N.E., AS LEGAL GUARDIAN FOR INFANT J.V., Plaintiff-Respondent/ Cross-Appellant,
STATE OF NEW JERSEY DEPARTMENT OF CHILDREN AND FAMILIES, DIVISION OF YOUTH AND FAMILY SERVICES; NUSSETTE PEREZ, and FELIX UMETITI, Defendants-Appellants/ Cross-Respondents.
December 16, 2015.
appeal from Superior Court of New Jersey, Law Division, Essex
County, Docket No. L-3980-10.
J. Dauber argued the cause for appellants/cross-respondents
(Greenberg Dauber Epstein & Tucker and Greenbaum Rowe
Smith & Davis, attorneys; Mr. Dauber, Linda G. Harvey,
Kathryn B. Hein and John D. North, on the brief).
A. Mazie argued the cause for respondent/cross-appellant
(Mazie Slater Katz & Freeman, attorneys; Mr. Mazie, of
counsel and on the brief; David M. Estes, David M. Freeman
and Beth G. Baldinger, on the brief).
Judges Fuentes, Koblitz and Kennedy.
January 10, 2012, J.V. pled guilty before the Law Division,
Criminal Part to second degree aggravated assault, N.J.S.A.
2C:12-1(b)(1), and fourth degree child abuse, N.J.S.A. 9:6-1,
against his then four-month-old son J.V. ("Baby
Jesse").As required by Rule 3:9-2, J.V.
described under oath the facts supporting his guilty plea. He
testified that on the morning of July 16, 2009, Baby
Jesse's mother, Vivian, "dropped [his] son off"
at his apartment. J.V. admitted that "at this point in
time, " he was aware there was an order in effect from
the Division of Youth and Family Services (the Division)
prohibiting him from having "unsupervised contact"
with Baby Jesse.
admitted that when his infant son began to cry, he shook him
with great force, knowingly "disregarding the risk"
that the child would be injured. Baby Jesse
"slipped" from his hands and "fell to the
floor . . . [and] hit his head." J.V. called 911 when he
noticed Baby Jesse was not breathing. J.V. acknowledged that
as a direct result of his actions, Baby Jesse was
"seriously injured." N.J.S.A. 2C:11-1(b) defines
"[s]erious bodily injury" as an injury "which
creates a substantial risk of death or which causes serious,
permanent disfigurement, or protracted loss or impairment of
the function of any bodily member or organ[.]" It is
undisputed that Baby Jesse suffered catastrophic
also undisputed that after investigating a previous
allegation of abuse, the Division had entered into a case
plan agreement with Baby Jesse's mother, "Vivian,
" and maternal grandmother, N.E. (the child's legal
guardian). Both women agreed not to permit J.V. to have
unsupervised access to Baby Jesse. This agreement was in
effect at the time J.V. physically assaulted his son, with
one modification. At Vivian's request, N.E. was replaced
by the child's maternal grandfather, U.M.
("Ugo"), and his wife, L.M. ("Linda") as
caretakers while Vivian was at work.
was on her way home from work when her stepmother, Linda,
asked her for permission to leave Baby Jesse alone with J.V.
to go wash her car. Because Vivian thought she was
approximately twenty minutes away from her home, she told
Linda it was alright. Less than ten minutes later, Ugo called
Vivian to tell her Baby Jesse was in the hospital.
four months before J.V. pled guilty, Baby Jesse's
maternal grandmother, N.E.,  filed this civil action against
the State of New Jersey, Department of Children and Families
(the Division); Division caseworker Felix Umetiti; and
Umetiti's supervisor, Nussette Perez. In addition to
these state government parties, plaintiff named as defendants
Newark Beth Israel Medical Center, Overlook Medical Center,
and a number of other professionals who provided medical
services to Baby Jesse. Plaintiff settled her claims against
the non-public defendants for $7, 000, 000. The net proceeds
of the settlement were used to establish an annuity and
special needs trust for the benefit of Baby
Jesse. Thus, this appeal concerns only the
Division and its employees.
claims against the Division are predicated on the doctrine of
respondeat superior. Plaintiff argues this court must hold
the Division vicariously liable for a series of discretionary
decisions made by Division caseworker Umetiti and his
supervisor while investigating plaintiff's allegations of
child abuse and parental unfitness on May 28, 2009. Plaintiff
alleged Umetiti and Perez negligently failed to remove Baby
Jesse from his parents' custody, despite evidence showing
his father was mentally unstable and physically abusive.
Division argued before the trial court that the Torts Claims
Act (TCA), N.J.S.A. 59:1-1 to -12-3, bars plaintiff's
claims against Umetiti and his supervisor, because the
decision on whether to remove a child from the care and
custody of a parent or legal guardian inherently involves the
exercise of human judgment and discretion. Under these
circumstances, the TCA provides public employees with
absolute immunity from civil liability. N.J.S.A. 59:3-2(a).
At the charge conference, the Division also argued it was
entitled to qualified immunity under N.J.S.A. 59:3-3. The
trial judge rejected defendants' application as a matter
of law and instructed the jury to consider the good faith
immunity of N.J.S.A. 59:3-3 only with respect to certain
aspects of the investigation. The trial court held the
Division was subject to civil liability if it negligently
performed or failed to perform any one of sixteen
"ministerial tasks" while deciding whether to
exercise its discretionary authority to remove the child from
his parents' custody.
trial court also rejected the Division's argument for
absolute immunity under N.J.S.A. 59:3-2(a), characterizing
the Division's removal of a child from his parents'
custody as a ministerial act that a jury can assess under an
ordinary negligence standard. The court relied on Coyne
v. DOT, 182 N.J. 481 (2005), to hold that the
caseworker's decision to permit Baby Jesse to remain with
his parents, conditioned upon plaintiff and the child's
mother agreeing not to allow J.V. to have unsupervised access
to the child, was not a discretionary act under N.J.S.A.
59:3-2(a) because "no high level policy making" was
involved. The court noted that none of the Division employees
were "the lead employee in the office, let alone the
agency." Finally, the court held the jury was capable of
determining whether the Division's decision was
"palpably unreasonable." N.J.S.A. 59:3-2(d).
case was tried before a jury for a period of approximately
three weeks, spanning from November 19, 2013 to December 13,
2013. The jury found that in failing to remove Baby Jesse
from his parents' home, the Division and its employees
acted negligently. The jury further found that the
Division's negligence served as the proximate cause of
Baby Jesse's injuries. An interrogatory on the verdict
sheet read: "Did the DYFS defendants prove that leaving
[Baby Jesse] in the home was not palpably unreasonable?"
The jury unanimously responded: "No."
question of apportionment under the Comparative Negligence
Act, N.J.S.A. 2A:15-5.1 to -5.17, the Division presented
evidence showing that on June 12, 2009 (five weeks before
J.V. assaulted Baby Jesse), the Division had in place a
safety plan that involved the voluntary participation of
three key family members. In an effort to keep the family
united, Ugo and Linda voluntarily agreed to care for Baby
Jesse during the time Vivian was at work. The principal
purpose of the plan was to never leave Baby Jesse alone in
after the jury announced its verdict on liability, the trial
judge informed the jury that J.V. had also been found
responsible for the harm to Baby Jesse. After the judge
instructed the jury on the legal concept of apportionment,
the court permitted counsel to present closing arguments
limited to this question. The jury verdict sheet on
apportionment required the jury "to allocate to each of
the following the percentage by which that person or persons
contributed to [Baby Jesse's] injuries:" the DYFS
defendants (Umetiti, Perez, and Powell), J.V., Vivian, Linda,
jury found the Division 100 percent liable and absolved the
remaining parties of all liability. The verdict sheet
reflects the jury specifically wrote "0" next to
J.V.'s name, and crossed out the remaining names. On the
question of damages, the jury awarded $105, 000, 000 to cover
the cost of providing future medical services to Baby Jesse;
$57, 670, 000 for pain and suffering; $1, 410, 343 for lost
wages; and $1, 892, 160, representing the value of the
services plaintiff had provided to Baby Jesse.
trial judge thereafter entered judgment against defendants
for $165, 972, 503, constituting the total damages described
herein, plus $1, 432, 872.81 for satisfaction of a Medicaid
lien. The judgment credited defendants with $7, 475, 000,
representing the proceeds of the settlement plaintiff reached
with the medical care providers. Defendants filed a motion
for judgment notwithstanding the verdict, which the court
denied. The court also denied defendants' motion for a
new trial. The court partially granted defendants' motion
for remittitur, reducing the damages for future medical
expenses and life care to $75, 868, 321, or, at
plaintiff's election, a new trial. In accordance with its
decision on remittitur, the trial court entered a final
judgment against the Division in the amount of $56, 901, 240
for future medical expenses; $43, 252, 500 for pain and
suffering; $1, 057, 575.25 for loss of future income; and $1,
419, 120 for past services.
appeal, we are required to determine whether the State of New
Jersey can be held vicariously liable for the catastrophic
injuries Baby Jesse suffered as the result of his
father's criminal act. The basis of liability is a
caseworker's decision to explore the viability of a
voluntarily adopted safety plan, rather than taking immediate
action to remove the child from his parents' home without
their consent. Based on these uncontested facts, we hold the
Division caseworkers were entitled to judgment
notwithstanding the verdict based on the qualified immunity
afforded to public employees who act in good faith in the
enforcement or execution of any law. See N.J.S.A.
decision to remove a child involuntarily from the custody of
a parent or guardian is governed by a comprehensive statutory
scheme. Plaintiff failed to establish, as a matter of law,
that the decision the Division reached here was contrary to
the law or lacking in subjective good faith. An ordinary
negligence standard is an insufficient basis to impose civil
liability on a public employee involved in the execution of
the law. As a matter of public policy, the Legislature
adopted the TCA to insulate the State from civil liability
under these circumstances. For these reasons, we reverse the
jury's verdict and vacate the final judgment entered
against defendants in the amount of $165, 972, 503, as well
as the $1, 432, 872.81 to satisfy the Medicaid claims.
28, 2009 Incident and Investigation
was eighteen years old when she gave birth to Baby Jesse in
2009. She resided with plaintiff (her mother) and
plaintiff's husband. Vivian moved out of plaintiff's
home when Baby Jesse was one month old. She stayed with J.V.
and the child's paternal grandmother for approximately
one month, at which point she and J.V. found their own
apartment. Plaintiff took care of the child three or four
times per week to enable Vivian to work at a Dunkin Donuts.
Vivian dropped the baby off on May 28, 2009, plaintiff
noticed he had bloodshot eyes and bruises on both cheeks.
Plaintiff took the child to the Dunkin Donuts where Vivian
worked to show her the injuries. Plaintiff testified that
Vivian began to cry and told her J.V. "was treating the
baby badly." Plaintiff reported the child's bruises
and Vivian's allegations of abuse to the Division when
she returned home. According to plaintiff's testimony,
she also told the Division she believed J.V. was "crazy,
" had "bipolar, " was using illegal drugs, and
was physically abusive to Vivian.
Felix Umetiti was assigned to the Division's Union County
office when he received the screening summary for the case on
May 28, 2009 at 1:40 p.m. His title at the time was Family
Service Specialist I, which involved "investigating
cases assigned to [him], going out in the field to do the
actual investigation, [and] get[ting] to know [the]
collaterals within the time frame allotted . . . through the
Perez was Umetiti's direct supervisor. Perez began
working for the Division in 2000. She was in charge of the
Division's Union County office at the time plaintiff
called to report her allegations of abuse against J.V. As a
supervisor, Perez was required to oversee the cases assigned
to five caseworkers. These caseworkers carried a caseload
ranging from twelve to twenty families. Perez's
responsibilities included: (1) conducting pre and
post-investigation conferences; (2) guiding and supervising
the caseworkers as they gathered information; (3) reading and
approving all investigation reports; (4) ensuring
investigation reports were electronically entered into the
Division's computer records; (5) ensuring risk
assessments and contact sheets were properly recorded; and
(6) ensuring compliance with Division timeframes.
to procedure at that time, the Division had sixty days from
May 28, 2009 to complete its investigation and make a
determination as to what services it would provide the family
and what legal action, if any, was required to ensure the
family's safety. N.J.A.C. 10:129-5.3(c)
The initial part of the investigation was to occur within the
first fourteen days. N.J.A.C. 10:129-2.8(b). The
second phase required a formal investigation where the
Division would interview more people, gather collateral
information, and make assessments to determine what course of
action was required. See N.J.A.C. 10:129-2.9.
visited plaintiff's home on May 28, 2009. He met with
plaintiff, plaintiff's husband, and Vivian. He also
personally examined and photographed Baby Jesse, confirming
the infant had visible bruises on his face and blood in his
eyes. Plaintiff and Vivian then transported the baby to
Newark Beth Israel Hospital, while Umetiti followed behind in
a state-owned car.
hospital, plaintiff told Umetiti that she believed J.V.
suffered from bipolar disorder. Plaintiff claimed J.V. was
not taking any legitimate medication for his illness, relying
instead on illicit drugs to self-medicate. Plaintiff also
claimed J.V. "used to beat up [his]
ex-girlfriend[.]" Plaintiff told Umetiti that Vivian was
afraid of J.V., and she showed him Vivian's bruises.
hospital, Umetiti also interviewed Vivian about Baby
Jesse's injuries. Vivian told Umetiti she first noticed
Baby Jesse had blood in his eyes on May 19, 2009. She took
him to his pediatrician, who told her "that it will
resolve itself within a couple of weeks[.]" According to
Vivian, the doctor also told her that infants sometimes have
this condition. However, on May 22, 2009, Vivian took the
baby to another physician for a second opinion. This doctor
told her to take her son to the hospital. Vivian followed the
doctor's instructions and took Baby Jesse to Overlook
Hospital in Union County. The hospital told her that Baby
Jesse's condition could have been caused by sneezing,
coughing or straining.
also asked Vivian about J.V.'s behavior toward the baby.
Umetiti testified that Vivian told him she had "never
seen [J.V.] getting aggressive or losing patience around the
child[.]" Vivian stressed that "he has never been a
problem[.]" Umetiti asked Vivian about plaintiff's
specific allegation that Vivian had seen J.V. shake the baby.
Vivian flatly denied it. In fact, at no point during the
entire investigation did Vivian ever tell Umetiti that she
was concerned about J.V. abusing the baby.
also asked Vivian about domestic violence in connection with
the bruise he saw on her arm. She denied any allegation of
domestic violence and attributed the bruises to "rough
sex." Given the seriousness of the allegations, Umetiti
asked Vivian to repeat the responses she had given to him in
front of her mother. Umetiti testified that Vivian again
vehemently denied her mother's allegations. With respect
to J.V.'s mental state, Vivian confirmed that he had been
diagnosed with bipolar disorder "at the age of
five." However, she did not know whether a physician was
treating him at the time. Vivian told Umetiti that J.V. was
not taking any medication. Although he used marijuana as a
teenager, she did not know whether he was currently using
drugs. Umetiti accepted Vivian's account of these events
physician who examined Baby Jesse at Newark Beth Israel
Hospital told Umetiti that a CT-Scan and other diagnostic
tests showed no fractures or skeletal problems. The
doctor's only concern was the unexplained injury around
the infant's neck area. Based on this, the doctor told
Umetiti he "couldn't rule out possible child abuse
and he suspected child abuse." The doctor did not
testify at trial.
this initial encounter, Umetiti personally visited Vivian and
Baby Jesse on June 1, 2009, and June 12, 2009. He also
received what he characterized as "regular reports"
from plaintiff and Vivian confirming that Baby Jesse was
"doing okay." Umetiti testified that on June 12,
2009, he met with Vivian, J.V., plaintiff, and
plaintiff's husband at the Division's conference room
to discuss a plan for the family to consider going forward.
The family members agreed to a "case plan, " which
required J.V.'s cooperation and plaintiff and
Vivian's active participation. Vivian agreed to care for
her infant son during the day and to never allow J.V. to have
unsupervised access to the child. Plaintiff agreed to care
for her grandson at night when Vivian was at work.
testified that he contacted his supervisor, Perez, to explain
the details of the case plan and obtain her input and
approval. Furthermore, he asked Perez to join him in the
Division conference room when he met with the family to
explain the case plan's conditions. Umetiti also wanted
some form of medical confirmation and explanation of
J.V.'s psychiatric problems.
terms of the case plan were memorialized in a document signed
by all of the affected family members. Unfortunately, this
document is not included in the appellate record. As
described by Umetiti, the plan required J.V. and Vivian to
submit to drug assessments. Vivian agreed to "have a
responsible adult . . . supervise her son at all times [,
]" and to allow her mother to babysit. The parties
further agreed that J.V. "must not be left alone with
his son . . . unsupervised at any time." The case plan
made clear that if J.V. violated this condition, the Division
would seek judicial authorization to remove the child from
his parents' custody.
case plan began on June 12, 2009 and was set "to
expire" on June 30, 2009. When asked to explain the
reasons for this eighteen-day limitation, Umetiti stated:
"The 6/30 date I put there just to remind me ... I have
to revisit to see where we are with . . . the case,
what's going on. Because . . . you can't leave it
indefinitely." Umetiti also gave the following response
when asked how this plan addressed the risk of harm to Baby
Q. Now, can you tell us how that addressed the risk . . .
that this baby could be harmed[?]
A. The . . . fact that . . . all the parties involved
voluntarily agreed they would comply with the . . . plan. And
this [was] . . . [the] last chance to maintain this child in
his own family environment.
confirmed that Umetiti told all those who signed the case
plan that J.V. was not permitted to be alone with Baby Jesse.
Although not explicitly stated, plaintiff inferred that as a
signatory to the case plan, she was the only adult authorized
to care for the baby while Vivian was at work. Thus, on the
day she signed the case plan, plaintiff called Ugo and Linda
to make sure they knew J.V. was not allowed to be alone with
the baby. On cross-examination, plaintiff also ...