Lead
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
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:58A-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,
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,
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.
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
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 counsel- or, 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 a co-worker without pay pending an internal investigation. The New Jersey State Police also investigated the incident. A November 2, 2004 interview of McClain conducted by the State Police includes McClain’s only account of her motive and actions in the record of this case. After initially denying involvement in Davis’s injury, McClain “admitted to causing the injuries to Roland [Davis] in a premeditated manner.” The State Police reported her statement as follows:
Ms. McClain related that she arrived for work at 7:10 A.M., went into the living [roomj and sat on the couch for a couple of minutes. She then went in to the kitchen, filled a cup with water and put the cup into the microwave. According to Ms. McClain, she boiled the water for one minute, and went upstairs to get Roland dressed for the day. She took the cup upstairs because she thought that Roland was going to kick her. Roland did not kick or attack her, but Ms. McClain stated she told Roland to get out of bed and poured the water on him anyway. Ms. McClain [then] stated, “I didn’t see him burnt, I told him to get into the shower, I was just mad.”
Asked by the State Police “why she was mad,” McClain “said she was angry because her boyfriend ‘Hoove’ was the victim of a homicide. ‘Hoove’ was shot six months ago in Bridgeton City, and [McClain] stated she has been angry since.”
Following her confession, McClain was arrested. She pled guilty to third-degree aggravated assault and second-degree bias intimidation and was sentenced to prison. McClain was incarcerated on December 16, 2005, and released on parole on June 16, 2008.
II.
Plaintiffs complaint, filed on October 4, 2006, asserted claims against Devereux for breach of a “non-delegable duty to protect the plaintiff from harm,” intentional infliction of emotional distress, negligent care and supervision of Davis, vicarious liability for the actions of McClain, and “wanton and willful disregard for the rights of the plaintiff’ warranting punitive damages. Plaintiff also sued McClain, who did not file an answer or participate in discovery.
After discovery, Devereux moved before the trial court for summary judgment. On February 26, 2009, the trial court granted Devereux’s summary judgment motion to the extent that the complaint asserted claims for negligence against Devereux, finding that those claims were barred under the CIA, and dismissed plaintiffs claim for punitive damages. However, the trial court denied the summary judgment motion with respect to plaintiffs allegation that Devereux should be held vicariously liable for the actions of its former employee. Relying upon Restatement (Second) of Agency § 219 (1958) (hereinafter Restatement), Hardwicke, supra, 188 N.J. at 102,
Devereux moved for reconsideration, arguing that the imposition of a “non-delegable duty” was unsupported by New Jersey law. On May 18, 2009, the trial court granted Devereux’s motion for reconsideration, and granted summary judgment dismissing plaintiffs claims. The trial court distinguished case law decided under the Child Sexual Abuse Act (CSAA), N.J.S.A. 2A:61B-1, because the CSAA creates a civil remedy for failure to prevent the abuse addressed in that statute, while the DDRA provides no such remedy. The court concluded that New Jersey law does not compel the imposition of a “non-delegable duty” upon Devereux absent a legislative declaration expanding liability or a decision by this Court. The court accordingly granted summary judgment dismissing plaintiffs claims against Devereux.
Plaintiff appealed. The Appellate Division affirmed in part and reversed in part the trial court’s decision. Davis, supra, 414 N.J.Super. at 17,
The panel concluded that this case should be decided not by the creation of a new duty, but in accordance with established principles of respondeat superior, by which liability may be imposed on an employer if the employee’s intentional act is within the scope of employment. Id. at 12-16,
The Court granted plaintiffs petition and defendant’s cross-petition for certification. Davis v. Devereux Found., 205 N.J. 79,
III.
Plaintiff contends that “[ijnstitutions that stand in an in loco parentis relationship with those entrusted to [their] care have a heightened duty to protect them from harm, particularly from the intentional acts of [their] own personnel. That duty is of such importance that it must be considered to be non-delegable.” Plaintiff defines the “non-delegable duty” as a “duty to protect those in [Devereux’s] care from harm,” which particularly applies to the “intentional acts of its own personnel.” Plaintiff argues that the “non-delegable duty” obviates the need to prove that the acts at issue were within the scope of McClain’s employment. She cites the public policy of New Jersey favoring “protecting the mentally ill and developmentally disabled from abuse or mistreatment, to which they are particularly vulnerable, often being without the knowledge, ability, or resources to protect or vindicate their civil rights,” Fees v. Trow, 105 N.J. 330, 338,
Plaintiff contends that in Hardwicke, supra, 368 N.J.Super. at 104-05,
Addressing the established test of respondeat superior, plaintiff contends that McClain committed her assault on Davis within the scope of her employment. Plaintiff argues that McClain “was certainly within the time and space limitations of her employment at Devereux and she was tending to [Davis] which was what she was employed to do.” She contends that because of Davis’s history of “aggressive and combative behavior,” McClain feared that Davis would kick her, and that McClain’s “wrong and prohibited” assault was in part undertaken in furtherance of her job duties. Plaintiff argues that the Appellate Division properly denied summary judgment on this issue.
Devereux opposes the imposition of a “non-delegable duty” upon institutions charged with the care of residents with developmental disabilities to prevent intentional harm committed by their employees. Devereux contends that the “non-delegable duty” invoked by plaintiff amounts to absolute liability, and that plaintiff conceded that point before the Appellate Division. It distinguishes Hardwicke, supra, 368 N.J.Super, at 86-94,
Devereux urges reversal of the Appellate Division’s determination that summary judgment should be denied with respect to the issue of whether McClain acted within the scope of her employment when she assaulted Davis. It contends that the record establishes the unforeseeability of McClain’s violent attack on Davis, given her background and employment history. Devereux argues that “[t]he nature of the act itself was so severe, so shocking and so utterly antithetical, not only to Devereux’s interests, but to its entire reason for being,” that it falls far beyond the boundaries of her employment responsibilities.
Devereux argues that even if the Court limits the scope of its analysis to McClain’s motives, summary judgment is proper given the absence of evidence that McClain’s act was intended to serve the interests of her employer. It distinguishes Gibson, supra, 23 N.J. at 157-59,
Amicus curiae Disability Rights New Jersey advocates the imposition of a “non-delegable duty” upon Devereux and other residential institutions for people with developmental disabilities. Amici curiae Community Health Law Project and The Arc of New Jersey state that there is a high incidence of abuse of people with developmental disabilities in residential settings, citing publications using national data, and noting the difficulty of obtaining data regarding such abuse in New Jersey. Amici do not argue for a “non-delegable duty,” but contend that McClain’s abuse of Davis was foreseeable and that Devereux failed to take reasonable measures to prevent it. Amici curiae Survivors Network for those Abused by Priests and the National Child Protection Training Center argue for the imposition of a “non-delegable duty” upon “any governing institution that cares for children.” Amici state that when a duty is non-delegable, the defendant’s exercise of reasonable care is irrelevant.
IV.
We review the trial court’s grant of summary judgment under the standard of Rule 4:46-2, which warrants summary judgment if the court finds, viewing the facts in the light most favorable to the non-moving party, that there are no genuinely disputed issues of fact. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540,
V.
The doctrine of respondeat superior (“let the superior make answer,” Black’s Law Dictionary 1426 (9th ed.2009)) originated in the seventeenth-century common law of England, based upon the concept “that one who would manage his or her affairs through others is obligated to third persons damaged by such others acting in the course of their employment.” 1 J.D. Lee & Barry A. Lindahl, Modern Tort Law: Liability and Litigation § 7.2 (West 2000).
Both parties invoke Restatement § 219, cited by this Court in Hardwicke, supra, 188 N.J. at 101-02,
(1) A m3st.Gr is subject, to liability for the torts of his servants committed while acting in the scope of their employment.
(2) A master is not subject to liability for the tori.s of his servants acting outside the scope of their employment, unless:
(a) the master intended the conduct or the consequences, or
(b) the master was negligent or reckless, or
(c) the conduct violated a non-delegable duty of the master, or
(d) the servant purported to act or to speak on behalf of the principal and there was reliance upon apparent authority, or he was aided in accomplishing the tort by the existence of the agency relation.
[Restatement, supra, § 219.]3
The Court considers two issues: whether New Jersey law imposed upon Devereux a “non-delegable duty” to prevent McClain’s assault upon Davis within the meaning of Restatement § 219(2)(c), and whether a rational factfinder could find that McClain’s violent conduct was within the scope of her employment under Restatement § 219(1).
Restatement § 214, cited by plaintiff, defines the “non-delegable duty” of a principal for the acts of its agent as follows:
A master or other principal who is under a duty to provide protection for or have care used to protect others and who confides the performance of such duty to a servant or other person is subject to liability to such others for harm causedto them by the failure of such agent to perform the duty.
[Restatement, supra, § 214.]
That duty “is not satisfied by using care to delegate its performance to another but is satisfied if, and only if, the person to whom the work of protection is delegated is careful in giving the protection.” Id. § 214 cmt. a.
The duty asserted by plaintiff diverges from traditional concepts of employer liability in two critical respects. First, in contrast to the “scope of employment” standard, which turns on the parameters of the employment relationship, the duty urged here derives from the relationship between the employer and the person to whom the duty is owed. It is imposed because it is of extraordinary importance to the public. Davis, supra, 414 N.J.Super. at 10,
Second, the duty imposed on the employer cannot be satisfied by the employer’s exercise of reasonable care. Only the employee’s due care can ensure that the employer’s duty is satisfied. When such duty is imposed, “the employer’s use of care is irrelevant.” Davis, supra, 414 N.J.Super. at 6,
VI.
As the Appellate Division correctly determined, this Court has consistently applied traditional principles of due care and foreseeability to cases involving in loco parentis relationships, rather than adopting a “non-delegable” or absolute duty such as that urged by plaintiff here. Davis, supra, 414 N.J.Super. at 10-12,
No greater obligation is placed on school officials than to protect the children in their charge from foreseeable dangers, whether those dangers arise from the careless acts or intentional transgressions of others. Although the overarching mission of a board of education is to educate, its first imperative must be to do no harm to the children in its care. A board of education must take reasonable measures to assure that the teachers and administrators who stand as surrogate parents during the day are educating, not endangering, and protecting, not exploiting, vulnerable children.
[Frugis, supra, 177 N.J. at 268,827 A.2d 1040 .]
In Frugis, liability was premised upon the Board’s deviation from the standard of reasonable care in the supervision of the school principal; the Court noted that the Board “failed to implement effective rudimentary reporting procedures that would have informed it of [the principal’s] misconduct,” and “grossly disregarded critical
In Hardwicke, the Appellate Division and this Court considered the liability of a private school for an employee’s sexual abuse of students boarding at the school. Hardwicke, supra, 188 N.J. at 75-79,
The Appellate Division’s decision in Hardwicke described the duty imposed by Frugis as requiring “reasonable measures” and therefore restates negligence principles. Ibid. If the Appellate Division intended to impose a “non-delegable duty” such as that urged by plaintiff here, that analysis was not reached by this Court. Indeed, as the Appellate Division noted in Davis, supra, 414 N.J.Super. at 10,
VII.
Thus, traditional concepts of duty govern the liability of institutions with in loco parentis responsibilities. Subject to the limits imposed by the Legislature upon the liability of charitable institutions in the CIA, N.J.S.A. 2A:53A-7 to -11, Devereux owes to Davis a duty of reasonable care. That duty extends to the selection and supervision of employees such as McClain. Consistent with Restatement § 219(2)(b), New Jersey courts recognize the tort of negligent hiring, “where the employee either knew or should have known that the employee was violent or aggressive, or that the employee might engage in injurious conduct toward third persons.” Di Cosala, supra, 91 N.J. at 173,
In that setting we consider the absolute duty, characterized as a “non-delegable duty,” that is proposed by plaintiff here. The analysis adopted in Goldberg, supra, 38 N.J. at 583,
Whether a person owes a duty of reasonable care toward another turns on whether the imposition of such a duty satisfies an abiding sense of basic fairness under all of the circumstances in light of considerations of public policy. That inquiry 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. The analysis is both very fact-specific and principled; it must lead to solutions that properly and fairly resolve the specific ease and generate intelligible and sensible rules to govern future conduct.
[Hopkins, supra, 132 N.J. at 439, 625 A.2d 1110 (citing Goldberg, supra, 38 N.J. at 583,186 A.2d 291 ).]
Applying the first factor identified in Hopkins, the Court analyzes the relationship among the parties—Davis, McClain and Devereux—to determine the necessity and fairness of the duty proposed. Davis and other individuals with developmental disabilities in residential facilities cannot defend themselves. They are often nonverbal and thus incapable of reporting abuse. They are dependent on their caregivers to protect them from harm. They require and deserve vigilant protection and care. Accordingly, the Legislature has determined that the relationship between residential facilities and their residents should be intensely regulated, pursuant to the strong state policy of protecting children and adults with developmental disabilities. Fees, supra, 105 N.J. at 338,
Every service for persons with developmental disabilities offered by any facility shall be designed to maximize the developmental potential of such persons and shall be provided in a humane manner in accordance with generally accepted standards for the delivery of such service and with full recognition and respect for the dignity, individuality and constitutional, civil and legal rights of each person receiving sueii service, and in a setting and manner which is least restrictive of each person’s personal liberty.
[N.J.S.A. 30:6D-9.]
Regulatory provisions require facilities that care for people with developmental disabilities to ensure their residents’ civil and legal rights. See, e.g., N.J.AC. 10:44A-3.1; N.J.AC. 10:44B-3.1; N.J.AC. 10:47-5.1. Other provisions govern administration, transportation and the provision of health care. The Department of Human Services has the authority to revoke the licenses of institutions that fail to comply with statutory or regulatory requirements.
The Legislature has also addressed another component of the relationship among the parties: the qualifications and conduct of employees charged with the care of individuals with developmental disabilities. Facilities are required to conduct background checks, and are prohibited from hiring individuals who have committed one in a list of enumerated crimes. N.J.S.A 30:6D-64. Caregivers must report incidents of abuse to the Department of Human Services. N.J.S.A. 30:6D-75. The statute establishes a “Central Registry of Offenders Against Individuals with Developmental Disabilities”; employers are prohibited from hiring individuals whose names appear on that Registry to care for people with developmental disabilities. N.J.S.A 30:6D~77.
Like the statutory and regulatory framework, existing principles of tort law underscore the importance of institutions’ strict oversight over employees charged with the care of residents with disabilities. Subject to the constraints of the CIA, the Tort Claims Act, N.J.S.A. 59:1-1 to 59:12-3, and other statutory immunities, causes of action for negligence or recklessness in the hiring and supervision of employees deter employers from engaging in such conduct. See Lynch v. Scheininger, 162 N.J. 209, 239-40,
Thus, the relationship among the parties—the resident, the institution and the employee—is addressed in statutes, regulations and the common law. Those sources of law assign to institutions serving people with developmental disabilities the responsibility to take precautions with respect to many factors within their control, including the hiring, training and supervision of employees. The record of this case does not establish a pervasive pattern of abuse that would signal that existing law had failed to protect these vulnerable members of our society.
The second consideration identified in Hopkins is “the nature of the attendant risk.” See Hopkins, supra, 132 N.J. at 439,
identifying a given risk does not itseif address the actual burden that would be placed on a party in preventing such a risk and whether that burden should be imposed.
[Hopkins, supra, 132 N.J. at 443,625 A.2d 1110 (citing Weinberg v. Dinger, 106 N.J. 469,524 A.2d 366 (1987)).]
In Goldberg, rejecting the imposition of a duty on the part of the owner of a housing project to provide police protection, the Court noted, “[t]he second consideration is the inevitable vagueness of the proposed duty. Fairness ordinarily requires that a man be able to ascertain in advance of a jury’s verdict whether the duty is his and whether he has performed it.” Goldberg, supra, 38 N.J. at 589,
As in Goldberg, the nature of the risk addressed here makes it impossible to clearly define the parameters of the duty. It is unclear on this record whether McClain’s crime is aberrational or typical of a statewide trend. Even the proponents of the duty in this case disagree about its proposed scope. Plaintiff urges the Court to impose a “non-delegable duty” on institutions that provide residential care for people with developmental disabilities. Amici Survivors Network for those Abused by Priests and the National Child Protection Training Center go further and seek to broaden such a duty to any institution charged with the care of children, whether or not they have developmental disabilities. The duty proposed could be extended to hospitals, nursing homes, assisted living facilities, day care centers and schools, and its parameters are uncertain. See Goldberg, supra, 38 N.J. at 590-91,
The third factor—the opportunity and ability to exercise care—provides no support for plaintiffs claim. Existing law already places a duty of reasonable care on Devereux; plaintiff seeks to elevate that duty to one of absolute liability. In contrast to the setting of Hopkins, in which the Court articulated workable guidelines by which realtors could minimize the risk of harm, the “practicability of preventing the harm” is undefined here. See Hopkins, supra, 132 N.J. at 443,
The fourth factor noted in Hopkins, the public interest in the proposed solution, does not support the creation of a “nondelegable duty.” There is no record in this case demonstrating the existence of a pervasive problem that would call for the elevation of the duty proposed here. The provision of high-quality institutional care to residents who are developmentally disabled is an important public policy of our State. Non-profit charitable organizations perform an invaluable service to their clients with developmental disabilities and the public as a whole. The imposition of liability upon these organizations for unforeseeable intentional acts of employees such as McClain could jeopardize their continued existence, deter the founding of new providers that could deliver quality services, and increase the cost incurred by residents, families and the State in maintaining residents in institutional care. This record provides no basis to impose such a burden on these institutions. Further, the “public interest” eonsideration identified in Hopkins is also negatively implicated by the amorphous boundaries of the duty proposed. The Hopkins test thus does not warrant the “non-delegable duty” proposed here.
Plaintiff relies upon Majestic Realty, supra, 30 N.J. at 425,
The heightened duty of care that has long been imposed upon the operators of common carriers is similarly irrelevant. See Lieberman v. Port Auth. of N.Y. & N.J., 132 N.J. 76, 85,
Plaintiff also relies upon Stropes v. Heritage House Childrens Center of Shelbyville, Inc.,
Other state courts have rejected the imposition of the duty imposed in Stropes, determining that established tort law appropriately balanced the parties’ interests, or deferring the issue to their legislatures. In Niece v. Elmview Group Home,
the broad negligence liability that we have already recognized creates adequate incentives for the operators of group homes for developmentally disabled persons to take all reasonable precautions against sexual abuse in their facilities. The nondelegable duty theory would only impose additional liability without corresponding fault, making group homes insurers of their employees’ conduct.
[Id. at 430.]
In Regions Bank & Trust v. Stone County Skilled Nursing Facility, Inc., 345 Ark. 555,
The dissent asserts that Stropes heralded a trend toward the non-delegable duty pressed by plaintiff in this case. Post at 317-19,
We decline to impose a “non-delegable duty” upon Devereux in this case.
VIII.
The Appellate Division further held that the trial court should have denied Devereux’s motion for summary judgment because “plaintiffs are entitled to pursue their common law claims under the rule laid down in Gibson.” Davis, supra, 414 N.J.Super. at 16,
The “scope of employment” test requires a fact-specific inquiry:
The scope of employment standard, coneededly imprecise, is a formula designed to delineate generally which unauthorized acts of the servant can be charged to the master. Furthermore, the standard “refers to those acts which are so closely connected with what the servant is employed to do, and so fairly and reasonably incidental to it, that they may be regarded as methods, even though quite improper ones, of carrying out the objectives of the employment.”
[Di Cosala, supra, 91 N.J. at 169,450 A.2d 508 (quoting W. Prosser, Law of Torts 460-61 (4th ed.1971)).]
The foreseeability of the employee’s act is a crucial inquiry. See Mason v. Sportsman’s Pub, 305 N.J.Super. 482, 499,
Restatement § 228(1) describes four factors that collectively support a finding that an employee’s act is within the scope of his or her employment:
(a) it is of the kind he is employed to perform;
(b) it occurs substantially within the authorized time and space limits;
(c) it is actuated, at least in part, by a purpose to serve the master; and
(d) if force is intentionally used by the servant against another, the use of force is not unexpectable by the master.
[Restatement, supra, § 228(1).]
Conversely, an employee’s act is outside of the scope of his or her employment “if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.” Id. § 228(2). Only rarely will intentional torts fall within the scope of employment. Schultz v. Roman Catholic Archdiocese of Newark, 95 N.J. 530, 535 n.1,
The difference between acts that are within the scope of employment and acts that are not is sharply illustrated when a employee, working for a lawful employer, commits a crime. Under Restatement § 231, “[a]n act may be within the scope of employment although consciously criminal or tortious.” However,
[t]he fact that the servant intends a crime, especially if the crime is of some magnitude, is considered in determining whether or not the act is within the employment, since the master is not responsible for acts which are clearly inappropriate to or unforeseeable in the accomplishment of the authorized result.
[Restatement, supra § 231 cmt. a.]
When the employee’s crime is serious, it is “in nature different from what servants in a lawful occupation are expected to do.” Ibid.
This distinction is illustrated by the decisions in Gibson, supra, and Nelson, supra, cited by the Appellate Division, and in related New Jersey authority. When the employee’s conduct—however aggressive and misguided'—originated in his or her effort to fulfill an assigned task, the act has been held to be within the scope of employment. In Gibson, supra, the defendant Kennedy was a railroad conductor charged with the responsibility of ensuring that the train departed the New Brunswick station without passengers. 23 N.J. at 150, 154-55,
The same principle guided the decision in Nelson, supra,
Other courts have found employees’ acts to be within the scope of their employment when their attempts to enforce their employer’s rules instigated violence. In Mason, supra, 305 N.J.Super. at 488-91,
The facts of these cases fit a common pattern. In each, the employee’s responsibilities include enforcement of the employer’s rules. The employee’s attempt to compel compliance with those rules was met with resistance and provoked a physical altercation. The courts attribute the conduct, in whole or in part, to the starting point of each incident: the employee’s attempt to serve the employer. Accordingly, the employer was potentially liable under principles of respondeat superior.
Cosgrove v. Lawrence, 214 N.J.Super. 670,
Like Cosgrove, this ease is inherently different from the Gibson line of cases. The incident at issue here did not begin with a thwarted effort by McClain to enforce her employer’s rules. By McClain’s own admission, she began her shift by briefly sitting alone and thinking, then surreptitiously boiling the water to be used in her attack. Notwithstanding the fact that she was the subject of a police investigation, McClain made no attempt to
The dissent’s suggestion, post at 327-28,
After Robin [another Devereux employee] left CM took off her coat went into the kitchen then heard the microwave, she then went upstairs, told D “I told you, you wasn’t sleeping,” and then RD started screaming and stomping, she told him to get in the shower and then she came back downstairs RD was still screaming his scream was different than he normally screams, he is saying something couldn’t make out what he was saying until when he come downstairs and SB [another Devereux employee] is looking at his burns he was saying “hot” S [McClain’s supervisor] arrived and took him to the hospital.
Benjamin thus confirmed McClain’s account that McClain’s act was not preceded or instigated by an altercation with Davis, but was an unprovoked attack that was planned by McClain before she entered Davis’s room that morning, and followed by Davis’s screams in reaction to his pain. The record establishes that McClain’s action was not a misguided effort to perform her job responsibilities, but a premeditated act of aggression.
Under Restatement § 228(1), McClain’s conduct is clearly outside of the scope of her employment. McClain’s decision to injure Davis was not only inconsistent with Devereux’s purpose in employing her, but directly contravened Devereux’s mission to protect a resident for whom Devereux had cared since his childhood. While McClain’s act was “substantially within the authorized time and place limits” of her job, it was not by any measure “actuated” by a purpose to serve Devereux. See Restatement, supra, § 228(1). McClain’s act of violence, concealed from supervisors before and during the assault and denied thereafter, could not have been foreseen by Devereux.
In short, the Court finds that no rational factfinder could construe McClain’s premeditated and unprovoked scalding of Davis to be an effort to serve Devereux. As a matter of law, McClain’s assault was not within the scope of her employment. The trial court properly granted summary judgment dismissing plaintiffs claims against Devereux.
In summary, we affirm the Appellate Division’s decision insofar as it rejected the imposition of a “non-delegable duty” upon Devereux. We reverse the Appellate Division’s decision to the extent that it held that the trial court’s grant of summary judgment was error.
Notes
On September 3, 2009, the trial court entered a default judgment against McClain, awarding plaintiff $500,000 in non-economic damages, $6,487.37 in medical expenses, and $250,000 in punitive damages.
The term “vicarious liability/' when used to define an employer's liability to third parties for an employee's acts, is synonymous with respondeat superior. 2 Dan B. Dobbs et ah, The Law of Torts § 425, at 779-80 (2d ed.2011).
Restatement (Third) of Agency § 7.05(2) (2006), abandons the use of the term "non-delegable duty.” That provision, which neither party has raised in this case, would impose upon the principal a duty of reasonable care with regard to the risk that an agent would harm a person in a "special relationship” with the principal, not a "non-delegable" duty such as that asserted by plaintiff here. Ibid.
In Lehmann, the Court specifically rejected "strict liability” as the standard for employer liability for sexual harassment in violation of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -42, and confirmed the continued viability of vicarious liability and negligent supervision principles as the governing standard. Lehmann, supra, 132 N.J. at 623-24,
Plaintiff cites the Appellate Division’s decision in J.H., supra, 396 N.J.Super. at 16-18,
Contending that Goldberg and Hopkins set forth "an entirely inappropriate framework to use in this dispute, because ... Devereux unquestionably has a duty of care to Davis," the dissent asserts that "the only question that ihe Court should be addressing is whether or not that duty is non-delegable.” Post at 319,
The Legislature and the Governor have consistently stated their concern for the protection of individuals with developmental disabilities. Should it be determined that the imposition of expanded liability upon such caregivers furthers the public policy of protecting developmentally disabled citizens, the Legislature can accomplish that objective by statute. The legislative process would provide the opportunity to consider such factors as the incidence of abuse, the potential impact of broadened liability upon nonprofit caregivers, and the additional cost that would be imposed upon residents, their families and the State. Currently, nothing in the language or legislative histoiy of the two relevant statutes—the CIA and DDRA—suggests the Legislature's intent that a “non-delegable duty” be imposed here.
Relying upon media reports that were not in the record of the trial court, the dissent cites examples of abuse of disabled individuals in custodial care. Post at 321-23,
The dissent asserts an "abject failure" by Devereux "to recognize the impending clash between [McClain] and Davis when her demand for relief was ignored." Post at 321,
It is undisputed that Devereux is a charitable institution entitled to the protection of the CIA, N.J.S.A. 2A:53A-7 to -11. We do not reach the issue of whether the "non-delegable duty” at issue, were such a duty to be recognized, would be barred by the CIA. See NJ.S.A. 2A:53A-7; P.V. ex rel. T.V. v. Camp Jaycee, 197 N.J. 132,
Dissenting Opinion
dissenting.
It is only through a truncated and carefully parsed recounting of what happened to Roland Davis and a misguided perception about the governing principles of law that the majority can find no warrant for concluding that Devereux, the institution charged with his care, had a non-delegable duty to protect him from harm and that his guardian ad litem is foreclosed from proceeding, alternatively, under a respondeat superior theory. Because the majority has erred in the analysis that it has utilized and because both of those conclusions are the byproduct of that error, I respectfully dissent.
The majority’s conclusion that Devereux owed Davis no nondelegable duty of care is faulty for three reasons. First, the majority’s result is fueled by the misapprehension that a nondelegable duty would impose absolute liability on Devereux, a consideration that gives rise to a concern for the continued existence and viability of the charitable organizations that most often are the providers of care to severely disabled individuals. Second, the majority’s reasoning, which proceeds largely through the application of well-settled principles governing imposition of a duty, reveals an essential confusion between how the Court determines that there is any duty owed and the separate question about whether a duty is non-delegable. Third, the majority rests its decision on the presumption that there is no need for this Court to act in the absence of a fulsome record demonstrating that acts like the one that led to the horrific burns Davis suffered are “pervasive.” Ante at 298,
The majority’s conclusion that there is insufficient evidence in this record to permit Davis to withstand summary judgment on a respondeat superior theory is equally flawed. That conclusion arises from the Court’s mistaken belief that there is no evidence in this record that would support a jury’s conclusion that McClain acted, even in part, with the purpose to serve her employer, defendant Devereux. It is indeed a mistaken belief because it rests on a particular version of the facts drawn from limited sources. Relying on those few facts, the majority ignores significant evidence in the record that a reasonable jury might find sufficient to demonstrate that McClain’s act, inexplicable to the majority, was grounded in a terribly misguided effort to carry out her duties and thus to serve the purposes of her employer.
In my view, on both of the issues that confront the Court in this appeal, the majority has pursued a flawed approach to the essential legal principles and has inappropriately identified and weighed the relevant facts. In doing so, the majority has reached erroneous conclusions, as a result of which I respectfully dissent.
I.
Much of the basis for the difference between my views and those expressed by the majority arises from the relative infrequency with which this Court has considered the concept of a nondelegable duty. Because it is a concept not often discussed, it is one that has become misunderstood, and therefore improperly analyzed by the
First, the conclusion that a duty is non-delegable does not equate with absolute, or strict, liability, as the majority apparently believes. On the contrary, as this Court has concluded, it is the duty that is absolute; whether there is also liability is an entirely separate question.
Second, the question in this ease is not whether there is a duty owed at all; plainly Devereux owes a duty of care to Davis. The question is only whether that duty of care qualifies as one that is non-delegable and therefore not discharged by taking care in hiring, training or supervising the employee tasked with performing it. As a result, the majority’s discussion of the ordinary four-part test for determining whether there is a duty in the first place is not only unnecessary but comes close to suggesting that Devereux owed Davis, and all of the other residents in its facilities, no duty of care at all.
Third, in performing the usual four-part analysis, the majority presumes that there can be no duty owed in the absence of a record that would amount to “pervasive” abuses of individuals like Davis. Not only is that supposition yet another departure from the ordinary manner of approaching such decisions, but it overlooks the evidence suggesting that particularly vulnerable individuals like Davis in fact are increasingly subjected to such abuses.
For me, it is these three fundamental flaws in the majority’s analysis that have led it to an erroneous conclusion and that calls for this dissent.
A.
Although the imposition of a non-delegable duty has been a relatively infrequent occurrence, this Court has previously addressed it. See Majestic Realty Assocs., Inc. v. Toti Contracting Co., 30 N.J. 425, 436,
This Court, in undertaking its analysis, made it plain that the existence of a non-delegable duty does not equate with the imposition of strict liability on the master, Majestic Realty, supra, 30 N.J. at 436,
Although the liability of the employer could be said to be direct, rather than vicarious, it does not equate with strict, or in the language of the majority, see ante at 289,
Nor is the majority’s effort to distinguish Majestic Realty as being limited to circumstances involving independent contractors and inherently dangerous activities, see ante at 299,
Non-delegable duties, although neither particularly familiar nor commonly found, are a well established part of the law of agency. See Restatement (Second) of Agency §§ 214, 219(2)(c). The concept of a non-delegable duty and the manner in which it operates as it relates to liability of the master, however, can only be properly understood by analyzing two separate sections of the Restatement.
First, as Section 219(1) makes clear, ordinarily, the master is liable only for torts that are committed by a servant while the servant is acting within the scope of his or her employment. That limitation, however, is subject to several exceptions, including the one found in Section 219(2)(c), which provides that if the servant’s conduct violated a non-delegable duty of the master, then the master will be liable even if the servant’s conduct fell outside the scope of his or her employment. In essence, what Section 219(2)(c) means is that there are some duties which the master simply cannot delegate away. Therefore, in the employment context, the employer remains liable for acts of an employee that violate a non-delegable duty, regardless of whether the employee was acting within or outside of the scope of employment at the time.
Section 214 of the Restatement attempts to explain the concept of a non-delegable
A master or other principal who is under a duty to provide protection for or have care used to protect others or their property and who confides the performance of such duty to a servant or other person is subject to liability to such others for harm caused to them by the failure of such agent to perform the duty.
¡Restatement, supra, § 214.]
Although the Restatement itself notes that the concept of nondelegable duty is too complicated to define fully, id. at comment a (observing that “[i]t is beyond the scope of the Restatement of this Subject to do more than state the general rule and indicate the most frequently arising situations in which a master or other principal may be liable, although without personal fault, for conduct of his agents or servants, whether or not they are acting in scope of employment”), the commentary offers as illustrations a series of circumstances that would leave the master hable to another even though the act of the servant is both wrongful and outside of the scope of his or her employment.
For example, a railroad company would be liable to a passenger assaulted by a conductor who was responsible for “tak[ing] charge of [the] train.” Id. at comment e, illustration 3. Likewise, a hotel would be liable to a guest for theft from the guest by a chambermaid even if the hotel believed that the employee was honest. Id. at comment e, illustration 5. Those illustrations are noteworthy because both identify situations in which the act of the employee is criminal in nature, and presumably outside of the scope of the employment, and yet the employer remains liable to the injured party. Strictly speaking, that result follows because the nature of the duty owed, for the care and well-being of the other, is such that it cannot be delegated. The Restatement’s illustration involving the train conductor is significant for another reason. It illustrates the circumstance in which there is a non-delegable duty of care because the employer has placed the employee in a position in which it is foreseeable that the enforcement of the employer’s rules will result in altercations with others. Id. at comment e, illustration 3. In that circumstance, the employer remains liable to the one who has been injured when the employee, even if acting in an otherwise unacceptable and overzealous fashion, has exerted force in carrying out the employer’s rules.
The question, then, is whether the master, in this case Devereux, has been charged with the performance of a non-delegable duty. In addressing that question, the majority first rejects all of plaintiffs arguments to the effect that this Court has previously applied a non-delegable duty approach in matters arising in the context of in loco parentis relationships. Ante at 289-92,
In part, the majority reaches its conclusion by asserting that this Court rejected the argument that there was a non-delegable
That assertion, however, reads far more into the opinions of the Court in Frugis and Hardwicke than is actually there. In the former, the Court had no need to consider whether the school’s duty to the child was non-delegable, because the plaintiff’s theory of recovery rested on negligent supervision. Frugis, supra, 177 N.J. at 257-58,
In both of those decisions, this Court found a basis for its analysis of liability other than one that would have rested on concluding that there was a non-delegable duty, but that says nothing about whether it would apply to parties such as the ones now before the Court. That being so, the majority’s implicit suggestion that this Court has rejected the argument being raised by plaintiff, and urged upon us by the amici, or that we instead have “underscore[d] the continued viability of reasonable care as the standard,” ante at 291,
Lost in the majority’s reasoning is the fundamental basis for imposition of a non-delegable duty found in the Restatement definition itself, because nowhere in its analysis does the majority consider whether Devereux had “a duty to provide protection for or have care used to protect,” Restatement, supra, § 214, Davis or the other residents who lived in and were cared for in its facility. Lost, as well, is the fundamental basis this Court identified and on which we concluded that a duty is non-delegable, namely, that its “value ... to the community is so significant that the law cannot allow it to be transferred to another.” Majestic Realty, supra, 30 N.J. at 439,
There are, of course, strong parallels between the circumstances in which Davis found himself and the plaintiffs this Court has previously considered and as to which, eoncededly, our approach was a different one than the imposition of a non-delegable duty. But, by comparison, Davis is in an even more precarious position and more in need of protection by the entity to whom his care has been entrusted. Although he is an adult, and although he had shown aggressive tendencies in his residence, he is vulnerable in the extreme. His inability to communicate is profound, and even after he was suffering from severe burns inflicted upon him by McClain, he obeyed her direction that he take a shower. More to the point, he was totally incapable of explaining to anyone what had happened to him, and was, therefore, incapable of protecting himself from any future injury. Not only was he vulnerable because he is always under the supervision of adults who exerted power over him, but Davis is even at the mercy of his caregivers because he lacks any semblance of the ability to point out his attacker. Had the attack left no visible wounds, Davis would have had no way to describe what he had endured or at whose hands. For me, Davis falls squarely within the language of this Court’s precedents that have imposed a non-delegable duty and the contemplation of that concept as described in the Restatement.
This dispute does not mark the first time that a court has been called upon to consider whether an organization or government entity charged with the care of children or of disabled adults has a non-delegable duty of care. In a particularly persuasive opinion, the Supreme Court of Indiana held that a residential facility that undertook “the entire responsibility for [a resident’s] comfort, safety and maintenance” had a non-delegable duty to protect a severely disabled fourteen-year-old from sexual assault by the nurse’s aide charged with cleaning and dressing him. Stropes v. Heritage House Childrens Ctr., Inc.,
Although there is no clear consensus among our sister jurisdictions, to me the more recent trend and the more persuasive lines of authority militate in favor of concluding that the duty owed is indeed a non-delegable one. See, e.g., Miller v. Martin,
In the end, the majority’s apparent misunderstanding of the concept of non-delegable duties and its misperception of the well-settled precedents from this Court have led it to an erroneous conclusion with which I cannot agree.
B.
Further confounding the majority’s opinion, and further illustrating what seems to me to be a fundamental misunderstanding of the very concept of non-delegable duties, the majority turns to the usual and ordinary analysis for determining whether a duty exists, see ante at 292-94,
Nonetheless, in electing to utilize the ordinary four-part framework for deciding whether there is a duty owed, see Hopkins, supra, 132 N.J. at 439,
In analyzing the relationship between Davis and Devereux, despite recognizing the strong statements by the Legislature, the Governor, and by this Court concerning the rights of persons with disabilities and the strict oversight that applies to entities like Devereux, see ante at 293-96,
Turning to the second prong of the Hopkins test, the Court concludes that the nature of the risk is not sufficiently foreseeable to support the imposition of a duty. In part because the different amici do not agree completely on how the scope of the duty should be defined, the Court sees no basis to act. See ante at 296-98,
Nor does the majority’s evaluation of the third Hopkins factor square with the record. Resting on its assertion that Devereux was careful in hiring, screening, and training McClain, the majority comments, among other things, that “[tjhere is no evidence that Devereux ignored hints that McClain had a potential for violence,” see ante at 298,
Finally, in considering the fourth factor, the public interest, the majority again reasons that unless and until the problem of violent assaults on the most vulnerable members of our society becomes “pervasive,” see ante at 298,
I do not suggest that there are many circumstances in which it would be appropriate to conclude that a non-delegable duty exists, but if ever there were a circumstance of “a master ... who is under a duty to provide protection for or to have care used to protect [an]other[ ],” Restatement, supra, § 214, surely it is found in the relationship between Devereux and
Along the way, the majority rejects as inadequate justification the increasingly strong expressions of concern voiced by this Court, see Fees v. Trow, 105 N.J. 330, 338,
Unmoved by those pronouncements, and through its creation of a new “pervasive pattern of abuse” standard, the majority deems insufficient numerous reported instances of similar attacks, many here in New Jersey. See, e.g., Michelle L. Meloy, Sexual Victimization of Underserved and Understudied Populations, Rutgers University-Camden, 2008, 22-30, available at http://www.state.nj. us/dea/divisions/dow/resources/pdfs/sexualvictimizationreport_ 070908.pdf (observing that “[ajbuse is one of the hidden areas in the life” for individuals with developmental disabilities; reporting on statistics of sexual and physical abuse); Editorial, Investigation Needed to Ensure Safety of Developmentally Disabled, Star-Ledger, May 3, 2010, available at http://blog.nj.com/njv_editorial_ page/2010/05/safety_of_developmentally_disa.html (calling for investigation into case of 28-year-old Tara O’Leary, who died after months of starvation and physical abuse at state-licensed sponsor home for the developmentally disabled); Susan K. Livio, Coalition Against Institutional Child Abuse, available at http://www.caica. org/STEPHEN_KOMMINOS_choking_death_at_Bancroft_group_ home.htm (reporting on 2007 death of resident at Bancroft coupled with seven substantiated incidents of abuse and neglect inflicted upon him, including being hit in head by employee/caregiver); Michelle Sahn, Judge Merges Group-Home Suits, Home News Tribune, Nov. 13, 2002, at Bl, available at http://www.keefebartels. eom/CM/PressRoom/gc-GroupHome.pdf (reporting on death of group home resident Danielle Gruskowski, who suffered severe burns on her face shortly before her death when caregiver allegedly threw hot tea at her); Health Worker Admits Abusing Autistic Teen, Courier-Post (Cherry Hill, NJ), Sept. 9,2002, at B1 (reporting on guilty plea of residential facility employee who pinned down and choked autistic teenager in her care).
In contrast, when this Court concluded that a social host owed a duty of care arising from serving alcohol to a guest, it did so based on a comparatively thin record of statistics, confining its comment to a footnote. Kelly, supra, 96 N.J. at 545 n. 3,
II.
The majority also rejects the alternate basis on which Davis urges us to find that liability of Devereux may rest, concluding that the appellate panel erred in its evaluation of ordinary principles of respondeat superior and in its conclusion that the record sufficed to withstand summary judgment with respect to McClain’s purpose to serve her employer. Although there can be little debate about the law that governs this aspect of the claim, I dissent because the majority has overlooked the significant evidence in this record from which a jury could find that McClain’s act was one that was taken within the scope of her employment.
The majority’s approach begins with its analysis of the scope of employment, reasoning that McClain’s act can in no way be seen to fit within its parameters. Even so, the majority must concede that the Restatement, which we have previously relied upon, see Di Cosala v. Kay, 91 N.J. 159, 169,
First, the Restatement, in its general statement about the scope of employment, recognizes that the use of force, even if intentional, may indeed fall within the scope of one’s employment, at least if “the use of force is not unexpectable by the master.” Restatement, supra, § 228(d). In a similar vein, as the Restatement points out, “a master is subject to liability for the intended tortious harm by a servant to the person or things of another by an act done in connection with the servant’s employment, although the act was unauthorized, if the act was not unexpectable in view of the duties of the servant.” Id. at § 245.
In further explaining the proper application of the test where force has been used, the Restatement comments about the liability of the master when the servant uses excessive force or is mistaken in the use of force. Id. at § 245 comment e. In those circumstances, “the master is also subject to liability if the servant, while intending to act for his master, makes a negligent mistake of fact, or in an excess of zeal uses more than necessary force, or commits an error of law as to his privilege, or does an act combining all of these errors.” Ibid.
Nor, in the view of the Restatement, is the master necessarily shielded from responsibility for a servant’s use of force which is “actuated by personal motives.” Id. at comment f. In that instance, the master remains liable “if the servant acts in part because of a personal motive, such as revenge.” Ibid. Only “if the servant has no intent to act on his master’s behalf’ will the master be relieved of liability. Ibid. Although the Restatement’s comment explains that the fact of “a servant act[ing] in an outrageous manner or inflicting] a punishment out of all proportion to the necessities of his master’s business is evidence indicating that the servant has departed from the scope of employment in performing the act,” the implication is that such behavior is not proof of an act outside of the scope of employment, but only evidence thereof. Ibid.
This Court has held that the test for determining whether any particular act is
It is in this context that Chief Justice Weintraub’s oft-quoted comment setting forth the test to be applied is most instructive. See Gibson v. Kennedy, 23 N.J. 150, 158,
[a]ssaults and batteries rarely, if ever, redound to the economic advantage of the employer, and it may readily be assumed the employer would not wish them. The outrageous quality of an employee’s act may well be persuasive in considering whether his motivation was purely personal, but if the employee is within the scope of employment and intends to further the employer’s business, the employer is chargeable even though the employee’s conduct be “imbecilic.”
[Ibid.]
And as Judge Learned Hand observed: “motives may be mixed; men may vent their spleen upon others and yet mean to further their master’s business; that meaning, that intention is the test.” Nelson v. Am.-West African Line, Inc.,
In addressing more generally the use of force by an employee, the Restatement comments on the fact that there are some forms of employment that are more likely to bring an employee into a situation in which force will be used. Restatement § 245 comment a. Although the specific situations that the Restatement identifies do not mirror the one now before this Court, the comment points out that “the liability of the principal depends fundamentally upon the likelihood of a battery or other tort in view of the kind of result to be accomplished, the customs of the enterprise and the nature of the persons normally employed for doing the work.” Ibid. By and large, then, if McClain’s duties were such that there was a likelihood of a physical altercation, her effort to protect herself might well have been motivated by her belief that it would enable her to carry out the duties assigned to her.
Focusing on McClain’s act, and upon a limited description of the minutes that preceded it, the majority concludes that there is no basis in the record on which a reasonable jury could find that she was actuated even in part to serve the interests of Devereux. But it is only by reciting a few of the facts and only by relying on the opinion set forth in the police report that her act was premeditated that the majority can so conclude. That is, the majority points out that McClain arrived at work, sat for a few moments, then went to the microwave and heated water, that she did so because she thought Davis might kick her, that she then went upstairs and threw it on the sleeping Davis without a word and without provocation. Further, the majority points
To be sure, that summary lends support to the conclusion that McClain’s action either was entirely motivated by her anger over her boyfriend’s homicide or was committed in retaliation against Davis for his prior aggressions. But even the majority’s recitation includes within it the observation that McClain armed herself with a cup of scalding water because she was anticipating that Davis would attack her. Ante at 281,
Moreover, the record reflects much evidence that has not found its way into the majority’s opinion but that bears on the question of why McClain would approach Davis with a cup of boiling water in her hand. During the six months leading up to the incident, Davis, who had a long history of aggressive and assaultive behavior toward staff members, had been having many more such behaviors, to the point that there were concerns that he might be suffering from a medical condition that bis limited communication skills left him unable to explain. He did not display these aggressions with all of the staff, but instead demonstrated positive attachments to at least one of his caregivers. That staff member, however, was not McClain. On the contrary, it is plain from this record that McClain had become the target for his aggressive outbursts.
On the two days that immediately preceded McClain’s ill-fated decision, Davis had violently attacked her, each time with sufficient force that he had to be restrained, removed from her presence, and turned over for the balance of the day to another staff member or supervisor with whom he had no conflict. McClain’s response to the first of those incidents is telling, because she “lost her cool,” and demanded to know what her supervisor was going to do about Davis’s attacks on her. In response, Devereux did not change McClain’s assignment, nor did Devereux place Davis in the care of any of the other staff members, including any of the others with whom he had more positive interactions. That failure to act on Devereux’s part led directly to the second attack on McClain, which took place the day before the incident in which Davis was so horribly burned. That time, Davis attacked McClain in the basement and had to be restrained and removed from her presence by two Devereux caregivers, a supervisor and an employee, one of whom then spent the rest of the day caring for Davis without incident.
In spite of McClain’s request, indeed her plea, that she be afforded some protection or help against a further attack, she was again assigned to Davis, and tasked with getting him out of bed. It is significant that the increase in Davis’s aggressions, to the extent that they had been documented during the prior six months, were most often observed at bedtime and upon awaking in the morning. Confronted with those facts, a reasonable jury could conclude that McClain, not having been relieved of her duty to work with Davis even temporarily, and not in the company of anyone to assist her, could have believed that the only way to complete her assigned task of getting him out of bed was to be able to defend herself in the face of a renewed attack.
Nor is it accurate to conclude from the description of the attack as “premeditated,”
Although McClain herself has never been deposed, a reasonable jury could conclude that she first began to fulfill her assigned work duty of getting Davis out of bed and only threw the scalding water on him when she believed either that he was not going to comply by getting up or that she was again about to be attacked. In either event, applying the Gibson rule would lead to the conclusion that she indeed was engaging in an act, within the scope of her duties, and that she was actuated, at least in part, to serve the purpose of Devereux. That her choice, in the words of the Court in Gibson, was an “imbecilic” one, does not mean that it was not made at least in part in an effort to carry out her assigned task. Gibson, supra, 23 N.J. at 158,
That McClain’s act of tossing scalding water on Davis was a brutal act is beyond question; that it was entirely devoid of any intent on her part to perform the task assigned to her of getting him out of bed and about his daily activities, such that Devereux bears no responsibility to him is not, in my view, so beyond debate that no reasonable jury could find otherwise. This Court has repeatedly cautioned our trial courts about the difficulty of evaluating intent and has repeatedly commented that it is often inappropriate for summary judgment. See Simonson v. Z Cranbury Assocs. P’ship, 149 N.J. 536, 540,
The debate between the majority and me about the meaning and implications of the police summary of McClain’s statement and the two statements given by the other staff member well illustrates the inherent danger of disposing of the respondeat superior claim by way of summary judgment. In similar circumstances, other courts have recognized that although egregious criminal acts “lend themselves to arguably the most instinctive conclusion that [they] could never be within the scope of one’s employment ... the resolution of the question does not turn on the type of act committed or on the perpetrator’s emotional baggage.” Stropes, supra,
III.
In the end, I dissent because it is clear that the majority has misperceived the meaning of non-delegable duties, and has misapplied, therefore, the law that governs this Court in finding that such a duty exists. In doing so, this Court finds ample room to protect property but not to protect people, leaving largely defenseless those among us who are the most vulnerable members of our population. Moreover, I dissent because the majority is unmoved by the reality that there will be people like McClain, trying to perform work with a challenged person like Davis, who will act in ways that, while we need not condone them, nonetheless were actuated in part by service to their employer. Creating an impenetrable shield around the facility charged with the care of the profoundly disabled Roland Davis in these circumstances hardly advances the cause of a just society. I therefore respectfully dissent.
For affirmance in part; reversal in part—Chief Justice RABNER and Justices LaVECCHIA, ALBIN and PATTERSON and Judge WEFING (temporarily assigned)—5.
For dissent—Justices LONG and HOENS—2.