Davis v. Devereux Foundation

delivered the opinion of the Court.

This case requires the Court to consider the duty of care owed by a non-profit residential facility to a resident with severe autism and developmental disabilities injured by a criminal act of the facility’s employee. On October 9, 2004, Roland Davis (Davis) suffered severe burns after he was scalded with boiling water by Charlene McClain (McClain), a resident counselor employed by defendant Devereux Foundation (Devereux). Devereux is a national charitable foundation that provides services for disabled clients. McClain had no criminal record or prior history of *277violence. She attributed her act to Davis’s previous aggressive behavior toward her, and to her anger about the recent murder of her boyfriend. She was convicted of, and incarcerated for, her assault upon Davis.

Plaintiff, who is Davis’s mother and guardian ad litem, sued Devereux, its local affiliate Devereux New Jersey Treatment Network, and McClain. Barred by the Charitable Immunity Act (CIA), N.J.S.A. 2A:58A-7 to -11, from recovering against Devereux on a theory of negligence, plaintiff urges the Court to impose a “non-delegable duty” upon Devereux to protect its residents from the intentional acts of its employees. Plaintiff further contends that McClain was acting within the scope of her employment when she assaulted Davis, and that Devereux should accordingly be held liable pursuant to principles of respondeat superior.

Following discovery, the trial court granted Devereux’s motion for summary judgment dismissing all claims. The Appellate Division affirmed in part and reversed in part the trial court’s grant of summary judgment. Davis v. Devereux Found., 414 N.J.Super. 1, 17, 997 A.2d 273 (App.Div.2010). It affirmed the trial court’s determination that Devereux did not owe Davis a “non-delegable duty,” rejecting plaintiffs contention that such a duty was implicitly recognized by this Court in Frugis v. Bracigliano, 177 N.J. 250, 827 A.2d 1040 (2003), and Hardwicke v. American Boychoir School, 368 N.J.Super. 71, 845 A.2d 619 (App.Div.2003), aff'd as modified and remanded, 188 N.J. 69, 902 A.2d 900 (2006). Davis, supra, 414 N.J.Super. at 4-10, 997 A.2d 273. However, the Appellate Division reversed the trial court’s grant of summary judgment, holding that a reasonable jury could conclude that McClain acted in part within the scope of her employment. Id. at 12-16, 997 A.2d 273.

We affirm in part and reverse in part the Appellate Division’s determination. Although we reaffirm the duty of due care imposed upon caregivers with in loco parentis responsibilities to persons with developmental disabilities, we concur with the Appellate Division’s rejection of the “non-delegable duty” asserted by *278plaintiff. Applying the test for the existence of a duty set forth in Goldberg v. Housing Authority of Newark, 38 N.J. 578, 583, 186 A.2d 291 (1962), and Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 625 A.2d 1110 (1993), we conclude that the “non-delegable duty” at issue is not justified by the relationship among the relevant parties, required by the nature of the risk, warranted by the opportunity and ability to exercise care, or grounded in the public policy of our State. The imposition of liability for unexpected criminal acts of properly screened, trained and supervised employees would jeopardize charitable institutions that provide critical services for disabled citizens. We decline to expand New Jersey respondeat superior law beyond its traditional parameters.

We reverse the Appellate Division’s decision insofar as it held that the trial court’s grant of summary judgment on the issue of whether McClain acted within the scope of her employment was improper. We hold that no rational factfinder could find that McClain’s criminal assault on Davis was conducted within the scope of her employment. Accordingly, we hold that the trial court properly granted summary judgment.

I.

Devereux is a non-profit organization whose mission is to provide “services around the nation for persons with emotional, developmental and educational disabilities.” Devereux operates a facility in Bridgeton, New Jersey, called the Devereux New Jersey Center for Autism, which accepts residents pursuant to placements by the New Jersey Department of Human Services, Division of Developmental Disabilities.

In 2004, the job of a resident counselor at Devereux was to provide a resident with care, supervision and assistance with his or her daily routine. The work of the resident counselors was overseen by supervisors who prepared the residents’ schedules. Each resident was assigned to a counselor on a given day, and was required to comply with the activities set forth on the resident’s *279daily schedule. Resident counselors were required to document residents’ progress toward occupational objectives and other goals.

In accordance with its procedures, Devereux undertook a detailed screening process before hiring McClain as a resident counselor in 2002. It conducted a background check through the Statewide Criminal Felony and Misdemeanor Index and the New Jersey State Police fingerprint system, which revealed no criminal history. It obtained McClain’s driver’s abstract, which reflected no traffic violations. Devereux staff checked McClain’s references; a restaurant that had employed her stated that she had “quit without notification,” while a day-care center reported that she was a “very dependable,” “pleasant” and “good” worker well-suited to interact with children. A vocational teacher from McClain’s high school wrote a recommendation letter stating that McClain was an honor student, active in her church, and that her “dedication, work ethic and moral character” made her ideal for the care of Devereux’s residents. McClain provided her high school transcripts and underwent a physical examination, drug test and tuberculosis test, none of which revealed an impediment to her hiring. In short, Devereux conducted a thorough background investigation that revealed no hint of the violent episode to come.

Davis, almost nineteen years old on October 9, 2004, was diagnosed with autism, mental retardation, pervasive developmental disorder and attention deficit hyperactivity disorder. He was placed at Devereux’s Bridgeton facility by the Division of Developmental Disabilities in October of 1997, shortly before his twelfth birthday. In 2004, Davis was considered by Devereux counselors to be nonverbal, except for broken word fragments, and he relied upon a Picture Exchange Communications System to communicate with the staff. Davis was able to dress and feed himself, but was unable to administer his daily medications. He required constant supervision by Devereux counselors.

Prior to the October 9, 2004 incident, Davis had a history of aggression toward Devereux staff, which plaintiff characterized as *280“screaming, stomping, spitting and the occasional physical altercation.” Two such altercations involving McClain occurred shortly before the incident that gave rise to this case. According to Alex Williams, the Devereux program manager, on October 7, 2004, Davis kicked McClain and “had to be separated from her,” prompting McClain to “[lose] her cool” and to ask Williams, “[w]hat are you going to do about him?” According to Williams, the following day, Davis “attacked [McClain] in the basement of the house,” and had to be escorted upstairs by Williams and another Devereux staff member. Williams spent the remainder of that day with Davis, taking him out to dinner and to a football game.

The following morning, October 9, 2004, McClain was assigned to serve as Davis’s resident counselor for the day. Early that morning, just after arriving for her shift, McClain put a cup of water in the facility’s microwave and heated it. She then scalded Davis with the boiling water as he got out of bed. After burning him with the water, McClain directed Davis to take a shower. McClain pointed out Davis’s burns to another residential counsel- or, who recalled that she “turned to look at [McClain] because at this point I was in shock. I said something like how did this happen. She said what do we do?”

One of McClain’s co-workers then called the supervisor, Dale Smith, who was on his way to work, advising him that Davis had been burned and that it was an “emergency.” Neither McClain nor her co-workers summoned emergency assistance or took Davis to the hospital. When Smith arrived, he found Davis sitting in the residence’s living room with severe burns. McClain denied knowledge of the source of Davis’s injury. Smith immediately took Davis to Bridgeton Hospital, which promptly transferred him to a regional burn center. He was hospitalized for six days, and was treated for partial thickness burns to his hand, right leg, lower abdomen, pelvis and groin. He returned to Devereux with permanent scars.

Devereux suspended McClain and a co-worker without pay pending an internal investigation. The New Jersey State Police *281also investigated the incident. A November 2, 2004 interview of McClain conducted by the State Police includes McClain’s only account of her motive and actions in the record of this case. After initially denying involvement in Davis’s injury, McClain “admitted to causing the injuries to Roland [Davis] in a premeditated manner.” The State Police reported her statement as follows:

Ms. McClain related that she arrived for work at 7:10 A.M., went into the living [roomj and sat on the couch for a couple of minutes. She then went in to the kitchen, filled a cup with water and put the cup into the microwave. According to Ms. McClain, she boiled the water for one minute, and went upstairs to get Roland dressed for the day. She took the cup upstairs because she thought that Roland was going to kick her. Roland did not kick or attack her, but Ms. McClain stated she told Roland to get out of bed and poured the water on him anyway. Ms. McClain [then] stated, “I didn’t see him burnt, I told him to get into the shower, I was just mad.”

Asked by the State Police “why she was mad,” McClain “said she was angry because her boyfriend ‘Hoove’ was the victim of a homicide. ‘Hoove’ was shot six months ago in Bridgeton City, and [McClain] stated she has been angry since.”

Following her confession, McClain was arrested. She pled guilty to third-degree aggravated assault and second-degree bias intimidation and was sentenced to prison. McClain was incarcerated on December 16, 2005, and released on parole on June 16, 2008.

II.

Plaintiffs complaint, filed on October 4, 2006, asserted claims against Devereux for breach of a “non-delegable duty to protect the plaintiff from harm,” intentional infliction of emotional distress, negligent care and supervision of Davis, vicarious liability for the actions of McClain, and “wanton and willful disregard for the rights of the plaintiff’ warranting punitive damages. Plaintiff also sued McClain, who did not file an answer or participate in discovery. The parties did not conduct her deposition.1

*282After discovery, Devereux moved before the trial court for summary judgment. On February 26, 2009, the trial court granted Devereux’s summary judgment motion to the extent that the complaint asserted claims for negligence against Devereux, finding that those claims were barred under the CIA, and dismissed plaintiffs claim for punitive damages. However, the trial court denied the summary judgment motion with respect to plaintiffs allegation that Devereux should be held vicariously liable for the actions of its former employee. Relying upon Restatement (Second) of Agency § 219 (1958) (hereinafter Restatement), Hardwicke, supra, 188 N.J. at 102, 902 A.2d 900, the Developmental^ Disabled Rights Act (DDRA), N.J.S.A 30:6D-1 to -12, and N.J.A.C. 10:47-5.1(b), the court held that Devereux had a “nondelegable duty to prevent just the type of situation that occurred here.” The trial court did not reach the issue of whether McClain acted within the scope of her employment at Devereux.

Devereux moved for reconsideration, arguing that the imposition of a “non-delegable duty” was unsupported by New Jersey law. On May 18, 2009, the trial court granted Devereux’s motion for reconsideration, and granted summary judgment dismissing plaintiffs claims. The trial court distinguished case law decided under the Child Sexual Abuse Act (CSAA), N.J.S.A. 2A:61B-1, because the CSAA creates a civil remedy for failure to prevent the abuse addressed in that statute, while the DDRA provides no such remedy. The court concluded that New Jersey law does not compel the imposition of a “non-delegable duty” upon Devereux absent a legislative declaration expanding liability or a decision by this Court. The court accordingly granted summary judgment dismissing plaintiffs claims against Devereux.

Plaintiff appealed. The Appellate Division affirmed in part and reversed in part the trial court’s decision. Davis, supra, 414 N.J.Super. at 17, 997 A.2d 273. The Appellate Division panel affirmed the trial court’s determination that New Jersey law did not impose a “non-delegable duty” upon Devereux. The panel noted that this Court did not impose a “non-delegable duty” upon *283the defendant school board for the sexual misconduct of a teacher in Frugis, supra, 177 N.J. at 278-83, 827 A.2d 1040, but instead premised liability upon the board’s negligent supervision of the teacher. Davis, supra, 414 N.J.Super. at 5-6, 997 A.2d 273. The panel further rejected plaintiffs argument that in Hardwicke, supra, 188 N.J. at 100-02, 902 A.2d 900, this Court recognized a “non-delegable duty” on the part of the operators of a boarding school for sexual abuse of its students under Restatement § 219(c). Davis, supra, 414 N.J.Super. at 8-10, 997 A.2d 273.

The panel concluded that this case should be decided not by the creation of a new duty, but in accordance with established principles of respondeat superior, by which liability may be imposed on an employer if the employee’s intentional act is within the scope of employment. Id. at 12-16, 997 A.2d 273. Relying upon Gibson v. Kennedy, 23 N.J. 150, 128 A.2d 480 (1957), and Nelson v. American-West African Line, Inc., 86 F.2d 730 (2d Cir.1936), cert. denied, 300 U.S. 665, 57 S.Ct. 509, 81 L.Ed. 873 (1937), the Appellate Division panel reversed the trial court’s grant of summary judgment. The panel concluded that a rational factfinder could find that “McClain’s motives were at least mixed,” and that if avoidance of a violent outburst by Davis “to serve her employer was her intent, at least in part, her employer is liable under Gibson.’’ Davis, supra, 414 N.J.Super. at 16, 997 A.2d 273. The panel remanded the case to the trial court.

The Court granted plaintiffs petition and defendant’s cross-petition for certification. Davis v. Devereux Found., 205 N.J. 79, 12 A.3d 211 (2011); Davis v. Devereux Found., 205 N.J. 78, 12 A.3d 210 (2011).

III.

Plaintiff contends that “[ijnstitutions that stand in an in loco parentis relationship with those entrusted to [their] care have a heightened duty to protect them from harm, particularly from the intentional acts of [their] own personnel. That duty is of such importance that it must be considered to be non-delegable.” *284Plaintiff defines the “non-delegable duty” as a “duty to protect those in [Devereux’s] care from harm,” which particularly applies to the “intentional acts of its own personnel.” Plaintiff argues that the “non-delegable duty” obviates the need to prove that the acts at issue were within the scope of McClain’s employment. She cites the public policy of New Jersey favoring “protecting the mentally ill and developmentally disabled from abuse or mistreatment, to which they are particularly vulnerable, often being without the knowledge, ability, or resources to protect or vindicate their civil rights,” Fees v. Trow, 105 N.J. 330, 338, 521 A.2d 824 (1987), and the Legislature’s purpose in enacting the DDRA, N.J.S.A. 30:6D-5a(l) and -9.

Plaintiff contends that in Hardwicke, supra, 368 N.J.Super. at 104-05, 845 A.2d 619, and J.H. v. Mercer County Youth Detention Center, 396 N.J.Super. 1, 18, 930 A.2d 1223 (2007), the Appellate Division applied a “non-delegable duty.” She argues that in Hardwicke, supra, 188 N.J. at 102, 902 A.2d 900, this Court implicitly imposed a “non-delegable duty” notwithstanding its reliance on two cases that rejected such a duty, Lehmann v. Toys ‘R’ Us, Inc., 132 N.J. 587, 626 A.2d 445 (1993), and Abbamont v. Piscataway Township Board of Education, 138 N.J. 405, 650 A.2d 958 (1994). Plaintiff also relies upon the use of the term “nondelegable duty” by New Jersey courts in various contexts. Accordingly, plaintiff urges the Court to reverse the determination of the Appellate Division rejecting the imposition of a “non-delegable duty” upon Devereux.

Addressing the established test of respondeat superior, plaintiff contends that McClain committed her assault on Davis within the scope of her employment. Plaintiff argues that McClain “was certainly within the time and space limitations of her employment at Devereux and she was tending to [Davis] which was what she was employed to do.” She contends that because of Davis’s history of “aggressive and combative behavior,” McClain feared that Davis would kick her, and that McClain’s “wrong and prohibited” assault was in part undertaken in furtherance of her job *285duties. Plaintiff argues that the Appellate Division properly denied summary judgment on this issue.

Devereux opposes the imposition of a “non-delegable duty” upon institutions charged with the care of residents with developmental disabilities to prevent intentional harm committed by their employees. Devereux contends that the “non-delegable duty” invoked by plaintiff amounts to absolute liability, and that plaintiff conceded that point before the Appellate Division. It distinguishes Hardwicke, supra, 368 N.J.Super, at 86-94, 845 A.2d 619, and J.H., supra, 396 N.J.Super, at 16-18, 930 A.2d 1223, on the grounds that the duties imposed in those cases derive from the CSAA, which imposes statutory “passive abuser” liability upon persons with in loco parentis status who are aware of sexual abuse and permit it to occur, and that the abuse at issue in both cases was pervasive and sustained. Devereux acknowledges one “non-delegable duty”: a duty to use reasonable measures to protect those in its care from foreseeable harm. It contends that it fully satisfied this duty because it used due care and the actions of McClain were unforeseeable.

Devereux urges reversal of the Appellate Division’s determination that summary judgment should be denied with respect to the issue of whether McClain acted within the scope of her employment when she assaulted Davis. It contends that the record establishes the unforeseeability of McClain’s violent attack on Davis, given her background and employment history. Devereux argues that “[t]he nature of the act itself was so severe, so shocking and so utterly antithetical, not only to Devereux’s interests, but to its entire reason for being,” that it falls far beyond the boundaries of her employment responsibilities.

Devereux argues that even if the Court limits the scope of its analysis to McClain’s motives, summary judgment is proper given the absence of evidence that McClain’s act was intended to serve the interests of her employer. It distinguishes Gibson, supra, 23 N.J. at 157-59, 128 A.2d 480, and Nelson, supra, 86 F.2d at 731-32, on the ground that both cases concerned supervisory employ*286ees involved in altercations while “trying, however misguidedly, to serve the master.” Devereux contends that no rational factfinder could find it liable under the current standard of New Jersey respondeat superior law.

Amicus curiae Disability Rights New Jersey advocates the imposition of a “non-delegable duty” upon Devereux and other residential institutions for people with developmental disabilities. Amici curiae Community Health Law Project and The Arc of New Jersey state that there is a high incidence of abuse of people with developmental disabilities in residential settings, citing publications using national data, and noting the difficulty of obtaining data regarding such abuse in New Jersey. Amici do not argue for a “non-delegable duty,” but contend that McClain’s abuse of Davis was foreseeable and that Devereux failed to take reasonable measures to prevent it. Amici curiae Survivors Network for those Abused by Priests and the National Child Protection Training Center argue for the imposition of a “non-delegable duty” upon “any governing institution that cares for children.” Amici state that when a duty is non-delegable, the defendant’s exercise of reasonable care is irrelevant.

IV.

We review the trial court’s grant of summary judgment under the standard of Rule 4:46-2, which warrants summary judgment if the court finds, viewing the facts in the light most favorable to the non-moving party, that there are no genuinely disputed issues of fact. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540, 666 A.2d 146 (1995). The Court must consider whether the competent evidential materials presented, viewed in the light most favorable to the non-moving party in consideration of the applicable evidentiary standard, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party. Id. at 540, 666 A.2d 146. Review of an order granting summary judgment is de novo; the appellate court need not accept the trial court’s findings of law. Aronberg v. *287Tolbert, 207 N.J. 587, 597, 25 A.3d 1121 (2011); see also Manalapan Realty, L.P. v. Manalapan Twp. Comm., 140 N.J. 366, 378, 658 A.2d 1230 (1995).

V.

The doctrine of respondeat superior (“let the superior make answer,” Black’s Law Dictionary 1426 (9th ed.2009)) originated in the seventeenth-century common law of England, based upon the concept “that one who would manage his or her affairs through others is obligated to third persons damaged by such others acting in the course of their employment.” 1 J.D. Lee & Barry A. Lindahl, Modern Tort Law: Liability and Litigation § 7.2 (West 2000).2 Respondeat superior has long been part of New Jersey law. See, e.g., Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 771, 563 A.2d 31 (1989); Di Cosala v. Kay, 91 N.J. 159, 168-69, 450 A.2d 508 (1982); Gilborges v. Wallace, 78 N.J. 342, 351-52, 396 A.2d 338 (1978); Klitch v. Betts, 89 N.J.L. 348, 351, 98 A. 427 (E. & A.1916). The respondeat superior standard thus focuses the Court on the relationship between the employee’s job responsibilities and his or her tortious conduct.

Both parties invoke Restatement § 219, cited by this Court in Hardwicke, supra, 188 N.J. at 101-02, 902 A.2d 900, and Lehmann, supra, 132 N.J. at 619-20, 626 A.2d 445. It states:

(1) A m3st.Gr is subject, to liability for the torts of his servants committed while acting in the scope of their employment.

(2) A master is not subject to liability for the tori.s of his servants acting outside the scope of their employment, unless:

(a) the master intended the conduct or the consequences, or

(b) the master was negligent or reckless, or

(c) the conduct violated a non-delegable duty of the master, or

*288(d) the servant purported to act or to speak on behalf of the principal and there was reliance upon apparent authority, or he was aided in accomplishing the tort by the existence of the agency relation.

[Restatement, supra, § 219.] 3

The Court considers two issues: whether New Jersey law imposed upon Devereux a “non-delegable duty” to prevent McClain’s assault upon Davis within the meaning of Restatement § 219(2)(c), and whether a rational factfinder could find that McClain’s violent conduct was within the scope of her employment under Restatement § 219(1).

Restatement § 214, cited by plaintiff, defines the “non-delegable duty” of a principal for the acts of its agent as follows:

A master or other principal who is under a duty to provide protection for or have care used to protect others and who confides the performance of such duty to a servant or other person is subject to liability to such others for harm caused to them by the failure of such agent to perform the duty.

[Restatement, supra, § 214.]

That duty “is not satisfied by using care to delegate its performance to another but is satisfied if, and only if, the person to whom the work of protection is delegated is careful in giving the protection.” Id. § 214 cmt. a.

The duty asserted by plaintiff diverges from traditional concepts of employer liability in two critical respects. First, in contrast to the “scope of employment” standard, which turns on the parameters of the employment relationship, the duty urged here derives from the relationship between the employer and the person to whom the duty is owed. It is imposed because it is of extraordinary importance to the public. Davis, supra, 414 N.J.Super. at 10, 997 A.2d 273; Great N. Ins. Co. v. Leontarakis, 387 N.J.Super. 583, 592, 904 A.2d 846 (App.Div.2006).

*289Second, the duty imposed on the employer cannot be satisfied by the employer’s exercise of reasonable care. Only the employee’s due care can ensure that the employer’s duty is satisfied. When such duty is imposed, “the employer’s use of care is irrelevant.” Davis, supra, 414 N.J.Super. at 6, 997 A.2d 273 (citing Majestic Realty Assoc., Inc. v. Toti Contracting Co., 30 N.J. 425, 439, 153 A.2d 321 (1959)); see also Restatement, supra, § 214 cmt. a. Measures taken by the employer to guard against intentional harm by employees—careful review of an applicant’s educational and employment history, a thorough background check, probing interviews, meticulous training and exemplary supervision—would offer no defense to liability in the presence of the “non-delegable duty.” Once an employee has committed a tortious act, the duty would effectively impose absolute liability upon residential institutions. Restatement, supra, § 214 cmt. a. The duty would thus represent a significant expansion of New Jersey tort law, at the expense of charitable organizations and other providers of essential services to people with developmental disabilities.

VI.

As the Appellate Division correctly determined, this Court has consistently applied traditional principles of due care and foreseeability to cases involving in loco parentis relationships, rather than adopting a “non-delegable” or absolute duty such as that urged by plaintiff here. Davis, supra, 414 N.J.Super. at 10-12, 997 A.2d 273. In Frugis, addressing the liability of a board of education for a school principal’s sexual abuse of students, the Court clearly articulated a standard grounded in a duty of reasonable care:

No 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. Although the overarching mission of a board of education is to educate, its first imperative must be to do no harm to the children in its care. A board of education must take reasonable measures to assure that the teachers and administrators who stand as surrogate *290parents during the day are educating, not endangering, and protecting, not exploiting, vulnerable children.

[Frugis, supra, 177 N.J. at 268, 827 A.2d 1040.]

In Frugis, liability was premised upon the Board’s deviation from the standard of reasonable care in the supervision of the school principal; the Court noted that the Board “failed to implement effective rudimentary reporting procedures that would have informed it of [the principal’s] misconduct,” and “grossly disregarded critical information, either in its hands or easily accessible, that called for scrutiny of [the principal’s] activities.” Id. at 270, 827 A.2d 1040. Frugis, in which the CIA did not apply, confirms that the in loco parentis institution is held to a duty of due care, not absolute liability as is claimed here.

In Hardwicke, the Appellate Division and this Court considered the liability of a private school for an employee’s sexual abuse of students boarding at the school. Hardwicke, supra, 188 N.J. at 75-79, 902 A.2d