This week, the New Jersey Supreme Court reversed the Appellate Division and held that the 2019 amendment to New Jersey’s Child Sexual Abuse Act (“CSAA”) removing the statute’s “within the household” requirement applies prospectively only, not retroactively to conduct occurring before the enactment’s December 1, 2019, effective date. The amendment removed the statute’s “within the household” requirement for “passive” liability, which is often raised against schools and other organizational defendants. Unlike claims under common law negligence theories, a claim under the CSAA permits recovery of legal fees and costs to a prevailing plaintiff. Had the Court not corrected the Appellate Division’s ruling, the CSAA remedies — including fee-shifting — would have been available against a significantly expanded pool of potential defendants, vastly increasing exposure and making claim resolution before trial less attainable. Walsh Pizzi O’Reilly Falanga LLP attorneys Peter J. Pizzi, Eric S. Padilla, and Carmen I. Abrazado advocated for reversal through an amicus curiae brief on behalf of the New Jersey Defense Association (“NJDA”).

The brief addressed the Legislature’s 2019 amendments to the CSAA, which significantly expanded the scope of potential civil liability for child sexual abuse claims. Among the amendments, the Legislature removed the requirement that a parent, guardian, or person standing in loco parentis (a guardian or assuming some or all of the responsibilities of a parent) be “within the household” before passive liability could attach to those alleged to have knowingly permitted or acquiesced in abuse. The NJDA argued that this amendment represented a substantive change in the law because it expanded the category of persons and entities who could potentially be held liable, rather than merely altering a procedural requirement for pursuing an existing claim, such as the 2019 amendments’ revisions to the Tort Claims Act to eliminate certain notice requirements under that law.

The brief relies heavily on Maia v. IEW Construction Group, 257 N.J. 330 (2024), and Landgraf v. USI Film Products, 511 U.S. 244 (1994), to argue that statutes creating new legal consequences, duties, or liabilities should not be applied retroactively absent clear legislative intent. The brief argued that applying expanded CSAA liability to historical conduct would effectively impose liability under a legal standard that did not exist when the alleged conduct occurred.

The brief further argued that the Legislature’s decision to expand liability under the CSAA was prospective in nature and that retroactive application would raise significant fairness and due process concerns for defendants who lacked notice that their conduct — decades earlier in many cases — could later subject them to liability under a newly expanded statutory framework.

The NJDA emphasized the broader implications of the issues for institutional defendants throughout New Jersey, including schools, public entities, non-profit organizations, and other institutions that may face claims based on decades-old allegations.