[267 NJSuper Page 168] Plaintiff Loretta Stanley, an infant, was severely scalded while bathing on January 17, 1989. She filed this personal injury action against her foster mother, Dolores Hills, alleging negligence, and against the Division of Youth and Family Services (DYFS), under a theory of vicarious liability. DYFS filed a motion for summary judgment seeking dismissal of the complaint. It is my Conclusion that the Division of Youth and Family Services cannot be held
vicariously liable for the negligent acts or omissions of a foster parent.
The facts are summarized as follows. In July of 1986, Loretta Stanley was voluntarily placed in DYFS foster care by her natural mother. DYFS, in turn, placed Loretta with Dolores Hills in April 1988. Hills was accepted as a foster parent after an application assessment, background check and pre-service training. Hills received maintenance reimbursement for Loretta's food and clothing, but no compensation for her service as a foster parent.
The accident occurred when Hills's granddaughter, Jenel Sconiers, six years old, ran water in the bathtub at Hills's request. Hills then went out of the house to observe a fire across the street. Jenel ran only the hot water and told Loretta to get in the tub. When she did, Loretta suffered extensive burns on her legs and buttocks. The injuries have required substantial medical attention and expenses.
A number of jurisdictions have held that the state or its subdivisions may be liable for injuries suffered by children in foster care for negligent placement or supervision. Hanson v. Rowe, 18 Ariz.App. 131, 500 P. 2d 916, 918 (1972) (state may be liable for assault and wrongful death if state had knowledge of foster father's proclivity for violence); Elton v. County of Orange, 3 Cal.App. 3d 1053, 84 Cal.Rptr. 27 (1970) (agency may be liable for negligent placement after child assaulted by foster parent); Vonner v. State, 273 So. 2d 252 (La.1973) (death resulted from beatings over extended period of time); Bartels v. County of Westchester, 76 App.Div. at 517, 429 N.Y.S. 2d 906 (1980) (where child scalded by bathing, county liable for negligence since it had actual notice of prior mistreatment and its duty of care was nondelegable); Little v. Utah State Div. of Family Services, 667 P. 2d 49 (Utah 1983) (agency liable for negligent failure to adequately train foster parents in care of autistic child); Babcock v. State, 116 Wash. 2d 596, 809 P. 2d 143 (1991) (state liable for negligent supervision in foster parent sexual assault). But see
Thornton v. Commonwealth, 28 Mass.App.Ct. 511, 552 N.E. 2d 601 (1990) (duty of care to child held to be delegable).
Courts in other jurisdictions have declined to hold state or county child placement agencies liable. Koepf v. County of York, 198 Neb. 67, 251 N.W. 2d 866 (1977) (claim of negligent selection and supervision of foster parents rejected in beating death by foster mother); Seavy v. State, 21 App.Div. 2d 445, 250 N.Y.S. 2d 877 (1964), aff'd 17 N.Y. 2d 675, 269 N.Y.S. 2d 455, 216 N.E. 2d 613 (1966) (state not liable for negligent placement where mentally retarded youth set fire to a barn); Pickett v. Washington County, 31 Or.App. 1263, 572 P. 2d 1070 (1977) (in horseback riding accident, state immune from liability since shelter care parents were immune from discretionary acts); Simmons v. Robinson, 305 S.C. 428, 409 S.E. 2d 381 (1991) (agency not liable for foster parent's negligent operation of automobile).
In general, courts appear inclined to hold state or county placement agencies liable for a foster child's injuries where the agency has negligently placed or supervised a child with assaultive or abusive foster parents. However, courts appear reluctant to hold agencies liable where the child's injuries result from the foster parent's ordinary negligence. In this case, plaintiff urges that DYFS is vicariously liable for Dolores Hills's negligent conduct because the Division's duty of care to foster children cannot be delegated. Plaintiff relies on Bartels v. County of Westchester, supra, 429 N.Y.S. 2d at 906, and Vonner v. State Through Department of Public Welfare, supra, 273 So. 2d at 252, for the proposition that a child placement agency's duty of care to the child is nondelegable.
However, the Bartels and Vonner cases are distinguishable from the present case in that they involved allegations of physical abuse against the foster parents rather than acts of mere negligence. In both cases, the child placement agency was held liable because its duty of care to the child was nondelegable. With one possible exception, no case has been found holding a state or county child placement agency vicariously liable for a foster parent's ordinary negligence resulting in personal injury to the