Davis v. Devereux Found.

• Decision Date: 29 February 2012
• Citation: 209 N.J. 269,37 A.3d 469
• Parties: Vandella DAVIS, as Guardian Ad Litem for Roland Davis, Plaintiff–Appellant and Cross–Respondent, v. DEVEREUX FOUNDATION, Devereux New Jersey Treatment Network, Defendants–Respondents and Cross–Appellants,andCharlene McClain, Defendant.
• Court: New Jersey Supreme Court

209 N.J. 269

37 A.3d 469

Vandella DAVIS, as Guardian Ad Litem for Roland Davis, Plaintiff–Appellant and Cross–Respondent,

v.DEVEREUX FOUNDATION, Devereux New Jersey Treatment Network, Defendants–Respondents and Cross–Appellants,andCharlene McClain, Defendant.

Supreme Court of New Jersey.

Argued Sept. 12, 2011.Decided Feb. 29, 2012.

Kyle T. Kievit, Linwood, argued the cause for appellant and cross-respondent.

Jay A. Gebauer argued the cause for respondents and cross-appellants (Post & Schell, attorneys; Mr. Gebauer and Quinn M. McCusker, Princeton, on the briefs).

Gregory G. Gianforcaro, Phillipsburg, submitted a brief on behalf of amici curiae Survivors Network for those Abused by Priests and National Child Protection Training Center.Robert A. Robinson submitted a brief on behalf of amicus curiae Disability Rights New Jersey.Catherine Weiss submitted a brief on behalf of amici curiae Community Health Law Project and The Arc of New Jersey (Lowenstein Sandler, attorneys; Ms. Weiss, Kristin A. Muir, Roseland, and Alyson D. Powell, on the brief).Justice PATTERSON delivered the opinion of the Court.

This case requires the Court to consider the duty of care owed by a non-profit residential facility to a resident with severe autism and developmental disabilities injured by a criminal act of the facility's employee. On October 9, 2004, Roland Davis (Davis) suffered severe burns after he was scalded with boiling water by Charlene McClain (McClain), a resident counselor employed by defendant Devereux Foundation (Devereux). Devereux is a national charitable foundation that provides services for disabled clients. McClain had no criminal record or prior history of violence. She attributed her act to Davis's previous aggressive behavior toward her, and to her anger about the recent murder of her boyfriend. She was convicted of, and incarcerated for, her assault upon Davis.

Plaintiff, who is Davis's mother and guardian ad litem, sued Devereux, its local affiliate Devereux New Jersey Treatment Network, and McClain. Barred by the Charitable Immunity Act (CIA), N.J.S.A. 2A:53A–7 to –11, from recovering against Devereux on a theory of negligence, plaintiff urges the Court to impose a “non-delegable duty” upon Devereux to protect its residents from the intentional acts of its employees. Plaintiff further contends that McClain was acting within the scope of her employment when she assaulted Davis, and that Devereux should accordingly be held liable pursuant to principles of respondeat superior.

Following discovery, the trial court granted Devereux's motion for summary judgment dismissing all claims. The Appellate Division affirmed in part and reversed in part the trial court's grant of summary judgment. Davis v. Devereux Found., 414 N.J.Super. 1, 17, 997 A.2d 273 (App.Div.2010). It affirmed the trial court's determination that Devereux did not owe Davis a “non-delegable duty,” rejecting plaintiff's contention that such a duty was implicitly recognized by this Court in Frugis v. Bracigliano, 177 N.J. 250, 827 A.2d 1040 (2003), and Hardwicke v. American Boychoir School, 368 N.J.Super. 71, 845 A.2d 619 (App.Div.2003), aff'd as modified and remanded, 188 N.J. 69, 902 A.2d 900 (2006). Davis, supra, 414 N.J.Super. at 4–10, 997 A.2d 273. However, the Appellate Division reversed the trial court's grant of summary judgment, holding that a reasonable jury could conclude that McClain acted in part within the scope of her employment. Id. at 12–16, 997 A.2d 273.

We affirm in part and reverse in part the Appellate Division's determination. Although we reaffirm the duty of due care imposed upon caregivers with in loco parentis responsibilities to persons with developmental disabilities, we concur with the Appellate Division's rejection of the “non-delegable duty” asserted by plaintiff. Applying the test for the existence of a duty set forth in Goldberg v. Housing Authority of Newark, 38 N.J. 578, 583, 186 A.2d 291 (1962), and Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 625 A.2d 1110 (1993), we conclude that the “non-delegable duty” at issue is not justified by the relationship among the relevant parties, required by the nature of the risk, warranted by the opportunity and ability to exercise care, or grounded in the public policy of our State. The imposition of liability for unexpected criminal acts of properly screened, trained and supervised employees would jeopardize charitable institutions that provide critical services for disabled citizens. We decline to expand New Jersey respondeat superior law beyond its traditional parameters.

We reverse the Appellate Division's decision insofar as it held that the trial court's grant of summary judgment on the issue of whether McClain acted within the scope of her employment was improper. We hold that no rational factfinder could find that McClain's criminal assault on Davis was conducted within the scope of her employment. Accordingly, we hold that the trial court properly granted summary judgment.

I.

Devereux is a non-profit organization whose mission is to provide “services around the nation for persons with emotional, developmental and educational disabilities.” Devereux operates a facility in Bridgeton, New Jersey, called the Devereux New Jersey Center for Autism, which accepts residents pursuant to placements by the New Jersey Department of Human Services, Division of Developmental Disabilities.

In 2004, the job of a resident counselor at Devereux was to provide a resident with care, supervision and assistance with his or her daily routine. The work of the resident counselors was overseen by supervisors who prepared the residents' schedules. Each resident was assigned to a counselor on a given day, and was required to comply with the activities set forth on the resident's daily schedule. Resident counselors were required to document residents' progress toward occupational objectives and other goals.

In accordance with its procedures, Devereux undertook a detailed screening process before hiring McClain as a resident counselor in 2002. It conducted a background check through the Statewide Criminal Felony and Misdemeanor Index and the New Jersey State Police fingerprint system, which revealed no criminal history. It obtained McClain's driver's abstract, which reflected no traffic violations. Devereux staff checked McClain's references; a restaurant that had employed her stated that she had “quit without notification,” while a day-care center reported that she was a “very dependable,” “pleasant” and “good” worker well-suited to interact with children. A vocational teacher from McClain's high school wrote a recommendation letter stating that McClain was an honor student, active in her church, and that her “dedication, work ethic and moral character” made her ideal for the care of Devereux's residents. McClain provided her high school transcripts and underwent a physical examination, drug test and tuberculosis test, none of which revealed an impediment to her hiring. In short, Devereux conducted a thorough background investigation that revealed no hint of the violent episode to come.

Davis, almost nineteen years old on October 9, 2004, was diagnosed with autism, mental retardation, pervasive developmental disorder and attention deficit hyperactivity disorder. He was placed at Devereux's Bridgeton facility by the Division of Developmental Disabilities in October of 1997, shortly before his twelfth birthday. In 2004, Davis was considered by Devereux counselors to be nonverbal, except for broken word fragments, and he relied upon a Picture Exchange Communications System to communicate with the staff. Davis was able to dress and feed himself, but was unable to administer his daily medications. He required constant supervision by Devereux counselors.

Prior to the October 9, 2004 incident, Davis had a history of aggression toward Devereux staff, which plaintiff characterized as “screaming, stomping, spitting and the occasional physical altercation.” Two such altercations involving McClain occurred shortly before the incident that gave rise to this case. According to Alex Williams, the Devereux program manager, on October 7, 2004, Davis kicked McClain and “had to be separated from her,” prompting McClain to “[lose] her cool” and to ask Williams, “[w]hat are you going to do about him?” According to Williams, the following day, Davis “attacked [McClain] in the basement of the house,” and had to be escorted upstairs by Williams and another Devereux staff member. Williams spent the remainder of that day with Davis, taking him out to dinner and to a football game.

The following morning, October 9, 2004, McClain was assigned to serve as Davis's resident counselor for the day. Early that morning, just after arriving for her shift, McClain put a cup of water in the facility's microwave and heated it. She then scalded Davis with the boiling water as he got out of bed. After burning him with the water, McClain directed Davis to take a shower. McClain pointed out Davis's burns to another residential counselor, who recalled that she “turned to look at [McClain] because at this point I was in shock. I said something like how did this happen. She said what do we do?”

One of McClain's co-workers then called the supervisor, Dale Smith, who was on his way to work, advising him that Davis had been burned and that it was an “emergency.” Neither McClain nor her co-workers summoned emergency assistance or took Davis to the hospital. When Smith arrived, he found Davis sitting in the residence's living room with severe burns. McClain denied knowledge of the source of Davis's injury. Smith immediately took Davis to Bridgeton Hospital, which promptly transferred him to a regional burn center. He was hospitalized for six days, and was treated for partial thickness burns to his hand, right leg, lower abdomen, pelvis and groin. He returned to Devereux with permanent scars.

Devereux suspended McClain and...