191 A.3d 702
N.J. Super. Ct. App. Div.2018Background
- Wanda and Ted Butts (plaintiffs) operated a therapeutic foster home where D.M., a troubled youth, was placed from July 2009–April 2010 and then removed at plaintiffs' request for rule violations and misbehavior.
- Therapeutic Alternatives (defendant), a private placement agency, did not disclose to plaintiffs multiple prior incidents in D.M.'s history: psychological assessments, family abuse/neglect, a prior murder of his mother, arson, assaults and terroristic threats against caregivers and others.
- After removal, D.M. repeatedly burglarized the Butts' home; fifteen months later, during a third burglary, D.M. fatally stabbed Ted after Ted told him to leave.
- Plaintiffs sued for negligent placement and failure to warn, alleging they would have refused the placement had they known D.M.'s history; defendant argued it had a "no reject, no eject" policy and that plaintiffs knew D.M. was troubled.
- The trial court granted summary judgment for defendant, holding no duty to warn about post-placement conduct; the appellate court reversed, concluding a duty existed and remanding for trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Existence/scope of duty | Therapeutic Alternatives owed foster parents a duty to exercise reasonable care in placement and disclose a child’s dangerous history | Agency had no duty to warn after placement or about later behavior; constrained by "no reject, no eject" policy | Court: Agency owes foster parents a duty to exercise reasonable care in placement and to reasonably disclose pertinent background information |
| Adequacy of disclosure / breach | Withheld material records and warnings about violent propensities; placement violated standards of care | Plaintiffs already knew child was troubled; defendant lacked knowledge of later violent acts | Court: Whether defendant breached that duty is a factual question for the jury (deny summary judgment) |
| Proximate cause / remoteness | Had plaintiffs known, they would not have accepted D.M.; breach was a substantial factor in causing Ted's death despite 15-month gap | Homicide was too remote and unforeseeable; intervening criminal acts break causation | Court: Causation is jury question; 15-month gap not per se too remote given D.M.'s repeated returns and foreseeable risk of violence |
| Liability for third-party criminal acts | Failure to disclose foreseeable violent propensities makes agency liable for resulting harm | D.M.'s independent criminal acts are intervening and defeat liability | Court: Intervening criminal acts that are reasonably foreseeable do not absolve agency; jury should decide causation and liability |
Key Cases Cited
- Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520 (general summary-judgment standard and view of facts favoring nonmovant)
- J.S. v. R.T.H., 155 N.J. 330 (duty to warn when one has special reason to know of likelihood of harm by another)
- Clohesy v. Food Circus Supermarkets, Inc., 149 N.J. 496 (duty to provide security where third-party criminal acts are foreseeable)
- Johnson v. State of California, 69 Cal.2d 782 (placement agency duty to warn foster parents of dangerous propensities)
- Haselhorst v. State, 240 Neb. 891 (duty to disclose psychological profile where state failed to obtain prior hospitalization records)
- Savage v. Utah Youth Village, 104 P.3d 1242 (Utah) (placement agencies have special duty to prevent abuse by children they place)