Broach-Butts v. Therapeutic Alternatives, Inc.

Decision Date13 August 2018
Docket NumberDOCKET NO. A-0755-16T2
Citation456 N.J.Super. 25,191 A.3d 702
Parties Wanda BROACH-BUTTS, Administratrix of the Estate of Theotis Butts, deceased, and Wanda Broach-Butts, in her own right, Plaintiffs-Appellants, and Khalia Butts, Candice Butts, and Fores Butts, Plaintiffs, v. THERAPEUTIC ALTERNATIVES, INC., d/b/a Community Treatment Solutions, Drew Barrett, Jennifer Lawson, and Jenn Hess, Defendants-Respondents, and Division of Child Protection and Permanency, Department of Children and Families, State of New Jersey, Family Services Association, Sequel Camelot Holdings, LLC, and Sequel of New Jersey, Inc., d/b/a Capital Academy, Defendants, and Performcare, Defendant/Third-Party Plaintiff, and D.M., Third-Party Defendant-Respondent.
CourtNew Jersey Superior Court — Appellate Division

Anapol Weiss, attorneys for appellants (Lawrence R. Cohen and David J. Carney, on the briefs).

Naulty, Scaricamazza & McDevitt, LLC, Marlton, attorneys for respondent Therapeutic Alternatives, Inc., Drew Barrett, Jennifer Lawson and Jenn Hess (Michael J. Follett, on the brief).

Daniel E. Somers, Morristown, attorney for respondent D.M.

Before Judges Sabatino, Ostrer and Whipple (Judge Sabatino concurring).

The opinion of the court was delivered by

OSTRER, J.A.D.

Plaintiffs Wanda Broach-Butts and the estate of her late husband, Theotis (Ted) Butts, allege that defendant Therapeutic Alternatives, Inc., a private social service agency, negligently placed a troubled and dangerous child, D.M., then over fourteen years old, in the therapeutic foster home Wanda and Ted operated, and failed to adequately warn them of D.M.'s history of dangerous behavior.1 Plaintiffs claim that defendant's negligent placement and failure to warn created an ultimately deadly relationship between them and D.M. Fifteen months after D.M. left plaintiffs' home, he returned and killed Ted.

We conclude that defendant owed a duty to plaintiffs to exercise reasonable care in placing D.M. in plaintiffs' home, and to reasonably disclose D.M.'s background to enable them to make an informed decision whether to accept him. Whether defendant breached that duty, and whether that breach proximately caused the harm that followed, are questions for the jury. We therefore reverse the trial court's order granting summary judgment, dismissing plaintiffs' complaint against Therapeutic Alternatives.2

I.

We view the facts in a light most favorable to plaintiffs. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536, 666 A.2d 146 (1995). D.M. resided in plaintiffs' home between July 2009 and April 2010. He was removed from the home at plaintiffs' request. The removal was prompted by instances of eloping, possessing "R" rated movies, bringing four girls into the home without permission, and possessing a prescription medication that was not prescribed for him, apparently to resell. He returned to institutional settings unaffiliated with defendant, and continued to engage in aggressive and erratic behaviors, including acts of delinquency that resulted in contacts with the juvenile justice system.

During the months after his removal, D.M. repeatedly returned to burglarize plaintiffs' home. He returned for a third time fifteen months after his removal. By that time, there were active warrants for his arrest. D.M. intended to flee to Florida, using the fruits of his burglary. But, on this third occasion, he happened upon Ted, who told him to leave the home. D.M. grabbed a kitchen knife and stabbed Ted twenty-five times and killed him.

Although plaintiffs were aware that D.M. was a troubled youth — all children placed in their therapeutic home were — defendant withheld significant information about D.M. Defendant did not disclose D.M.'s psychological assessments; the incidents of abuse and neglect by his own parents; the murder of his mother; multiple ill-fated placements; an incident of arson involving a previous foster parent's property; assaults of other foster parents; threats of self-harm; and several instances of terroristic threats, such as to kill with weapons, which he made against multiple targets, including foster parents, a foster child, and a teacher.

In particular, D.M. twisted the arm of one foster mother. He threatened a psychological worker with a baseball bat. He threatened to blow up a school and kill a teacher. He threatened to break a glass over another foster mother who stood in D.M.'s way, as he tried to reach a knife. The same foster mother reported that D.M. attempted to kill himself and another foster child with a knife, and threatened to burn down the home and kill everyone inside. Plaintiffs were also not made aware that immediately before D.M.'s placement in their home, a clinician for another Division contractor recommended that D.M. laterally move to another residential treatment center from the one that discharged him for impulsive and unsafe behaviors.

Plaintiffs allege that had defendant adequately disclosed D.M.'s background, they would have rejected his placement, preventing the subsequent homicide. They supplied expert opinions that the placement of D.M. in a foster home, even a therapeutic one, and the failure to inform plaintiffs of D.M.'s dangerous background, violated governing standards of care. One expert opined that the records reflected that D.M. should not have been placed in a foster home and the "community needed to be protected from him. His aggressive, assaultive behaviors started early and did not change. The professional evaluations were numerous and consistently predicted the danger that he posed to others."

Defendant contends that it was obliged to comply with the State's "no eject, no reject" policy, which required it to accept all referrals.3 Defendant also contends that plaintiffs knew D.M. was troubled; he was incarcerated when Wanda first talked to him. Wanda had advanced degrees in nursing, and experience working in the mental health field. She and her husband reported that D.M. was never violent or disrespectful during his placement. Defendant also had no knowledge of D.M.'s increasingly erratic behavior and criminal arrests after he left plaintiffs' home.

After discovery, the trial court granted defendant's motion for summary judgment. In a brief oral opinion, the trial court held that defendant lacked a duty to warn plaintiffs about the dangerous behavior and acts of delinquency that D.M. committed in the months following his removal from their home.

II.

Exercising de novo review, see Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330, 9 A.3d 882 (2010), we conclude the trial court erred.

As a threshold matter, the trial court misperceived the nature of plaintiffs' claims. Plaintiffs do not contend that defendant had a continuing duty to warn plaintiffs about D.M. after he left their home. Rather, they contend defendant had a duty, before D.M.'s initial placement, to exercise reasonable care in determining whether he was suited for plaintiffs' home, and to reasonably inform plaintiffs about D.M.'s history. The crux of the case is whether defendant had such a duty; whether defendant breached that duty; and whether that breach proximately caused Ted's death and other alleged damages. See Jersey Cent. Power & Light Co. v. Melcar Util. Co., 212 N.J. 576, 594, 59 A.3d 561 (2013) (stating a negligence action requires proof of "(1) a duty of care, (2) a breach of that duty, (3) actual and proximate causation, and (4) damages").4

A.

We first consider the issue of duty. The existence and scope of a duty are legal questions. Peguero v. Tau Kappa Epsilon Local Chapter, 439 N.J. Super. 77, 88, 106 A.3d 565 (App. Div. 2015). Whether a duty exists "involves identifying, weighing, and balancing several factors — the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution." Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439, 625 A.2d 1110 (1993). "The [a]bility to foresee injury to a potential plaintiff is ‘crucial’ in determining whether a duty should be imposed." J.S. v. R.T.H., 155 N.J. 330, 338, 714 A.2d 924 (1998) (quoting Carter Lincoln-Mercury, Inc. v. EMAR Group, Inc., 135 N.J. 182, 194, 638 A.2d 1288 (1994) ). "Whether a duty exists is ultimately a question of fairness." Goldberg v. Housing Auth. of Newark, 38 N.J. 578, 583, 186 A.2d 291 (1962).

Although we are unaware of any New Jersey case directly on point, our Court has held that a person may owe a duty of care to the victim of another person's intentional wrongs. In J.S., 155 N.J. at 352, 714 A.2d 924, the Court held that "when a spouse has actual knowledge or special reason to know of the likelihood of his or her spouse engaging in sexually abusive behavior against a particular person or persons, a spouse has a duty of care to take reasonable steps to prevent or warn of the harm." The Court has also recognized that landowners may owe a duty to protect their invitees from a third-party's wrongful or criminal acts. In Clohesy v. Food Circus Supermarkets, Inc., 149 N.J. 496, 519-20, 694 A.2d 1017 (1997), the Court held that a supermarket owed a duty, under the circumstances, to provide its customer with "some measure of security" in the parking lot, where it was reasonably foreseeable the customer could suffer injury as a result of a third party's criminal acts. In that case, a woman was kidnapped from the supermarket parking lot and killed. See also Butler v. Acme Markets, Inc., 89 N.J. 270, 445 A.2d 1141 (1982).

We have no difficulty holding that a social service agency like Therapeutic Alternatives, which places troubled youths into foster homes, owes foster parents a duty to exercise reasonable care in placing a child, and to reasonably disclose a child's background to enable them to make an informed decision whether to accept the child. The common law must adapt to establish duties that "meet an ever-changing society's needs." G.A.-H. v. K.G.G., 455 N.J....

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