Non-Delegable Duties: Horrific Facts Don’t Make New Law

Davis v. Devereux Foundation, 209 N.J. 269 (2012).  Under the Restatement of Agency (Second), §219(2)(c), when one has a duty to protect others and delegates that duty to an agent, such as an employee, the employer can be liable for the employee’s failure to use due care in performing the duty, even where the employer used due care in hiring, training and supervising the employee.  That result is known as a non-delegable duty.  The key question in this case was whether defendant, a non-profit center for autism, owed a non-delegable duty to plaintiff, who resided at the facility.  Roland Davis was severely burned when his counselor, Charlene McClain, whose job it was to provide care, supervision, and assistance with daily living, poured boiling water on him.  The second issue was whether McClain’s conduct was within the scope of her employment, in which case defendant would be liable regardless of the outcome on the non-delegable duty issue.

By a 5-2 vote, the Supreme Court held that there was no non-delegable duty.  Rather, traditional principles of duty and foreseeability applied.  The majority also ruled that McClain had acted outside the scope of her employment.  Thus, defendant was not liable. 

The lineup of the Court was somewhat unusual.  Justice Patterson wrote the majority opinion, in which Chief Justice Rabner, Justices Lavecchia and Albin, and Judge Wefing joined.  Justice Hoens, joined by Justice Long, dissented.

Davis, a 19-year old male, had been diagnosed with autism, mental retardation, pervasive developmental disorder, and ADHD.  He was nonverbal, and instead had to rely on a picture system to communicate with defendant’s staff.  Davis had a history of aggressive behavior that likely made it hard for staff to care for him. 

McClain apparently experienced Davis’s violent behavior.  On two consecutive days in 2004, Davis kicked or otherwise assaulted McClain.  On the third day, McClain boiled a cup of water in a microwave oven and brought it with her in case Davis attacked her again.  This time, Davis did not do that.  Nonetheless, when he got out of bed, McClain poured the boiling water over Davis, severely burning him.  McClain told police that she had done that due to anger over the recent, but unrelated, murder of her boyfriend.  She pleaded guilty to assault and went to jail. 

Before hiring McClain, defendant had done a background check.  At that time, McClain had no criminal record or history of violence.

Davis’s mother, his guardian, sued defendant, the operator of the facility.  The Law Division granted summary judgment to defendant, finding no delegable duty and no basis for a rational jury to find that McClain had acted within the scope of her employment.  The Appellate Division affirmed on the non-delegable duty issue, but reversed on scope of employment, holding that a reasonable jury might be able to find that McClain had acted within the scope of her employment.  The Supreme Court granted certification and reinstated the summary judgment in full.

Justice Patterson began by reaffirming that under traditional negligence principles, and subject to the protections of the Charitable Immunity Act, N.J.S.A. 2A:53A-7 to -11, institutions such as defendant owe a duty of reasonable care to residents, who are vulnerable and utterly dependent on the facilities.  In considering whether to go further and impose a non-delegable duty, which the majority considered analogous to strict liability, the Court applied a four-part test from prior cases such as Hopkins v. Fox & Lazo Realtors, 132 N.J. 426 (1993). 

The first prong– the relationship among the parties, a developmentally disabled resident, a caregiving institution, and its employee– is addressed in statutes, regulations and common law, all of which protect the resident.  Justice Patterson found no reason to believe that this web of law had failed to protect vulnerable persons such as Davis, so as to require imposition of a non-delegable duty.  The second factor– the nature of the risk– was a question of foreseeability, and there was no indication that crimes such as McClain’s are common, or that McClain might do what she did.  For similar reasons, the third factor, the ability of defendant to exercise due care, also counseled against liability.  Finally, public policy furnished no reason to  hold defendant liable.  Imposing liability for unforeseen intentional acts of employees could undermine the ability of institutions such as defendant to perform the important services that they provide to persons such as Davis.  Justice Patterson noted that the weight of authority elsewhere declines to impose a non-delegable duty in these circumstances.

The second issue was easier.  No reasonable jury could have found that McClain was acting in the scope of her employment when she burned Davis.  McClain was not attempting “to serve the employer.”  Nor did she act to protect herself from Davis, who had not kicked her taht day.  Rather, McClain burned Davis because she was “just mad” over a matter unrelated to her job.  Finally, serious criminal conduct “in nature different from what servants in a lawful occupation are expected to do.”

The case is a tragedy all around.  The ruling on scope of employment was plainly correct.  The decision on non-delegable duty is a close one.  The dissent marshaled persuasive arguments on that issue.  The majority may have been concerned about creating a potentially broad new rule of liability based on the egregious facts here.