G.A.-H. v. K.G.G., 455 N.J. Super. 294 (App. Div. 2018). An emergency medical technician (“EMT”), designated as “Kenneth” in today’s opinion by Judge Fisher, engaged in an unlawful sexual relationship with plaintiff (designated as “Georgia”), who was then just fifteen years old. The prosecutor pursued criminal charges against Kenneth, and he was convicted and incarcerated. Georgia brought a civil suit against Kenneth, who defaulted. She also sued another EMT, “Arthur,” the EMTs’ employer, and a soccer club that had allegedly created the opportunity for the illicit relationship to occur. Kenneth had explicit photographs of Georgia that Arthur too may have viewed.
Georgia sought discovery of evidence in the possession of the prosecutor, including videotaped statements to the police that Arthur made. That court also granted summary judgment to Arthur and the employer of the EMTs. The Law Division ruled that “the law imposed no duty on Arthur to warn, to contact authorities, or to contact the employer about his co-worker’s conduct.” Georgia appealed, and the Appellate Division today reversed.
On the issue of discovery from the prosecutor, Judge Fisher observed dryly that “Arthur’s opposition has been more forceful than the prosecutor’s expressions of concern.” The prosecutor was willing to turn over evidence if the Law Division controlled further dissemination. Judge Fisher said that upon entry of a protective order, the prosecutor’s concerns would be satisfied. The panel remanded the case for an in camera review of the materials sought.
The more involved issue was whether any duty ran from Arthur to Georgia. Georgia had argued below that N.J.S.A. 9:6-8.10 created such a duty. That statute requires that “[a]ny person having reasonable cause” to believe that a child has been abused must report that abuse to the Division of Child Protection and Permanency. But that provision applied only within Title Nine, which is limited to abuse arising from the acts or omissions of a child’s “parent, guardian, or other person having [the child’s] custody and control.” Kenneth was not a person who had “custody and control” of Georgia, so his alleged abuse did not fall within N.J.S.A. 9:6-8.10.
But that did not foreclose the potential of a common law duty. Judge Fisher said that “this possibility may emanate from J.S. v. R.T.H., 155 N.J. 330, 334 (1998), where our Supreme Court held that ‘a wife who suspects or should suspect her husband of actual or prospective sexual abuse of their neighbors’ children has [a] duty of care to prevent such abuse.'”
Arthur argued that the situation here was not like J.S. because the relationship between the abuser and the defendant was different. Judge Fisher, however, noted that “[t]he common law did not suddenly rest after evolving over a thousand years. It forever progresses to meet an ever-changing society’s needs; as some concepts [wither] and die, others emerge and ripen.” The panel was thus required to analyze J.S. to see whether it marked the limit of the duty or whether the Court “anticipated or laid the groundwork for a further expansion beyond the duty it imposed on spouses.”
After a lengthy discussion, Judge Fisher concluded that “the J.S. Court recognized an extensive duty to report child abuse that isn’t limited to ‘professionals, such as doctors, psychologists, and teachers’ but ‘required of every citizen.’ 155 N.J. at 343. To be sure, the Court imposed that duty when considering the nonfeasance of a spouse; we cannot, however, conclude it is against public policy to expand the scope of a duty to warn in such matters in the absence of a spousal relationship.”
The panel could not decide the issue as to Arthur or the employer because the factual record was not developed enough. “The record reveals far too little about the extent of [Arthur’s] relationship to Kenneth or whether whatever he learned from Kenneth’s braggadocio or Arthur’s own observations justify a tort duty.” The additional discovery that the first part of Judge Fisher’s opinion opened up would help illuminate the ultimate issue.
Georgia’s claim against the soccer club had been dismissed administratively due to service issues. Judge Fisher reversed that dismissal too and remanded for further proceedings.
A key aspect of the genius of the common law is that it evolves to meet changing circumstances. Judge Fisher’s opinion today, though not resolving the ultimate issue, is in that fine tradition.