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Davis v. Devereux Foundation

June 25, 2010


On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-15667-06.



Argued April 19, 2010

Before Judges Lisa, Alvarez and Coburn.

Plaintiffs appeal from summary judgment on their complaint against defendants Devereux Foundation and Devereux New Jersey Treatment Network ("Devereux").

This case arose out of an assault and battery by defendant Charlene McClain on plaintiff Roland Davis, who is severely autistic and developmentally disabled. McClain was then employed by Devereux, a charitable foundation. She was a resident counselor in Devereux's New Jersey facility, which houses and treats people with emotional, developmental and educational disabilities. She severely injured Davis by pouring boiling water on him when she went to get him out of bed in the morning. Her motive may have been personal, or she may have acted in part to serve her employer by using the water as a form of discipline.

The first question we are asked to resolve is whether Devereux is liable under the common-law doctrine of respondeat superior on the theory that its duty of care to Roland is non-delegable. The second question is whether Devereux may have common-law liability under other principles of respondeat superior. If the answer to either of those questions is yes, we must determine whether the plaintiffs may be awarded punitive damages. Since the trial court granted Devereux's motion for summary judgment respecting liability on reconsideration after initially denying it, we must also determine whether reconsideration was procedurally unwarranted.

We note that after disposing of the case against Devereux, the trial court entered a default judgment against McClain for assault and battery and intentional infliction of emotional distress, assessing over $500,000 in compensatory damages and $250,000 in punitive damages.


Devereux is a national, charitable organization that provides services for people with emotional, developmental, and educational disabilities. McClain began working for Devereux in 2002 as a resident counselor, a low-level, non-managerial position. Roland Davis became a resident in Devereux's New Jersey facility in 1997. His diagnoses include autism, mental retardation, pervasive developmental disorder, and attention deficit-hyperactivity. Among other things, he has difficulty controlling his impulses and is quite aggressive.

McClain was assigned the task of caring for Davis. Before the incident in question he attacked her on several occasions, spitting, kicking and throwing things at her.

The incident occurred on the morning of October 9, 2004. The only source provided to us for the critical facts is a police report containing the officer's recollection of his interview with McClain. According to the report, McClain arrived for work at 7:10 a.m. After a few minutes, she went into the kitchen and put a cup of water into the microwave, boiling it for one minute. She went upstairs to get Davis dressed for the day. She took the cup of boiling water because she thought Davis might attack her. She told Davis to get out of bed and then poured the water on him even though he had not yet made an aggressive move toward her. She did not see any burn marks, and went downstairs after telling him to take a shower. She said that she was "just mad," and had been feeling that way since her boyfriend was shot and killed about six months earlier.

The boiling water caused severe injuries. Davis spent six days in the hospital and was left with "permanent scarring over a large area of the front of his body."


A Plaintiffs claim that our case law has already established the proposition that charitable institutions housing and caring for the mentally disabled have a duty of care to their clients that is non-delegable. The cases plaintiff relies on are Frugis v. Bracigliano, 177 N.J. 250 (2003); Hardwicke v. American Boychoir School, 368 N.J. Super. 71 (App. Div. 2004), aff'd as modified and remanded, 188 N.J. 69 (2006); and J.H. v. Mercer County Youth Detention Center, 396 N.J. Super. 1 (App. Div. 2007). Although some language used in those decisions, other than Frugis, creates doubt, we are satisfied that plaintiffs' proposition is not the law of this state.

We reject plaintiffs' argument that Frugis "squarely articulated" a non-delegable duty owed by educational institutions to their students. The case concerned a public school board's liability for a high school principal's sexually inappropriate conduct involving students. The Court observed that "[n]o 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." Frugis, supra, 177 N.J. at 268. But the Court ruled that the board's duty was to use "reasonable measures" to insure that its staff was "not exploiting[] vulnerable children." Ibid. The board's liability was not based on vicarious liability. Rather, it was held directly liable for negligent supervision, id. at 270-71, and the decision included a remand for a comparison of fault between the board for its negligence and the principal for his intentional torts. Id. at 278-83.

When a duty is non-delegable, the employer's use of care is irrelevant. Majestic Realty Assocs., Inc. v. Toti Contracting Co., 30 N.J. 425, 439 (1959); Restatement (Second) of Agency, § 214, comment a (1958). Since Frugis turned on the board's failure to use reasonable care, it provides no support for the suggestion of a non-delegable duty in these or similar circumstances.

Turning to Hardwicke, we consider first the Appellate Division's decision. The case arose from sexual mistreatment of resident students by employees of a charitable private school. After holding that the school could be liable as a passive abuser under the Child Sexual Abuse Act ("CSAA"), N.J.S.A. 2A:61B-1, if it knew of the abuse and failed to provide protection, the court addressed the common-law claims, which included assault and battery and intentional infliction of emotional distress. The court held that the Charitable Immunity Act ("CIA"), N.J.S.A. 2A:53A-7 to -11, did not bar the school's liability for intentional torts, Hardwicke, supra, 368 N.J. Super. at 102, and then discussed respondeat superior liability.

The court began with this proposition: "the fact that the underlying conduct . . . giving rise to liability was intentional does not necessarily absolve the school of liability for it." Id. at 104. The court then took note of Cosgrove v. Lawrence, 214 N.J. Super. 670 (Law Div. 1986), aff'd, 215 N.J. Super. 561 (App. Div. 1987). It described Cosgrove as holding that a public employer could not be held liable for its employee's sexual relations with a client because the acts were outside the scope of the employee-therapist's employment. Hardwicke, supra, 368 N.J. Super. at 104. The court said that Cosgrove was distinguishable because there "the employer's duties arose solely as the result of the employment relationship." Ibid. It then made this comment:

As Frugis suggests, a school that stands in an in loco parentis relationship to a boarding student in its charge has a different relationship to the student, giving rise to a non-delegable duty to take reasonable measures to safeguard the student and ensure that its employees do not endanger or exploit the child. Frugis, supra, 177 N.J. at 268, 827 A. 2d 1040. [Id. at 104-05 (citing Frugis, supra, 177 N.J. at 268) (emphasis added).]

Although Frugis requires reasonable care by the school board, the concept of non-delegable duty does not appear in the Supreme Court's opinion. That makes sense since the two concepts are incompatible in relation to liability of a principal. As we noted above, when the duty is ...

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