184 N.J. Super. 348 | New York Court of Chancery | 1982
This is a declaratory judgment action in which the central issue is whether foster parents are considered employees of the State for purposes of the New Jersey Tort Claims Act, N.J.S.A. 59:1-3. Based on common-law principles as well as statutorily based public policy, it is the conclusion of this court that they are. The issue comes before the court as a result of plaintiffs’ motion for summary judgment. R. 4:46-2. The facts which are material to that motion are not in dispute and are summarized below.
Between 1971 and 1978 Elwood and Lillian Bell acted as approved foster parents for the State of New Jersey. In July 1978 their names appeared on a list of qualified persons willing to accept foster children on an emergency basis. On or about July 22,1978 Atlantic City police found two juveniles, Nathaniel Murray and his sibling, apparently abandoned. The children were turned over to the Division of Youth and Family Services (hereinafter DYFS), which, in turn, placed the children with the Bells on a temporary basis. A complaint was then filed with the Juvenile and Domestic Relations Court of Atlantic County seek
On July 30, 1978, while still with the Bells, Nathaniel was injured when a bucket of hot water accidentally spilled on him. When he was returned to his natural parents they instituted suit in the Law Division of the Superior Court seeking damages against both the State and the Bells. A defense was entered in behalf of the Bells through the New Jersey Property-Liability Insurance Guaranty Association, predecessor to the Bells’ carrier under a homeowners’ policy. The State was represented by a carrier under a policy covering “Foster Parents Personal Liability,” but refused to defend the Bells. As a consequence, the Guaranty Association instituted a separate suit in the Chancery Division seeking to compel the State to assume the defense of the Bells and to indemnify them for any loss. Those two cases were later consolidated. The Guaranty Association and the Bells now move for summary judgment.
Under the terms of the New Jersey Tort Claims Act the Attorney General is required to defend any state employee who is sued as a result of an act or omission which occurred while the employee was within the course of employment. N.J.S.A. 59:10A-1. If wrongfully refused, the employee is entitled to indemnification for defense costs plus reimbursement for any judgment or settlement. N.J.S.A.59:10-2. The State contends that the Bells may not benefit from these provisions because they were not employees, but rather independent contractors. Under the definition section of the statute “employee” is defined as follows:
“Employee” includes an officer, employee, or servant, whether or not compensated or part-time, who is authorized to perform any act or service; provided, however, that the term does not include an independent contractor. [N.J.S.A. 59:1-3]
Although this definition is quite broad, it does not, by itself, answer the question posed here. An examination of common-law principles is necessary.
Under common law, one of the most critical and frequently cited guidelines in the area of worker classification is that of “control.” 41 Am.Jur.2d, Independent Contractors, § 5 (1968). The decisive question in that regard is who has the right to direct what shall be done, and when and how it shall be done. Id. at 744. In the case at bar there was a written agreement between DYFS and the Bells which purports to reflect their relative responsibilities. An examination of that agreement reveals the fact that the control maintained by DYFS was considerable. Although the Bells were responsible for providing the child with a normal, wholesome home life, DYFS retained the ability to remove the child without the foster parents’ consent at any time; to approve vacation and visiting schedules; to approve important medical decisions; to provide the child with a clothing allowance; to pay for medical and dental care, and to control the incurring of any expenses for which the foster parents would seek reimbursement. Despite the extensive control retained by DYFS, it does not include the details of the day-to-day supervision of the foster child. This is significant here, because it is the quality of that supervision which is called into question by the underlying negligence claim.
The same overlap may occur in the private sector. Fitzpatrick v. Haberman, 16 N.J.Super. 490 (App.Div.1951) (painting work by superintendent); DeMonaco v. Renton, 18 N.J. 352 (1955) (sidewalk newsboy); Marcus v. Eastern Agricultural Ass’n, Inc., 58 N.J.Super. 584 (App.Div.1959), rev’d 32 N.J. 460, 461 (1960) (farmer raising chicks). The Marcus case is particularly instructive^—not only as an example of how far the courts have been willing to go to find employee status but moreover because, like here, the analysis is made against a backdrop of social legislation. Marcus was a workman’s compensation case in which the petitioner was a farmer who raised chicks for the defendant corporation. Although petitioner used his own facilities and was independent in many ways, there was found to be sufficient control over particulars to justify a finding that he was an employee. As noted, “the requirement of control is sufficiently met where its extent is commensurate with that degree of supervision which is necessary and appropriate, considering the type of work to be done and the capabilities of the particular person doing it.” Id. at 597 (dissent by Conford, J. A. D., adopted by Supreme Court). What is critical is that the employer had the right to control, not that he exercised it. Id. at 599; see, also, Tofani v. Lo Biondo Brothers Motor Express, Inc., 83 N.J.Super. 480, 486 (App.Div.1964).
Judge Conford’s analysis is most appropriate here. To begin with, the relationship now being reviewed is not even a business in the true sense of the word. The care of foster children is a public service in which there is no profit by any of the participants. Although that fact is not dispositive of the status of the Bells, it does bear on the reasonable expectations of the parties. It also directly impacts on the public-policy aspects of the question. For example, does it serve any legitimate goal, statutory or otherwise, to have the risk of loss for injuries to abandoned children borne by the people who volunteer to care for them? Presumably not. Secondly, to the extent that “control” is a critical factor, the control by DYFS is, in a sense, absolute. Foster parents have no say with respect to the terms under which they accept a child for temporary care. Although an agreement is signed between them and DYFS, it is neither negotiated nor arm’s length; rather, it is a set of terms dictated by the State. It is true that many aspects of the care of the child are delegated to the foster parents, but that does not mean that they have bargained for such control. Neither does the fact that the Bells were responsible for the everyday care of the
As noted earlier, DYFS was appointed guardian of the minor plaintiff by court order. Pursuant to N.J.S.A. 30:4C-22, that guardianship is “full and complete for all purposes and shall vest in the Bureau the custody and control of both the person and the property of its ward.... ” (Emphasis supplied). It is significant that it is DYFS that is given the control, not the foster parents. The foster parents merely act as an arm of the State in the implementation of the guardianship. They may not act independently.
The above legislation is also relevant to the public-policy aspects of this question. Authority for the activities of DYFS with respect to dependent and neglected children is found in N.J.S.A. 30:4C-1 et seq. That act is to be construed liberally. N.J.S.A. 30:4C-10. As part of the statutorily defined public policy it seeks to prevent and correct dependency and delinquency among children through the preservation and strengthening of family life. In part, that policy is implemented by the placement of neglected children in family settings as opposed to institutions. The scarcity of suitable foster homes to accommodate the many children coming with the responsibility of DYFS is a fact of which this court can take judicial notice. Evid.R. 9(2)(d). To add to the burden of foster parents by asking them to bear the risk of loss in the event of an accidental injury to a child would further decrease the number of available homes. The fact that some families may have homeowners’ insurance to cover such risks does not eliminate the potential for financial loss as a result of such a claim.
In summary, it is the conclusion of this court that the Bells may be properly designated as state employees for purposes of the New Jersey Tort Claims Act and N.J.S.A.30:4C-1 et seq. They are thus entitled to indemnification pursuant to N.J.S.A.59:10-1 & 2. Plaintiffs’ motion for summary judgment is granted.