Davis v. Devereux Foundation

37 A.3d 469 (2012)

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Nature of the Case

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Facts

D is a national non-profit foundation that provides services for persons with emotional, developmental, and educational disabilities. P had been a resident since shortly before his twelfth birthday. P was diagnosed with autism, mental retardation, pervasive developmental disorder, and attention deficit hyperactivity disorder. He was nonverbal, except for broken word fragments, and relied on a picture system to communicate with staff. P had a history of aggressive and combative behavior and required constant supervision. On October 9, 2004, P was severely burned when his assigned counselor, McClain, poured boiling water on him. Before hiring McClain, D performed a background investigation that revealed no criminal record or history of violence. McClain confessed to police, attributing her assault to P's recent behavior and her anger about the unrelated murder of her boyfriend. Two days before P kicked McClain and had to be separated from her. The next day, P attacked McClain and had to be escorted away by other staff. On the day of the assault, McClain sat for a few minutes and then boiled a cup of water in the microwave. She went to P's room and thought P was going to kick her. He did not. As P got out of bed, McClain scalded him with the water. P was hospitalized for six days and is permanently scarred. McClain pled guilty to criminally assaulting P and was imprisoned. P filed a complaint alleging that D breached a 'non-delegable duty' to protect P from harm, negligent care and supervision, and vicarious liability for McClain's act. The trial court granted D's motion for summary judgment. It held that New Jersey law does not compel imposing a 'non-delegable duty' upon D. The Appellate Division affirmed in part, finding that there is no 'non-delegable duty,' and reversed in part, holding that a reasonable jury could find that McClain acted in part within the scope of her employment. Both parties appealed.