHIN 2-1.3A ONE. AND THE 463 00:48:51.248 --> 00:48:58.567 ANSWER IS THAT, NO, A-ONE DOES NOT ESTABLISH ANY LIABILITY. WHAT A-ONE DOES IS RE-MOVE 464 00:48:58.567 --> 00:49:04.453 IMMUNITY. IT IS DISABLING LANGUAGE. IT ESSENTIALLY SAYS -- NOT ESSENTIALLY. IT SAYS 465 00:49:04.453 --> 00:49:12.296 IN ITS PLAIN TEXT IF THE PLAINTIFF CAN SHOW WILLFUL, WOULDN'T TAKEN OR GROSSLY NEGLIGENT 466 00:49:12.296 --> 00:49:16.980 CONDUCT BY THE PUBLIC EMPLOYEE OR THE PUBLIC ENTITY, THE IMMUNITIES FALL AWAY. AND IF 467 00:49:16.980 --> 00:49:26.308 THIS COURT WERE TO RE-CASTAGNA 2-2, DESPITE (CASE CITED) AS AN IMMUNITY, THEN I WOULD 468 00:49:26.308 --> 00:49:31.421 AGREE IT WOULD ALSO FALL BY THE WAYSIDE. BUT THAT'S NOT WHAT THE LEGISLATURE KNEW ABOUT 469 00:49:31.421 --> 00:49:40.899 2-2 BASED ON THIS COURT'S PRONOUNCEMENTS GOING ALL THE WAY BACK TO 1988. JUSTICE 470 00:49:40.899 --> 00:49:47.143 WAINER APTER: CAN YOU SIGHT THE CITATION FOR THAT PLEASE? ROSHAN D. SHAH: 471 00:49:47.143 --> 00:49:54.347 IT IS 110 N.J. 399, 1988. AND IT APPEARS ON -- WELL, THROUGHOUT OUR BRIEF IN RESPONSE 472 00:49:54.347 --> 00:49:59.457 TO THE ATTORNEY GENERAL's BRIEF. THAT IS WHAT THE LEGISLATURE KNEW IN TERMS OF HOW THIS 473 00:49:59.457 --> 00:50:07.054 COURT INTERPRETED THE T C A. SO WHEN IT USED LANGUAGE SPECIFICALLY AIMED AT DISABLING 474 00:50:07.054 --> 00:50:13.644 IMMUNITY, THAT LEGISLATIVE CHOICE DEMONSTRATED AN INTENT TO KEEP THE LIABILITY PROVISIONS 475 00:50:13.644 --> 00:50:20.802 INTACT AND TO DISABLE ONLY IMMUNITIES IN SEXUAL ABUSE CASES. THERE WAS ALSO 476 00:50:20.802 --> 00:50:27.739 A QUESTION ASKED WITH RESPECT TO THE FREP TOWER CLAUSE IN 2-1.3. THE LANGUAGE STARTING 477 00:50:27.739 --> 00:50:32.689 WITH NOTWITHSTANDING ANY PROVISION OF THE NEW JERSEY TORT CLAIMS ACT TO THE CONTRARY. 478 00:50:32.689 --> 00:50:39.372 AND WHAT THE LANGUAGE DOES OR WHAT IT MEANS. AND THE ANSWER IS THAT IT IS CONFLICT 479 00:50:39.372 --> 00:50:45.018 RESOLUTION LANGUAGE. IF THAT LANGUAGE DID NOT EXIST AND WE ONLY HAD A-ONE AS IT STOOD, 480 00:50:45.018 --> 00:50:50.434 WHICH SIMPLY SAYS IMMUNITY FROM CIVIL LIABILITY GRANTED BY THAT ACT. WELL, LET'S ASSUME 481 00:50:50.434 --> 00:50:56.480 IT DIDN'T SAY ACT. SOMETHING SLIGHTLY DIVENT. TO A PUBLIC ENTITY OR EMPLOYEE FALLS AWAY 482 00:50:56.480 --> 00:51:02.909 WHEN THEY CAN SHOW GLOEFL NEGLIGENT CONDUCT. IF THAT LANGUAGE EXISTED AND THE LEGISLATURE 483 00:51:02.909 --> 00:51:10.979 AT SOME POINT IN TIME GRAFTED AT IMMUNITY ONTO THE TCA, YOU WOULD HAVE TO FIND SOME WAY 484 00:51:10.979 --> 00:51:17.720 TO RECONCILE THOSE TWO STATUTES. BY HAVING THAT LANGUAGE IN THERE ABOUT NOTWITHSTANDING 485 00:51:17.720 --> 00:51:24.372 ANY PROVISION IN THE TORT CLAIMS ACT, IT RESOLVES ANY CONFLICT BETWEEN ANY IMMUNITY PROVISION 486 00:51:24.372 --> 00:51:30.345 THAT EXISTED ON DECEMBER 1ST, 2019, WHEN THIS ACT TOOK PLACE, AND ANY STATUTE THAT IS 487 00:51:30.345 --> 00:51:37.483 PASSED IN THE FUTURE THAT DOESN'T HAVE LANGUAGE THAT SAYS ADOPTING THIS IMMUNITY BUT THIS 488 00:51:37.483 --> 00:51:44.233 IMMUNITY OVERRIDES OR TRUMPS 2-1.3 IN WHICH CASE THAT NEW IMMUNITY WOULD ALSO HAVE LANGUAGE 489 00:51:44.233 --> 00:51:51.581 THAT WOULD SAY NOTWITHSTANDING N.J.S.A. 59:2-1.3, HERE IS AN IMMUNITY. THAT'S 490 00:51:51.581 --> 00:51:57.144 WHAT THAT LANGUAGE DOES. IT DOES NOT SEEK TO DISABLE LIABILITY PROVISIONS. THE 491 00:51:57.144 --> 00:52:02.412 LEGISLATURE KNOWS HOW TO DO THAT. AND HOW TO CREATE LIABILITY FOR ACTS OUTSIDE THE SCOPE 492 00:52:02.412 --> 00:52:06.328 OF EMPLOYMENT AND WE KNOW THAT BECAUSE THE LEGISLATURE IS THE ONE WHO CREATED LIABILITY 493 00:52:06.328 --> 00:52:15.317 FOR ACTS WITHIN THE SCOPE OF EMPLOYMENT. 2-2 IS A PROVISION THAT REMAINS IN EFFECT AND 494 00:52:15.317 --> 00:52:25.559 IS LEGISLATIVELY ADOPTED. IT OVERRIDES ANY CONFLICT WITH A COMMON LAW CAUSE OF ACTION 495 00:52:25.559 --> 00:52:34.436 THAT WOULD PROVIDE AS HARDWICKE DOES. WITH THAT, I WELCOME THIS COURT'S QUESTIONS. 496 00:52:34.436 --> 00:52:39.989 JUSTICE PATTERSON: DOES THE ANSWER COME DOWN TO WHETHER 2.2 GIVEN THAT PREFATORY 497 00:52:39.989 --> 00:52:47.813 LANGUAGE DOESN'T LIMIT -- IS NOT LIMITED IMMUNITY PROVISIONS. IT DOESN'T SAY NOTWITHSTANDING 498 00:52:47.813 --> 00:52:52.978 ANY IMMUNITY PROVISION OF THE TCA TO THE CONTRARY. IT JUST SAYS ANY PROVISION. DOES 499 00:52:52.978 --> 00:52:59.207 IT COME DOWN TO WHETHER 2.2, WHICH YOU'RE CHARACTERIZING AS A LIABILITY PROVISION, IS 500 00:52:59.207 --> 00:53:08.554 CONTRARY TO EITHER A-ONE OR A-TWO? AND I ASSUME YOU'RE SAYING IT'S NOT. ROSHAN D. 501 00:53:08.554 --> 00:53:14.593 SHAH: THE ANSWER IS THAT IT'S NOT. BUT I ALSO WOULD SAY EVEN THOUGH IT DOESN'T SAY 502 00:53:14.593 --> 00:53:18.006 NOTWITHSTANDING ANY IMMUNITY PROVISION, I THINK THE MORE IMPORTANT POINT IS THAT THIS IS 503 00:53:18.006 --> 00:53:23.542 LANGUAGE INTENDED TO RESOLVE A CONFLICT BETWEEN A-ONE, A-TWO AND ANY PROVISION THAT WOULD BE 504 00:53:23.542 --> 00:53:28.614 IN CONFLICT WITH IT LIKE AN IMMUNITY PROVISION. SO THE ANSWER IS, NO, THIS DOES NOT TURN 505 00:53:28.614 --> 00:53:36.324 ON -- OR I GUESS THE ANSWER IS YES. THE QUESTION IS WHETHER OR NOT 2.2 CONFLICTS WITH A- 506 00:53:36.324 --> 00:53:43.832 ONE OR A-TWO BECAUSE 22 SIMPLY SAYS IF YOU WANT TO HOLD ENTITIES VICARIOUS LIABILITY, AND 507 00:53:43.832 --> 00:53:49.680 IN THIS CASE NOT A BYSTANDER WHO DIDN'T MAKE A REPORT OR SHOULD HAVE HAD SOME KNOWLEDGE 508 00:53:49.680 --> 00:53:56.107 OF THE SEXUAL ABUSE TAKING PLACE OR FAILED TO ACT. THAT'S NOT WHAT WE'RE TALKING ABOUT. 509 00:53:56.107 --> 00:54:01.225 THE VICARIOUS LIABILITY CLAIM THAT THE PLAINTIFF WANTS THIS COURT TO ESSENTIALLY AUTHORIZE 510 00:54:01.225 --> 00:54:10.091 DESPITE 2-2 IS A STRAIGHT LINE FROM THE ABUSER TO THE ENTITY. NICOLE, THE CO-DEFENDANT, 511 00:54:10.091 --> 00:54:16.871 WHO'S THE ACCUSED ABUSER, THEY WANT THIS COURT TO SAY THE PUBLIC ENTITY IS LIABLE FOR 512 00:54:16.871 --> 00:54:25.063 HER ABUSE VICARIOUSLY. A STRAIGHT LINE. AND THAT OBVIOUSLY HAS DEVASTATING FINANCIAL 513 00:54:25.063 --> 00:54:29.562 CONSEQUENCES FOR THE SCHOOL DISTRICT. NOW, I WILL CONCEDE ONE POINT HERE. 514 00:54:29.562 --> 00:54:35.202 WHICH IS, IF THE LEGISLATURE CAME FORWARD AND PASSED A LAW TODAY, TOMORROW OR AT SOME 515 00:54:35.202 --> 00:54:42.155 POINT IN THE FUTURE AND SAID, WE UNDERSTAND THAT THERE'S GOING TO BE SERIOUS FINANCIAL 516 00:54:42.155 --> 00:54:51.081 CONSEQUENCES, BUT IF YOU EMPLOY SOMEBODY WHO'S A SEXUAL ABUSER YOU'RE VICARIOUSLY LIABLE, IF 517 00:54:51.081 --> 00:54:57.605 THEY DID THAT, I DON'T THINK THAT -- ABSENT A CONSTITUTIONAL SAFEGUARD, I THINK THIS COURT 518 00:54:57.605 --> 00:55:02.485 WOULD BE DUTY-BOUND TO GIVE EFFECT TO THAT THAT LAW. JUSTICE PATTERSON: THAT'S 519 00:55:02.485 --> 00:55:07.334 A COMMON LAW CONCEPT THAT DOESN'T REALLY APPEAR IN STATUTES, DOES IT? ROSHAN D. 520 00:55:07.334 --> 00:55:12.410 SHAH: I AGREE. THAT'S WHY I'M SAYING, BUT IF IT DID APPEAR IN STATUTES, IF A COURT DID 521 00:55:12.410 --> 00:55:19.793 SAY WE'RE GOING TO HOLD EMPLOYERS VICARIOUS LIABILITY DIRECTLY FOR ACTS OF ABUSE, 522 00:55:19.793 --> 00:55:23.335 REGARDLESS WHETHER IN THE SCOPE OF EMPLOYMENT OR NOT, YOU'RE JUST LIABLE. JUSTICE 523 00:55:23.335 --> 00:55:27.952 PATTERSON: UNDER YOUR INTERPRETATION, HAS THE LEGISLATURE FAILED IN ITS GOAL OF HOLDING 524 00:55:27.952 --> 00:55:33.669 PUBLIC ENTITIES TO THE SAME STANDARD AS CHARITABLE ENTITIES? BECAUSE IT SOUNDS TO ME 525 00:55:33.669 --> 00:55:42.113 THAT THE LIABILITY ENVISIONED IN HARDWICKE, WHICH IS OUTSIDE THE SCOPE OF -- AS MUCH AS 526 00:55:42.113 --> 00:55:50.535 THIS INDIVIDUAL INVOLVED IN HARDWICKE HAD A LOT OF SORT OF BIZARRELY EXPANSIVE 527 00:55:50.535 --> 00:55:55.329 RESPONSIBILITIES IN THIS CHOIR SCHOOL AND A LOT OF POWER, NOBODY WAS SUGGESTING THAT IT WAS 528 00:55:55.329 --> 00:56:00.808 IN THE SCOPE OF HIS EMPLOYMENT TO SEXUALLY ABUSE A LARGE NUMBER OF STUDENTS ON A DAILY 529 00:56:00.808 --> 00:56:05.774 BASIS. SO TO THE EXTENT THAT YOU ARE GIVING US A READING OF THE STATUTE THAT 530 00:56:05.774 --> 00:56:13.165 KEEPS VICARIOUS LIABILITY DISTINCT FROM THE ISSUE OF IMMUNITIES, HAS THE LEGISLATURE FAILED 531 00:56:13.165 --> 00:56:20.064 TO DO WHAT IT SOUGHT TO DO, WHICH IS TO PUT PUBLIC ENTITIES AND CHARITABLE ENTITIES ON 532 00:56:20.064 --> 00:56:24.466 THE SAME FOOTING IN THESE CASES? ROSHAN D. SHAH: WELL, RESPECTFULLY, YOU 533 00:56:24.466 --> 00:56:28.976 KNOW, I THINK THE ISSUE IS THE PREMISE OF THE IDEA THAT THEY WANT TO PUT THEM ON THE SAME 534 00:56:28.976 --> 00:56:33.270 FOOTING WITH RESPECT TO THE ELEMENTS OF THE CLAIM FOR LIABILITY. WHAT THE ACTUAL LEGISLATIVE 535 00:56:33.270 --> 00:56:39.705 HISTORY SAYS AND THERE'S REALLY I THINK THREE DIFFERENT -- THREE DIFFERENT DAYS THAT ARE 536 00:56:39.705 --> 00:56:45.126 IMPORTANT HERE WITH RESPECT TO LEGISLATIVE HISTORY. THE FIRST ONE IS MAY 13TH, 2019. 537 00:56:45.126 --> 00:56:54.894 THAT'S THE DAY THAT THE GOVERNOR SIGNS THE INITIAL VERSION, SB 477 OF THE INTO LAW AND 538 00:56:54.894 --> 00:56:59.971 HAS THAT STATEMENT ABOUT CORRECTING AN ERROR IN THE STATEMENT. THAT SAME DAY, A STATUTE 539 00:56:59.971 --> 00:57:07.415 IS INTRODUCED THAT SUPPOSEDLY CORRECTS THAT ERROR BY SAYING, NOTWITHSTANDING ANY IMMUNITY 540 00:57:07.415 --> 00:57:14.125 OR ANY LAW TO TO CONTRARY INCLUDING TORT CLAIMS ACT BUT NOT LIMITED TO, HAS THIS LIABILITY 541 00:57:14.125 --> 00:57:21.976 PROVISION THAT IS -- THAT SOMEWHAT MIRRORS A-ONE AND A-TWO. THAT'S INTRODUCED ON MAY 542 00:57:21.976 --> 00:57:28.318 13, 2019. ON MAY 20, 2019, THERE'S A -- JUSTICE WAINER APTER: ARE YOU REFERRING 543 00:57:28.318 --> 00:57:37.086 TO READING READING A PUBLIC ENTITY IS LIABLE IN AN ACTION AT LAW FOR AN INJURY RESULTING 544 00:57:37.086 --> 00:57:43.831 FROM THE COMMISSION OF SEXUAL ASSAULT, ET CETERA? IS THAT WHAT YOU'RE REFERRING TO? 545 00:57:43.831 --> 00:57:48.161 ROSHAN D. SHAH: THAT'S THE INITIAL VERSION SIGNED INTO LAW BUT NEVER WENT 546 00:57:48.161 --> 00:57:51.786 INTO EFFECT BECAUSE IT WAS SUPERSEDED BY STATUTE. JUSTICE WAINER APTER: WHICH WAS 547 00:57:51.786 --> 00:57:57.158 THE ONE INTRODUCED? ROSHAN D. SHAH: ANOTHER LAW THAT WAS A-5392 THAT WAS 548 00:57:57.158 --> 00:58:05.926 INTRODUCED ON MAY 13, 2019, HE BELIEVE THE ATTORNEY GENERAL APPENDIX A G A-215 AND 16. 549 00:58:05.926 --> 00:58:11.875 AND WHAT THAT LAW DOES IS HAVE A BLANKET STATEMENT ABOUT DISABLING ALL IMMUNITIES. 550 00:58:11.875 --> 00:58:17.581 UNDER ANY LAW. WHETHER IT'S A COMMON LAW OR ANY OTHER STATUTE. THAT LAW THEN GOES THROUGH 551 00:58:17.581 --> 00:58:23.385 AN AMENDMENT PROCESS AND AN JUNE 17TH WE GET WHAT IS THE CURRENT VERSION OF THE STATUTE. 552 00:58:23.385 --> 00:58:29.815 AND THE LEGISLATIVE HISTORY ACCOMPANYING THAT JUNE 17TH VERSION DOES NOT INCLUDE THE 553 00:58:29.815 --> 00:58:38.668 STATEMENT ABOUT EQUALIZING LIABILITY. IT'S NOT THERE AT ALL. IT'S A G A 2122 IN THE 554 00:58:38.668 --> 00:58:42.590 ATTORNEY GENERAL's PENNED DIVISION. WHAT THAT VERSION DOES THOUGH IS IT SAYS 555 00:58:42.590 --> 00:58:48.018 WE'RE ONLY GOING TO TAKE AWAY YOUR TCA IMMUNITIES. YOU CAN ALL THE OTHER IMMUNITIES 556 00:58:48.018 --> 00:58:53.585 FROM ANY OTHER SOURCE OF LAW. AND THERE ARE OTHER STATUTORY IMMUNITIES THAT ARE AVAILABLE 557 00:58:53.585 --> 00:58:59.784 EVEN TO SCHOOL DISTRICTS OUTSIDE THE TCA CONTEXT. IT SAYS WE'RE TAKING AWAY THE TCA 558 00:58:59.784 --> 00:59:08.897 IMMUNITIES. AND THAT'S EXPLICITLY SET FORTH IN THE ASSEMBLE BUDGET COMMITTEE's STATEMENT 559 00:59:08.897 --> 00:59:16.157 ACCOMPANYING THE MODIFIED VERSION. THAT'S THE VERSION THAT ACTUALLY TAKES EFFECT. 560 00:59:16.157 --> 00:59:19.undefined CHIEF JUSTICE RABNER: IS THERE DATE OF DEFAULT IN YOUR UNDERSTANDING BETWEEN THE GOVERNOR 562 00:59:23.215 --> 00:59:28.108 YES. BECAUSE I THINK THE GOVERNOR SIGNING STATEMENT TALKS ABOUT ESTABLISHING LIABILITY 563 00:59:28.108 --> 00:59:32.371 STANDARDS THAT ARE SO-CALLED IDENTICAL. BUT ULTIMATELY WHEN WE GET TO THE BILL THAT'S 564 00:59:32.371 --> 00:59:37.927 PASSED AND THEN SIGNED BY THE GOVERNOR ULTIMATELY, IT IS DIFFERENT. BECAUSE THE 565 00:59:37.927 --> 00:59:42.620 PRIVATE ENTITIES DON'T HAVE THE OTHER IMMUNITIES THAT THE PUBLIC ENTITIES HAVE. SO JUST 566 00:59:42.620 --> 00:59:53.879 TO GIVE YOU ONE EXAMPLE, IF I COULD, N.J.S.A. 18A:58-37.13 PROVIDES IMMUNITY FOR CIVIL 567 00:59:53.879 --> 01:00:00.161 LIABILITY FOR THE FAILURE TO PROVIDE SECURITY SERVICES AND TECHNOLOGY. JUSTICE 568 01:00:00.161 --> 01:00:11.599 WAINER APTER: ONE MORE TIME. ROSHAN D. SHAH: 58-37.13. 18A:40-12.38 WHICH 569 01:00:11.599 --> 01:00:18.333 GOES TO EFFECTUATING PAUSE LAW CONCERNING SEIZURES. THAT'S ALSO AN IMMUNITY PROVISION. 570 01:00:18.333 --> 01:00:30.627 AND THEN N.J.S.A. NINE:SIX-8.13 WHICH PROVIDES IMMUNITY FOR REPORTS UNDER THE MANDATORY 571 01:00:30.627 --> 01:00:35.023 REPORTING STATUTE. THOSE IMMUNITIES STILL EXIST AND TWO OF THOSE ARE STRICTLY 572 01:00:35.023 --> 01:00:41.490 JUST FOR PUBLIC ENTITIES. 18A AND -- WELL, FOR PUBLIC ENTITIES OR FOR PRIVATE SCHOOLS 573 01:00:41.490 --> 01:00:46.168 BUT NOT NECESSARILY FOR EVERY OTHER ORGANIZATION THAT EXISTS. SO THERE IS DATE OF DEFAULT, 574 01:00:46.168 --> 01:00:53.979 JUSTICE RABNER, BETWEEN THE GOVERNOR SIGNING STATEMENT ON MAY 13TH 2019 AND THE BILL 575 01:00:53.979 --> 01:00:58.885 THAT'S ULTIMATELY SIGNED ON AUGUST 9TH, 2019. JUSTICE PATTERSON: IS IT YOUR 576 01:00:58.885 --> 01:01:07.045 VIEW THAT THE SPONSOR STATEMENT THAT PRECEDED THAT, THAT TALKED ABOUT IDENTICAL -- THE 577 01:01:07.045 --> 01:01:11.265 NEW STANDARDS ARE IDENTICAL TO THE LIABILITY STANDARDS APPLIED TO NON-PROFIT 578 01:01:11.265 --> 01:01:17.205 ORGANIZATIONS, ET CETERA, IS NOT PART OF THE LEGISLATIVE HISTORY OF THE BILL THAT WAS 579 01:01:17.205 --> 01:01:20.018 EVENTUALLY ENACTED? ROSHAN D. SHAH: IT'S PART OF THE LEGISLATIVE HISTORY BUT 580 01:01:20.018 --> 01:01:24.942 IT NOT THE ONE ACCOMPANYING THE VERSION OF THE BILL THAT'S ULTIMATELY PASSED AND ENACTED. 581 01:01:24.942 --> 01:01:31.274 SO TO THE EXTENT IT RESERVED ANY SORT OF DEFERENCE, IT HAS TO BE TAKEN IN THE CONTEXT 582 01:01:31.274 --> 01:01:34.715 OF THE LEGISLATIVE -- THE ACTUAL LITIGATION THAT WAS PASSED. JUSTICE WAINER APTER: 583 01:01:34.715 --> 01:01:39.329 AND THAT'S THE JUNE 17TH STATEMENT THAT YOU'RE REFERRING TO, IS ABOUT A DIFFERENT VERSION 584 01:01:39.329 --> 01:01:42.750 THAT DID NOT PASS? ROSHAN D. SHAH: CORRECT. AND WHERE THE STATEMENT IS MADE 585 01:01:42.750 --> 01:01:49.582 THAT WE'RE JUST TAKING AWAY TCA IMMUNITY. WE'RE STILL GIVING PUBLIC ENTITIES ALL OF 586 01:01:49.582 --> 01:01:54.960 THE OTHER IMMUNITIES THAT ARE OTHERWISE AVAILABLE TO THEM. WHICH OBVIOUSLY PRIVATE ENTITIES 587 01:01:54.960 --> 01:02:00.958 DON'T HAVE. JUSTICE PATTERSON: IS IT YOUR VIEW THAT THE LEGISLATURE HAVING 588 01:02:00.958 --> 01:02:08.778 HAD THE GOVERNOR SAY THIS IS A MISTAKE, THIS IS TOO BROAD, THE LEGISLATURE DID SOMETHING 589 01:02:08.778 --> 01:02:16.389 IN THE ULTIMATE BILL THAT IS NOW LAW THAT IS LIMITED ONLY TO TAKING AWAY IMMUNITIES AND 590 01:02:16.389 --> 01:02:26.360 DOES NOT CREATE EQUIVALENT LIABILITY STANDARDS THAT ARE -- CREATE FOR PUBLIC ENTITIES 591 01:02:26.360 --> 01:02:31.399 LIABILITY STANDARDS THAT ARE EQUIVALENT TO CHARITABLE LIABILITY STANDARDS? IN OTHER 592 01:02:31.399 --> 01:02:35.756 WORDS, THAT THAT FELL AWAY IN THIS PROCESS? ROSHAN D. SHAH: I THINK WHAT HAPPENED 593 01:02:35.756 --> 01:02:40.847 ULTIMATELY IS THAT THEY WENT THROUGH THE LEGISLATIVE PROCESS AS THEY DO. RIGHT? 594 01:02:40.847 --> 01:02:45.166 WHICH IS THERE'S NEGOTIATIONS, THERE'S DISCUSSIONS. THERE'S CONCERNS THAT ARE 595 01:02:45.166 --> 01:02:48.522 RAISED. AND THEN ULTIMATELY WE GET TO THE PROVISION OF THE BILL THAT'S ACTUALLY PASSED. 596 01:02:48.522 --> 01:02:55.295 AND GOING BACK TO WHAT I MENTIONED EARLIER, WHICH IS, IF YOU GO AND ADOPT THE 597 01:02:55.295 --> 01:03:01.975 TEST, THE AIDE AND AGENCY TEST THAT THE PETITIONERS ARE ASKING THIS COURT TO ADOPT, 598 01:03:01.975 --> 01:03:08.440 THE CONSEQUENCES WOULD BE CATASTROPHIC. THAT SAID, IF THE LEGISLATURE SAYS, WE HEAR YOU 599 01:03:08.440 --> 01:03:14.880 BUT WE DON'T CARE, THEN I THINK THE COURT WOULD BE DUTY-BOUND TO EFFECTUATE THAT INTENT. 600 01:03:14.880 --> 01:03:20.039 BUT THAT INTENT HAS TO BE ABSOLUTELY UN-MISTAKABLE. YOU SHOULD BE ABLE TO SEE IT 601 01:03:20.039 --> 01:03:26.355 FROM A MILE AWAY. JUSTICE FASCIALE: SO THAT WOULD BE UNDER 2.2A INSTEAD OF THE 602 01:03:26.355 --> 01:03:31.424 LANGUAGE SIMPLY SAYING WITHIN THE SCOPE OF EMPLOYMENT, IT WOULD READ WITHIN OR OUTSIDE 603 01:03:31.424 --> 01:03:35.136 THE SCOPE OF EMPLOYMENT. ROSHAN D. SHAH: THAT WOULD BE ONE WAY TO DO IT AND 604 01:03:35.136 --> 01:03:41.207 OBVIOUSLY EFFECTUATE THE INTENT TO SAY OUTSIDE THE SCOPE OF EMPLOYMENT. BUT THE POINT 605 01:03:41.207 --> 01:03:45.515 IS IT'S GOT TO BE ABSOLUTELY CRYSTAL CLEAR. JUSTICE PATTERSON: THE ATTORNEY 606 01:03:45.515 --> 01:03:52.666 GENERAL IS HERE INTERPRETING FOR US THE STATUTE. AND VIEWS IT DIFFERENTLY. WHAT DO YOU SAY 607 01:03:52.666 --> 01:03:59.401 IN RESPONSE TO THAT? ROSHAN D. SHAH: WE RESPECTFULLY DISAGREE WITH THE ATTORNEY 608 01:03:59.401 --> 01:04:03.778 GENERAL'S POSITION. AND I THINK THERE'S A FUNDAMENTAL DISAGREEMENT WITH RESPECT TO THE 609 01:04:03.778 --> 01:04:09.153 TWO POINTS THEY'RE RAISING WHICH WE THINK ARE SIMULTANEOUSLY WHEN RAISED SIMULTANEOUSLY 610 01:04:09.153 --> 01:04:15.404 ARE INHERENTLY IN CONFLICT AND HERE'S WHY. IF THEIR POSITION IS CORRECT IN 611 01:04:15.404 --> 01:04:21.936 THAT THE LEGISLATURE BY USING THE WORDS IMMUNITY IN 2-1.3 SOUGHT TO DISABLE LIABILITY 612 01:04:21.936 --> 01:04:28.110 PROVISIONS, WHICH IS 2-2, IF THAT'S CORRECT, THEN THE NATURAL CONCLUSION THAT FOLLOWS 613 01:04:28.110 --> 01:04:35.148 FROM THAT IS THAT THE LEGISLATURE WANTED TO ADOPT THIS STRICT LIABILITY REGIME FOR PUBLIC 614 01:04:35.148 --> 01:04:39.430 SCHOOL DISTRICTS AND PUBLIC ENTITIES GENERALLY, RIGHT, AND I'LL EXPLAIN WHY I THINK IT'S 615 01:04:39.430 --> 01:04:46.875 A STRICT LIABILITY REGIME DESPITE ALL OF THE FACTORS THAT COURTS USE UNDERLY MAN AND 616 01:04:46.875 --> 01:04:54.995 HARDWICKE. IF THAT'S THEIR INTENT, THEN FOR THEM TO PROPOSE A TEST THAT SOFTENS THE BLOW 617 01:04:54.995 --> 01:04:59.311 I THINK IS IN CONFLICT. IT DOESN'T MAKE SENSE TO SAY WE THINK THAT'S WHAT THE LEGISLATURE 618 01:04:59.311 --> 01:05:02.993 INTENDED BUT WE HATE THAT AND WE THINK THAT'S AWFUL. IT WILL BANKRUPTCY SCHOOLS, WHICH 619 01:05:02.993 --> 01:05:09.797 IT WILL. IT'S TOO HARSH, WHICH IT IS. BUT -- SO WE WANT YOU TO PROVIDE SOMETHING ELSE 620 01:05:09.797 --> 01:05:14.747 TO ALLOW US TO SOFTEN THAT CUSHION AND THAT BLOW. I DON'T THINK THAT THAT'S 621 01:05:14.747 --> 01:05:21.122 A POSITION THAT CAN EXIST IN THE SAME BRIEF AND YET IN THEIR BRIEF IT SDCHLT IF THEY BELIEVE 622 01:05:21.122 --> 01:05:28.851 THE LEGISLATURE WANTED TO INCIDENCE WITH 2-2, THEN FOR THEM TO ARGUE THAT WE STILL WANT 623 01:05:28.851 --> 01:05:34.381 TO AVOID THE HARSH CONSEQUENCES OF HARDWICKE DOESN'T MAKE SENSE. JUSTICE 624 01:05:34.381 --> 01:05:38.792 WAINER APTER: IT SEEMS MORE LIKE A WHO DECIDES. IF YOU BELIEVE THE LEGISLATURE GETS TO 625 01:05:38.792 --> 01:05:43.854 DECIDE, THEN THE LEGISLATURE SHOULD GET TO DECIDE THAT AND THERE DOESN'T SEEM TO BE ANY 626 01:05:43.854 --> 01:05:49.825 INDICATION THAT THE LEGISLATURE SPECIFICALLY WANTED TO ADOPT LEHMAN BUT WITH CERTAIN 627 01:05:49.825 --> 01:05:55.500 CHANGES THAT THE A G SUGGESTS. ROSHAN D. SHAH: THAT'S EXACTLY RIGHT. I THINK 628 01:05:55.500 --> 01:06:00.919 THE PROBLEM WITH THEIR POSITION IS THEY'RE PROPOSING ESSENTIALLY NEW LITIGATION. USE 629 01:06:00.919 --> 01:06:07.506 THIS DEFENDANT AND GRAFT IT ONTO THIS STATUTE BECAUSE WE DON'T LIKE THE RESULTS. WELL, 630 01:06:07.506 --> 01:06:12.893 RESPECTFULLY, IF THE LEGISLATURE INTENDED IT, THEN WE'RE ALL STUCK WITH THOSE RESULTS, 631 01:06:12.893 --> 01:06:20.092 AS CATASTROPHIC AS THEY MAY BE: IF THEY HAD, KNOWING WHAT THE CONSEQUENCES WOULD BE, 632 01:06:20.092 --> 01:06:26.019 IT SHOULD BE ABSOLUTELY UN-MISTAKABLE. WE SHOULD NOT BE TRYING TO STITCH TOGETHER A SIGNING 633 01:06:26.019 --> 01:06:31.966 STATEMENT FROM MAY 13TH AND TRYING TO APPLY IT TO A STATUTE THAT THE GOVERNOR HAD NEVER 634 01:06:31.966 --> 01:06:38.608 SEEN UNTIL AUGUST 2019. WE SHOULDN'T BE TRYING TO PARSE LANGUAGE FROM ONE VERSION OR 635 01:06:38.608 --> 01:06:43.942 LEGISLATIVE HISTORY FROM ONE VERSION OF A BILL THAT'S INTRODUCED THAT UNDER THOSE 636 01:06:43.942 --> 01:06:48.072 MODIFICATIONS THAT HAS LEGISLATIVE HISTORY THAT'S WITHOUT THAT LANGUAGE. IT SHOULD BE 637 01:06:48.072 --> 01:06:54.086 ABSOLUTELY CLEAR, UN-MISTAKABLE THAT ANYBODY CAN UNDERSTAND IT AND SEE IT AND THEN ADOPT 638 01:06:54.086 --> 01:06:58.915 OR ADAPT THEIR ACTIONS ACCORDINGLY. THAT DOES NOT EXIST. THAT UN-MISTAKABLE 639 01:06:58.915 --> 01:07:05.187 SIGN DOES NOT EXIST. SO WHILE I APPRECIATE THE FACT THAT THE ATTORNEY GENERAL SAYS WE 640 01:07:05.187 --> 01:07:12.805 SHOULD MOVE AWAY FROM THE HARDWICKE TEST BECAUSE IT'S TOO HARSH AND I THINK THEY MAKE 641 01:07:12.805 --> 01:07:17.101 THAT ARGUMENT IN OTHER CASES DEALING WITH PRIVATE ENTITIES, I THINK FOR PURPOSES OF 2-2, 642 01:07:17.101 --> 01:07:22.672 IF THE COURT IS WONDERING WHAT'S THE SUFFICIENT GUARDRAIL FOR PUBLIC ENTITIES GOING FORWARD 643 01:07:22.672 --> 01:07:32.903 IN SEXUAL ABUSE CASES, I THINK IT'S 1972. AND THE COURT HAS ADOPTED FACTORS TO THAT 644 01:07:32.903 --> 01:07:38.887 END, THE DAVIS FACTORS. I KNOW THERE WAS A QUESTION ASKED WITH RESPECT TO WHEN WOULD 645 01:07:38.887 --> 01:07:42.432 THEY EVER BE WITHIN THE SCOPE OF EMPLOYMENT. I WOULD SUBMIT TO YOU THAT'S IT'S RARE. 646 01:07:42.432 --> 01:07:48.023 BUT THAT'S OKAY. BECAUSE THIS COURT RECOGNIZED IN DAVIS THAT RARELY WILL AN EMPLOYER 647 01:07:48.023 --> 01:07:53.607 BE RESPONSIBLE OR LIABLE FOR THE INTENTIONAL TORTS OF ITS EMPLOYEES. BUT THERE ARE 648 01:07:53.607 --> 01:08:03.722 EXAMPLES IN THIS COURT'S PRECEDENT -- WELL, IN NEW JERSEY's PRECEDENT ABOUT WHEN IT MIGHT BE 649 01:08:03.722 --> 01:08:08.618 POSSIBLE. LAWRENCE VERSUS COSGROVE IN THE APPELLATE DIVISION's DECISION, THERE'S A 650 01:08:08.618 --> 01:08:15.047 REFERENCE, THERE WAS A CASE INVOLVING A THERAPIST WHO WAS HAVING SEX WITH HIS PATIENT AND 651 01:08:15.047 --> 01:08:22.395 HE WAS EMPLOYED BY THE COUNTY OF SOMERSET. AND WHAT THE THERAPIST SAID IS, WELL, I WAS 652 01:08:22.395 --> 01:08:28.558 HAVING SEX WITH THE PATIENT AS A FORM OF THERAPY. THE COURT DIDN'T APPLY TWO-TEN, BECAUSE 653 01:08:28.558 --> 01:08:36.019 IT SAID WE DON'T KNOW IF IT WAS WILLFUL MISCONDUCT. WE THINK MAYBE THERE IS SOME 654 01:08:36.019 --> 01:08:40.767 ISSUE OF FACT ABOUT WHETHER OR NOT THIS IS ACTUALLY FOR PURPOSES OF BENEFITTING THE 655 01:08:40.767 --> 01:08:45.029 PATIENT. SO IT LOOKED AT IT UNDER THE SCOPE OF EMPLOYMENT TEST. THE FACTORS 656 01:08:45.029 --> 01:08:52.508 SET FORTH UNDER 228-ONE. AND IT SAID, WERE HE DON'T SEE ANYTHING IN HERE THAT SHOWS THAT 657 01:08:52.508 --> 01:08:57.473 IT'S ACTUALLY MOTIVATED TO SERVE HIS EMPLOYER'S INTEREST AND THAT'S WHY WE'RE DISMISSING 658 01:08:57.473 --> 01:09:02.151 THE CLAIM. BUT IN THE APPELLATE DIVISION's FOOTNOTE IT SAYS IF THE FACTS WERE THAT THIS 659 01:09:02.151 --> 01:09:10.265 THERAPIST WAS ACTUALLY TRYING TO SERVE HIS PATIENT, CURE DEPRESSION OR SUICIDE RISK BY 660 01:09:10.265 --> 01:09:15.980 ENGAGING IN SEXUAL ACTS WITH HER AND IT DOESN'T DEVIATE FROM THE STANDARD OF CARE, THERE 661 01:09:15.980 --> 01:09:20.332 MIGHT BE A STANDARD OF CARE IN THE FUTURE WHERE IT COULD BE WITHIN THE SCOPE OF EMPLOYMENT. 662 01:09:20.332 --> 01:09:24.721 SO IT IS A RARE CIRCUMSTANCE, A RARE SET OF FACTS WHERE YOU'RE GOING TO SAY 663 01:09:24.721 --> 01:09:29.722 THAT SOMEBODY WHO ABUSES SOMEBODY IS GOING TO VISIT VICARIOUS LIABILITY DIRECTLY -- 664 01:09:29.722 --> 01:09:34.034 JUSTICE PATTERSON: IN THE CASE OF A CHILD, THAT SET OF FACTS DOES NOT EXACT. 665 01:09:34.034 --> 01:09:39.348 ROSHAN D. SHAH: THAT'S CORRECT. BUT 2-1.3 APPLIES TO CHILDREN AND ADULTS. 666 01:09:39.348 --> 01:09:45.194 JUSTICE WAINER APTER: IN 59:2-2 WHAT THE LEGISLATURE COULD HAVE DONE IN ORDER TO -- 667 01:09:45.194 --> 01:09:49.604 COULD THEY FOR EXAMPLE HAVE WRITTEN WITHIN OR OUTSIDE THE SCOPE OF HIS EMPLOYMENT AND YOU 668 01:09:49.604 --> 01:09:54.448 HAD SAID YES THAT WOULD BE ONE OPTION. IF THEY WANTED TO HAVE LIABILITY BE THE SAME FOR 669 01:09:54.448 --> 01:10:00.979 CHARITABLE ORGANIZATIONS OR PRIVATE INDIVIDUALS IN THE SAME WAY AS PUBLIC ENTITIES, COULDN'T 670 01:10:00.979 --> 01:10:05.400 THEY ALSO JUST HAVE TAKEN OUT THE WORDS WITHIN THE SCOPE OF HIS EMPLOYMENT AND THEN THE 671 01:10:05.400 --> 01:10:12.841 PROVISION WOULD JUST READ A PUBLIC ENTITY IS LIABILITY FOR INJURY READ READ AS A PRIVATE 672 01:10:12.841 --> 01:10:19.379 INDIVIDUAL UNDER LIKE CIRCUMSTANCES. IN THEORY THEY WOULD BE MAKING LIABILITY, NOT IMMUNITY, 673 01:10:19.379 --> 01:10:23.463 THE SAME FOR A PUBLIC ENTITY OR A PRIVATE ENTITY. ROSHAN D. SHAH: THAT'S CORRECT. 674 01:10:23.463 --> 01:10:29.350 THAT'S ANOTHER WAY TO DO IT. I THINK -- SO THERE IS -- I WILL SAY THIS. THERE'S SOME 675 01:10:29.350 --> 01:10:39.701 CONFUSION OR SOME CONFLICT IN THE CASE LAW AS TO HOW FAR HARDWICKE. A LONG-TERM CARE 676 01:10:39.701 --> 01:10:43.612 FAMENT. THE ARGUMENT IS RAISED WITH RESPECT TO HARDWICKE AND WHETHER OR NOT THERE IS 677 01:10:43.612 --> 01:10:48.698 LIABILITY THERE AND THE COURT SAYS, DISCUSSING A DIFFERENT PART OF THE RESTATEMENT, BUT 678 01:10:48.698 --> 01:10:53.882 STILL TALKS ABOUT HARDWICKE AND SAYS THAT WOULD BE A MASSIVE CHANGE IN THE LAW. WE DON'T 679 01:10:53.882 --> 01:11:02.229 BELIEVE THAT'S WHAT HARDWICKE STANDS FOR. THEN IN 2019 IN G A H THE COURT REITERATES 680 01:11:02.229 --> 01:11:08.168 THE PRINCIPLE, NOT DEAL WITH AN IN LOCO PARENTIS SITUATION, BUT PRIVATE INSTITUTIONS BEING 681 01:11:08.168 --> 01:11:14.700 LIABILITY FOR ACTIONS OF THEIR EMPLOYEES. SO IT'S NOT EXACTLY CLEAR HOW FAR 682 01:11:14.700 --> 01:11:20.924 HARDWICKE STRETCHES BECAUSE I HAVEN'T SEEN ANYWHERE ELSEWHERE THIS OUTSIDE THE 683 01:11:20.924 --> 01:11:26.871 EMPLOYMENT FOR COMMON LAW CLAIMS, I JUST HAVEN'T SEEN CASES IN THIS COURT OR IN THE APPELLATE 684 01:11:26.871 --> 01:11:30.864 DIVISION THAT APPLY IT EVEN TO PRIVATE ENTITIES. PUBLIC ENTITIES, THEY HAVEN'T HAD TO 685 01:11:30.864 --> 01:11:34.173 WORRY ABOUT IT. JUSTICE PATTERSON: BUT HARDWICKE DIDN'T SUGGEST THAT THE 686 01:11:34.173 --> 01:11:42.367 SEXUAL ABUSE WAS WITHIN THE SCOPE OF THE EMPLOYMENT. IT WAS SUGGESTING THERE WERE 687 01:11:42.367 --> 01:11:47.766 CERTAIN INSTANCES WHERE LIABILITY COULD GO BEYOND THAT AND CITED LAD. AM I RIGHT ABOUT 688 01:11:47.766 --> 01:11:52.198 THAT? LEHMAN. ROSHAN D. SHAH: I THINK A FAIR READING OF HARDWICKE IS THAT 689 01:11:52.198 --> 01:11:59.558 THE COURT ADOPTS THE LEHMAN TEST WITH RESPECT TO ANALYZING THE COMMON LAW CLAIMS, I THINK 690 01:11:59.558 --> 01:12:05.641 ONE OF THEM WAS INTENTIONAL EMOTIONAL DISTRESS. THE COMMON LAW CLAIMS AGAINST THE ENTITY 691 01:12:05.641 --> 01:12:10.541 ITSELF. AND THE REASON THAT THAT'S REALLY UN-WORKABLE IN THE CONTEXT OF THE SCHOOLS -- 692 01:12:10.541 --> 01:12:16.232 ALSO I'LL JUST POINT THIS OUT. THE PETITIONER SPENT A LOT OF TIME ABOUT TALKING ABOUT 693 01:12:16.232 --> 01:12:24.398 AIDED AGENCY. BUT THAT'S NOT REALLY WHAT NEW JERSEY USES EVEN IN THE LAD CONTEXT AND 694 01:12:24.398 --> 01:12:30.751 EVEN UNDER HARDWICKE. IN LEHMAN, THE COURT SAYS, YOU KNOW, IT STATES THE RESTATEMENT. 695 01:12:30.751 --> 01:12:37.334 IT TALKS ABOUT D-TWO. BUT THEN WHEN IT TALKS -- WHICH IS THE AIDE AGENCY EXCEPTION TO 696 01:12:37.334 --> 01:12:41.389 THE GENERAL RULE ABOUT HOW IT'S GOT TO BE WITHIN THE SCOPE OF EMPLOYMENT. IT TALKS ABOUT 697 01:12:41.389 --> 01:12:48.804 D-TWO AND THEN IT SAYS, THE WAY YOU FIND LIABILITY UNDER D-TWO IS BY ASKING THESE FOUR 698 01:12:48.804 --> 01:12:54.290 QUESTIONS. THEN IT CITES TO A LAW REVIEW ARTICLE FROM ARIZONA STATE UNITS. AND THE FOUR 699 01:12:54.290 --> 01:13:01.267 QUESTIONS THAT IT ASKS ARE, DID THE EMPLOYER DELEGATE THE AUTHORITY OF THE SUPERVISOR 700 01:13:01.267 --> 01:13:05.036 TO CONTROL THE SITUATION -- JUSTICE PATTERSON: WHICH CASE? ROSHAN D. 701 01:13:05.036 --> 01:13:09.101 SHAH: LEHMAN. DID THE EMPLOYER DELEGATE THE AUTHORITY TO THE SUPERVISOR TO CONTROL THE 702 01:13:09.101 --> 01:13:13.219 SITUATION AT WHICH THE PLAINTIFF COMPLAINS. DID THE SUPERVISOR EXERCISE THAT AUTHORITY. DID 703 01:13:13.219 --> 01:13:21.120 HE EXERCISE AUTHORITY RESULT IN A VIOLATION OF LAD. DID THE AUTHORITY DELEGATED AID THE 704 01:13:21.120 --> 01:13:26.031 SUPERVISOR? INJURING THE PLAINTIFF. IT'S THOSE FOUR QUESTIONS. THOSE ARE ACTUALLY IN 705 01:13:26.031 --> 01:13:31.074 THE CHARGE WHEN WE TALK ABOUT LAD CASES. THOSE ARE THE FOUR QUESTIONS THAT GET YOU TO 706 01:13:31.074 --> 01:13:37.565 WHAT I CALL MODIFIED AID AGENCY. SO THE PETITIONER's ARGUMENT GOES FURTHER THAN WHAT 707 01:13:37.565 --> 01:13:43.063 LEHMAN WAS WILLING TO DO. BUT IN THE CONTEXT OF A SCHOOL DISTRICT, THIS TEST IS ESSENTIALLY 708 01:13:43.063 --> 01:13:50.134 STRICT LIABILITY. I MEAN, TEACHERS ARE OBVIOUSLY DELEGATED AUTHORITY TO CONTROL THE CLASSROOM 709 01:13:50.134 --> 01:13:54.408 AND TO SOME EXTENT THE COMMON AREAS OF THE SCHOOL ENVIRONMENT. IF YOU HAVE A TEACHER 710 01:13:54.408 --> 01:14:00.429 WHO EXERCISES THAT SUPERVISION BY SAYING, HEY, WE'RE GOING TO HOLD THE STUDENT AFTER SCHOOL 711 01:14:00.429 --> 01:14:06.248 FOR DETENTION, THAT'S EXERCISING AUTHORITY. IF THEY TELL THE STUDENT BE AT A CERTAIN 712 01:14:06.248 --> 01:14:14.102 PLACE OR TIME, ARGUABLY THAT'S EXERCISING THE AUTHORITY. IF HE ABUSED THE STUDENT, THEY 713 01:14:14.102 --> 01:14:18.560 MEET NUMBER THREE. DID THE EXERCISE OF THAT AUTHORITY RESULT IN A VIOLATION. THEN DID 714 01:14:18.560 --> 01:14:23.714 THE AUTHORITY DELEGATED BY THE EMPLOYER, THE SCHOOL, AID. OF COURSE IT D YOU HIRED THE 715 01:14:23.714 --> 01:14:28.559 TEACHER. GAVE HIM AUTHORITY TO CONTROL THAT SCHOOL ENVIRONMENT. SO EVEN THOUGH IT'S 716 01:14:28.559 --> 01:14:34.214 A TEST ON PAPER IT'S REALLY STRICT LIABILITY AND I THINK THE COURT UNDERSTOOD WHERE THAT 717 01:14:34.214 --> 01:14:41.798 TEST WAS GOING AND I WOULDN'T SAY REVERSE COURSE BUT IT ADDED AN AFFIRMATIVE DEFENSE TO 718 01:14:41.798 --> 01:14:47.523 SORT OF RE-BUT AND PUSH BACK ON THE IDEA IF YOU CAN JUST SHOW THESE FOUR THINGS, YOU HAVE 719 01:14:47.523 --> 01:14:51.784 HOSTILE WORK ENVIRONMENT LIABILITY VISITED UPON THE EMPLOYER FOR SUPERVISOR HARASSMENT. 720 01:14:51.784 --> 01:15:02.763 JUSTICE FASCIALE: IF WE DO GO TO EXTRINSIC EVIDENCE TO INTERPRET 1.3A ONE AND 721 01:15:02.763 --> 01:15:09.596 TWO, WHAT ROLE DOES THE SPONSORS STATEMENT TO A-53 INTO THAT I READ EARLIER AND JUSTICE 722 01:15:09.596 --> 01:15:18.108 PATTERSON READ AS WELL THAT SAYS AS THE SPONSOR EXPLAINED IT WOULD ESTABLISH NEW LIABILITY 723 01:15:18.108 --> 01:15:24.356 STANDARDS IN SEXUAL ABUSE LAWSUITS FILED AGAINST PUBLIC ENTITIES AND PUBLIC EMPLOYEES. 724 01:15:24.356 --> 01:15:31.279 LIABILITY STANDARDS. ROSHAN D. SHAH: IF I COULD JUST FINISH AT LEAST FROM 725 01:15:31.279 --> 01:15:36.183 MEMORY THE REMAINDER OF THAT SENTENCE. WHICH IS, BASED ON THE EXCEPTIONS TO STATUTORY 726 01:15:36.183 --> 01:15:41.376 IMMUNITY. IN OTHER WORDS, THE SO-CALLED STANDARDS -- JUSTICE PATTERSON: I 727 01:15:41.376 --> 01:15:45.585 BELIEVE IT'S BASED ON THE EXCEPTIONS TO IMMUNITY GRANTED TO SUCH ORGANIZATIONS UNDER THE 728 01:15:45.585 --> 01:15:49.299 IMMUNITY ACT. ROSHAN D. SHAH: IN OTHER WORDS WE'RE DISABLING THE STATUTORY 729 01:15:49.299 --> 01:15:55.140 IMMUNITIES AND THAT'S HOW THEY'RE GETTING TO THE SO-CALLED LIABILITY STANDARDS. BUT THAT'S 730 01:15:55.140 --> 01:15:59.206 THE STATEMENT THAT I BELIEVE IS FROM MAY 13TH, 2019? JUSTICE FASCIALE: RIGHT. 731 01:15:59.206 --> 01:16:06.599 WELL, I DON'T KNOW THE EXACT DATE. ALL I KNOW IS SPONSOR STATEMENT A 5392. ROSHAN 732 01:16:06.599 --> 01:16:14.535 D. SHAH: IT'S FROM A G A-15 OR 16 OF THE ATTORNEY GENERAL's APPENDIX. THAT MAY 13TH 733 01:16:14.535 --> 01:16:18.910 STATEMENT ACCOMPANIED A VERSION OF THE BILL THAT ULTIMATELY DID NOT PASS. I DON'T THINK 734 01:16:18.910 --> 01:16:25.345 WE IGNORE IT BUT I THINK WE LOOK AT, IF THAT'S THE STATEMENT WE'RE RELYING ON OR IF WE'RE 735 01:16:25.345 --> 01:16:30.781 GOING TO LOOK TO LEGISLATIVE HISTORY BECAUSE THE STATUTES LANGUAGE IS CLEAR ABOUT IMMUNITY 736 01:16:30.781 --> 01:16:35.963 AS OPPOSED TO LIABILITY PROVISIONS, IF WE'RE GOING TO LOOK TO EXTRINSIC EVIDENCE, THEN 737 01:16:35.963 --> 01:16:43.570 AT LEAST THE MORE PERSUASIVE OF THAT EXTRINSIC EVIDENCE SHOULD ACCOMPANY THE BILL THAT 738 01:16:43.570 --> 01:16:49.223 ACTUALLY PASSED. PAT PAYOUT BUT IT DID PASS. IT WASN'T ENACTED BUT IT PASSED AND WENT 739 01:16:49.223 --> 01:16:53.645 TO THE GOVERNOR FOR SIGNATURE. ROSHAN D. SHAH: MAYBE I'M MISUNDERSTANDING. 740 01:16:53.645 --> 01:16:59.802 THE VERSION THAT I THOUGHT JUSTICE FASCIALE JUST READ WAS THE MAY 13TH -- JUSTICE 741 01:16:59.802 --> 01:17:04.409 PATTERSON: IT PASSED THE LEGISLATURE, DID IT NOT? DIDN'T IT GET VOTED BY THE LEGISLATURE? 742 01:17:04.409 --> 01:17:10.014 ROSHAN D. SHAH: THAT WAS SB 477. THAT'S THE FIRST ONE. THE VERSION THAT'S 743 01:17:10.014 --> 01:17:15.453 INTRODUCED ON MAY 13TH IS THE ONE THAT ULTIMATELY GOES THROUGH RE-VISIONS AND BECOMES 744 01:17:15.453 --> 01:17:20.910 ON AUGUST 9TH THE VERSION THAT WE HAVE TODAY. JUSTICE WAINER APTER: YOU'RE 745 01:17:20.910 --> 01:17:25.585 SAYING THE SPONSOR STATEMENT WAS TO THE ORIGINAL BEFORE IT WAS AMENDED. NOT THE ORIGINAL 746 01:17:25.585 --> 01:17:30.220 ORIGINAL. WE'LL CALL IT THE SECOND VERSION AFTER THE GOVERNOR REQUESTED A NEW VERSION. 747 01:17:30.220 --> 01:17:34.813 THIS IS THE SECOND VERSION. THEN THERE'S ULTIMATELY A THIRD VERSION AND YOU'RE SAYING 748 01:17:34.813 --> 01:17:40.178 THE THIRD VERSION DID NOT DO WHAT THE SECOND VERSION SPONSOR STATEMENT SAID IT WANT TO 749 01:17:40.178 --> 01:17:42.638 DO. ROSHAN D. SHAH: YES, YOUR HONOR. THAT'S WHAT I'M SAYING. JUSTICE 750 01:17:42.638 --> 01:17:50.342 PATTERSON: IS THE SAME TRUE OF THE OFFICE OF LEGISLATIVE SERVICES SUGGESTION THAT WE KNOW 751 01:17:50.342 --> 01:17:55.056 THIS IS GOING TO COST A LOT OF MONEY IN SO MANY WORDS. ROSHAN D. SHAH: NO. 752 01:17:55.056 --> 01:18:00.627 I THINK THAT ONE ACTUALLY ACCOMPANIED THE JUNE 17TH VERSION WHICH ACKNOWLEDGES THERE IS 753 01:18:00.627 --> 01:18:05.765 GOING TO BE SUBSTANTIAL LIABILITY HERE BUT IT'S ALSO IN-COMPLETE BECAUSE IT DOESN'T RECOGNIZE 754 01:18:05.765 --> 01:18:11.637 OR SAY THIS IS HOW MANY LAWSUITS WE'RE GOING TO FILE. THIS IS WHAT THE VALUE WE THINK 755 01:18:11.637 --> 01:18:16.627 THOSE LAWSUITS ARE GOING TO BE. NOW NSHGS THE TRENCHES, IN THESE CASES AND 756 01:18:16.627 --> 01:18:22.730 EVEN HERE IF THE COURT WERE TO TURN TO P A-109 IN TERMS OF WHAT THE STATEMENT OF DAMAGES 757 01:18:22.730 --> 01:18:28.319 ARE, THEY'RE DEVASTATING. THAT'S FOR ONE CASE. IF YOU MULTIPLE THAT BY THREE IT EXCEEDS 758 01:18:28.319 --> 01:18:35.845 THE BUDGET FOR MINT FOR THE ENTIRE FISCAL YEAR. OBVIOUSLY THE OFFICE OF LEGISLATIVE SERVICE 759 01:18:35.845 --> 01:18:41.876 S DID NOT HAVE THAT INFORMATION BEFORE THEM AND THAT'S WHY THEY SAY WE JUST DON'T KNOW. 760 01:18:41.876 --> 01:18:47.351 WE UNDERSTAND IT'S GOING TO COST A LOT. WE DON'T KNOW HOW MUCH IT'S GOING TO COST. 761 01:18:47.351 --> 01:18:51.935 THAT BEING SAID, IF WHAT WE'RE TALKING ABOUT IS A DIRECT LINE BETWEEN THE ABUSER 762 01:18:51.935 --> 01:18:58.010 AND LIABILITY BEING VISITED UPON THE SCHOOL DISTRICT, IT'S NOT SOMETHING WE SHOULD BE 763 01:18:58.010 --> 01:19:05.660 PIECING TOGETHER OR TRYING TO SAY -- VISIT UPON PUBLIC ENTITIES BASED ON SORT OF THIS 764 01:19:05.660 --> 01:19:12.578 VAGUE STATEMENT ABOUT WE KNOW IT'S GOING TO COST A LOT BUT WE DON'T KNOW HOW MUCH. I DON'T 765 01:19:12.578 --> 01:19:18.929 THINK THAT'S THE CLEAR UN-MISTAKABLE INTENT THE COURT NEEDS TO SAY THAT 2-2 NO LONGER 766 01:19:18.929 --> 01:19:23.259 APPLIES. JUSTICE WAINER APTER: I THINK YOU HAD PREVIOUSLY SAID THAT HARDWICKE 767 01:19:23.259 --> 01:19:30.500 HAS NOT BEEN ENFORCED PERHAPS OR LIMITED IN SOME WAY. CAN YOU EXPLAIN, HAVE THERE BEEN 768 01:19:30.500 --> 01:19:37.064 JUDGMENTS AFTER HARDWICKE FOR WHAT YOUR ADVERSARIES ARE CALLING HARDWICKE LIABILITY? 769 01:19:37.064 --> 01:19:48.055 SO LIABILITY FOR CHILD SEXUAL ASSAULT. HAVE THERE BEEN JUDGMENTS? PRIVATE ENTITY, PUBLIC 770 01:19:48.055 --> 01:19:52.719 ENTITY, AT ALL. ROSHAN D. SHAH: I HAVEN'T SEEN ANY JUDGMENTS APPLYING VICARIOUS 771 01:19:52.719 --> 01:19:56.421 LIABILITY TO PRIVATE ENTITIES THAT ARE A DIRECT LINE BETWEEN THE ABUSER AND THE ENTITY. 772 01:19:56.421 --> 01:20:02.445 JUSTICE WAINER APTER: AND YOU'RE SAYING YOU'VE SEEN COURTS ATTEMPT TO 773 01:20:02.445 --> 01:20:07.471 DISTINGUISH HARDWICKE IN SOME WAY OR SAY IT DOES NOT APPLY FOR SOME PARTICULAR REASON? 774 01:20:07.471 --> 01:20:12.642 ROSHAN D. SHAH: YES. BRUNSWICK INVESTMENT. I THINK IT'S A CASE THAT 775 01:20:12.642 --> 01:20:17.430 ACTUALLY THE PETITIONERS BROUGHT UP TODAY. AND THE COURT DISCUSSES HARDWICKE AND SAYS, 776 01:20:17.430 --> 01:20:28.034 WE UNDERSTAND THAT THIS IS THERE, RIGHT, BUT WE'RE GOING TO FIND A RESTATEMENT THIRD TEST 777 01:20:28.034 --> 01:20:36.031 THAT WE'RE GOING TO APPLY. AND ULTIMATELY IN ES, A CASE INVOLVING A SUPERINTENDENT WHO 778 01:20:36.031 --> 01:20:42.253 USES HIS AUTHORITY TO ENTER AN APARTMENT OF A BUILDING AND SEXUALLY ASSAULTS TWO PEOPLE. 779 01:20:42.253 --> 01:20:50.737 AND THE COURT SAYS, NEVER HAD APPARENT AUTHORITY TO DO THAT. NOTHING THE PRINCIPAL DID 780 01:20:50.737 --> 01:20:55.220 WOULD HAVE LED TO THE TENANTS IN THAT BUILDING BELIEVING HE COULD DO OR INFLICT THIS TYPE 781 01:20:55.220 --> 01:21:02.375 OF ABUSE. SO WE DON'T BELIEVE THAT THERE IS VICARIOUS LIABILITY. NOW, DOES NOT 782 01:21:02.375 --> 01:21:08.401 PRECLUDE THE UNIVERSE OF CLAIMS. IF A SCHOOL DISTRICT HAS KNOWLEDGE THAT A PERSON IS 783 01:21:08.401 --> 01:21:14.322 DANGEROUS, EITHER WHEN THEY HIRE THEM OR AT SOME POINT DOWN THE ROAD, THERE IS NEGLIGENT 784 01:21:14.322 --> 01:21:20.465 INTENTION. BUT THERE'S EVEN SOMETHING BROADER THAN THAT, A GARDEN VARIETY NEGLIGENCE 785 01:21:20.465 --> 01:21:24.490 CLAIM. JUSTICE HOFFMAN: I WANT TO GO BACK TO A POINT YOU MADE EARLIER ABOUT 786 01:21:24.490 --> 01:21:33.172 THE VICARIOUS LIABILITY TEST FOR CHILD SEXUAL ABUSE IN HARDWICKE FOR ACTIVITIES OUTSIDE 787 01:21:33.172 --> 01:21:38.162 THE SCOPE OF EMPLOYMENT. YOU SAID FROM YOUR PERSPECTIVE THAT'S BASICALLY STRICT 788 01:21:38.162 --> 01:21:41.843 LIABILITY. I HAVE TOED A MIT, I DON'T SEE THAT AT ALL. IF YOU LOOK AT THE FIRST QUESTION, 789 01:21:41.843 --> 01:21:47.446 IT SAYS, THE EMPLOYER GAVE AUTHORITY TO THE SUPERVISOR TO CONTROL THE SITUATION ABOUT 790 01:21:47.446 --> 01:21:54.644 WHICH THE PLAINTIFF COMPLAINS. THAT IS A QUESTION OF DID THE EMPLOYER HAVE THAT 791 01:21:54.644 --> 01:22:02.067 AUTHORITY TO GIVE, DID THE EMPLOYER CONTROL THAT SITUATION, WAS THE EMPLOYER YIELDING CONTROL. 792 01:22:02.067 --> 01:22:08.830 HOW WOULD THAT APPLY IN AN APARTMENT OR AT A MOVIE WHEN THE EMPLOYER CERTAINLY DOESN'T 793 01:22:08.830 --> 01:22:14.751 HAVE THE AUTHORITY TO YIELD CONTROL OVER WHAT HAPPENS AT A TEACHER's APARTMENT OR AT THE 794 01:22:14.751 --> 01:22:19.207 MOVIES? ROSHAN D. SHAH: IF WE'RE TALKING ABOUT OFF CAMPUS ABUSE, THE HOOK 795 01:22:19.207 --> 01:22:24.034 WOULD BE -- IF I WAS ON THE PLAINTIFF'S SIDE -- WOULD BE WHETHER OR NOT THE TEACHER SAID 796 01:22:24.034 --> 01:22:29.157 SOMETHING TO THE STUDENT ABOUT THEIR GRADES, ABOUT EXTRACURRICULAR ACTIVITIES THAT 797 01:22:29.157 --> 01:22:35.083 COMPELLED THAT STUDENT IN A COERCIVE WAY OR BY PHYSICAL FORCE TO ATTEND THAT OR TO GO TO 798 01:22:35.083 --> 01:22:39.570 THAT APARTMENT. THAT WOULD BE ONE WAY WHICH YOU COULD SATISFY NUMBER ONE. BUT 799 01:22:39.570 --> 01:22:45.964 CERTAINLY IN THE CONTEXT OF BEING IN THE CLASSROOM, NUMBER ONE IS ALMOST ALWAYS GOING 800 01:22:45.964 --> 01:22:51.285 TO FALL AWAY IF YOU HAVE JUST THE GARDEN VARIETY SORT OF HEY THE TEACHER TOLD ME TO MEET 801 01:22:51.285 --> 01:22:57.910 HER IN THE BACK PARKING LOT. WENT TO HER CAR. SOMETHING ALONG THOSE LINES. SO NUMBER 802 01:22:57.910 --> 01:23:02.921 ONE IS GOING TO IN MOST CASES I WOULD SAY AT LEAST BASED ON THE FACTS PLED IN SOME OF 803 01:23:02.921 --> 01:23:08.710 THESE CASES IS GOING TO BE SATISFIED. JUSTICE HOFFMAN: YOU ANSWERED MY QUESTION 804 01:23:08.710 --> 01:23:15.791 WITH AN APPARENT AUTHORITY ANSWER. THAT WASN'T REALLY THE QUESTION. THE EMPLOYER GAVE 805 01:23:15.791 --> 01:23:22.674 THE AUTHORITY TO THE SUPERVISOR TO CONTROL THE SITUATION ABOUT WHICH THE PLAINTIFF CLAIMS. 806 01:23:22.674 --> 01:23:31.600 HOW CAN THE EMPLOYER IN A SCHOOL CONTEXT GIVE THE AUTHORITY, GIVE AWAY AUTHORITY IN A 807 01:23:31.600 --> 01:23:36.908 TEACHER's APARTMENT? THE EMPLOYER DOESN'T HAVE THAT AUTHORITY TO BEGIN WITH. 808 01:23:36.908 --> 01:23:40.676 ROSHAN D. SHAH: IT WOULDN'T BE TO THE TEACHER's APARTMENT. IT WOULD BE THE AUTHORITY 809 01:23:40.676 --> 01:23:45.739 TO GET THE STUDENT TO THE TEACHER's APARTMENT. SO IF WE APPLY THIS TEST AND WE LOOK AT 810 01:23:45.739 --> 01:23:50.507 THE CASES THAT HAVE APPLIED LEHMAN IN THE LAD CONTEXT WHEN WE'RE DEALING WITH SUPERVISORS, 811 01:23:50.507 --> 01:23:58.145 IT WOULDN'T BE THAT THE SUPERVISOR SAID I WANT YOU TO HAVE SEX WITH ME IN ORDER TO GET 812 01:23:58.145 --> 01:24:03.450 THIS PROMOTION. IT'S THAT THE EMPLOYER DELEGATED TO THE SUPERVISOR IN THE FIRST INSTANCE 813 01:24:03.450 --> 01:24:08.734 THE ABILITY TO CONTROL WHO GETS PROMOTIONS, WHO GETS RAISES. THAT IS WHAT ALLOWS YOU 814 01:24:08.734 --> 01:24:12.274 -- JUSTICE PATTERSON: THAT'S USED FOR LEVERAGE TO GET THAT EMPLOYEE TO GO 815 01:24:12.274 --> 01:24:14.879 TO THE APARTMENT. ROSHAN D. SHAH: THAT'S CORRECT. THAT'S ONE OF THE REASONS 816 01:24:14.879 --> 01:24:20.767 EVEN IN LEHMAN THE COURT SAYS WE'RE ADOPTING A STANDARD HERE THAT ISN'T NECESSARILY STRICT 817 01:24:20.767 --> 01:24:25.018 LIABILITY BUT WE ACKNOWLEDGE THAT IN ALMOST ALL CASES IT'S GOING TO LEAD TO LIABILITY. 818 01:24:25.018 --> 01:24:34.452 WHICH IS WHY 20 YEARS LATER THE COURT CAME BACK IN 13 WITH (CASE CITED) AND SAID WE NEED 819 01:24:34.452 --> 01:24:39.026 TO PUT SOMETHING ELSE ON THE TABLE WITH RESPECT TO AN AFFIRMATIVE DEFENSE IN THE CONTEXT 820 01:24:39.026 --> 01:24:45.795 OF SUPERVISORY HARASSMENT CLAIMS TO SOFTEN OR CUSHION THAT BLOW. AND THAT'S WHY WE HAVE 821 01:24:45.795 --> 01:24:52.850 THE (CASE CITED) DEFENSE OR EMPLOYERS FACING ALLEGATIONS THAT A SUPERVISOR ABUSED THEIR 822 01:24:52.850 --> 01:24:57.890 AUTHORITY AND IT CREATED A HOSTILE WORK ENVIRONMENT. JUSTICE WAINER 823 01:24:57.890 --> 01:25:03.972 APTER: AND THE SPECIFIC SENTENCE YOU'RE REFERRING TO IS AT PAGE 623 WHERE THE COURT SAYS 824 01:25:03.972 --> 01:25:11.165 THE STANDARD MAY READING READING BUT DOES NOT AMOUNT TO STRICT LIABILITY. ROSHAN 825 01:25:11.165 --> 01:25:15.031 D. SHAH: THAT'S CORRECT, YOUR HONOR. THE IDEA THERE AGAIN IS YOU HAVE POTENTIALLY FACTS 826 01:25:15.031 --> 01:25:20.795 IN THE EMPLOYMENT CONTEXT THAT YOU DON'T REALLY HAVE WE SUBMIT IN THE SCHOOL CONTEXT. 827 01:25:20.795 --> 01:25:27.996 THAT'S NOT JUST RE-ENFORCED BY SCHOOLS, IT'S BY PARENTS. WHEN WE SEND OUR KIDS TO SCHOOL, 828 01:25:27.996 --> 01:25:34.224 WE TELL THEM. THEY'RE AN ADULT. RESPECT THEM. TALK TO THEM A CERTAIN WAY. LISTEN TO 829 01:25:34.224 --> 01:25:39.770 THEM. THAT'S WHAT WE WANT CHILDREN TO GO INTO SCHOOL AND BEHALF A CERTAIN WAY. THAT'S 830 01:25:39.770 --> 01:25:46.610 RE-ENFORCED AT THE SCHOOL LEVEL AND AT HOME. SO YOU'RE ALWAYS GOING TO CREATE THIS PARADIGM 831 01:25:46.610 --> 01:25:52.553 WHERE ANY ADULT IN THE SCHOOL IS GOING TO BE LOOKED AT AS A SUPERVISOR AT LEAST TO A 832 01:25:52.553 --> 01:25:58.430 STUDENT. AND I WANT TO JUST FOLLOW UP ON ONE OTHER POINT. WE HEARD SOME ARGUMENT TODAY 833 01:25:58.430 --> 01:26:01.898 ABOUT TURNING THIS INTO AN AFFIRMATIVE DEFENSE WITH RESPECT TO TRAINING AND POLICIES. 834 01:26:01.898 --> 01:26:10.917 I AGREE WITH MY COLLEAGUE AND FRIEND MS. MELCHER THAT SOME OF THESE CASES ARE SO OLD. 835 01:26:10.917 --> 01:26:19.457 DIDN'T EVEN KNOW THIS WAS A POTENTIAL CLAIM, A HOSTILE WORK ENVIRONMENT OR EDUCATIONAL 836 01:26:19.457 --> 01:26:24.838 ENVIRONMENT CLAIM. SO THEY DON'T HAVE ANY POLICIES. THEY JUST DON'T EXIST AND IN THEY 837 01:26:24.838 --> 01:26:30.376 DID EXIST WE DON'T HAVE THEM. BUT I THINK THE SECOND PART OF THAT IS EQUALLY 838 01:26:30.376 --> 01:26:35.688 IMPORTANT, WHICH IS, WE'RE TALKING ABOUT SCHOOL KIDS. SOMETIMES AS YOUNG AS FIVE, SIX, 839 01:26:35.688 --> 01:26:42.437 SEVEN-YEAR OLD. THE IDEA THAT A SCHOOL DISTRICT IS GOING TO HAVE TRAINING TO CHILDREN 840 01:26:42.437 --> 01:26:49.109 ABOUT SEXUAL ABUSE IN A WAY THAT IS REALLY GOING TO BE EFFECTIVE WHEN WE'RE DEALING WITH 841 01:26:49.109 --> 01:26:53.666 IN A LOT OF THINGS BASIC THINGS, I DON'T THINK THAT'S PRACTICAL. CHIEF JUSTICE 842 01:26:53.666 --> 01:26:58.533 RABNER: COUNSEL, THE CHARITABLE IMMUNITY ACT THAT WE'VE BEEN SPEAKING ABOUT, IT PROVIDES 843 01:26:58.533 --> 01:27:04.430 BLANKET IMMUNITY WITH SOME EXCEPTIONS. AND THE EXCEPTIONS CONTAIN LANGUAGE SIMILAR TO 844 01:27:04.430 --> 01:27:13.904 WHAT APPEARS NOW IN SECTION 1.3. IS THERE A LIMITATION WITH RESPECT TO ACT WITHIN THE 845 01:27:13.904 --> 01:27:17.251 SCOPE OF EMPLOYMENT IN THE CHARITABLE IMMUNITIES ACT? ROSHAN D. SHAH: NO. 846 01:27:17.251 --> 01:27:22.897 BECAUSE WHAT THE CHARITABLE IMMUNITY ACT DOES IS ESSENTIALLY GRANTS IMMUNITY AND CREATES 847 01:27:22.897 --> 01:27:27.565 EXCEPTIONS TO IMMUNITY. THEN YOU GO TO THE COMMON LAW WITH RESPECT TO IF THESE CLAIMS 848 01:27:27.565 --> 01:27:32.113 ARE COMMON LAW CLAIMS, WHAT ARE THE STANDARDS THAT GOVERN THOSE CLAIMS. THOSE ARE OBVIOUS 849 01:27:32.113 --> 01:27:35.464 LY -- CHIEF JUSTICE RABNER: THAT WAS MY UNDERSTANDING AS WELL. THAT THERE'S 850 01:27:35.464 --> 01:27:42.627 NO WITHIN OR NOT WITHIN THE SCOPE OF EMPLOYMENT LIMITATION AS IT APPEARS IN 2.2. I FOUND 851 01:27:42.627 --> 01:27:48.874 THE JUNE 17TH, 2019, STATEMENT OF THE ASSEMBLE BUDGET COMMITTEE WITH RESPECT TO THE 2019 852 01:27:48.874 --> 01:27:54.856 AMENDMENT THAT WE HAVE BEEN SPEAKING ABOUT TODAY. AND HERE'S WHAT IT SAYS. I'M SURE 853 01:27:54.856 --> 01:28:00.611 YOU KNOW THIS. BUT I WANT YOU TO HELP UNDERSTAND WHETHER IT CHANGES ANY OF WHAT WE'VE 854 01:28:00.611 --> 01:28:06.526 BEEN DISCUSSING. THIS BILL AS AMENDED -- AND THIS IS THE SECOND IT RACE WE'RE 855 01:28:06.526 --> 01:28:15.028 TALKING NOW. ESTABLISHES NEW LIABILITY STANDARDS. AND THEN IT GOES ON TO SAY, IT 856 01:28:15.028 --> 01:28:21.303 EXPRESSLY PROVIDES IMMUNITY FROM LAWSUITS GRANTED TO PUBLIC ENTITIES WOULD NOT BE APPLICABLE 857 01:28:21.303 --> 01:28:25.316 WITH RESPECT TO THE FOLLOWING TYPES OF LAWSUITS. THEN IT HAS LANGUAGE THAT APPEARS TO 858 01:28:25.316 --> 01:28:33.752 MATCH A-ONE AND A-TWO. THEN IT SAYS, THESE TYPES OF LAWSUITS ARE THE SAME TYPES 859 01:28:33.752 --> 01:28:40.578 OF LAWSUITS FOR WHICH THE GENERAL STATUTORY IMMUNITY OF THE CHARITABLE IMMUNITY ACT DOES 860 01:28:40.578 --> 01:28:48.319 NOT APPLY. WHAT AM I MISSING WITH RESPECT TO THE LIMITATION OF 2.2 THAT YOU'RE ARGUING 861 01:28:48.319 --> 01:28:56.233 STILL APPLIES? DOES THAT MATCH UP WITH THE ASSEMBLE STATEMENT ACCOMPANYING THE 862 01:28:56.233 --> 01:28:59.436 LITIGATION THAT ULTIMATELY PASSED? ROSHAN D. SHAH: I THINK OUR ARGUMENT DOES 863 01:28:59.436 --> 01:29:04.081 LINE UP WITH THAT. BECAUSE THE LANGUAGE ABOUT IDENTICAL STANDARDS IS NOT THERE. WHAT 864 01:29:04.081 --> 01:29:10.190 IT TALKS ABOUT IS THE SAME TYPES OF LAWSUITS. LAWSUITS UNDER THE COMMON LAW. LAWSUITS 865 01:29:10.190 --> 01:29:14.389 UNDER THE STATUTE THAT ARE NO LONGER SUBJECT TO THE IMMUNITIES. I KNOW THERE WAS A QUESTION 866 01:29:14.389 --> 01:29:21.780 ASKED WITH RESPECT TO WHAT DOES 2-1.3 DO. AND THE ANSWER IS THAT IT STRIPS AWAY POWERFUL 867 01:29:21.780 --> 01:29:27.712 IMMUNITIES. WE COULD TAKE ANY PRECEDENT OF THIS COURT OR THE APPELLATE DIVISION OR EVEN 868 01:29:27.712 --> 01:29:33.613 A TRIAL COURT AND LOOK AT WHERE THEY APPLY IMMUNITY TO DEFEAT A CLAIM. IF WE JUST 869 01:29:33.613 --> 01:29:39.522 CHANGE THE FACTS SLIGHTLY YOU CAN SEE HOW POTENT IT IS TO STRIP AWAY THOSE IMMUNITIES IN FAVOR 870 01:29:39.522 --> 01:29:43.425 OF PLAINTIFFS. I COULD TAKE BROWN VERSUS -- JUSTICE PATTERSON: IS THAT WHAT 871 01:29:43.425 --> 01:29:46.850 THEY MEANT BY NEW LIABILITY STANDARDS? ROSHAN D. SHAH: WELL, I DON'T KNOW 872 01:29:46.850 --> 01:29:50.435 IF THAT'S WHAT THEY MEANT -- CHIEF JUSTICE RABNER: THAT'S WHAT THEY SAID. 873 01:29:50.435 --> 01:29:56.935 WHY SHOULDN'T WE ACCEPT WHAT THEY HAVE TOLD US TO UNDERSTAND THE LITIGATION THEY ENACTED? 874 01:29:56.935 --> 01:30:01.303 ROSHAN D. SHAH: BECAUSE THE ULTIMATE WORDS THAT THEY USED THAT ACCOMPANY 875 01:30:01.303 --> 01:30:08.135 THAT TEXT ARE DIFFERENT OR SAY IMMUNITIES. AND IF THE STATUTE SAYS IMMUNITIES, THEN WHAT 876 01:30:08.135 --> 01:30:15.663 WE SHOULD LOOK TO ARE THE IMMUNITIES. IF THIS COURT'S PRECEDENT SAYS 2-2 IS NOT AN 877 01:30:15.663 --> 01:30:21.009 IMMUNITY, THEN PRESUMABLY THE LEGISLATURE KNEW THAT. THERE IS NO NEW CAUSE OF ACTION THAT 878 01:30:21.009 --> 01:30:25.768 SPRINGS TO LIFE. IT'S A DISABLING PROVISION. IT SAYS IF YOU CAN SHOW CERTAIN THINGS 879 01:30:25.768 --> 01:30:31.275 IMMUNITY NO LONGER APPLIES. SO THE LANGUAGE ABOUT NEW LIABILITY STANDARDS, I THINK THE 880 01:30:31.275 --> 01:30:38.234 WAY I READ THAT IS THEY'RE NEW IN THE SENSE THAT THE DEFENSES YOU HAD NO LONGER APPLY 881 01:30:38.234 --> 01:30:42.301 AND THEREFORE YOU HAVE POTENTIAL LIABILITY. ASSUMING THE PLAINTIFF CAN STILL MAKE OUT 882 01:30:42.301 --> 01:30:48.747 THEIR PROOFS. THAT'S THE WAY I READ THAT LANGUAGE IN CONNECTION WITH THE STATUTORY 883 01:30:48.747 --> 01:30:53.242 LANGUAGE. I DON'T THINK THAT THE LEGISLATIVE HISTORY TO THE EXTENT THAT THERE'S AMBIGUITY 884 01:30:53.242 --> 01:30:59.623 THERE SHOULD OVERRIDE THE CLEAR LANGUAGE THAT THE STATUTE HAS WHICH EVERYBODY AGREES IS 885 01:30:59.623 --> 01:31:06.158 PLAIN AND UNAMBIGUOUS. WHICH IS, IF YOU CAN SHOW NEGLIGENCE, WILLFUL OR WANTON MISCONDUCT 886 01:31:06.158 --> 01:31:11.966 ON THE PART OF THE PUBLIC ENTITY OR EMPLOYEE THEN IMMUNITY FALLS AWAY. AND THE WAY E 887 01:31:11.966 --> 01:31:17.387 C HAS INTERPRETED THAT PROVISION, AN APPELLATE DIVISION DECISION, THE WAY THEY INTERPRETED 888 01:31:17.387 --> 01:31:22.284 THAT PROVISION IS THAT YOU CAN TAKE THE ABUSERS CONDUCT AND STRIP AWAY IMMUNITY. BUT 889 01:31:22.284 --> 01:31:30.429 THAT'S NOT THE SAME THING AS ATTACHING LIABILITY. AND THAT COMPORTS WITH HOW THIS COURT 890 01:31:30.429 --> 01:31:35.653 ANALYZED CLAIMS IN THE TORT CLAIMS ACT. DOES AN IMMUNITY APPLY. IF THE ANSWER IS THAT 891 01:31:35.653 --> 01:31:42.416 IT DOESN'T, THEN WE GO TO STEP TWO, WHICH IS, IS THERE A LIABILITY PROVISION HERE. WHAT 892 01:31:42.416 --> 01:31:50.431 2-1.3 DOES IS ELIMINATES STEP ONE UNDER THE CIRCUMSTANCES ENUMERATED. AND WE GO STRAIGHT 893 01:31:50.431 --> 01:31:52.825 TO LIABILITY. CHIEF JUSTICE RABNER: ANYONE HAVE ANY ADDITIONAL QUESTIONS? 894 01:31:52.825 --> 01:31:56.410 ANYTHING YOU'D LOOIK TO ADD? ROSHAN D. SHAH: NO, YOUR HONOR. THANK YOU. 895 01:31:56.410 --> 01:32:22.483 (TIME NOTED: 2:35 p.m.). VIVIANA M. HANLEY: GOOD AFTERNOON, 896 01:32:22.483 --> 01:32:27.440 YOUR HONORS, MAY IT PLEASE THE COURT. THE ATTORNEY GENERAL HAS TWO MAIN POINTS 897 01:32:27.440 --> 01:32:33.674 THE FIRST IS ON IMMUNITY, THE SECOND IS ON LIABILITY. JUSTICE PATTERSON: 898 01:32:33.674 --> 01:32:39.997 YOU'VE HAD A ROUGH AFTERNOON PEOPLE TALKING ABOUT YOU. VIVIANA M. HANLEY: 899 01:32:39.997 --> 01:32:45.651 MY EARS ARE RINGING. I WOULD LIKE TO TOUCH ON THE STATUTORY TORE REIMMUNITY 900 01:32:45.651 --> 01:32:52.243 POINT AND THEN IDEALLY SPEND MOST OF MY TIME ON THE LIABILITY AND THE INTERPRETATION OF THE 901 01:32:52.243 --> 01:32:59.669 HARDWICKE POINT. SO I WOULD NOT BE HERE ARGUING THAT THERE IS NOT IMMUNITY 902 01:32:59.669 --> 01:33:06.390 FOR THESE CLAIMS IF THAT WEREN'T CRYSTAL CLEAR IN THE STATUTE AN I GUESS OUR POSITION 903 01:33:06.390 --> 01:33:13.275 THAT IT IS CRYSTAL CLEAR. I THINK MY -- THE SCHOOL BOARDS MISUNDERSTAND OUR 904 01:33:13.275 --> 01:33:21.519 POSITION AS INTERPRETING 59 SPACE 2-2 AS AN IMMUNITY PROVISION. WE DO NOT. WE AGREE 905 01:33:21.519 --> 01:33:32.815 IT IS A LIABILITY PROVISION. HOWEVER, WHAT THEY IGNORE IS THAT THE 592-1.3 906 01:33:32.815 --> 01:33:40.823 A1 PLAINLY DIS ABLES ALL IMMUNITY GRANTED BY THE TORT CLAIMS ACT. JUSTICE 907 01:33:40.823 --> 01:33:47.592 PATTERSON: COULD I JUST ASK YOU SOMETHING. IS 59: 2-2 AN IMMUNITY PROVISION? 908 01:33:47.592 --> 01:33:53.393 VIVIANA M. HANLEY: IT IS NOT. IT GRANTS LIABILITY. JUSTICE 909 01:33:53.393 --> 01:33:59.161 PATTERSON: SO IT DOESN'T SAY IT COULD BE. IT COULD SAY THERE IS IMMUNITY FOR ANY CONTEXT 910 01:33:59.161 --> 01:34:03.868 OUTSIDE THE SCOPE OF EMPLOYMENT THAT WOULD BE AN IMMUNITY PROVISION. VIVIANA M. 911 01:34:03.868 --> 01:34:10.264 HANLEY: THAT WOULD BE AN IMMUNITY. IF 2-2 WERE WORDED TO SAY THERE WOULD BE LIABILITY 912 01:34:10.264 --> 01:34:18.731 ONLY IF, THAT IS NOT WHAT 2-2 SAYS. 2-2 SAYS A PUBLIC ENTITY IS LIABLE. IT JUST SAYS 913 01:34:18.731 --> 01:34:24.015 A PUBLIC ENTITY IS LIABLE. THE ONLY REASON THAT THERE IS MUCH CASE LAW SAYING 914 01:34:24.015 --> 01:34:29.586 YOU HAVE TO LOCATE A PREDICATE LIABILITY WITHIN THE TORT CLAIMS ACT IS BECAUSE THE AFFIRM 915 01:34:29.586 --> 01:34:35.656 ATIVE GRANTS OF LIABILITY IN THE TORT CLAIMS ACT ARE EXCEPTIONS TO THE INITIAL GRANT V 916 01:34:35.656 --> 01:34:45.178 BLANKET IMMUNITY THAT THE TORT CLAIMS ACT PROVIDES IN 59:2-1. SO THE BASIC STRUCTURE 917 01:34:45.178 --> 01:34:53.662 OF THE TORT CLAIMS ACT IS 59:2-1 SAYS EXCEPT AS OTHERWISE PROVIDED IN THIS ACT A PUBLIC 918 01:34:53.662 --> 01:35:01.443 ENTITY IS NOT LIABLE FOR ANY INJURY; THAT'S 59:2-2 SO THE BACKGROUND ASSUMPTION IS NO 919 01:35:01.443 --> 01:35:08.619 LIABILITY EXCEPT AS PROVIDED IN THE ACT SO IT IS BECAUSE OF 59:2-1 THAT TO GET TO LIABILITY 920 01:35:08.619 --> 01:35:13.698 FOR A PUBLIC ENTITY YOU HAVE TO LOCATE NORMALLY PREDICATE LIABILITY IN THE ACT. YOU HAVE 921 01:35:13.698 --> 01:35:20.619 TO LOOK AT EXCEPT AS OTHERWISE PROVIDED IN THIS ACT. 59-2-2 IS ONE OF THOSE 922 01:35:20.619 --> 01:35:27.056 EXCEPTIONS. JUSTICE PATTERSON: 59:2-2 IS JUST PART OF THE STORY. WITHIN 923 01:35:27.056 --> 01:35:31.066 THE SCOPE IS PART OF THE LIABILITY, BUT NOT ALL OF THE LIABILITY AN SINCE THE IMMUNITIES 924 01:35:31.066 --> 01:35:40.647 ARE GONE AND THE LIABILITY -- COMBHA IS CALLED THE LIABILITY SECTIONS ARE NOT CREATING 925 01:35:40.647 --> 01:35:51.323 EXCEPTIONS TO IMMUNITY ANYMORE, WE SHOULD TO 2.2-2 AS NOT IMPORTANT IN THIS SITUATION. 926 01:35:51.323 --> 01:35:54.499 VIVIANA M. HANLEY: THAT'S RIGHT BECAUSE YOU ONLY -- LIABILITY AGAINST A 927 01:35:54.499 --> 01:36:01.173 PUBLIC ENTITY IS ONLY FORCED THROUGH ONE OF THE PREDICATE LIABILITIES IN THE TORT CLAIMS 928 01:36:01.173 --> 01:36:08.156 ACT BECAUSE OF 59:2-1, WHICH SAYS THE ONLY WAY YOU CAN HAVE LIABILITY AGAINST A PUBLIC 929 01:36:08.156 --> 01:36:14.293 ENTITY IS TO GO THROUGH ONE OF THE AFFIRMATIVE GRANTS WITHIN THIS ACT. BUT 930 01:36:14.293 --> 01:36:22.772 ONCE YOU DISABLE THAT RESTRICTION, ONCE YOU DISABLE 59:2-1, WHICH IS IS, THE TITLE OF 931 01:36:22.772 --> 01:36:30.408 IT IS IMMUNITY OF PUBLIC ENTITY GENERALLY, THAT'S AN IMMUNITY'S PROVISION, WHEN THAT IS 932 01:36:30.408 --> 01:36:36.316 DISABLED YOU AREN'T THEN FORCED TO LOCATE PREDICATE LIABILITY IN THE ACT IF THERE IS A 933 01:36:36.316 --> 01:36:41.758 SOURCE OF LIABILITY ELSEWHERE. JUSTICE WAINER APTER: YOU'RE NOT SAYING 934 01:36:41.758 --> 01:36:50.042 THERE DOESN'T HAVE TO BE. VIVIANA M. HANLEY: THAT'S EXACTLY RIGHT. 935 01:36:50.042 --> 01:36:55.908 AND SO I THINK THAT'S THE BASIC MISUNDERSTANDING. I THINK THAT'S WHERE THE APPELLATE 936 01:36:55.908 --> 01:37:01.729 DIVISION ERRED IN SEEING THAT THESE CLAIMED HAD TO BE FUNNELED THROUGH THE TORT CLAIMS 937 01:37:01.729 --> 01:37:07.205 ACT EVEN IF THERE WASN'T A SOURCE OF LIABILITY ELSEWHERE SO, AGAIN, IT'S THE PLAIN LANGUAGE 938 01:37:07.205 --> 01:37:14.666 OF 59:2-1.3 SAYS NOTWITHSTANDING ANY PROVISION OF A NEW JERSEY TORT CLAIMS ACT TO THE 939 01:37:14.666 --> 01:37:22.126 CONTRARY, IMMUNITY AND CIVIL LIABILITY GRANTED BY THAT ACT SHALL NOT APPLY TO THESE SPECIFIED 940 01:37:22.126 --> 01:37:27.323 ACTIONS INVOLVING SEXUAL ABUSE OR SEXUAL ASSAULT. SO, AGAIN, THE KEY IS THAT ANY 941 01:37:27.323 --> 01:37:36.058 IMMUNITY GRANTED BY THE TORT CLAIMS ACT ENCOMPASSES 59:2-1 THE INITIAL BLANKET GRANT 942 01:37:36.058 --> 01:37:41.240 OF IMMUNITY FROM WHICH YOUR PREDICATE LIABILITY PROVISION IS CARVED OUT. YOU DON'T NEED 943 01:37:41.240 --> 01:37:47.421 TO FIT INTO A CARVE OUT IF THE INITIAL GRANT OF BLANKET IMMUNITY DOESN'T APPLY TO YOU. 944 01:37:47.421 --> 01:37:51.749 IT DOESN'T APPLY TO THESE PARTICULAR CLAIMS BECAUSE THAT'S WHAT THE PLAIN LANGUAGE OF 945 01:37:51.749 --> 01:38:00.538 59:2-1.3. NOW WE THINK IT IS CRYSTAL CLEAR HERE BUT IF YOU LOOK TO THE LEGISLATIVE 946 01:38:00.538 --> 01:38:05.980 HISTORY, IT REALLY SEMENTS THAT THIS IS WHAT THE LEGISLATURE WAS TRYING TO DO AND I THINK 947 01:38:05.980 --> 01:38:11.465 THE COURT HAS DISCUSSED ALL OF THE PROVISIONS IN THE GOVERNOR'S STATEMENT AND THE JUDICIARY 948 01:38:11.465 --> 01:38:17.488 COMMITTEE'S STATEMENT THAT SAYS THAT WHAT THE LEGISLATURE WAS TRYING TO DO IS BASICALLY 949 01:38:17.488 --> 01:38:24.944 EQUALIZE THE DEGREE OF LIABILITY BETWEEN NONPROFITS OR CHARTS AN PUBLIC ENTITIES AND I 950 01:38:24.944 --> 01:38:31.134 THINK MR. SHAH WAS REALLY FOCUSING ON THE DIFFERENCE BETWEEN A MAY 13TH VERSION OF THE 951 01:38:31.134 --> 01:38:37.596 ACT AND A JUNE 17TH VERSION OF THE ACT AND WHAT I UNDERSTOOD HIS ARGUMENT TO BE IS THAT 952 01:38:37.596 --> 01:38:44.483 BASICALLY ALTHOUGH THE LEGITIMATE I HISTORY APPEARS TO SUGGEST THEY WERE TRYING TO 953 01:38:44.483 --> 01:38:51.364 EQUALIZE CHARITABLE -- THE DEGREE TO WHICH CHARITIES COULD BE HELD LIABLE AND THE DEGREE 954 01:38:51.364 --> 01:38:57.279 TO WHICH PUBLIC ENTITIES COULD BE HELD LIABLE, UP UNTIL JUNE 17TH, THEY SORT OF ABANDONED 955 01:38:57.279 --> 01:39:02.004 THAT PLAN AND DID SOMETHING ELSE. I DON'T THINK EITHER THE LEGISLATIVE HISTORY 956 01:39:02.004 --> 01:39:06.684 OR THE CHANGES TO THE LANGUAGE SUPPORT THAT. THE ONLY REAL DIFFERENCE BETWEEN THE MAY 957 01:39:06.684 --> 01:39:12.462 13TH VERSION AN THE JUNE 17TH VERSION IS THAT THE MAY 13TH VERSION SAID BASICALLY ANY 958 01:39:12.462 --> 01:39:21.395 IMMUNITIES DON'T APPLY TO THE SPECIFIED SEXUAL ABUSE OR SEXUAL ASSAULT CLAIMS AN THEN 959 01:39:21.395 --> 01:39:27.689 THE LEGISLATURE SAID, OH, WAIT, WE DIDN'T MEAN ANY IMMUNITY ANYWHERE WE JUST MEANT BASIC 960 01:39:27.689 --> 01:39:32.731 THRESHOLD GRANTS, EVERYTHING IN THE TORT CLAIMS ACT BUT IF THERE IS SOMETHING VERY SPECIFIC 961 01:39:32.731 --> 01:39:37.768 THAT APPLIES ELSEWHERE WE DIDN'T INTEND TO DO ALL OF THAT. THE ONLY CHANGE 962 01:39:37.768 --> 01:39:43.759 BETWEEN THE MAY 13TH VERSION AND THE JUNE 17TH VERSION IS THAT THE MAY 13TH VERSION TAKES 963 01:39:43.759 --> 01:39:51.532 AWAY ANY IMMUNITY FROM ANY SOURCE AND THEN THE LEGISLATURE BACKED ON THAT A LITTLE BIT 964 01:39:51.532 --> 01:39:56.270 AN SAID NO WHAT WE MEAN IS JUST ANYTHING IN THE TORT CLAIMS ACT. I DON'T SEE 965 01:39:56.270 --> 01:40:01.280 THAT DIFFERENCE AS SOMEHOW INDICATING THE LEGISLATURE COMPLETELY CHANGED IT'S OBJECTIVE 966 01:40:01.280 --> 01:40:09.234 TO SUBJECT PUBLIC ENTITIES TO REMOVE THE IMMUNITY THEY HAD FOR THESE CLAIMS IN THE SAME 967 01:40:09.234 --> 01:40:16.018 WAY THAT CHARTS CHARITIES WERE SUBJECT TO THE SAME LIABILITY. JUSTICE 968 01:40:16.018 --> 01:40:22.759 PATTERSON: IT IS THE AG'S POSITION THAT THE KWIFL LENS BETWEEN CHARITABLE AN PUBLIC ENTITY 969 01:40:22.759 --> 01:40:27.206 LIABILITY WAS THE INTENTION OF THE LEGISLATURE THROUGHOUT THE PROCESS. VIVIANA 970 01:40:27.206 --> 01:40:35.421 M. HANLEY: YES AND THAT'S CLEAR FROM GOVERNOR MURPHY'S ORIGINAL SIGNING AGREEMENT. AND 971 01:40:35.421 --> 01:40:40.015 IT IS AGAIN AND AGAIN WITHIN THE LEGISLATIVE HISTORY. A FINAL POINT I WOULD 972 01:40:40.015 --> 01:40:48.996 MAKE ON THE INTERPRETATION OF THE STATUTE IS THAT AS THE COUNSEL FOR THE SCHOOL BOARDS 973 01:40:48.996 --> 01:40:57.548 HAS NOTED THE APPELLATE DIVISION IN E.C. INTERPRETED 59:2-1.3 NOT TO BAR A CLAIM 974 01:40:57.548 --> 01:41:02.216 AGAINST THE SCHOOL BOARD FOR SEXUAL MISCONDUCT BY A TEACHER AND THERE WERE TWO ASPECTS 975 01:41:02.216 --> 01:41:12.997 TO THAT OPINION, ONE WAS INTERPRETING 59:2-1.3 TO LOOUF THE RELEVANT PLANNING MRAVEN THAT 976 01:41:12.997 --> 01:41:19.655 WOULD R BLANK THAT WOULD BAR THE CLAIM. ANOTHER WAS INTERPRETING WHETHER 59:2-1.3 977 01:41:19.655 --> 01:41:28.031 REMOVED THE DAMAGES SECTION AND THE LEGISLATURE RESPONDED TO THIS DECISION BECAUSE IN 978 01:41:28.031 --> 01:41:38.362 2025, THEY PASSED A LAW, A CHAPTER 29 SECTION 2 WHICH SAYS THAT THE APPELLATE DIVISION 979 01:41:38.362 --> 01:41:43.047 HELD IN E.C. THAT THE PAIN AND SUFFERING LIMITATION IN THE TORT CLAIMS ACT STILL 980 01:41:43.047 --> 01:41:48.261 APPLIED AND THE LEGISLATURE RESPONDED AND ALTERED THAT AND THEY SAID THEY SPECIFICALLY 981 01:41:48.261 --> 01:41:59.204 PROVIDED THAT THAT LIMITATION IS AT 59:9-2 D DOES NOT APPLY SO I BRING THAT UP JUST BECAUSE 982 01:41:59.204 --> 01:42:04.645 THE APPELLATE DIVISION -- THE LEGISLATURE IT APPEARS WAS AWARE OF THE E.C. DECISION AND 983 01:42:04.645 --> 01:42:12.194 RESPONDED BY ALTERING -- THEY'RE GOING TO SAY ALTERING THE HOLDING BUT THEY CHANGED THE 984 01:42:12.194 --> 01:42:17.821 OUTCOME AUS TO THE PAIN AND SUFFERING DAMAGES THEY DIDN'T SAY ANYTHING AS TO THE 59:-IN 985 01:42:17.821 --> 01:42:25.673 WHICH THAT PROVISION WAS INTERPRETED TO REMOVE THE RELEVANT I'M MUPTS FOR THE SCHOOL IN 986 01:42:25.673 --> 01:42:30.781 THAT CIRCUMSTANCE. SO ALL OF THAT TAKEN TOGETHER, THE TEXT, THE HISTORY, THE 987 01:42:30.781 --> 01:42:36.044 LEGISLATIVE HISTORY LEADING UP TO THE ENACTMENT, THE LEGISLATURE'S RESPONSE TO THE E.C., 988 01:42:36.044 --> 01:42:47.546 THIS ALL MAKES ABUNDANTLY CLEAR THAT 59:2-1.3 DOES NOT REQUIRE THAT CLAIMS BE FUNNELED 989 01:42:47.546 --> 01:42:52.755 THROUGH THE PREDICATE LIABILITY PROVISIONS OF THE TORT CLAIMS ACT. AND THAT 990 01:42:52.755 --> 01:42:57.647 BRINGS US TO THIS COURT'S COMMON LAW WHICH WOULD BE ANOTHER SOURCE OF LIABILITY SO TO 991 01:42:57.647 --> 01:43:03.733 THE CLAIM A CLAIM CAN FIT WITHIN THE COMMON LAW, THEN IT SHOULD BE AVAILABLE, BUT I WOULD 992 01:43:03.733 --> 01:43:10.978 NOTE THE LEGISLATURE COULD HAVE, BUT DID NOT CREATE LIABILITY. IT DID NOT CREATE A CAUSE 993 01:43:10.978 --> 01:43:18.937 OF ACTION. IT COULD HAVE DONE SO. IT DID AMEND THE CHILD SEXUAL ABUSE ACT. IT DID NOT 994 01:43:18.937 --> 01:43:26.487 PROVIDE THAT EMPLOYERS OR SCHOOL BOARDS, IN PARTICULARLY, WOULD BE STRICTLY LIABLE FOR 995 01:43:26.487 --> 01:43:37.149 SEXUAL ABUSE AND THE ATTORNEY GENERAL PROPOSAL REGARD TO INTERPRETING HARDWICKE IS MEPT 996 01:43:37.149 --> 01:43:40.711 TO CLARIFY A QUESTION LEFT OPEN IN HARDWICKE. JUSTICE PATTERSON: BEFORE 997 01:43:40.711 --> 01:43:47.847 YOU GET TO THAT, YOUR FRIENDS ON THIS SIDE OF THE TABLE, AT LEAST WIN OF THEM ARGUED THAT 998 01:43:47.847 --> 01:43:59.706 WE SHOULD VIEW A COMMON LAW ACTION AS TO QUASI PURSUANT TO A REMEDIAL STATUTE OF THE 999 01:43:59.706 --> 01:44:04.529 LEGISLATURE AND YOU HEARD, I THINK SOME SUGGESTIONS BY THIS END OF THE ROOM AS TO 1000 01:44:04.529 --> 01:44:13.766 WHETHER THIS IS TRULY A COMMON LAW ACTION FOR THE -- AN OUTSIDE OF THE CAUSE OF ACTION 1001 01:44:13.766 --> 01:44:22.905 HERE IS PURSUANT TO A REMEDIAL STATUTE. WHAT IS YOUR POSITION ON THAT. VIVIANA 1002 01:44:22.905 --> 01:44:28.496 M. HANLEY: THE ANSWER IS NO. I THINK THEY ARE JUST COMMON LAW CLAIMS. I DO THINK 1003 01:44:28.496 --> 01:44:34.634 HARDWICKE'S REASONING IN RECOGNIZING THAT THERE COULD BE VICARIOUS LIABILITY OUTSIDE THE 1004 01:44:34.634 --> 01:44:42.312 SCOPE OF EMPLOYMENT IN CERTAIN EXTRAORDINARY CIRCUMSTANCES I DO THINK THE COURT IN 1005 01:44:42.312 --> 01:44:49.562 HARDWICKE IN RECOGNIZING THERE COULD BE VICARIOUS LIABILITY IN THE UNUSUAL CIRCUMSTANCES 1006 01:44:49.562 --> 01:44:55.161 WHEN THAT IS POSSIBLE OUTSIDE THE SCOPE OF EMPLOYMENT DID CARE THAT CHILD SEXUAL ABUSE 1007 01:44:55.161 --> 01:45:00.759 IS A VERY IMPORTANT ISSUE; THAT'S ALMOST THE ENTIRETY OF THE REASONING. WE HAVE VERY 1008 01:45:00.759 --> 01:45:05.186 LITTLE REASONING IN HARDWICKE OTHER THAN THIS IS AN IMPORTANT ISSUE. I DON'T THINK 1009 01:45:05.186 --> 01:45:11.308 IT WOULD MAKE SENSE TO HAVE A TEST WHICH SAYS IF WE HAVE A STATUTORY ENACTMENT WHICH 1010 01:45:11.308 --> 01:45:19.264 HAS IDENTIFIED AN IMPORTANT PUBLIC POLICY ISSUE AND CREATED ITS OWN REGIME FOR ADDRESSING 1011 01:45:19.264 --> 01:45:24.723 THAT ISSUE THAT THEN WE CAN HAVE LIABILITY THAT GOES FAR BEYOND WHAT THE LEGISLATURE HAS 1012 01:45:24.723 --> 01:45:31.194 DECIDED. I THINK THAT'S WHAT IS A LITTLE BIT UNUSUAL ABOUT THE TEST THAT THEY ARE 1013 01:45:31.194 --> 01:45:33.905 PROPOSING. JUSTICE PATTERSON: DO YOU THINK TO THE EXTENT THAT IT MAY BE 1014 01:45:33.905 --> 01:45:39.642 RELEVANT WHETHER A CAUSE OF ACTION IS PREMISED UPON A REMEDIAL STATUTE THAT INVOLVED AN 1015 01:45:39.642 --> 01:45:45.617 IMPORTANT PUBLIC POLICY THAT WE SHOULD CONSIDER THAT RELEVANT OR IRRELEVANT TO THIS CASE 1016 01:45:45.617 --> 01:45:52.384 WHICH COMMON LAW CLAIMS SEEM TO DO HERE WITH THE EXCEPTION OF THE LAD CLAIM AND SO FORTH? 1017 01:45:52.384 --> 01:45:57.745 DO YOU SEE WHAT I AM SAYING? VIVIANA M. HANLEY: I THINK I 1018 01:45:57.745 --> 01:46:02.437 UNDERSTAND WHAT YOU'RE SAYING. IF ANYTHING I THINK IT COUNSELS SOME DEGREE OF CAUTION. 1019 01:46:02.437 --> 01:46:08.573 SO WHEN THE LEGISLATURE HAS DIRECTLY SPOKEN TO THE ISSUES, AS THEY HAVE WITH THE SEXUAL 1020 01:46:08.573 --> 01:46:13.160 ABUSE ACT, I THINK IT WOULD COUNSEL SOME DEGREE OF CAUTION. JUSTICE WAINER 1021 01:46:13.160 --> 01:46:18.326 APTER: IT WOULD BE FOR EXAMPLE SAYING THAT YOU COULD BRING A COMMON LAW CLAIM FOR A LAD 1022 01:46:18.326 --> 01:46:22.799 VIOLATION BUT YOU DON'T HAVE TO ACTUALLY FULFILL THE REQUIREMENTS OF THE LAD, YOU CAN 1023 01:46:22.799 --> 01:46:29.177 CALL IT A COMMON LAW CLAIM THAT IS SEEKING TO ENFORCE THE LAD WITHOUT ACTUALLY HAVING 1024 01:46:29.177 --> 01:46:40.616 TO ABIDE BY THE REQUIREMENTS OF THE LAD. VIVIANA M. HANLEY: EXACTLY, EXACTLY. 1025 01:46:40.616 --> 01:46:44.148 JUSTICE HOFFMAN: IF YOU OPEN THE DOOR FOR LESSER CLAIMS WHY IS THAT LESS 1026 01:46:44.148 --> 01:46:49.013 REMEDIAL. VIVIANA M. HANLEY: CERTAINLY THE COURT IN INTERPRETING ITS 1027 01:46:49.013 --> 01:46:55.514 COMMON LAW CARED ABOUT POLICY KRGZ SO TO THE EXTENT BY REMEDIAL YOU MEAN CONCERNED WITH 1028 01:46:55.514 --> 01:47:13.217 RECOMMEND MED YING IN JUSTICE ES. REMEDYING. INJUSTICE ES. SO I THINK WHAT 1029 01:47:13.217 --> 01:47:19.105 WE CAN DISCERN ABOUT THE LEGISLATIVE INTENT IN REMOVING IMMUNITY AN THEREFORE OPENING 1030 01:47:19.105 --> 01:47:26.865 THE DOOR TO THE COMMON LAW ALLOWED BY HARDWICKE, JUSTICE HOFFMAN THAT THE LEGISLATURE 1031 01:47:26.865 --> 01:47:31.972 -- AND THE LEGISLATURE WAS AWARE OF HARDWICKE, REFERENCES TO HARDWICKE SPECIFICALLY APPEAR 1032 01:47:31.972 --> 01:47:39.140 IN THE LEGISLATIVE HISTORY AND I CAN POINT YOU TO OUR APPENDIX AT 2 AND THAT'S REFERRING 1033 01:47:39.140 --> 01:47:45.192 TO WHEN THEY ARE AMENDING THE CHARITABLE IMMUNITY ACT AND THEY SAY THESE AMENDMENTS RECOGNIZE 1034 01:47:45.192 --> 01:47:51.492 THE CURRENT INTERPRETATION AN SCOPE OF RELIABILITY BASED ON HARDWICKE AND WE NOTE 1035 01:47:51.492 --> 01:47:55.690 FROM SOME OF THE OTHER LEGISLATIVE HISTORY THAT I CITED EARLIER THAT THEY MEANT TO EQUALIZE 1036 01:47:55.690 --> 01:48:03.331 IN SOME WAY CHARITABLE IMMUNITY AN PUBLIC ENTITY, TO WITHDRAW IMMUNITY SUCH THAT THEY WERE 1037 01:48:03.331 --> 01:48:12.998 EQUIVALENT, SO WE KNOW THEY MEANT CHARITABLE IMMUNITY TO MATCH HARDWICKE SO THEY CLEARLY 1038 01:48:12.998 --> 01:48:18.919 WERE AWARE OF HARDWICKE, BUT I SAY THAT TO SAY HARDWICKE ITSELF IS SOMEWHAT OPEN ENDED 1039 01:48:18.919 --> 01:48:26.393 AND UNCLEAR AT THIS POINT SO WE KNOW THE LEGISLATURE WAS LOOKING AT HARDWICKE AND AT 1040 01:48:26.393 --> 01:48:33.062 LEAST ENDORSED LIABILITY IN THAT CIRCUMSTANCE, BUT AS HAS BEEN DISCUSSED AT LENGTH THROUGHOUT 1041 01:48:33.062 --> 01:48:37.166 THE MORNING AND INTO THE AFTERNOON. JUSTICE PATTERSON: HOPEFULLY NOT THE 1042 01:48:37.166 --> 01:48:43.776 EVENING. VIVIANA M. HANLEY: THE FACT IN HARDWICKE WERE EGREGIOUS SO WE 1043 01:48:43.776 --> 01:48:52.544 KNOW IN THAT PARTICULARLY EGREGIOUS MANNER WHERE WE KNOW THE PERSON FUNCTIONED AS THE 1044 01:48:52.544 --> 01:49:01.028 AND REALLY ENGAGED IN OPEN, FREQUENT, PROLONGED SEXUAL HARASSMENT, WE KNOW IN THOSE VERY 1045 01:49:01.028 --> 01:49:05.895 EGREGIOUS CIRCUMSTANCES THAT THE LEGISLATURE LOOKED AT HARDWICKE AND ACKNOWLEDGED THERE 1046 01:49:05.895 --> 01:49:09.346 SHOULD BE LIABILITY IN THAT CIRCUMSTANCE. SO WHAT THE ATTORNEY GENERAL HAS 1047 01:49:09.346 --> 01:49:14.060 TRIED TO DO WITH OUR PROPOSAL IS RECOGNIZE THAT LIABILITY SHOULD ATTACH, VICARIOUS LIABILITY, 1048 01:49:14.060 --> 01:49:22.036 AS RECOGNIZED IN HARDWICKE SHOULD ATTACH IN THOSE SORT OF EXTRAORDINARY CIRCUMSTANCES 1049 01:49:22.036 --> 01:49:28.410 AND WE'VE TRIED TO RECONCILE THE FACTS IN HARDWICKE, WHICH CLEARLY THE LEGISLATURE 1050 01:49:28.410 --> 01:49:33.244 THOUGHT THERE SHOULD BE VICARIOUS LIABILITY THERE WITH THE REASONING IN HARD, WHICH LOOK 1051 01:49:33.244 --> 01:49:44.438 S TO LEE LEHMANN AN PRINCIPLES THAT HAD BEEN IDENTIFIED UNDER LAD AND IT IS REALLY ALL 1052 01:49:44.438 --> 01:49:48.721 WE HAVE TO GO WITH IN TERMS OF INTERPRETING THE SCOPE OF HARDWICKE. THE ONLY 1053 01:49:48.721 --> 01:49:53.784 OTHER DECISIONS WE'RE AWARE OF THAT HAVE INTERPRETED THE COMMON LAW HOLDINGS IN 1054 01:49:53.784 --> 01:49:57.773 HARDWICKE REALLY JUST E.S., THE DECISION THAT HAS BEEN DISCUSSED BY THE APPELLATE DIVISION 1055 01:49:57.773 --> 01:50:03.893 THIS MORNING AND YOU CAN TELL IN READING E.S. THAT THE APPELLATE DIVISION WAS VERY 1056 01:50:03.893 --> 01:50:10.674 CONCERNED ABOUT HOW FAR HARDWICKE COULD GO AND TRIED TO GIVE IT A LIMITING GLOSS. 1057 01:50:10.674 --> 01:50:14.752 JUSTICE PATTERSON: BEFORE YOU GO ON TO TALK ABOUT HARDWICKE, WHICH I AM CERTAINLY LOOKING 1058 01:50:14.752 --> 01:50:20.367 FORWARD TO, WHAT DO YOU SAY TO THOSE IN THE ROOM WHOBL THAT THE ATTORNEY GENERAL IS GOING 1059 01:50:20.367 --> 01:50:25.840 BEYOND THE CLAIMS THAT WERE ESSENTIALLY RAISING AN ISSUE THAT HAS NOT BEEN RAISED BY 1060 01:50:25.840 --> 01:50:31.151 A PARTY. VIVIANA M. HANLEY: SO IT'S TRUE THAT THE APPELLATE DIVISION AFFIRMED 1061 01:50:31.151 --> 01:50:39.036 THE DISMISSAL OF THESE CLAIMS BASED ON A READING OF 59:2-1.3 THAT OUR PRIMARY SUBMISSION 1062 01:50:39.036 --> 01:50:45.785 IS ERRONEOUS AND SO THE APPELLATE DIVISION DID NOT ADDRESS WHETHER THERE WOULD BE LIABILITY 1063 01:50:45.785 --> 01:50:52.870 UNDER HARDWICKE, SO IF THE COURT WANTED TO REACH A VERY NARROW DECISION THEY COULD SIMPLY 1064 01:50:52.870 --> 01:50:57.328 REMAND FOR THE APPELLATE DIVISION TO INTERPRET WHETHER OR NOT THE CLAIMS PROCEED UNDER 1065 01:50:57.328 --> 01:51:03.323 HARDWICKE. OUR CONCERN IS THAT JUST THE GREAT DOORS OF GUIDANCE. THERE IS 1066 01:51:03.323 --> 01:51:08.891 A NOTICE FROM THIS COURT INTERPRETING HOW FAR HARDWICKE GOES AND WE HAVE A CONCERN THAT 1067 01:51:08.891 --> 01:51:20.354 IF YOU JUST SORT OF TAKE THE PLAIN LANGUAGE OR TAKE 2192 C TOO LITERALLY YOU CAN GO VERY, 1068 01:51:20.354 --> 01:51:25.711 VERY FAR. WE THINK A MINIMUM OF SOME GUIDANCE FROM THIS COURT WOULD BE APPROPRIATE 1069 01:51:25.711 --> 01:51:31.524 EVEN IF THE COURT IS NOT PREPARED TO ANNOUNCE THE TASK BLANK FOR US. WE DO 1070 01:51:31.524 --> 01:51:36.315 THINK THE ISSUE IS SORT OF A TIME WHERE IT IS PARTICULARLY RESILIENT GIVEN THE WITHDRAWAL 1071 01:51:36.315 --> 01:51:42.542 OF PUBLIC IMMUNITY AND THE GREAT EXTENSION OF THE STATUTE OF LIMITATIONS. JUSTICE 1072 01:51:42.542 --> 01:51:46.843 PATTERSON: LET ME ASK IT SOME SLIGHTLY DIFFERENT WAY, DO YOU CONSIDER THE ARGUMENT YOU'VE 1073 01:51:46.843 --> 01:51:54.377 RAISED TO BE ADDRESSING AN ISSUE NOT RAISED BY A PARTY OR DO YOU NOT? VIVIANA M. 1074 01:51:54.377 --> 01:51:59.797 HANLEY: I WOULD SAY THE PREMISE OF PLAINTIFF'S ARGUMENTS IS THAT THEIR CLAIMS CAN PROCEED 1075 01:51:59.797 --> 01:52:05.290 UNDER HARDWICKE SO IN THAT SENSE WE DISAGREE WITH THE PREMISE OF THEIR ARGUMENT POTENTIAL 1076 01:52:05.290 --> 01:52:10.810 LY. WE THINK THEY ARE ASSUMING THAT HARDWICKE ALLOWS FOR VICARIOUS LIABILITY WHENEVER 1077 01:52:10.810 --> 01:52:21.114 -- THE WAY I UNDERSTAND THEIR POSITION, WHENEVER YOU HAVE SEXUAL ABUSE BY A STUDENT BY 1078 01:52:21.114 --> 01:52:26.117 A TEACHER. I THINK THAT IS THE EXCEPTION IN THEIR ARGUMENT AN OUR CONCERN IS WITH LOWER 1079 01:52:26.117 --> 01:52:30.874 COURTS ACCEPTING THAT BECAUSE OF HOW EXPANSIVE IT IS AN WE DON'T THINK HARDWICKE NEEDS 1080 01:52:30.874 --> 01:52:34.898 TO BE INTERPRETED THAT WAY. WE REALLY THINK IT IS AN OPEN QUESTION. JUSTICE 1081 01:52:34.898 --> 01:52:38.854 WAINER APTER: THE REASON YOU'RE SAYING IT IS AN OPEN QUESTION AND YOU SAID EARLIER YOU 1082 01:52:38.854 --> 01:52:43.431 DIDN'T THINK THEY WERE REFERRING TO REASONING IN HARDWICKE. ARE WE REFERRING TO PAGE 1083 01:52:43.431 --> 01:52:48.224 102, I THINK IT'S FOUR SENTENCES THAT SAYS THE CONSIDERATIONS THAT INFORMED OUR ANALYSIS 1084 01:52:48.224 --> 01:52:55.355 WE NEEN APPLY EQUALLY HERE, THE CONSIDERS A RECOGNIZES THE VULNERABILITY OF CHILDREN, 1085 01:52:55.355 --> 01:53:03.807 SAME COMPELLING RATIONAL AN THEN THE CSAA IMPOSES RESPONSIBILITY ON BLANK TO KNOW THE 1086 01:53:03.807 --> 01:53:08.804 ABUSE AN TOP IT, APPLICATION OF THE SECTION 219 OF THE RESTATEMENT ADVANCES THOSE GOALS, 1087 01:53:08.804 --> 01:53:15.929 ARE, IS THAT WHAT YOU ARE CONSIDERING THE ONLY RATIONALE? DAN DAN YES, THAT'S RIGHT. 1088 01:53:15.929 --> 01:53:19.816 VIVIANA M. HANLEY: YES AND JUST PRECEDING THAT LANGUAGE YOU JUST RDZ IS 1089 01:53:19.816 --> 01:53:26.006 A RECITATION OF THE STANDARD IN LEHMANN. THE COURT DOESN'T CLEARLY ADOPT IT OR NOT. 1090 01:53:26.006 --> 01:53:32.756 IT JUST SAYS THIS IS WHAT HAPPENED IN LEHMANN AN WE THINK SIMILAR JUFGSZ, JUSTIFY VICARIOUS 1091 01:53:32.756 --> 01:53:38.880 LIABILITY HERE BUT IT DOESN'T GO ON TO ARTICULATE A TEST FOR THE CIRCUMSTANCE, AND AS MR. 1092 01:53:38.880 --> 01:53:47.927 SHAH EMPHASIZED, THE TEST IN LEHMANN HAS SINCE BEEN ELABORATED UPON IN ANG WAU SO NOW 1093 01:53:47.927 --> 01:53:54.306 WE HAVE AN AFFIRMATIVE DEFENSE THAT IS AVAILABLE IN THE LAD CONSEQUENCE. AQUA 1094 01:53:54.306 --> 01:54:02.854 SUPPORT EMPHASIZED WE DON'T WANT STRICT LIABILITY, THIS COURT HAS EMPHASIZED THAT IN 1095 01:54:02.854 --> 01:54:10.029 LAYMAN AND AGO WA, THE COURT DECLINED TO HAVE A STRICT LIEBLTD REGIME FOR 1096 01:54:10.029 --> 01:54:19.247 SUPERVISOR/SUPERVISOR EE. EVEN WITH THAT POWER DYNAMIC THE COURT HAS DECLINED TO IMPOSE 1097 01:54:19.247 --> 01:54:24.276 STRICT LIABILITY. THE SAME IS TLIE IN THE DAVIS CASE WHERE THERE THE ARGUMENT 1098 01:54:24.276 --> 01:54:29.780 IN FAVOR OF STRICT LIABILITY IS DIFFERENT. IT IS ABOUT WHETHER TLFRS A NON-DELEGABLE 1099 01:54:29.780 --> 01:54:37.968 DUTY, BUT EVEN THERE YOU HAD A CLEAR POWER DYNAMIC ISSUE BETWEEN INDIVIDUALS WITH 1100 01:54:37.968 --> 01:54:45.573 DEVELOPMENTAL DISABILITIES IN A 24-HOUR FACILITY AND THEIR CARETAKERS AN THE COURT DECLINED 1101 01:54:45.573 --> 01:54:51.450 THERE TO FIND STRICT LIABILITY SO IT'S SORT OF A CONSISTENT -- THE CONCERN OF THIS COURT 1102 01:54:51.450 --> 01:54:57.587 WAS NOT SUBJECTING ENTITIES TO STRICT LIABILITY AND THE FLIM SIDE OF THE REASON FLIP SIDE 1103 01:54:57.587 --> 01:55:04.100 OF THE REASONING THERE WAS THE BETTER WAY TO INCENT ADVISE GOOD CONDUCT IS TO PROVIDE 1104 01:55:04.100 --> 01:55:09.471 A TEST WHERE AN ENTITY KNOWS IT CAN AVOID LIENLT IF IT DOES THE VERY BEST IT CAN IF IT 1105 01:55:09.471 --> 01:55:15.524 HAS THE BEST POLICIES IN PLACE AN DOES EVERYTHING TO AVOID THE ISSUE THAT IT CAN SO WE 1106 01:55:15.524 --> 01:55:21.504 ARE TRYING TO -- OUR PROPOSAL, AND I'D LIKE TO JUST WALK THROUGH IT AND WHY WE THINK THE 1107 01:55:21.504 --> 01:55:27.570 PRONGS MAKE SENSE IS MEANT TO PROVIDE A TEST WHICH AVOIDS STRICT LIABILITY WHILE INCENT 1108 01:55:27.570 --> 01:55:35.885 IVIZING GOOD CONDUCT AND MAKES SENSE IN THE SCHOOL CONTEXT. OUR PROPOSAL HAS 1109 01:55:35.885 --> 01:55:41.275 BASICALLY THREE PIECES. THE FIRST IS THAT THE TORT-FEASOR HAS TO HAVE BEEN 1110 01:55:41.275 --> 01:55:48.029 A SUPERVISOR. AND WE DRAW THAT FROM THE LAD CONTEXT WHERE SUPERVISORS ARE DISCUSSED AND 1111 01:55:48.029 --> 01:55:55.445 THERE HASN'T BEEN -- A DISCUSSION OF WHAT THAT WOULD MEAN IN A SCHOOL CONTEXT. WE BELIEVE 1112 01:55:55.445 --> 01:56:04.312 THAT IT SHOULD BE ENTITIES WHICH HAVE NOT JUST SOME POWER OVER STUDENTS, BUT REALLY 1113 01:56:04.312 --> 01:56:07.877 EXTRAORDINARY POWER OVER STUDENTS. JUSTICE WAINER APTER: I THINK THE PLAINTIFFS 1114 01:56:07.877 --> 01:56:13.063 AN THE DEFENDANTS, THE ONE THING THEY MIGHT AGREE ON IS THAT THE TEACHERS HAVE THE AUTHORITY 1115 01:56:13.063 --> 01:56:18.960 TO SUPERVISE STUDENTS AND I THINK ANYONE WHO HAS EVER BEEN IN OR NEAR A SCHOOL THAT TEACHERS 1116 01:56:18.960 --> 01:56:25.733 HAVE AUTHORITY TO SUPERVISE STUDENTS. VIVIANA M. HANLEY: THEY DO. 1117 01:56:25.733 --> 01:56:32.917 AND I THINK THE REASON WE ARE GOING TO A HIGHER LEVEL OF AUTHORITY AND I WOULD NOTE IN 1118 01:56:32.917 --> 01:56:44.446 LEHMANN WHEN THE COURT DISCUSSES THE REASON FOR HOLDING EMPLOYERS VICARIOUSLY LIABLE FOR 1119 01:56:44.446 --> 01:56:49.552 THE MISS KIKT OF SUPERVISORS IS THAT THEY ARE THE ONES WHO CONTROL THE DAY-TO-DAY ENVIRONMENT 1120 01:56:49.552 --> 01:56:56.133 AN NOT JUST IN ANY SENSE, TEACHERS CONTROL THE DAY-TO-DAY ENVIRONMENT BUT THEY SET THE 1121 01:56:56.133 --> 01:57:02.209 TONE AND DISCIPLINE. JUSTICE WAINER APTER: TEACHERS SET THE TONE IN THEIR 1122 01:57:02.209 --> 01:57:06.712 CLASSROOMS AND DISCIPLINE STUDENTS IN THEIR CLASSROOMS. YOUR PROPOSAL SEEMS 1123 01:57:06.712 --> 01:57:15.088 TO BE SAYING MORE THAT ONLY A CEO -- ONLY IF THE CEO SEXUALLY HARASS ES THEIR DIRECT REPORT 1124 01:57:15.088 --> 01:57:21.914 SO THEIR DIRECT ASSISTANT CAN THE ORGANIZATION BE HELD DIRECTLY LIABLE BECAUSE IT IS NOT 1125 01:57:21.914 --> 01:57:26.617 ABOUT THE RELATIONSHIP BETWEEN THE SUPERVISOR AND THE PERSON THEY ARE ABUSING OR HARASSING. 1126 01:57:26.617 --> 01:57:31.903 INL SAID IT IS SAYING THE SUPERVISOR THEMSELVES MUST HAVE SOME VERY, VERY HIGH LEVEL 1127 01:57:31.903 --> 01:57:37.169 WITHIN THE OVERALL COMPANY. AAM NOT SURE WHERE YOU GET THAT FROM LEHMANN WHERE IT TALKS 1128 01:57:37.169 --> 01:57:43.072 ABOUT THE PERSON WHO IS BEING ABUSED OR HARASSED AND THE PERSON WHO IS ABUSING AND HARASSING. 1129 01:57:43.072 --> 01:57:48.593 VIVIANA M. HANLEY: SO WHEN LEHMANN TALKS ABOUT SETTING A TONE AND DISCIPLINING 1130 01:57:48.593 --> 01:57:55.534 OFFENDERS, THIS IS AT PAGE 620 AND THERE IS IT IS IN THE WORK OF HOUSEHOLD WORK ENVIRONMENT 1131 01:57:55.534 --> 01:58:03.042 CLAIMS, THEY ARE TALKING ABOUT THE PERSON WHO THE ENTITY HAS DELEGATED THE AUTHORITY TO 1132 01:58:03.042 --> 01:58:09.494 CONTROL THE EVEN VIEFRMENT OF THE WORK SPACE THERE. WHILE TEACHERS HAVE 1133 01:58:09.494 --> 01:58:13.649 CONTROL OVER STUDENTS THEY HAVEN'T BEEN DELEGATED AUTHORITY BY THE SCHOOL BOARD TO CONTROL 1134 01:58:13.649 --> 01:58:19.663 THE EDUCATIONAL ENVIRONMENT IN THE WAY A PRINCIPAL OR ASSISTANT PRINCIPAL. 1135 01:58:19.663 --> 01:58:23.227 JUSTICE WAINER APTER: IF IT IS ABOUT THE RELATIONSHIP BETWEEN THE PERSON BEING ABUSED 1136 01:58:23.227 --> 01:58:27.380 AND THE PERSON WHO IS DOING THE ABUSING. VIVIANA M. HANLEY: I THINK -- 1137 01:58:27.380 --> 01:58:35.319 THERE IS TWO JUSTIFICATIONS, ONE RELATES TO THE POWER YOU HAVE OVER THE VICTIM, WHICH 1138 01:58:35.319 --> 01:58:42.327 I THINK YOU ARE GETTING AT CHIEF JUSTICE WAINER APTER, THE OTHER HAVE TO DO WITH HOW FAR 1139 01:58:42.327 --> 01:58:50.443 IT IS TO SUBJECT THE ENTITY ITSELF TO VICARIOUS LIABILITY, TO PUT AS MY COLLEAGUE MR. 1140 01:58:50.443 --> 01:58:55.374 SHAH ADMITTED A DIRECT LINE TO SAY THE SCHOOL BOARD BASICALLY HAS DONE THIS ASSAULT AND 1141 01:58:55.374 --> 01:59:03.577 I THINK ON THAT SIDE IT MAKES SENSE TO FOCUS THIS REALLY ORDINARY FORM OF LIABILITY, HOLD 1142 01:59:03.577 --> 01:59:11.280 ING THE ENTITY VICARIOUSLY LIABLE SO IT SUBMITTED THE ASSAULT TO NOT DO THAT FOR EVERY 1143 01:59:11.280 --> 01:59:16.258 ADULT IN A SCHOOL WHO IN SOME SENSE SUPERVISES CHILDREN. JUSTICE WAINER APTER: 1144 01:59:16.258 --> 01:59:21.467 THAT SEEMS LIKE A REALLY GREAT ARGUMENT TO THE LEGISLATURE ABOUT HOW FAIRNESS SHOULD IMPACT 1145 01:59:21.467 --> 01:59:26.798 LIABILITY IN A PARTICULAR CIRCUMSTANCE. IT DIS NOT SEEM LIKE A FAIR APPLICATION 1146 01:59:26.798 --> 01:59:33.436 OF LEHMANN TO THE SCHOOL CONTEXT. IF LEHMANN ONLY ALLOWED FOR THE LIABILITY OF THE C 1147 01:59:33.436 --> 01:59:38.458 EO AND IT WAS NOT A DISCUSSION ABOUT AK WA THAT EVEN IF YOU DON'T HAVE AUTHORITY TO HIRE 1148 01:59:38.458 --> 01:59:43.403 AND FIRE AS LONG AS YOU HAVE AUTHORITY TO CONTROL THE PERSON'S DIRECT WORK ENVIRONMENT. 1149 01:59:43.403 --> 01:59:49.369 IT SEEMS CLEAR IN THOSE PLACES THAT EVEN A PRETTY LOW LEVEL SUPERVISOR, IF THEY ARE 1150 01:59:49.369 --> 01:59:53.774 HARASSING THEIR DIRECT REPORT THEN THE ENTITY CAN BE LIABLE FOR THAT IF THEY DIDN'T HAVE 1151 01:59:53.774 --> 01:59:58.922 A POLICY THAT PREVENTED IT, IF THE PERSON TRIED TO REPORT AND THE ENTITY SAID WE DON'T 1152 01:59:58.922 --> 02:00:04.767 CARE, THIS IS POST AGO WA, OF COURSE. THE ARGUMENTS YOU ARE MAKING SEEMS LIKE 1153 02:00:04.767 --> 02:00:09.531 THEY ARE VERY WELL PUT TO A LEGISLATURE ABOUT WHAT IS FAIR OR NOT AND NOT VERY WELL PUT 1154 02:00:09.531 --> 02:00:15.527 TO A COURT OF THIS IS WHAT LEHMANN SAID AND THIS IS WHY YOU HAVE TO FOLLOW YOUR PRIOR 1155 02:00:15.527 --> 02:00:18.943 PRECEDENT. VIVIANA M. HANLEY: SO, TO BE CLEAR THIS IS A MATTER OF THIS 1156 02:00:18.943 --> 02:00:23.805 COURT DEVELOPING ITS OWN COMMON LAW SO THE LEGISLATURE HAS NOT -- EVEN THOUGH WE HAVE 1157 02:00:23.805 --> 02:00:29.117 THE CHILD SEXUAL ABUSE ACT WHERE THE LEGISLATURE HAS MOST CLEARLY SPOKEN ON THIS GENERAL 1158 02:00:29.117 --> 02:00:35.477 ISSUE, THEY HAVE PROVIDED FAIRLY NARROW LIABILITY, WHICH IS ONLY DIRECT LIABILITY 1159 02:00:35.477 --> 02:00:42.291 WHERE THE ACTOR KNOWINGLY PERMITS OR ACQUIESCES IN ABUSE. SO THIS IS A MATTER 1160 02:00:42.291 --> 02:00:48.266 OF THE COURT FILLING IN THE GAP WHERE THE LEGISLATURE HAS NOT SPOKEN SO I THINK IT 1161 02:00:48.266 --> 02:00:56.177 ACTUALLY COUNSELS AS I NOTED BEFORE IN HOW EXPANSIVELY WE WANT TO INTERPRET LIABILITY 1162 02:00:56.177 --> 02:01:00.453 HERE. JUSTICE PATTERSON: DO YOU VIEW THE LEGISLATIVE GUIDANCE TO BE VERY 1163 02:01:00.453 --> 02:01:05.379 CAREFUL IN EXPANDING THIS? VIVIANA M. HANLEY: WHAT WE KNOW THE LEGISLATURE 1164 02:01:05.379 --> 02:01:11.652 INTENDED WAS WHAT IT EXPRESSLY PROVIDED IN TERMS OF AFFIRMATIVE LIABILITY IS WHAT IT PROVIDED 1165 02:01:11.652 --> 02:01:16.372 IN THE SEXUAL ABUSE ACT. JUSTICE WAINER APTER: WHY SHOULD THAT NOT GUIDE 1166 02:01:16.372 --> 02:01:25.262 OUR THINKING MORE THAN, FOR EXAMPLE, LEHMANN WHICH THE LEGISLATURE HAD NOTHING DO DO WITH 1167 02:01:25.262 --> 02:01:28.791 AN DIDN'T MENTION IN THE LEGISLATURE OR ANY OTHER TIME. VIVIANA M. HANLEY: 1168 02:01:28.791 --> 02:01:33.346 THE LEGISLATURE DID APPEAR TO ENDORSE HARDWICKE SO WHAT WE HAVE IS THE STATUTORY ENACTMENTS, 1169 02:01:33.346 --> 02:01:42.255 WE HAVE THE CHILD CHILD SEXUAL ABUSE ACT. JUSTICE WAINER APTER: AND THE 1170 02:01:42.255 --> 02:01:47.031 DECISION IS ALMOST ALL ABOUT THE CHILD SEXUAL ABUSE ACT, THERE IS ONLY TWO PAGES AT THE 1171 02:01:47.031 --> 02:01:53.114 END THAT TALK ABOUT VICARIOUS LIABILITY BUT IT IS A VERY LONG DECISION AND IT TALKS MOSTLY 1172 02:01:53.114 --> 02:02:00.075 ABOUT THE CHILD SEXUAL ABUSE ACT AND ONLY TWO PAGES AT THE END BEING VICARIOUS LIABILITY. 1173 02:02:00.075 --> 02:02:06.939 IMMUNITY ACT, THERE WAS A LOT OF STATUTORY INTERPRETATION IN THAT CASE. 1174 02:02:06.939 --> 02:02:12.539 VIVIANA M. HANLEY: WE DON'T KNOW EXACTLY WHAT THE LEGISLATURE AWE CREWED AS IN 1175 02:02:12.539 --> 02:02:19.799 HARDWICKE. WE DO HAVE THE LANGUAGE OF 59:2-1.3 WHICH DOES NOT JUST WITHDRAW IMMUNITY BY 1176 02:02:19.799 --> 02:02:25.886 ITS PLAIN LANGUAGE FOR CLAIMS THAT WOULD FALL UNDER THE CSAA. IT WOULD HAVE HAD DIFFERENT 1177 02:02:25.886 --> 02:02:33.706 LANGUAGE ABOUT KNOWINGLY PERMIT OR ACQUIESCES AND INSTEAD IT WITHDRAWS ALL I'M MIENT FOR 1178 02:02:33.706 --> 02:02:40.495 DAMAGES AS A RESULT OF SEXUAL ASSAULT, ANY OTHER KIND OF SEXUAL NATURE, ETC., BUT IT IS 1179 02:02:40.495 --> 02:02:48.289 EXPANSIVE IN WHAT IT TRUE I'M MIENT FOR. IT IS TRUE IF THIS COURT WANTED TO BE 1180 02:02:48.289 --> 02:02:55.162 MAXIMALLY CAUTIOUS YOU COULD SAY HARDWICKE IS WHAT IT IS ON VERY EGREGIOUS FACTS AN 1181 02:02:55.162 --> 02:03:03.610 OTHERWISE WE HAVE THE SEXUAL ABUSE ACTS THAT COULD BE A POSSIBLE ROUTE. JUSTICE 1182 02:03:03.610 --> 02:03:08.214 PATTERSON: COULD THE LIABILITY PROVISION OF THE CSAA PROVIDE A LIMITING PRINCIPLE AS A 1183 02:03:08.214 --> 02:03:12.935 SUBSTITUTE FOR YOUR SUPERVISOR ASPECT OF IT? DO YOU SEE WHAT I'M SAYING? 1184 02:03:12.935 --> 02:03:19.537 VIVIANA M. HANLEY: SO THE CSAA, REQUIRES KNOWLEDGE SO IT'S ABOUT KNOWING 1185 02:03:19.537 --> 02:03:26.934 LY PERMITS OR ACQUIESCES SO TO THE EXTENT OF AN ENTITY LIKE A SCHOOL BOARD IS HELD LIABLE 1186 02:03:26.934 --> 02:03:32.077 SHLGS YOU NEED KNOWLEDGE SO IT'S NOT QUITE DIFFERENT FROM VICARIOUS LIABILITY IN THAT 1187 02:03:32.077 --> 02:03:41.545 SENSE. THE LAST THING I WOULD NOTE ON OUR SUPERVISOR PRONG PROPOSAL IS THAT WE 1188 02:03:41.545 --> 02:03:49.585 ACTUALLY THINK IT FITS FAIRLY WELL WITH THE THIRD RESTATEMENT OF TORTS SECTION 11 THAT 1189 02:03:49.585 --> 02:03:57.649 COUNSEL FOR SIMPKINS AND HORNOR SHARED WITH THE COURT A FEW DAYS AGO SO IF YOU LOOK AT THE 1190 02:03:57.649 --> 02:04:03.668 TEXT THERE, THE THIRD PRONG, C, SAYS THE EMPLOYER FACILITATES THE SEXUAL ASSAULT BY PROVIDING 1191 02:04:03.668 --> 02:04:09.735 THE EMPLOYEE WITH SUBSTANTIAL POWER, AUTHORITY OR INFLUENCE OVER THE VICTIM. SO 1192 02:04:09.735 --> 02:04:17.201 NOT JUST ANY AMOUNT OF POWER, AUTHORITY OR INFLUENCE, BUT SUBSTANTIAL POWER. 1193 02:04:17.201 --> 02:04:22.999 JUSTICE WAINER APTER: THAT TEACHER WHAT TEACHER DOESN'T HAVE SUBSTANTIAL POWER OR INFLUENCE 1194 02:04:22.999 --> 02:04:31.035 OVER A STUDENT, THAT'S WHAT WE TELL STUDENTS WHEN THEY GO TO SCHOOL. VIVIANA M. 1195 02:04:31.035 --> 02:04:36.703 HANLEY: IT EXISTS ON A SPECTRUM OF HOW MUCH POWER AN AUTHORITY. AGAIN, THE SIDE POST 1196 02:04:36.703 --> 02:04:43.201 WE HAVE, ARE THE EGREGIOUS CIRCUMSTANCES IN HARDWICKE, BUT IF WE LOOK AT THE COMMENTARY 1197 02:04:43.201 --> 02:04:52.317 TO THE THIRD RESTATEMENT I WOULD SPECIFICALLY DIRECT YOU TO PAGES 198, ALSO, 200 TO 202. 1198 02:04:52.317 --> 02:05:00.236 THEY TALK ABOUT CASES WHICH HAVE FOUND SPECIFICALLY THAT TEACHERS DO NOT HAVE 1199 02:05:00.236 --> 02:05:08.538 SUFFICIENT AUTHORITY OVER STUDENTS AND REALLY THE KWIN ESSENTIAL EXAMPLE OF HAVING POWER 1200 02:05:08.538 --> 02:05:16.669 IS THE POLICE OFFICER OVER SOMEBODY BEING ARRESTED. SOME HAVE SAID ONLY 1201 02:05:16.669 --> 02:05:23.525 POLICE OFFICERS HAVE THIS MUCH POWER, SOME HAVE SAID OTHERS. FOR EXAMPLE, THE 1202 02:05:23.525 --> 02:05:31.297 DELAWARE SUPREME COURT SAID THE TEACHERS DON'T HAVE SIGNIFICANT POWER. THE 1203 02:05:31.297 --> 02:05:37.479 KAL THE CALIFORNIA SUPREME COURT HAS SAID THAT A HOSPITAL TECHNICIAN WHO IS CONDUCTING 1204 02:05:37.479 --> 02:05:45.614 AN ULTRASOUND ON A PATIENT DOES NOT HAVE SUBSTANTIAL POWER. THE BLANK 1205 02:05:45.614 --> 02:05:51.356 SUPREME COURT SAID A PASTOR DOES NOT HAVE SUPREME COURT POWER AND THE INDIANA SUPREME 1206 02:05:51.356 --> 02:05:56.536 COURT HAS SUGGESTED THAT ONLY POLICE HAVE SUBSTANTIALLY POWER AND IT PROVIDES I WILL 1207 02:05:56.536 --> 02:06:02.978 LUS STRAGSZ WHEN IT'S PRONGS ARE SATISFIED ON PAGES 160 TO 163, AGAIN THEY HIGHLIGHT THAT 1208 02:06:02.978 --> 02:06:09.421 A POLICE OFFICER HAS SUBSTANTIAL POWER AND THEY SAY NURSING ASSISTANT AT A NURSING HOME 1209 02:06:09.421 --> 02:06:17.133 FOR A VERY ELDERLY PERSON ON A CAREGIVER. JUSTICE PATTERSON: IT'S A VERY 1210 02:06:17.133 --> 02:06:21.410 DIFFERENT CONCEPT OF SUPERVISOR. VIVIANA M. HANLEY: YES, IT IS NOT SIMPLY 1211 02:06:21.410 --> 02:06:27.760 YOU ARE IN CHARGE OF SOMEONE, IT IS A UNIQUE POSITION OF POWER SO I THINK IT'S THE 1212 02:06:27.760 --> 02:06:32.293 DIFFERENCE BETWEEN SAYING YOU HAVE POWER OVER SOMEONE VERSUS SAYING YOU HAVE SUBSTANTIAL 1213 02:06:32.293 --> 02:06:38.011 POWER OVER SOMEONE SO IT'S A SLIDING SDAL AND IT IS A POWER DECISION OF THIS COURT'S COMMON 1214 02:06:38.011 --> 02:06:43.343 LAW OPERATING IN THE GAPS OF WHAT THE LEGISLATURE HAVE PROVIDED TO DECIDE WHEN A PIB ENTITY 1215 02:06:43.343 --> 02:06:51.750 SHIB HOLD TO HAVE ESSENTIALLY ITSELF COMMIT A SEXUAL ASSAULT AND SO OUR SUBMISSION WOULD BE 1216 02:06:51.750 --> 02:06:57.639 THAT WHILE TEACHERS HAVE SOME DEGREE OF POWER THAT IT MAKES MORE SENSE WHEN YOU'RE 1217 02:06:57.639 --> 02:07:05.886 BASICALLY HOLDING THE PUBLIC ENTITY AS IF IT LIKE DID THE ASSAULT ITSELF AS GOING TO A 1218 02:07:05.886 --> 02:07:10.096 HIGHER LEVEL OF AUTHORITY. JUSTICE PATTERSON: AND YOU SHARE MR. SHAH'S 1219 02:07:10.096 --> 02:07:17.670 VIEW THAT THE CONCEPT WE SHOULD BE THINKING OF IS A DIRECT ASSAULT ESSENTIALLY BY THE 1220 02:07:17.670 --> 02:07:22.528 SCHOOL, WHAT MAKES THAT THE CASE? VIVIANA M. HANLEY: YES, THAT'S WHAT THE 1221 02:07:22.528 --> 02:07:28.953 VICARIOUS LIABILITY IS AND I WOULD EMPHASIZE AS EXISTS IN THIS CASE, THERE ARE MANY OTHER 1222 02:07:28.953 --> 02:07:34.334 ROUTES TO LIABILITY, YOU CAN HAVE NEGLIGENCE CLAIMS, YOU CAN HAVE CLAIMS UNDER THE CSAA, 1223 02:07:34.334 --> 02:07:41.910 SO THERE CAN BE MANY FORMS OF LIABILITY. THERE IS LAD CLAIMS IN THE BACK END OF THESE 1224 02:07:41.910 --> 02:07:47.671 CASES SO IT IS NOT AS THOUGH THERE WON'T BE LIABILITY. THE QUESTION IS WHEN DO WE HAVE 1225 02:07:47.671 --> 02:07:53.239 THIS EXTRAORDINARY SITUATION WHERE YOU HOLD THE ENTITY, IF THERE IS A SCHOOL BOARD LIABLE 1226 02:07:53.239 --> 02:07:59.334 AS THOUGH THEY THEMSELVES COMMITTED THE INTENTIONAL TORT SO I THINK THAT'S FOR 1227 02:07:59.334 --> 02:08:03.117 EXTRAORDINARY CIRCUMSTANCES THAT APPROACH THE EXTRAORDINARY CIRCUMSTANCES IN HARDWICKE; 1228 02:08:03.117 --> 02:08:07.857 THAT'S WHY WE'RE SUPPOSING THE SUPERVISORS AN THE PATIENTS AND I THINK THE APPROPRIATE 1229 02:08:07.857 --> 02:08:12.565 CAUTION THE COURT MIGHT HAVE GIVEN THAT IT IS OPERATING IN THE SILENCE WHERE THE 1230 02:08:12.565 --> 02:08:17.332 LEGISLATURE HAS NOT CHOSEN TO PROVIDE AN EXPRESS CAUSE OF ACTION HERE BUT THE COURT IS 1231 02:08:17.332 --> 02:08:22.836 JUST INTERPRETING ITS OWN COMMON LAW. SO THAT'S THE SUPERVISORS LIMITATION 1232 02:08:22.836 --> 02:08:27.338 WE PROPOSE. THE SECOND IS JUST THAT YOU HAVE TO BE EXERCISING THE AUTHORITY 1233 02:08:27.338 --> 02:08:32.609 YOU'VE BEEN DELEGATED. THIS IS SIMPLY MEANT TO BASICALLY EXCLUDE THE -- CHIEF 1234 02:08:32.609 --> 02:08:36.426 JUSTICE RABNER: COUNSEL I AM SORRY TO INTERRUPT. I WANT TO ASK YOU TO TRY 1235 02:08:36.426 --> 02:08:41.048 TO GO THROUGH YOUR REMAINING REQUESTS AND I WILL HAVE THE SAME REQUESTS WHEN WE GET TO 1236 02:08:41.048 --> 02:08:44.687 REBUTTAL. GO AHEAD. VIVIANA M. HANLEY: ABSOLUTELY. OUR SECOND 1237 02:08:44.687 --> 02:08:51.152 THE VRN IS MEANT TO EXCLUDE THE SORT OF CIRCUMSTANCE WHERE SAY YOU'RE A PRINCIPAL BUT 1238 02:08:51.152 --> 02:08:58.094 YOU ABUSE A STUDENT AT A COOKOUT TOTALLY OFF CAMPUS UNCONNECTED TO ANY SCHOOL ACTIVITY 1239 02:08:58.094 --> 02:09:05.423 BUT TO THE EXTENT YOU'RE SORT OF ON SCHOOL PREMISES IN YOUR ROLE AS AN ASSISTANT 1240 02:09:05.423 --> 02:09:09.744 PRINCIPAL, PRINCIPAL, SUPERINTENDENT, THAT WOULD LIKELY BE SATISFIED AND I WOULD JUST NOTE 1241 02:09:09.744 --> 02:09:20.968 THIS MAPS ON TO THE FOURTH PRONG IN THE RESTATEMENT TEST ABOUT WORK ASSIGNED WHEN THE 1242 02:09:20.968 --> 02:09:27.131 EMPLOYEE IS PERFORMING WORK ASSIGNED BY THE EMPLOYER OR GIVEN ANY SOURCE OF CONDUCT 1243 02:09:27.131 --> 02:09:31.202 SUBJECT TO THE EMPLOYER'S CONTROL. AND THE THIRD PRONG WE PROPOSE IS MEANT 1244 02:09:31.202 --> 02:09:40.183 TO BE AN ADAPTATION OF THE AFFIRMATIVE OFFENSE THAT THIS COURT ADOPTED IN AGO WAU AND 1245 02:09:40.183 --> 02:09:47.941 WE DON'T PROPOSE IT AS AN AFFIRMATIVE OFFENSE AS A COUPLE REASONS WE KNOW IN OUR BRIEF 1246 02:09:47.941 --> 02:09:53.181 BUT I WANT TO SAY A FEW WORDS ABOUT HOW WE ENVISION IT WORKING SO THE PRONG IS THAT IT, 1247 02:09:53.181 --> 02:10:04.023 AND BY REASONABLY APRUFD BY THE SCHOOL WE NEED TO EMPHASIZE THE PERSPECTIVE OF THE STUDENT, 1248 02:10:04.023 --> 02:10:09.483 THE PERSON WHO IS THE VICTIM SO WHAT THIS PRONG IS MEANT TO ACHIEVE IS PROMOTING POLICIES 1249 02:10:09.483 --> 02:10:16.366 THAT WOULD TO THE GREATEST EXTENT POSSIBLE HELP CHIFRN UNDERSTAND WHAT IS UNACCEPTABLE 1250 02:10:16.366 --> 02:10:23.175 IN THE SCHOOL, WHAT THE SCHOOL ENDORSES, SO WE DO THINK THERE CAN BE PRESENTATIONS AND 1251 02:10:23.175 --> 02:10:28.693 SCHOOLS DO DO THIS SORT OF TRAINING ON CONDUCT TLAS APPROPRIATE BETWEEN STUDENTS AN TEACHERS 1252 02:10:28.693 --> 02:10:34.082 SO THIS IS MEANT TO PRESENTMENT AFFIRMATIVE POLICIES THAT WILL KIND OF EDUCATE AND EM 1253 02:10:34.082 --> 02:10:43.458 POI WER STUDENTS YOU WOULDN'T PEN NATURALIZE A STUDENT FOR NOT UTILIZING A GRIEVANCE 1254 02:10:43.458 --> 02:10:48.233 PROCEDURE. AND WHETHER WHATEVER BENEFIT WE THINK THAT HAS GOING FROM THE PER 1255 02:10:48.233 --> 02:10:55.049 SPECTIVE OF THE CHILD VICTIM IS TO ADDRESS THE POINT THAT WHILE WE DON'T OFFER THIS AS 1256 02:10:55.049 --> 02:11:00.592 AN AFFIRMATIVE DEFENSE WE DO THINK THE VICTIM SHOULD HAVE THAT INFORMATION ABOUT HOW THEY 1257 02:11:00.592 --> 02:11:05.391 REASONABLE PLEA PERCEIVED THINGS AND HOW FROM THEIR PERSPECTIVE IT APPEARED OR DID NOT 1258 02:11:05.391 --> 02:11:14.648 APPEAR THAT THE SCHOOL BASICALLY CONDONED THIS ACTIVITY. THOSE ARE PRONGS 1259 02:11:14.648 --> 02:11:19.569 OF OUR TEST IF THERE ARE NOT FURTHER QUESTIONS WE BELIEVE THE STATUTE IS CLEAR AND THAT 1260 02:11:19.569 --> 02:16:42.507 IT REMOVES IMMUNITY BUT THAT GUIDANCE FROM THIS COURT WOULD BE VERY WELCOME. 1261 02:16:42.507 --> 02:16:44.321 (TIME NOTED: 3:15 p.m.). (TIME NOTED: 3:20 p.m.). THE COURT CLERK: 1262 02:16:44.321 --> 02:17:22.176 ALL RISE. CHIEF JUSTICE RABNER: PLEASE BE SEATED. STAY OFF THE 1263 02:17:22.176 --> 02:17:58.655 RECORD AND YOU'RE WELCOME TO HAVE A SEAT. ROBERT F. RENAUD: CHIEF JUSTICE 1264 02:17:58.655 --> 02:18:04.539 AND JUSTICES, MAY IT PLEASE THE COURT. IT IS A GOOD THING TO BE AT THE END 1265 02:18:04.539 --> 02:18:10.347 BECAUSE I GET TO SEE WHAT EVERYONE HAD TO SAY BUT I'M GOING TO HAVE TO TRY TO STEER THE 1266 02:18:10.347 --> 02:18:16.696 SHIP IN A DIFFERENT DIRECTION IF I MIGHT. I WOULD LIKE TO POINT OUT THAT THE 1267 02:18:16.696 --> 02:18:22.637 DISCUSSION THAT WE'RE HAVING ABOUT THE TORT CLAIMS ACT DOESN'T APPLY ONLY TO SCHOOLS. 1268 02:18:22.637 --> 02:18:32.178 WE'VE BEEN TALKING ABOUT SCHOOLS AND STUDENTS ALL DAY. ANYTHING THAT AFFECTS THE TORT 1269 02:18:32.178 --> 02:18:39.486 CLAIMS ACT APPLIES TO ALL PUBLIC ENTITIES AND NOT JUST MUNICIPALITIES. THERE ARE, YOU KNOW, 1270 02:18:39.486 --> 02:18:47.684 THERE IS BRIDGE AUTHORITIES. THERE ARE SEWER AN WATER UTILITIES. THERE ARE 1271 02:18:47.684 --> 02:18:54.099 A NUMBER OF PUBLIC ENTITIES FOR WHICH THE TORT CLAIMS ACT APPLIES SO IT IS NOT SIMPLY 1272 02:18:54.099 --> 02:19:04.963 A SCHOOL ISSUE. THE CLAIMS AT ISSUE HERE ARE TORT CLAIMS. THEY ARE BROUGHT 1273 02:19:04.963 --> 02:19:11.622 UNDER THE TORT CLAIMS ACT. THE PREAMBLE OF THE TORT CLAIMS ACT, IT IS IMPORTANT TO 1274 02:19:11.622 --> 02:19:17.432 UNDERSTAND THAT PUBLIC ENTITIES ARE TO BE LIABLE FOR THEIR NEGLIGENCE ONLY WITHIN THE 1275 02:19:17.432 --> 02:19:25.490 LIMITATIONS OF THE TORT CLAIMS ACT. THE SAME LANGUAGE APPEARS TWICE RIGHT IN 1276 02:19:25.490 --> 02:19:33.030 THE BEGINNING OF THE TORT CLAIMS ACT BECAUSE IT ALSO APPEARS ESSENTIALLY IN 59:2-1 THAT 1277 02:19:33.030 --> 02:19:38.996 PROVIDES THAT A PUBLIC ENTITY IS NOT LIABLE FOR ANY INJURY EXCEPT AS PROVIDED IN THE 1278 02:19:38.996 --> 02:19:44.802 TORT CLAIMS ACT. THE ATTORNEY GENERAL'S OFFICE SUGGESTS THAT THAT PROVISION 1279 02:19:44.802 --> 02:19:53.086 IS AN IMMUNITY PROVISION WHICH WAS DISABLED BY THE TORT CLAIMS ACT AND IN SUPPORT OF THAT 1280 02:19:53.086 --> 02:20:01.309 THEY CITE TO HEADING. HOWEVER, HEADINGS OF STATUTES ARE GENERALLY NOT PART OF THE 1281 02:20:01.309 --> 02:20:07.723 STATUTE AN ARE NOT CONSIDERED IN CONSTRUING A STATUTE; THAT'S IN THE VERY FIRST PART OF THE 1282 02:20:07.723 --> 02:20:15.827 STATUTES, I THINK IT'S 1:1-6, IF I AM NOT MISTAKEN, BUT HEADINGS ARE NOT PART OF 1283 02:20:15.827 --> 02:20:22.378 STATUTES AN THEREFORE THE LANGUAGE THAT PROVIDES THAT A PUBLIC ENTITY IS NOT LIABLE FOR 1284 02:20:22.378 --> 02:20:29.484 AN INJURY EXCEPT AS PROVIDED BY THE TORT CLAIMS ACT I SUBMIT IS A LIABILITY PROVISION 1285 02:20:29.484 --> 02:20:38.664 AND NOT AN IMMUNITY PROVISION. AND, SO, IT'S NOT DISABLED AS SUGGESTED BY 1286 02:20:38.664 --> 02:20:44.182 THE ATTORNEY GENERAL'S OFFICE BY THE AMENDMENT. AND, THE SECTION THAT APPLIES 1287 02:20:44.182 --> 02:20:53.995 HERE AND HAS NOT BEEN ALTERED IS 2-2 A PUBLIC ENTITY IS LIABLE FOR AN INJURY CAUSED BY 1288 02:20:53.995 --> 02:21:04.030 A PUBLIC EMPLOYEE WITHIN THE SCOPE OF EMPLOYMENT. THAT REMOVING IMMUNITY DOES NOT CREATE 1289 02:21:04.030 --> 02:21:14.294 LIABILITY. THEY ARE DIFFERENT CONCEPTS. THE TORT CLAIMS ACT WAS ENACTED TO 1290 02:21:14.294 --> 02:21:27.734 LIMIT LIABILITY OF PUBLIC ENTITIES. WITH RESPECT TO, I THINK CHIEF JUSTICE 1291 02:21:27.734 --> 02:21:40.585 YOU ASKED A QUESTION ABOUT THE AMENDMENTS CREATING A NEW LIABILITY STANDARD. THOSE 1292 02:21:40.585 --> 02:21:51.993 AMENDMENTS, AGAIN, PERTAIN NOT TO LIABILITY, BUT TO IMMUNITY AND REMOVING IMMUNITY, BUT 1293 02:21:51.993 --> 02:22:08.462 THEY DON'T IMPOSE LIABILITY. IN TERMS OF THOSE STATEMENTS, AS A GENERAL RULE, 1294 02:22:08.462 --> 02:22:15.554 IF THE STATUTE IS CLEAR, THEN WE DON'T EVEN LOOK TO THE LEGISLATIVE HISTORY AND THAT WAS 1295 02:22:15.554 --> 02:22:25.269 ACTUALLY -- JUSTICE PATTERSON WROTE AN OPINION, I BELIEVE IT WAS LAST YEAR IN A CASE THAT 1296 02:22:25.269 --> 02:22:33.520 TOUCHED ON THAT, KENNEDY VERSUS WEICHERT. IF THE LANGUAGE OF THE STATUTE IS CLEAR, OUR 1297 02:22:33.520 --> 02:22:40.838 TASK IS COMPLETE, THE LANGUAGE THAT WAS IN THAT CASE. THERE IS ANOTHER ONE. 1298 02:22:40.838 --> 02:22:50.601 THERE ARE OTHER CASES THAT SAY THAT THE COURT WILL NOT REWRITE PLAINLY WRITTEN BLANK OF THE 1299 02:22:50.601 --> 02:22:56.214 LEGISLATURE BASED ON WHAT LEGISLATIVE STATEMENTS ARE AND THAT IT IS NOT NECESSARY TO LOOK 1300 02:22:56.214 --> 02:23:01.948 AT A LEGISLATIVE STATEMENT WHEN A STATUTE IS CLEAR. THESE STATUTES THE TORT 1301 02:23:01.948 --> 02:23:09.452 CLAIMS ACT STATUTES ARE CLEAR. THERE IS NOTHING AMBIGUOUS ABOUT THEM AND THEREFORE I 1302 02:23:09.452 --> 02:23:15.424 WOULD SUBMIT IT IS NOT NECESSARY TO LOOK AT LEGISLATIVE STATEMENTS TO SEE THAT LEGITIMATE 1303 02:23:15.424 --> 02:23:23.295 GENTLEMAN'S LATE TORS SAID AND IN THIS CASE LOOKING AT A GOVERNOR'S STATEMENT OF A 1304 02:23:23.295 --> 02:23:29.077 STATUTE THAT HADN'T EVEN BEEN WRITTEN OR INTRODUCED SEEMS TO ME NOT A REASONABLE WAY 1305 02:23:29.077 --> 02:23:35.846 OF INTERPRETING WHAT THE STATUTE SAYS. LOT LEGITIMATE LATE TORS. CLOP. I 1306 02:23:35.846 --> 02:23:40.670 WOULD ALSO POINT OUT I THINK HARDWICKE IS IRRELEVANT TO YOUR CONSIDERATION. I KNOW 1307 02:23:40.670 --> 02:23:46.220 THAT THERE HAS BEEN A LOT OF DISCUSSION ABOUT IT, BUT IT'S NOT A CASE THAT WAS BROUGHT 1308 02:23:46.220 --> 02:23:52.452 UNDER THE TORT CLAIMS ACT AND IT IS COMPLETELY DIFFERENT AS MANY MEMBERS OF THIS COURT 1309 02:23:52.452 --> 02:23:58.962 HAVE POINTED OUT BECAUSE IT IS AN ISSUE OF TRYING TO CONSTRUE COMMON LAW WHEREAS HERE 1310 02:23:58.962 --> 02:24:06.893 WE'RE DEALING WITH THE TORT CLAIMS ACT, AN ENACTED STATUTE. AND IN TERMS OF 1311 02:24:06.893 --> 02:24:16.292 LEHMANN, THE DISTINCTION IN LEHMANN, WHICH IS PART OF THE HARDWICKE DISCUSSION IS THAT THE 1312 02:24:16.292 --> 02:24:24.574 LAD DOES NOT HAVE A SECTION LIKE THE TORT CLAIMS ACT THAT TALKS ABOUT SCOPE OF EMPLOYMENT 1313 02:24:24.574 --> 02:24:33.373 AND SO IT WAS NECESSARY TO LOOK AT COMMON LAW TO DETERMINE WHETHER OR NOT -- WHETHER OR NOT 1314 02:24:33.373 --> 02:24:40.142 THE LAD COULD PERTAIN TO ACTS THAT WAS DONE THAT WERE NOT IN THE SCOPE OF EMPLOYMENT SO 1315 02:24:40.142 --> 02:24:46.988 I THINK IT -- I THINK LEHMANN IS NOT RELEVANT HERE BECAUSE WE'RE TALKING ABOUT A SPECIFIC 1316 02:24:46.988 --> 02:24:54.863 STATUTE AND I THINK THAT HAVRD IS NOT RELEVANT HERE AND I SAY THAT, AGAIN, BECAUSE WHATEVER 1317 02:24:54.863 --> 02:25:01.120 YOU RULE ON THIS CASE IS NOT JUST GOING TO PERTAIN TO SCHOOLS AND SO I DON'T THINK WE 1318 02:25:01.120 --> 02:25:10.250 CAN LOOK AT CASES ONLY -- ONLY AT CASES THAT PERTAIN TO SCHOOLS IN YOUR DELIBERATIONS 1319 02:25:10.250 --> 02:25:20.825 ON THE ISSUES IN THIS CASE. SO ALTHOUGH, AGAIN, THIS HAS BEEN REHASHED AND 1320 02:25:20.825 --> 02:25:32.580 I DON'T WANT TO REPEAT IT TOO MANY TIMES, BUT THE AMENDMENTS PERTAIN TO IMMUNITIES AND 1321 02:25:32.580 --> 02:25:41.681 THEY DON'T PERTAIN TO THE LIABILITY SECTIONS SO I DON'T BELIEVE THAT THEY ARE -- THAT 1322 02:25:41.681 --> 02:25:49.972 THEY CHANGE THE LIABILITY SECTIONS OR MAKE WHAT IS SOMETHING THAT IS OUT OF THE SCOPE 1323 02:25:49.972 --> 02:25:57.844 OF EMPLOYMENT ACTIONABLE UNDER THE TORT CLAIMS ACT. OTHER THAN THAT, I THINK 1324 02:25:57.844 --> 02:26:02.074 I'LL TAKE QUESTIONS IF THE COURT HAS ANY? CHIEF JUSTICE RABNER: QUESTIONS 1325 02:26:02.074 --> 02:26:08.757 ANYONE? THANK YOU, COUNSEL. CHIEF JUSTICE RABNER: IT IS 3:30 1326 02:26:08.757 --> 02:26:15.975 OR SO. I THINK WE'VE BEEN EXTREMELY GENEROUS WITH TIME DEADLINES ALL DAY WITH EVERYONE 1327 02:26:15.975 --> 02:26:23.481 AROUND SO I WANT TO BE CLEAR UPFRONT, NO MORE THAN TEN MINUTES FOR EACH OF YOU IN REBUTTAL 1328 02:26:23.481 --> 02:26:27.052 SHLGS HOPEFULLY LESS THAN THAT AND THAT WILL INCLUDE QUESTIONS YOU GET FROM THE BENCH 1329 02:26:27.052 --> 02:26:45.518 PLEASE HAVE THAT IN MIND AS WE START. MR. MAGEE GABRIEL C. MAGEE: THANK YOU AGAIN 1330 02:26:45.518 --> 02:26:47.769 CHIEF ZAEFT AND MAY IT PLEASE THE COURT. IN IN RESPONSE TO THE ATTORNEY'S GENERAL'S COMMENTS 1331 02:26:47.769 --> 02:26:55.296 ABOUT HARDWICKE. I THOUGHT THE ATTORNEY GENERAL DID A REALLY GREAT JOB IN 1332 02:26:55.296 --> 02:26:59.578 DISCUSSING HARDWICKE AND THE LEGISLATIVE HISTORY AROUND THESE AMENDMENTS WHICH DEMONSTRATES 1333 02:26:59.578 --> 02:27:07.257 THE CLEAR UNDERSTANDING THAT HARDWICKE AND THEN WHY THAT NOW CLEARLY APPLIES TO CLAIMS 1334 02:27:07.257 --> 02:27:12.887 AGAINST PUBLIC ENTITIES. AND I AGREE WITH HER ON THAT AND I THINK SHE GOT THAT RIGHT. 1335 02:27:12.887 --> 02:27:18.062 WHERE I PART COMPANY IS WHERE SHE DISCUSSES THE FACTS OF HARDWICKE AND THAT THEY ONLY 1336 02:27:18.062 --> 02:27:23.117 APPLY IN EXTREME CIRCUMSTANCES. AND THE REASON I DO THAT IS JUST TO RE-MIND THIS COURT 1337 02:27:23.117 --> 02:27:27.978 THAT THIS CASE COMES TO YOU ON A MOTION TO DISMISS WITHOUT THE BENEFIT OF A FACTUAL 1338 02:27:27.978 --> 02:27:32.868 RECORD. SO THE REAL CRUX OF THE ISSUE IS, IF YOU AGREE WITH THE ATTORNEY GENERAL AND YOU 1339 02:27:32.868 --> 02:27:36.957 GET TO THE POINT WHERE YOU RECOGNIZE THAT HARDWICKE APPLIES, THEN THE QUESTION IS, DOES 1340 02:27:36.957 --> 02:27:43.102 IT APPLY AS A MATTER OF LAW HERE. CAN IT BE SAID BASED ON THESE COMPLAINTS THAT NEITHER 1341 02:27:43.102 --> 02:27:48.263 PLAINTIFF MAKES A CLAIM UNDER HARDWICKE AND THE ANSWER TO THAT QUESTION IS SIMPLY NO AND 1342 02:27:48.263 --> 02:27:52.325 FOR THAT REASON THE APPELLATE DIVISION OPINION SHOULD BE REVERSED. WITH RESPECT 1343 02:27:52.325 --> 02:27:57.535 TO THE PROPOSALS THAT HAVE BEEN PRESENTED HERE TODAY, WE'VE HEARD PRIMARY TWO PROPOSALS 1344 02:27:57.535 --> 02:28:04.184 FROM THE TWO ENTITIES THAT WOULD BE SUBJECT TO IT. IN ESSENCE IT AMOUNTS TO THE ENTITIES 1345 02:28:04.184 --> 02:28:10.024 THAT WOULD BE SUBJECTED TO A NEW TEST GETTING TO CREATE P I THINK THAT'S AN UNUSUAL SITUATION. 1346 02:28:10.024 --> 02:28:15.557 AND I WOULD CAUTION THE COURT TO THINK ABOUT THAT WHEN THEY CONSIDER THESE PROPOSALS. 1347 02:28:15.557 --> 02:28:21.732 I WOULD ASK THE COURT TO CONSIDER THE POINT MADE BY OUR AMICUS IN SUPPORT WHO MADE IT 1348 02:28:21.732 --> 02:28:27.456 CLEAR THAT ANY TEST OR ANY MODIFICATION FROM HARDWICKE SHOULD HAVE AT ITS CORE THE 1349 02:28:27.456 --> 02:28:32.375 PROTECTION OF CHILDREN AS ITS FUNDAMENTAL GOAL IF THERE IS A NEED TO LIMIT HARDWICKE. 1350 02:28:32.375 --> 02:28:36.846 THAT SHOULD BE THE WATCH WORD AND THAT SHOULD BE THIS COURT'S FUNDAMENTAL CONCERN, NOT 1351 02:28:36.846 --> 02:28:42.631 THE FINANCIAL IMPACT THAT IT WOULD HAVE AS MR. SHAH SUGGESTED UPON THESE PUBLIC ENTITIES, 1352 02:28:42.631 --> 02:28:53.479 BECAUSE WE KNOW IF WE GO BACK TO GOVERNOR MURPHY's SIGNING STATEMENT, ON RELIGIOUS AND 1353 02:28:53.479 --> 02:28:59.180 CHARITABLE ENTITIES. HE ACKNOWLEDGED THAT AND HE STILL SAID I THINK THE COURTS ARE THE 1354 02:28:59.180 --> 02:29:03.953 BEST SYSTEM FOR REMEDYING THESE CLAIMS AND HE ASKED THE LEGISLATURE TO MAKE THAT EXPOSURE 1355 02:29:03.953 --> 02:29:09.138 THE SAME FOR PUBLIC ENTITIES. SO I DON'T THINK THAT CONCERN IS A VALID ONE 1356 02:29:09.138 --> 02:29:14.317 AND I'D ASK YOU TO ONLY REALLY CONSIDER THE PROTECTION OF CHILDREN IF YOU ARE GOING TO 1357 02:29:14.317 --> 02:29:21.228 CONSIDER MODIFYING HARDWICKE IN SOME WAY. I JUST END BY NOTING THAT MY PARTNER AND I 1358 02:29:21.228 --> 02:29:29.454 AS WE CONSIDERED RESPONDING TO THE ATTORNEY GENERAL's AMICUS BRIEF DIDN'T THINK WE HAD 1359 02:29:29.454 --> 02:29:35.011 THE TIME OR SPACE APPROPRIATE TO PROPOSE OUR OWN TEST AND FUNDAMENTALLY WE BELIEVE THAT'S 1360 02:29:35.011 --> 02:29:41.240 BECAUSE HARDWICKE REMAINS THE APPROPRIATE STANDARD. THANK YOU, JUSTICES. 1361 02:29:41.240 --> 02:29:44.663 CHIEF JUSTICE RABNER: THANK YOU. MR. BALDANTE? JOHN W. BALDANTE: THANK YOU, 1362 02:29:44.663 --> 02:29:52.445 CHIEF JUSTICE AND IF IT PLEASE THE COURT. I HOPE TO BE AS BRIEF AS MY PARTNER IN MY REBUTTAL. 1363 02:29:52.445 --> 02:29:59.518 THERE'S A FEW THINGS I WANTED TO TOUCH UPON. COUNSEL FOR THE SOUTH ORANGE 1364 02:29:59.518 --> 02:30:05.046 MAPLEWOOD BOARD OF EDUCATION MADE A COMMENT THAT I WANT TO CLARIFY. HE SAID THAT I HAD 1365 02:30:05.046 --> 02:30:13.064 INDICATED IN THE APPELLATE DIVISION THAT THE TEACHER IN THIS MATTER HAD ACTED OUTSIDE 1366 02:30:13.064 --> 02:30:21.946 THE SCOPE OF EMPLOYMENT. THAT'S NOT WHAT I SAID. WHAT I HAD SAID WAS THAT CHILD SEXUAL 1367 02:30:21.946 --> 02:30:26.605 ABUSE IS ALWAYS OUTSIDE THE SCOPE OF EMPLOYMENT. AND I HAVE SAID THE SAME HERE TODAY. 1368 02:30:26.605 --> 02:30:33.213 BECAUSE IT IS ALWAYS OUTSIDE. THAT'S OBVIOUS TO US OF US. BUT UNDER HARDWICKE 1369 02:30:33.213 --> 02:30:41.476 AND AIDED AGENCY AND APPARENT AUTHORITY, UNDER THOSE, THE FICTION OF THOSE LEGAL SKRUKS, 1370 02:30:41.476 --> 02:30:49.110 EXCEPTIONS ARE CREATED. AND THEY ARE FUNCTIONALLY BROUGHT BACK WITHIN THE SCOPE OF 1371 02:30:49.110 --> 02:30:53.501 EMPLOYMENT ESSENTIALLY FOR THE PURPOSE OF ANALYZING THIS. AND THAT WAS THE TYPE OF 1372 02:30:53.501 --> 02:31:00.286 ARGUMENT I WAS TRYING TO MAKE AT THE APPELLATE DIVISION IN TRYING TO DEAL WITH THE ISSUE 1373 02:31:00.286 --> 02:31:06.061 OF WHETHER THIS WAS INSIDE OR OUTSIDE THE SCOPE OF EMPLOYMENT. AND THAT'S HOW I VIEWED 1374 02:31:06.061 --> 02:31:20.921 IT. THAT THESE LEGAL CONSTRUCTS ARE PART. I WAS ASKED EARLIER DID I LIKE THE RESTATEMENT 1375 02:31:20.921 --> 02:31:27.undefined SECOND AGENCY BETTER THAN THE MORE RECENT REVISIONS TO THE RE-STATEMENTS. AND THEY ALL 1377 02:31:32.764 --> 02:31:40.928 HARDWICKE RE-LIED UPON INITIALLY IS BECAUSE IT RE-LIES UPON AIDED AGENCY. AND AIDED AGENCY 1378 02:31:40.928 --> 02:31:50.842 IS REALLY HOW CHILD SEXUAL ABUSE IS COMMITTED. IT IS AN ESSENTIAL PART OF ANALYZING THIS. 1379 02:31:50.842 --> 02:31:57.424 AND I REALIZE THE JUSTICES ARE STRUGGLING WITH WHETHER OR NOT HARDWICKE MAY 1380 02:31:57.424 --> 02:32:05.942 HAVE GONE TOO FAR. AND I WOULD ARGUE IT HASN'T. BECAUSE THIS PARTICULAR PROBLEM IN OUR 1381 02:32:05.942 --> 02:32:20.918 SOCIETY IS SO PER NASHS AND SO DEVASTATING IT HAS TO BE STOPPED. AND IF IT MEANS THAT 1382 02:32:20.918 --> 02:32:30.782 THERE'S GOING TO BE MORE LIABILITY THAN WHAT WAS PERCEIVED, THEN SO BE IT. GOVERNOR MURPHY 1383 02:32:30.782 --> 02:32:36.346 SAID SO. HE SAID THERE WOULD BE A COST OF THIS BUT THE PROTECTION AND SAFETY OF THESE 1384 02:32:36.346 --> 02:32:42.499 CHILDREN TAKE PRECEDENT. AND THAT'S WHAT THE FOCUS -- THAT'S THE PURPOSE OF THE CHILD 1385 02:32:42.499 --> 02:32:48.017 VICTIMS ACT. I'VE HEARD BOTH COUNSEL FOR THE BOARDS OF EDUCATION IN THIS MATTER 1386 02:32:48.017 --> 02:32:54.681 SAY THAT THERE WOULD BE A FINANCIAL CRISIS. MR. SHAH WENT SO FAR AS TO SAY ALL THESE 1387 02:32:54.681 --> 02:33:02.443 SCHOOLS ARE GOING TO GO BANKRUPT. I HAVE TO ADDRESS THAT. THAT IS JUST HYPERBOLE AND 1388 02:33:02.443 --> 02:33:09.501 FEAR MONGERING. THAT'S NOT TRUE. OF ALL THE CASES WE HAVE IN OUR OFFICE, AND I HAVE 1389 02:33:09.501 --> 02:33:17.872 OVER A THOUSAND ACTIVE CASES OF CHILD SEXUAL ABUSE IN THE STATE OF NEW JERSEY, 95 PERCENT 1390 02:33:17.872 --> 02:33:23.162 OF THOSE CASES HAVE FULL INSURANCE. IN FACT, THE INSURANCE IS BETTER, NOT WORSE WHEN IT'S 1391 02:33:23.162 --> 02:33:28.414 OLDER, BECAUSE THOSE OLDER POLICIES DIDN'T HAVE THE TYPE OF DISCLAIMERS THAT SOME OF THE 1392 02:33:28.414 --> 02:33:36.614 NEWER ONES HAVE. THE NOTION THAT THESE SCHOOLS ARE GOING TO BE BANKRUPT OR 1393 02:33:36.614 --> 02:33:41.872 IN FINANCIAL CRISIS AS A RESULT OF THIS IS NOT TRUE. I HAVE -- WE HAVE VERY FEW -- I CAN 1394 02:33:41.872 --> 02:33:51.054 ONLY THINK AS I WAS LISTENING TO THIS HOW MANY CASES I HAVE PERSONALLY WITHIN MY FIRM. 1395 02:33:51.054 --> 02:33:57.545 I'M NOT THE ONLY ONE HANDLING THEM. WHERE THERE'S NO INSURANCE. I CAN ONLY THINK OF 1396 02:33:57.545 --> 02:34:02.291 ONE. IT HAPPENS TO BE A CASE AGAINST MY COLLEAGUE HERE MR. SHAH. BUT I HAVE SETTLED 1397 02:34:02.291 --> 02:34:10.547 ALREADY AT THIS POINT IN TIME PROBABLY 60 TO 75 OF THESE CHILD SEX ABUSE CASES IN THE 1398 02:34:10.547 --> 02:34:16.844 STATE OF NEW JERSEY. AND ALL OF THEM FOR THE MOST PART THAT I CAN THINK OF WERE ALL 1399 02:34:16.844 --> 02:34:22.253 COVERED BY INSURANCE. SO THIS CATASTROPHIC NOTION THAT THERE'S STRICT 1400 02:34:22.253 --> 02:34:28.118 LIABILITY FOR WHICH THERE IS NO EVIDENCE OF IN THE LAST 20 YEARS OF HARDWICKE AND THAT 1401 02:34:28.118 --> 02:34:34.254 THERE'S FINANCIAL RUIN THAT'S GOING TO OCCUR, WE JUST HAVEN'T SEEN IT AND IT'S NOT TRUE 1402 02:34:34.254 --> 02:34:38.363 TO WHAT'S HAPPENING IN REAL LIFE OUT THERE. JUSTICE WAINER APTER: HAVE THERE 1403 02:34:38.363 --> 02:34:45.437 BEEN ANY CASES THAT HAVE APPLIED COMMON LAW VICARIOUS LIABILITY UNDER HARDWICKE? 1404 02:34:45.437 --> 02:34:50.453 JOHN W. BALDANTE: COMMON LAW VICARIOUS LIABILITY UNDER HARDWICKE? THAT WAS A 1405 02:34:50.453 --> 02:34:54.680 QUESTION YOU ASKED EARLIER AND I WAS THINKING ABOUT THAT. AND I DO HAVE AN ANSWER TO THAT. 1406 02:34:54.680 --> 02:34:59.814 I DON'T KNOW IF IT COUNTS BUT I'LL SHARE IT WITH THE COURT. BECAUSE WE'RE THE LEAD COUNSEL 1407 02:34:59.814 --> 02:35:08.264 ON THE PLAINTIFF'S LIAISON COMMITTEE FOR ALL THE ROMAN CATHOLIC CHURCH LITIGATION THROUGHOUT 1408 02:35:08.264 --> 02:35:13.411 NEW JERSEY, I GOT DRAGGED INTO THE BOY SCOUT LITIGATION A LITTLE BIT BECAUSE SOME OF THOSE 1409 02:35:13.411 --> 02:35:20.858 PRIESTS WERE CHAP LINS IN THE BOY SCOUTS AND SERVED IN THE BOY SCOUTS. OF THE 70,000 1410 02:35:20.858 --> 02:35:29.193 BOY SCOUT CASES, THERE WERE 200 THAT APPLIED FOR THE WHAT THEY CALL THE I R O, WHICH IS 1411 02:35:29.193 --> 02:35:34.624 ESSENTIALLY A FULL TRIAL. IT'S A BENCH TRIAL. I HAD ONE OF THOSE CASES AND IT WAS THE 1412 02:35:34.624 --> 02:35:43.942 FIRST CASE TRIED IN NEW JERSEY BEFORE FORMER JUDGE WHO USED TO BE THE PRESIDING JUDGE 1413 02:35:43.942 --> 02:35:50.336 OF MIDDLESEX COUNTY. IN THAT CASE, THE BOY SCOUTS HAD NO KNOWLEDGE THAT THAT PRIEST HAD 1414 02:35:50.336 --> 02:35:57.669 PRIOR RED FLAG WARNINGS WITHIN THE CATHOLIC CHURCH CONCERNING SEXUAL ABUSE OF CHILDREN. 1415 02:35:57.669 --> 02:36:04.682 SO THE BOY SCOUTS THEMSELVES HAD NO NOTICE. I ARGUED VICARIOUS LIABILITY AND I BRIEFED 1416 02:36:04.682 --> 02:36:10.919 IT EXTENSIVELY JUST LIKE YOU WOULD FOR A NORMAL TRIAL. AND SHE WROTE A VERY EXTENSIVE 1417 02:36:10.919 --> 02:36:17.801 OPINION IN THE CONTEXT OF THE BOY SCOUT BANKRUPTCY I R O PROGRAM CONFIRMING THAT SHE 1418 02:36:17.801 --> 02:36:27.891 FELT THERE WAS VICARIOUS LIABILITY. NOW, THAT'S NOT PRESIDENTIAL OR BINDING 1419 02:36:27.891 --> 02:36:34.646 TO THIS COURT AT ALL. BUT THAT WAS THE ONLY CASE I KNOW THAT ACTUALLY ADDRESSED THE ISSUE. 1420 02:36:34.646 --> 02:36:42.354 MOST OF THE CASES IN NEW JERSEY THAT HAVE CONFRONTED THIS HAVE ALL SETTLED, SOME FOR 1421 02:36:42.354 --> 02:36:48.706 LARGE AMOUNT OF MONEYS, TYPICALLY PAID BY INSURANCE, AT THE DOORSTEP. AND THE ISSUE 1422 02:36:48.706 --> 02:36:56.435 DOES NOT GET DRESSED. IT'S SORT OF DANGLED OVER EVERYONE TO TRY TO NEGOTIATE THE CASES 1423 02:36:56.435 --> 02:37:01.421 TO A SETTLEMENT. SO THAT'S WHAT'S REALLY BEEN HAPPENING IN REAL LIFE. THOSE 1424 02:37:01.421 --> 02:37:07.895 ARE MY ONLY COMMENTS AND I WANT TO JUST EXPRESS MY APPRECIATION TO ALL THE JUSTICES FOR 1425 02:37:07.895 --> 02:37:15.565 ALLOWING US TO SPEAK AT SUCH LENGTH. I THINK THIS ISSUE WARRANTED IT. BUT I APPRECIATE 1426 02:37:15.565 --> 02:37:19.562 YOUR PATIENCE WITH ALL OF US. THANK YOU. CHIEF JUSTICE RABNER: THIS HAS BEEN 1427 02:37:19.562 --> 02:37:25.325 A LONG DAY AND WE ALLOWED FOR THE ARGUMENTS TO EXTEND BECAUSE OF THE IMPORTANCE OF THEM. 1428 02:37:25.325 --> 02:37:30.666 IT WAS MADE AN ENJOYABLE DAY BY THE FACT WE HAD SUCH CAPABLE COUNSEL AND I THANK YOU ALL 1429 02:37:30.666 --> 02:37:33.666 FOR YOUR PRESENTATIONS