The opinion
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2236-23
C.W.,1
Plaintiff-Appellant,
APPROVED FOR PUBLICATION
v. January 15, 2026
APPELLATE DIVISION
ROSELLE BOARD OF
EDUCATION,
Defendant-Respondent,
and
NEW JERSEY BOARD
OF EDUCATION,
Defendant,
and
ROSELLE BOARD
OF EDUCATION,
Third-Party Plaintiff,
v.
GILBERT YOUNG, JR.,
Third-Party Defendant.
1
We use initials to protect plaintiff's privacy. R. 1:38-3(c)(9).
Argued October 22, 2025 – Decided January 15, 2026
Before Judges Currier, Smith and Jablonski.
On appeal from the Superior Court of New Jersey,
Law Division, Union County, Docket No. L-0153-20.
J. Silvio Mascolo argued the cause for appellant
(Rebenack, Aronow & Mascolo, LLP, attorneys; J.
Silvio Mascolo, of counsel and on the briefs).
Roshan D. Shah argued the cause for respondent (Shah
Law Group, LLC, attorneys; Roshan D. Shah and
Todd S. McGarvey, of counsel and on the briefs;
Valentina Recchia and Edward Brazaitis, on the
briefs).
The opinion of the court was delivered by
CURRIER, P.J.A.D.
In this matter, before us for a second time, we consider whether the
Legislature's amendment to a statute, while the second appeal was pending, is
applicable and suffices to vacate the trial court's grant of summary judgment to
defendant Roselle Board of Education (RBOE). Plaintiff alleged he was
sexually abused by an employee of RBOE. The court granted summary
judgment because plaintiff could not establish he incurred the $3,600 monetary
threshold of medical expenses to seek relief under the Tort Claims Act (TCA),
N.J.S.A. 59:9-2(d). During the pendency of the appeal, the Legislature
amended the TCA eliminating the monetary threshold in sexual abuse cases.
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P.L. 2025, c. 29. The amendment stated it was effective immediately.
Plaintiff now urges this court to apply the amendment retroactively to his
matter and overturn the summary judgment order.
Because the Legislature did not explicitly state the amendment was to
apply retroactively and without clear legislative intent, New Jersey law
strongly favors the prospective treatment of newly enacted laws and
amendments. Therefore, the trial court correctly determined, based on the
statute in effect at the time, that plaintiff's claims were barred as failing to
meet the monetary threshold. We affirm.
I.
Plaintiff, born in 1988, alleges he was sexually abused as a minor by
third-party defendant Gilbert Young, Jr. who was employed by RBOE as a
middle school math teacher. Young was plaintiff's math teacher in 2001 -2002.
Plaintiff does not allege that any sexual abuse occurred while he was in middle
school.
In 2004-2005 plaintiff was in high school but returned frequently with
friends to the middle school to visit teachers, including Young. During one of
these visits, Young asked plaintiff if he needed help with math and plaintiff
said yes. Thereafter, plaintiff began walking to the middle school at the end of
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the day to work with Young. Sometimes Young would drive plaintiff home
after helping him with his homework.
Plaintiff alleges two specific incidents of abuse that took place off
school property during 2004-2005. The first incident occurred in the fall of
2004 when Young was driving plaintiff home and stopped in a park. There,
Young proceeded to kiss and grope plaintiff in the car. Specifically, plaintiff
stated that "[w]hile inside his car, [Young] started to caress [plaintiff's] thigh
up to [his] genitals. He then grabbed [plaintiff's] left hand and guided [him] to
touch [Young] in the same way. [Young] then kissed [plaintiff] on [his] lips."
Plaintiff stated that after the incident, Young told plaintiff "not [to] tell
anyone," because he could lose his teaching license. Plaintiff said the incident
made him uncomfortable, and that he "wanted it to be over," and "[i]t felt
awful."
Subsequently, plaintiff and Young arranged to meet in the early morning
hours of January 1, 2005. Young picked plaintiff up at 6:00 a.m. and took him
to a motel where Young sexually abused him both orally and anally.
Over two years later, in 2007, plaintiff reported the abuse to the high-
school nurse. After an investigation and administrative proceedings, Young's
position and tenure were terminated.
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II.
In 2020, plaintiff filed a complaint against RBOE 2 alleging violations of
the New Jersey Child Sex Abuse Act (CSAA), N.J.S.A. 2A:61B-1, negligence,
intentional infliction of emotional distress (IIED), negligent infliction of
emotional distress (NIED), and sought compensatory and punitive damages.
On motion of RBOE, the court dismissed the CSAA count and claim for
punitive damages. RBOE filed an answer and third-party complaint against
Gilbert Young, Jr.
In his answers to interrogatories, plaintiff stated he sustained
psychological injuries following the abuse, including depression, anxiety, and
difficulty forming romantic relationships. However, he did not seek any
medical treatment, counseling, or therapy for the abuse at the time, and did not
incur any medical expenses related to it.
During the course of the litigation, plaintiff submitted an expert report
from Dr. Jon Conte, Ph.D., who evaluated plaintiff in 2021. Dr. Conte found
that plaintiff "present[ed] with a complex trauma history with significant
adversities over most of his life," and had "significant vulnerabilities prior to
coming under the influence of Y[oung]." Dr. Conte reviewed plaintiff's self -
2
Plaintiff also sued the New Jersey Board of Education. The court granted it
summary judgment in March 2020. That order has not been appealed.
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reported testing results and found the "testing indicates significant current
difficulties with identity, relatedness (including distrust of others, social
isolation), affect regulation, and depression." In conclusion, Dr. Conte stated
C.W.'s "vulnerabilities rendered the impact of the abuse by Y[oung] more
significant and are a contributing factor to his subsequent functioning."
RBOE moved for summary judgment. The court granted the motion in
part, dismissing the IIED claim with prejudice, but allowing plaintiff to
proceed with his negligence and NIED claims. As we stated in our first
opinion, in considering the application of the TCA's verbal threshold, the trial
court "found that because plaintiff 'was sexually abused as a minor, he [was]
entitled to a presumption of permanent and/or substantial injury for purposes
of the TCA.' The court did not address the medical expenses limitation."
C.W. v. Roselle Bd. of Educ., 474 N.J. Super. 644, 651 (App. Div. 2023)
(alteration in original).
RBOE moved for reconsideration, arguing it was entitled to summary
judgment because plaintiff had not met the required medical expenses
monetary threshold. The court partially granted the motion, finding plaintiff
could not seek damages for pain and suffering under the TCA because he had
not incurred $3,600 in related medical expenses and could not establish an
objective, substantial permanent injury as required by the statute. However,
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the court allowed the common-law negligence and NIED claims to proceed,
finding there were genuine disputes regarding the existence of permanent
psychological injuries and causation, and certain "other damages" might still
be available.
We granted plaintiff leave to file an interlocutory appeal and affirmed
the court's ruling that plaintiff could not pursue pain and suffering damages as
he had not incurred $3,600 in related medical expenses, however, he could
pursue other damages. Ibid. We further found plaintiff's expert opinion
detailing future treatment costs was an invalid net opinion. Ibid. However, we
reversed the trial court's grant of summary judgment on the CSAA claims and
remanded the matter for further proceedings. Id. at 651 n. 2. The Supreme
Court denied plaintiff's subsequent motion for leave to appeal. C.W. v.
Roselle Bd. of Educ., 254 N.J. 172 (2023).
III.
Back before the trial court, RBOE moved to bar plaintiff from seeking
non-economic damages. The court denied the motion without prejudice,
finding plaintiff was not seeking nominal or economic damages, but rather
damages for loss of enjoyment of life.
Thereafter, RBOE moved again for summary judgment, arguing that all
of plaintiff's non-economic damages were, as a matter of law, subsumed within
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"pain and suffering" under the TCA, and thus barred. In response, plaintiff
argued he was entitled to non-economic damages for disability, impairment,
and loss of enjoyment of life.
The trial court granted RBOE summary judgment in March 2024,
finding plaintiff's claimed damages for disability, impairment, and loss of
enjoyment of life were, under established New Jersey law, part of pain and
suffering within the meaning of the TCA, and since plaintiff could not meet
the monetary threshold, he could not pursue those damages.
Plaintiff appealed. As stated, during the pendency of the appeal, the
Legislature amended the TCA in March 2025 to eliminate the verbal and
monetary thresholds in sexual abuse cases. See N.J.S.A. 59:2-1.3(a)(2);
N.J.S.A. 59:9-2(d). The legislation states the threshold amendment "shall take
effect immediately." P.L. 2025, c. 29.
IV.
In its initial merits brief, plaintiff contended the court erred in
precluding him from pursuing damages for disability, impairment and loss of
enjoyment of life as they are separate and distinct from damages for pain and
suffering. After the legislative amendments to the TCA, we permitted
supplemental briefing, and plaintiff asserted the amended TCA applied to his
case under the time-of-decision rule as his matter was pending appeal at the
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time of its enactment. Alternatively, plaintiff contended the amendment
should apply retroactively to his claims.
A.
We begin with the applicability of the amended TCA to plaintiff's
claims. Plaintiff relies on Kruvant v. Mayor & Council Township of Cedar
Grove, 82 N.J. 435, 440 (1980), to support his argument regarding the time -of-
decision rule, citing to the decision's language that states: "The purpose of the
principle [of applying the legislative intent of a statute's application] is to
effectuate the current policy declared by the legislative body[,] a policy which
presumably is in the public interest. By applying the presently effective
statute, a court does not undercut the legislative intent." However, plaintiff
does not include the sentence preceding the one cited which reads: "It is a
well-established principle that an appellate court on direct review will apply
the statute in effect at the time of its decision, at least when the legislature
intended that its modification be retroactive to pending cases." Ibid. (emphasis
added). Therefore, the rule is only meant to apply when the legislature intends
for retroactive application.
In addition, "[a]pplication of the time-of-decision rule . . . 'is not
automatic'; a court must take into account equitable considerations, and the
outcome depends upon a balance of the equities . . . ." Eastampton Ctr., LLC
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v. Plan. Bd. of Twp. of Eastampton, 354 N.J. Super. 171, 197 (App. Div. 2002)
(quoting Pizzo Mantin Grp. v. Twp. of Randolph, 137 N.J. 216, 235 (1994)).
"The ultimate objective is fairness . . . ." Tremarco Corp. v. Garzio, 32 N.J.
448, 457 (1960). Therefore, a balance "must be struck" between the interested
parties. Ibid.
In balancing the equities, a court should consider the extent to which a
party relied on the prior law. Ibid.; see also Johnson v. Roselle EZ Quick
LLC, 226 N.J. 370, 387 (2016) ("[A]lthough everyone is presumed to know the
law, no one is expected to anticipate a law that has yet to be enacted . . . .");
Cruz v. Cent. Jersey Landscaping, Inc., 195 N.J. 33, 45 (2008) (new laws
should be applied prospectively for reasons of fairness and due process);
Gibbons v. Gibbons, 86 N.J. 515, 522 (1981) ("It is a fundamental principle of
jurisprudence that retroactive application of new laws involves a high risk of
being unfair.").
Balancing the equities here, this litigation has ensued for over five years.
The trial court has granted RBOE summary judgment twice, grounding its
analysis in the then-existing longstanding statute and decisional law regarding
a monetary threshold for medical expenses as a requisite for recovering
damages against a public entity. In addition, there was a prior appellate
decision which relied on the previous version of the law. See generally C.W.,
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474 N.J. Super. at 646-54. Clearly, the parties and courts properly adhered to
the statute enacted more than fifty years ago. Moreover, to permit a unilateral
sudden change under the time-of-decision rule without a retroactivity analysis
would result in unfairness and a violation of defendant's due process.
Considering these legal principles, we are satisfied the time-of-decision
rule does not apply. We now turn to retroactivity.
Plaintiff's appeal was still pending at the time the amendment was
enacted. However, there is no express language indicating "the legislature
intended that its modification be retroactive to pending cases." Kruvant, 82
N.J. at 440. Moreover, "[s]ettled rules of statutory construction favor
prospective rather than retroactive application of new legislation" in order to
avoid unfair outcomes. Pisack v. B & C Towing, Inc., 240 N.J. 360, 370
(2020) (quoting James v. N.J. Mfrs. Ins., 216 N.J. 552, 563 (2014)).
As we have previously noted, "[o]ur Supreme Court has consistently
held that an amendment that is to take effect immediately is to be applied only
prospectively." State v. Rosado, 475 N.J. Super. 266, 276 (App. Div. 2023);
see also Pisack, 240 N.J. at 371 (explaining that "the Legislature provided that
the 2018 amendatory legislation 'shall take effect immediately.' . . . Those
'words bespeak an intent contrary to, and not supportive of, retroactive
application.'") (quoting Cruz, 195 N.J. 33 at 48).
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We employ a two-part test to determine if the amended statute should
apply retroactively. We consider "whether the Legislature intended to give the
statute retroactive application"; and "whether retroactive application of that
statute will result in either an unconstitutional interference with vested rights
or a manifest injustice." James, 216 N.J. at 563 (quoting In re D.C., 146 N.J.
31, 50 (1996)). "Both questions must be satisfied for a statute to be applied
retroactively." Johnson, 226 N.J. at 387.
In addressing the first question, a court considers if: (1) the Legislature
explicitly or implicitly expresses an intent that a law be applied retroactively;
(2) an amendment is ameliorative or curative; or (3) if the parties' expectations
warrant retroactive application. Ibid.
"[C]ourts generally 'enforce newly enacted substantive statutes
prospectively, unless [the Legislature] clearly expresses a contrary intent'" for
retroactive application. Maia v. IEW Constr. Grp., 257 N.J. 330, 350 (2024)
(second alteration in original) (emphasis omitted) (quoting In re J.D-F., 248
N.J. 11, 22 (2021)). "The Legislature may convey its intent to apply a statute
retroactively by expressing it explicitly 'in the language of the statute or in the
pertinent legislative history,' or impliedly, by rendering it necessary 'to make
the statute workable or to give it the most sensible interpretation.'" Id. at 350-
51 (quoting Gibbons, 86 N.J. at 522).
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There is no indication the Legislature intended to give the amended
statute retroactive application. First, there is no express language indicating
such an intent. Johnson, 226 N.J. at 387. Second, the amendment is not
ameliorative or curative. "[W]hen determining whether a statute or
amendment is ameliorative or curative, courts look to whether the statute or
amendment 'is designed merely to carry out or explain the intent of the original
statute.'" Maia, 257 N.J. at 351 (quoting Johnson, 226 N.J. at 388). A statute
or amendment is curative when "its purpose is 'to remedy a perceived
imperfection in or misapplication of a statute and not to alter the intended
scope or purposes of the original act.'" Johnson, 226 N.J. at 388 (quoting
Nelson v. Bd. of Educ., 148 N.J. 358, 370 (1997)).
The amendment altered the longstanding scope of the TCA by removing
a procedural bar for a specific class of plaintiffs, which permitted those
litigants to pursue a claim against a public entity previously closed to them.
The amendment expanded the limitations on the immunity afforded to the
public entity under the TCA, rather than fixing a misapplication of the TCA's
original purpose, particularly considering that a prior amendment in 2000
raised the dollar figure of the monetary threshold. P.L. 2000, c. 126, § 32.
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Plaintiff relies on the following Assembly Judiciary Committee
Statement issued on October 21, 2024, to support his argument that the
Legislature intended the amended to be curative:
This bill establishes that the limitation against
recovery also does not apply to an action at law for an
injury resulting from the commission of sexual
assault, a prohibited sexual act as defined in
N.J.S.A.2A:30B-2, sexual abuse as defined in
N.J.S.A.2A:61B-1, or any other crime of sexual
nature.
COMMITTEE AMENDMENTS: The committee
amended the bill to further clarify that the recovery for
pain and suffering as a result of a sexual offense is
separate and distinct from recovery for permanent loss
of a bodily function, permanent disfigurement, or
dismemberment where the medical treatment expenses
are in excess of $3,600.
[(Emphasis added).]
The emphasized language simply reiterates the plain language of the
amendment. Recovery against a public entity for pain and suffering damages
resulting from a sexual offense are no longer subject to the TCA's monetary
threshold. The statement does not indicate the Legislature amended the statute
to cure a perceived imperfection in the TCA. It is addressing the ramifications
of a new act, the Child Victims Act, N.J.S.A. 59:2-1.3, when it is considered in
tandem with the TCA.
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Third, the parties' expectations do not warrant retroactive application. If
legislative intent is not clear concerning retroactivity, then "a court will look at
the controlling law at the relevant time and consider the parties' reasonable
expectations as to the law." Johnson, 226 N.J. at 389. "An expectation of
retroactive application 'should be strongly apparent to the parties in order to
override the lack of any explicit or implicit expression of intent for retroactive
application.'" Ibid. (quoting James, 216 N.J. at 573). As noted, the parties
proceeded through the years of this litigation relying on the five decades of
decisional law regarding the TCA's monetary threshold and its application to
emotional distress damages as being encompassed within the category of pain
and suffering damages.
Moreover, in Maia, 257 N.J. at 342, our Supreme Court discussed the
United States Supreme Court's decision in Landgraf v. USI Film Products, 511
U.S. 244, 247 (1994), regarding retroactivity. The Court explained that in
Landgraf, the United States Supreme Court "noted that the 'application of new
statutes passed after the events in suit is unquestionably proper in many
situations,' such as statutes that affect the 'propriety of prospective relief';
'statutes conferring or ousting jurisdiction'; and '[c]hanges in procedural
rules.'" Maia, 257 N.J. at 343 (alteration in original) (quoting Landgraf, 511
U.S. at 273-75). However, the Maia Court acknowledged that the United
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States Supreme Court "distinguished such situations from statutes that 'would
operate retroactively'—i.e., statutes that 'would impair rights a party possessed
when he acted, increase a party's liability for past conduct, or impose new
duties with respect to transactions already completed.'" Maia, 257 N.J. at 343
(quoting Landgraf, 511 U.S. at 280). Applying the amendment retroactively
would impair RBOE's rights and expose it to a type of liability not in place
when these events occurred almost twenty years ago and when the complaint
was filed five years ago. Our analysis leads to the conclusion that the
amended statute should not be applied retroactively.
B.
As a result, we turn to plaintiff's contentions regarding the trial court's
order granting RBOE summary judgment and not permitting plaintiff to assert
damages for disability, impairment and loss of enjoyment of life. We review
the trial court's grant or denial of a motion for summary judgment de novo,
applying the same standard used by the trial court. Samolyk v. Berthe, 251
N.J. 73 (2022). We consider "whether the competent evidential materials
presented, when viewed in the light most favorable to the non-moving party,
are sufficient to permit a rational factfinder to resolve the alleged disputed
issue in favor of the non-moving party." Brill v. Guardian Life Ins. of Am.,
142 N.J. 520, 540 (1995).
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In our prior decision, we found plaintiff was precluded from seeking
pain and suffering damages under N.J.S.A. 59:9-2(d) since he could not meet
the monetary threshold. C.W., 474 N.J. Super. at 653. However, he was "not
foreclosed from other available damages under the statute." Ibid. At the time,
plaintiff had not conceded he had no grounds for economic relief.
Upon return to the trial court, RBOE moved for summary judgment on
the two remaining counts—negligence and NIED. For the first time, plaintiff
stipulated he was not seeking economic or nominal damages. However, he
asserted he could recover non-economic damages for his emotional distress
under the categories of disability, impairment and loss of enjoyment of life.
The trial court found that our Supreme Court has already addressed the issue,
including in Ayers, Nieves, and Collins,3 and concluded that psychological
injury claims are encompassed within the pain and suffering damages
category, and thus, subject to the TCA's monetary and permanent loss
threshold. Because plaintiff could not satisfy the monetary threshold required
at the time to pursue a claim for pain and suffering, the trial court again
granted RBOE summary judgment.
3
Ayers v. Jackson Twp., 106 N.J. 557 (1987); Nieves v. Off. of the Pub. Def.,
241 N.J. 567 (2020); Collins v. Union Cnty. Jail, 150 N.J. 407 (1997).
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We agree with the trial court's reasoning and conclusion. Plaintiff seeks
non-economic damages for emotional distress claims against a state public
entity. This requires compliance with the TCA, which, at the time, mandated a
monetary threshold to pursue such claims.
Further, in J.H. v. Mercer County Youth Detention Center, 396 N.J.
Super. 1 (App. Div. 2007), we considered the applicability of the TCA to a
claim brought by a minor who alleged he was sexually abused in a detention
facility resulting in a diagnosis of post-traumatic stress disorder. We
concluded that J.H. needed to present evidence of both a permanent injury and
the $3,600 medical expense threshold to withstand the grant of summary
judgment to the defendant. Id. at 20.
As stated, in 2019, the Legislature amended various statutes, including
the CSAA and TCA, with the goal of "increas[ing] the ability of victims of
sexual abuse to pursue justice through the court system." W.S. v. Hildreth,
252 N.J. 506, 524 (2003) (quoting Governor's Statement to S. 477 1 (May 13,
2019)) (internal quotation marks omitted). "To achieve that goal, the
Legislature amended the statutes of limitations for filing civil claims of sexual
abuse, the notice provisions of the TCA, and the liability of passive sexual
abusers under the [CSAA]." J.H. v. Warren Hills Bd. of Educ., 481 N.J.
Super. 536, 544 (App. Div. 2025). The Legislature also narrowed the scope of
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substantive immunity under the TCA, so that immunity from civil liability
would "not apply to an action at law for damages" resulting from sexual abuse
"which was caused by a willful, wanton or grossly negligent act of the public
entity or public employee," or, for acts committed against a minor, "which
[were] caused by the negligent hiring, supervision, or retention of any public
employee." N.J.S.A. 59:2-1.3(a).
However, despite these prominent changes, the Legislature did not
substantively amend the monetary threshold requirement or expand the viable
claims that were not subject to it. On the contrary, it increased the dollar
amount of required medical expenses.
We are also unpersuaded by plaintiff's contention that Eyoma v. Falco,
247 N.J. Super. 435 (App. Div. 1991), permits him to pursue non-economic
damages for loss of enjoyment of life, apart from a pain and suffering claim.
In Eyoma, the plaintiff was a patient who fell into a coma after surgery and
later died. Id. at 439. After trial in the wrongful death action, the jury found
the defendant nurse liable and awarded damages for loss of enjoyment of life.
Id. at 442-44. We affirmed the award of the category of damages, stating that
"damages for loss of enjoyment of life may be awarded as part of damages for
the total disability and impairment which exists when tortious injury causes
one to be in a comatose or vegetative state." Id. at 453.
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Eyoma was not a case governed by the TCA and so did not involve the
TCA monetary threshold. It permitted loss of enjoyment of life damages in the
narrowest of circumstances: when pursued in a survival action by a plaintiff in
a comatose state. Id. at 445-46. This court reinforced that "conscious
suffering is the only proper basis for pain and suffering," and damages for pain
and suffering were limited to "compensation alone." Id. at 451.
We decline to depart from our well-established law that plaintiff's claims
of post-traumatic stress disorder and severe depression are considered as pain
and suffering damages and fall within the limitations under N.J.S.A. 59:9 -2(d).
See Rocco v. N.J. Transit Rail Operations Inc., 330 N.J. Super. 320, 333-34
(App. Div. 2000) (finding that "a reading of [the] plaintiff's psychiatrist's
report fails to disclose an opinion that [the] plaintiff is suffering from a
substantial permanent psychological injury."). Prior to the statute's
amendment, cases instituted under the TCA treated emotional damages claims
as pain and suffering or economic damages subject to the monetary threshold.
As we conclude that the amended statute was not retroactive, and
therefore does not apply to plaintiff's complaint, the court's grant of summary
judgment for failure to meet the monetary threshold under the TCA is
supported by the existing law.
Affirmed.
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