RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0755-16T2
WANDA BROACH-BUTTS, Administratrix of the Estate of THEOTIS BUTTS, deceased, and WANDA BROACH-BUTTS, in her own right, APPROVED FOR PUBLICATION Plaintiffs-Appellants, August 13, 2018
and APPELLATE DIVISION
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,
D.M.,
Third-Party Defendant- Respondent. __________________________________
Submitted October 30, 2017 – Decided August 13, 2018
Before Judges Sabatino, Ostrer and Whipple (Judge Sabatino concurring).
On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L- 2746-13.
Anapol Weiss, attorneys for appellants (Lawrence R. Cohen and David J. Carney, on the briefs).
Naulty, Scaricamazza & McDevitt, LLC, attorneys for respondent Therapeutic Alternatives, Inc., Drew Barrett, Jennifer Lawson and Jenn Hess (Michael J. Follett, on the brief).
Daniel E. Somers, attorney for respondent D.M.
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
2 A-0755-16T2 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
1 We intend no disrespect in utilizing first names for convenience. We will also refer to Wanda and Ted jointly as "plaintiffs" when addressing matters that preceded Ted's death. Although the summary judgment order also dismissed the claims of Wanda's and Ted's children, they are not parties to the appeal. 2 The order also dismissed claims against three individuals allegedly involved in handling D.M.'s case. Although plaintiffs appealed from the entire order, they addressed in their brief only their claims against Therapeutic Alternatives. We therefore deem any appeal regarding the three alleged workers to be abandoned. See Grubb v. Borough of Hightstown, 353 N.J. Super. 333, 342 n.1 (App. Div. 2002). Furthermore, plaintiffs did not directly sue D.M. He was only named as a third-party (continued)
3 A-0755-16T2 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
(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
(continued) defendant by another defendant-entity, Performcare, which was dismissed with prejudice, along with the Division of Child Protection and Permanency (Division), and other entities. Plaintiffs did not appeal those prior dismissal orders. We refer to Therapeutic Alternatives, Inc. as "defendant."
4 A-0755-16T2 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.
5 A-0755-16T2 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
3 See N.J.A.C. 10:73-3.11. A policy and procedure manual of defendant states that while it "maintains a 'no reject, no eject' policy," some clients may be discharged from the shelter program for "behaviors [that] are not sustainable in the treatment home" such as breaking the law or conditions of release, physical violence to treatment home residents, and "runaway behavior or other actions [that] compromise the well- being of other clients." Even if defendant owed a duty to accept all referrals from the Division, defendant does not rely on a contractual provision or regulation that similarly bound (continued)
6 A-0755-16T2 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 (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
(continued) plaintiffs. We note, however, that the contract between defendant and plaintiffs, as "Provider," states, "Provider understands that a Client [a foster child] is assigned to the Home and that Provider does not 'choose' a Client." Once a child was placed, plaintiffs were required to give thirty days' notice if they were no longer able to care for the child, and to confer with defendant "[i]f the Provider feels unable to provide care to a Client . . . ."
7 A-0755-16T2 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 (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 (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
4 Plaintiffs' expert further opined that defendant failed to provide adequate services and information during D.M.'s stay in the foster home. However, plaintiffs do not argue before us that their damages were caused by a breach of duty to provide essential services while D.M. was placed in the home, or to remove D.M. sooner than it did. We therefore do not address such potential duties.
8 A-0755-16T2 exercise care, and the public interest in the proposed
solution." Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439
(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 (1998) (quoting
Carter Lincoln-Mercury, Inc. v. EMAR Group, Inc., 135 N.J. 182,
194 (1994)). "Whether a duty exists is ultimately a question of
fairness." Goldberg v. Housing Auth. of Newark, 38 N.J. 578,
583 (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, 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 (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
9 A-0755-16T2 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 (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., ___ N.J. Super. ___, ___ (App. Div. 2018) (slip op. at
7) (considering whether a duty is owed by a defendant who knew
or had reason to suspect a co-worker sexually abused a minor).
Indeed, defendant "acknowledges it had a duty to the Butts[es]"
– without defining its scope – "during the nine months D.M. was
placed in the home." Having conceded it had a duty, defendant
instead contends the placement was not a proximate cause of
Ted's death (an issue we address below), and defendant had no
duty after D.M. left the home.
The duty to exercise reasonable care in placement and to
adequately warn, arises from the totality of the circumstances.
See Clohesy, 149 N.J. at 514 (stating that our courts "have
10 A-0755-16T2 consistently applied the totality of the circumstances rule when
determining the existence and scope of duty"). The placement
agency has a direct relationship with the foster parents. 5 The
parents likely rely upon the agency's judgment to assure the
placement is reasonably appropriate in light of the child's
needs and challenges, and the parents' resources and
capabilities. The parents also rely upon the agency to
adequately disclose the background and needs of the prospective
foster child, both so they can decide whether they want to
proceed, and so they can best address the child's needs once
placed.
Furthermore, the agency has a direct relationship with the
child it places, and is privy to details about the child that
the foster parents are not. See G.A.-H., ___ N.J. Super. at ___
(slip op. at 9-10) (considering "the scope of the relationship
between the abuser and the targeted defendant" and stating that
"the parties' relationships and the extent to which the
defendant had access to or otherwise possessed knowledge of the
5 Notably, plaintiffs do not assert that the duty arises out of the contract – although their contract with defendant required defendant to "communicate to Provider pertinent information regarding Client(s) to be placed in the Home." Nor does defendant point to a contractual provision that purports to absolve them of liability. Therefore, we do not address contractual grounds for liability, or the viability of contract- based defenses. Similarly, neither party contends that a State law or regulation governs the nature of defendant's duty.
11 A-0755-16T2 abuser's conduct" may justify imposing a duty). While some
placements will ultimately prove unsuccessful, even tragically
so, we perceive no reason why an agency would be incapable of
exercising reasonable care in the process, and making reasonable
disclosures.
One need not foresee a homicide to recognize that harmful
consequences are a foreseeable outcome of a failure to exercise
reasonable care in placement, and a failure to reasonably
disclose information about a foster child's violent
propensities. Defendant was aware of a specific history of
multiple violent acts and threats of violence by D.M. 6 Whether
defendant in this case could foresee the specific harm that
befell plaintiffs, fifteen months after D.M.'s removal, is
relevant to the issue of proximate cause, which we discuss
below. See Clohesy, 149 N.J. at 502-03 (distinguishing between
"[f]oreseeability as a determinant of a business owner's duty of
care to its customers" and "foreseeability as a determinate
whether a breach of duty is a proximate cause of an ultimate
injury"). However, recognition of the duty depends upon the
general foreseeable risk that harm could befall the foster
6 That specific knowledge of past behavior distinguishes this case from Pequero, for example, where we held that a fraternity did not owe a duty to the victim of a shooting at a fraternity party, in significant part because the risk of gunfire was not reasonably foreseeable. 439 N.J. Super. at 93-94.
12 A-0755-16T2 family or the child if reasonable care were not taken in placing
a child, and in adequately informing the foster parents.7
We do not imply that an agency's duty is boundless. Yet,
as a matter of public policy, the exercise of reasonable care in
placement and disclosure has the salutary effect of protecting
both foster parents and foster children. We recognize that
imposing a duty and potential civil liability on an agency like
defendant may deter some agencies from assisting the Division in
placing children. On the other hand, absent such a duty, some
potential foster parents may be deterred from offering
themselves as caregivers to children in need.
B.
Persuasive authority in other jurisdictions supports our
conclusion that a duty exists. In Johnson v. State of
California, 447 P.2d 352 (Cal. 1968), a foster child assaulted
the foster mother, who contended that state officials failed to
disclose the child's violent tendencies. "As the party placing
the youth with [the foster mother], the state's relationship
. . . was such that its duty extended to warning of latent,
7 We acknowledge the possibility that a troubled foster child might also injure someone, or damage property, outside the foster home. We do not reach the question of a placement agency's duty to such a third-party victim. But see Sonya A. Soehnel, "Governmental tort liability for social service agency's negligence in placement, or supervision after placement of children," 90 A.L.R.3d 1214 (2017).
13 A-0755-16T2 dangerous qualities suggested by the [child's] history or
character." Id. at 355. The court found "the state owed a duty
to inform [the foster mother] of any matter that its agents knew
or should have known that might endanger the [foster parents'
family] . . . ." Ibid. The duty to disclose "certainly would
have included 'homicidal tendencies, and a background of
violence and cruelty' as well as the youth's criminal record."
Ibid.8
Like this case, Snyder v. Mouser, 272 N.E.2d 627, 635 (Ind.
Ct. App. 1971), involved a foster mother's claim that a social
welfare agency negligently failed to warn that their foster
child had "homicidal propensities," which led him to kill her
husband. In reversing the trial court's dismissal, the
appellate court rejected the agency's argument that it "had no
duty to disclose to decedent the child's known dangerous
propensities, because no statute impose[d] that duty." Id. at
634. The court also rejected a claim that the child's records
were privileged. Ibid. The court found it difficult to fathom
"how it would be a violation of any confidence or privilege to
8 The court recognized that its broadly stated duty "may be subject to some qualification — for example, in cases in which sufficiently important policy objectives, achievable only by silence, outweigh the obvious interest in cautioning persons exposed to danger." Id. at 355 n.2. As the state had not offered such a justification for its silence, the court did not address the matter further.
14 A-0755-16T2 tell . . . prospective foster parents, everything about the
foster child which might be reasonably calculated to affect his
and their safety and well being while living together in the
relationship of parent and child." Ibid.
Haselhorst v. State, 485 N.W.2d 180 (Neb. 1992), involved
an appeal from a bench-trial verdict for damages after a foster
child sexually assaulted the foster parents' natural children.
The court affirmed the trial court's finding that the state owed
a duty to disclose the child's psychological profile. Id. at
186. In violation of the placement agreement entered into
between the foster agency and the foster parents, the state
agency failed to obtain records of the child's hospitalization
after he attacked his mother several times, and once threatened
to knife her, when she was pregnant, to kill her expected child.
Id. at 184.
In Savage v. Utah Youth Village, 104 P.3d 1242, 1250 (Utah
2004), the Utah Supreme Court recognized a cause of action for
negligent placement brought by foster parents after a foster
child sexually assaulted their three-year-old natural child.
Although the foster parents agreed to foster a child who
committed a sexual offense, they alleged that defendant, a
private placement agency, negligently placed the child in their
home after failing to warn them of the foster child's prior
15 A-0755-16T2 record of "serious sexual deviancy" and "habitual molestation of
young children." Id. at 1246. The court held, "Placement
agencies such as [defendant] have a special duty to prevent
abuse to and by the children they place in foster homes." Id.
at 1247. It also was reasonably foreseeable that a child with a
"known history of sexually abusing young children might sexually
abuse again if placed in a home with young children." Id. at
1246. The "duty to notify the [foster parents] of [the foster
child]'s past behavior" was not "too burdensome when weighed
against the potential harm of continued sexual abuse." Id. at
1246-47.
In sum, we are persuaded that defendant owed a duty to
plaintiffs to exercise reasonable care in placing a foster child
in their home. They also had a duty to inform plaintiffs of a
prospective placement's prior history, to enable plaintiffs to
make an informed decision as to whether they wished to accept
the child into their home.
C.
We return to the issue of proximate cause. Defendant
contends that the homicide, which occurred fifteen months after
D.M. left the home, was simply too remote and unforeseeable.
"Ordinarily, issues of proximate cause are considered to be jury
questions." Perez v. Wyeth Labs. Inc., 161 N.J. 1, 27 (1999)
16 A-0755-16T2 (quoting Garrison v. Twp. of Middletown, 154 N.J. 282, 308
(1998) (Stein, J., concurring)); Cruz-Mendez v. Isu/Insurance
Servs., 156 N.J. 556, 576 (1999); J.S., 155 N.J. at 351;
Goldberg, 38 N.J. at 604. However, a court may decide the issue
as a matter of law where "no reasonable jury could find that the
plaintiff's injuries were proximately caused . . . ." Vega by
Muniz v. Piedilato, 154 N.J. 496, 509 (1998).
Proximate cause is "a 'cause which in the natural and
continuous sequence, unbroken by an efficient intervening cause,
produces the result complained of and without which the result
would not have occurred.'" Cruz-Mendez, 156 N.J. at 575
(quoting Daniel v. Dep't of Transp., 239 N.J. Super. 563, 595
(App. Div.), aff'd o.b., 79 N.J. 547 (1979)). It is not enough
that the injury would not have occurred but for the defendant's
negligence, where there are other contributing causes of the
injury. A plaintiff must show that the negligence was a
"substantial factor" contributing to the result. See Komlodi v.
Picciano, 217 N.J. 387, 422 (2014) ("[T]he 'substantial factor'
test is given when there are concurrent causes potentially
capable of producing the harm or injury."); Verdicchio v. Ricca,
179 N.J. 1, 24-25 (2004). "A substantial factor is one that is
'not a remote, trivial or inconsequential cause.'" Komlodi, 217
N.J. at 423 (quoting Model Jury Charge (Civil) § 6.13,
17 A-0755-16T2 "Proximate Cause – Where There is Claim that Concurrent Causes
of Harm are Present and Claim that Specific Harm was Not
Foreseeable" (approved May 1998)).
Foreseeability is a factor in determining proximate cause.
However, it is not essential. "If the actor's conduct is a
substantial factor in bringing about harm to another, the fact
that the actor neither foresaw nor should have foreseen the
extent of the harm or the manner in which it occurred does not
prevent him [or her] from being liable." Restatement (Second)
of Torts § 435(1) (Am. Law Inst. 1965). Proximate cause "fixes
a point in a chain of events, some foreseeable and some
unforeseeable, beyond which the law will bar recovery." People
Express Airlines, Inc. v. Consolidated Rail Corp., 100 N.J. 246,
264 (1985) (emphasis added).
On the other hand, "[t]he actor's conduct may be held not
to be a legal cause of harm to another where after the event and
looking back from the harm to the actor's negligent conduct, it
appears to the court highly extraordinary that it should have
brought about the harm." Restatement (Second) of Torts §
435(2); see also J.S., 155 N.J. at 352. In Caputzal v. Lindsay
Co., 48 N.J. 69, 78-79 (1966), the Court relied on § 435(2) in
holding as a matter of law no liability for a plaintiff's heart
18 A-0755-16T2 attack prompted by fear of poisoning by discolored water because
it was "so highly extraordinary a result . . . ."
Defendant argues that D.M.'s homicide of Ted was so
unforeseeable and remote in time that we should hold as a matter
of law that any breach of duty regarding placement or disclosure
was not a proximate cause. We decline to do so.
A jury can make the following findings essential to
plaintiffs' claims: defendant breached its duty of care in
placing D.M. and making inadequate disclosure; but for that
breach, plaintiffs would not have accepted D.M. into their home;
the subsequent homicide would never have occurred; and
defendant's breach was a significant factor in the chain of
causation. We do not think the attack of Ted was so "highly
extraordinary" under the circumstances that we should find
proximate cause absent as a matter of law.
D.M. was a child who never had a stable family. A
reasonable jury could find it foreseeable that D.M. would form a
bond with plaintiffs that would lead him to return time and
again during the fifteen months following his removal. Put
another way, the remoteness in time of D.M.'s attack was
tempered by his two prior burglaries of the home. A jury could
reasonably find that the ties that defendant established between
D.M. and plaintiffs were never fully severed.
19 A-0755-16T2 We acknowledge that the injuries in otherwise comparable
cases occurred more closely in time with the foster child's
placement than occurred here. See Snyder, 272 N.E.2d at 628
(noting that "[w]hile living in the Snyder home the ward shot
and killed Mr. Snyder"); Johnson, 447 P.2d at 354 (explaining
that the foster child's assault of the foster mother was five
days after the foster child was placed in the home). However,
"'[p]roximate cause connotes not nearness of time or distance,
but closeness of causal connection.'" Cruz-Mendez, 156 N.J. at
577 (quoting Powers v. Standard Oil Co., 98 N.J.L. 730 (Sup. Ct.
1923)).
Nor was it unforeseeable that D.M. would react with
violence when Ted confronted him. D.M. had an extensive history
of erratic, aggressive and violent behavior. In any event, it
is not essential that defendant could foresee the precise manner
and circumstances of the injury. See Restatement (Second) of
Torts § 435(1).
We do not view D.M.'s own criminal actions as an
intervening cause of plaintiffs' damages that relieves defendant
of liability. "Intervening causes that are reasonably
foreseeable or are normal incidents of a risk . . . do not
relieve a tortfeasor of liability." Cruz-Mendez, 156 N.J. at
575. "If the reasonably prudent person would foresee danger
20 A-0755-16T2 resulting from another's voluntary criminal acts, the fact that
another's actions are beyond defendant's control does not
preclude liability." Butler, 89 N.J. at 276. The court in
Haselhorst applied these principles to a case similar to the one
before us. "[T]he likelihood of the foster child acting out his
violent behavior was the hazard that made the department's
conduct negligent in failing to obtain the records from [the
child's prior hospitalization] and sharing that information with
the Haselhorsts, [and] in failing to properly investigate
. . . ." Haselhorst, 485 N.W.2d at 188.
In sum, we hold that defendant had a duty to exercise
reasonable care in placing D.M., and a duty to reasonably
disclose such aspects of D.M.'s background to enable plaintiffs
to make an informed decision whether to accept him into their
household. A jury shall determine whether defendant breached
that duty, and whether that breach proximately caused Ted's
death and the consequent damages.
Reversed and remanded for trial. We do not retain
jurisdiction.
21 A-0755-16T2 SABATINO, P.J.A.D., concurring.
I join in Judge Ostrer's erudite and well-reasoned analysis
of the common law principles that govern this litigation. I
write to add a few prospective comments.
Regardless of whether a jury imposes civil liability on
this particular defendant, I respectfully urge the State to
explore measures that might prevent the fatal tragedy in this
case – or some other violent assault by a youth inflicted upon a
resource parent – from being repeated.
For example, the State might adopt and enforce stringent
regulations obligating private placement agencies to provide
sufficient warning of the known dangerous characteristics of
troubled youths to resource families, before such youths are
taken into their homes. We are unaware that any regulations of
that sort exist at the present time.
As a separate measure, the State might insist upon
contractual provisions mandating placement agencies to carry out
the important responsibility of notification detailed in this
opinion. The contracts could specify, for instance, that such
agencies face termination, perhaps with financial penalties, if
they fail to perform that responsibility. Again, we are unsure
from this record if typical State contracts already contain such
language.
1 A-0755-16T2 As it so happened, the State was not a participant in this
appeal, as plaintiffs did not seek review of the dismissal of
the State defendants from the case. We therefore lack the
benefit of the State's briefing and perspective on these weighty
issues. Nor have we been fully apprised of how the State's "no
eject, no reject" policy bears upon the circumstances, and
whether that policy imposes undue pressure on agencies to place
troubled children rapidly with families.
In any event, perhaps the spotlight of this tragic case
will spur more effective ways to protect host families from
harm. Ideally that can be done without diminishing the roster
of qualified caregivers who are willing to open their homes to
difficult needy children. We also are mindful that greater care
in the placement process can reciprocally protect children from
deficient foster caretakers.
It is not for us as judges, of course, to devise the
appropriate policy solutions. Although the specter of civil
liability can play an appropriate role in shaping future
conduct, well-crafted regulations and vigilant contractual
oversight may well offer more effective safeguards.
We therefore commend these policy issues to the efforts and
expertise of the other branches of government, and to possible
innovations of the private sector.
2 A-0755-16T2 In the meantime, this litigation will continue in the trial
court, as it must, under the applicable rules of law. But no
matter who wins or loses before the jury, let us all hope that
the life that was senselessly lost in this case will somehow
result in more lives being spared in the future.
3 A-0755-16T2