In Defense of Schools: The Impact of the Child Victims Act
Hurwitz & Fine, P.C.
1300 Liberty Building
Buffalo, NY 14202
Long Island Office:
535 Broad Hollow
Melville, New York 11747
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As you may recall, a plaintiff bringing a claim for sexual abuse he or she endured during childhood now has until age 55 to commence a civil action against the perpetrator(s) of that abuse as well as against any institution whose negligent acts or omissions are alleged to have resulted in said abuse. The law also provides a “revival period” for plaintiffs whose claims were previously dismissed as untimely (and/or for people currently over the age of 55) and removes pre-requisites to suit such as the pre-suit Notices of Claim required by the municipal law.
So, what does the law mean for the “notice” defense?
Stated very simply, prevailing on a negligence claim requires that the harm causing injury be foreseeable (and therefore preventable). Foreseeability is typically defined in terms of knowledge, or notice, about a hazard or behavior that should (or could) have been predicted or anticipated by the defendant. Veterans of premises liability work, particularly negligent supervision claims, know that an institution like a school, daycare, or sports league cannot be held responsible for the bad acts of an employee, volunteer, or student unless the institution knew, or had reason to know by way of some prior similar behavior, that the offender was prone to such behavior and failed to take any action to prevent the bad act from occurring.
In building a plaintiff’s case, and in preparing a negligence defense, defendants typically rely upon the testimony of witnesses acquainted with the tortfeasor and the victim; disciplinary records and history; surveillance video; and sometimes, mental health and criminal background records. Although the extension of the statute of limitations and the institution of the limited revival window are anticipated to create a substantial challenge to evidence gathering (particularly where a defendant no longer has access to a 50-h examination) in cases involving older plaintiffs, the CVA does not alter the evidentiary burden in establishing the tort of negligent supervision nor does it alter, in any way, a defendant’s ability to argue that lacked any and all notice of the offender’s propensity for sexual violence.
Does the law allow for a trial preference?
In short, yes. Claims raised within the revival window are entitled to a trial preference given the potentially advanced age of not only the plaintiff, but the amount of time that is likely to have passed since the commission of the abuse. Receiving a trial preference from the court system means that a claim will expedited through discovery to trial. Given the evidentiary impact of the revival window, the impact of this “fast-tracking” remains to be seen but is anticipated to be significant.