The New Jersey Supreme Court has rejected a broad expansion of the concept of non-delegable duty which was sought to be imposed in a case involving an assault on a developmentally disabled resident of a non-profit residential home. The plaintiff, a nineteen year old with autism and other disabilities, was scalded by boiling hot water thrown on him by a counselor at the facility. The counselor was criminally prosecuted for third degree aggravated assault and second degree bias intimidation and pled guilty.

As a non-profit organization, the residential home for developmentally disabled was immune from all negligence claims under the New Jersey Charitable Immunity Act. N.J.S.A. 2A:53A-7. Thus, the plaintiff sought to expand liability on a theory of non-delegable duty to those standing in loco parentis for the acts of its employees. This expansion would have included absolute liability even for intentional and criminal acts done outside the scope of the employment authority.

The plaintiff was joined by various amici who jointly argued for this expansion of liability to settings that could include a broad range of organizations. In carefully analyzing these arguments, the Supreme Court expressed concern that such a broadened scope of duty could then be imposed on a variety of institutions such as schools, hospitals, nursing homes, assisted living facilities, day care centers, etc.

The Court found that such an expansion was unwarranted where the existing law of reasonable care adequately addresses the standard of care. The downside for imposing absolute liability for unforeseeable intentional acts of employees weighed against such a step. Ultimately the court feared such liability expansion could jeopardize the existence of such facilities and increase costs already incurred by families, residents and the State.

In Davis v. Devereux, the Court found that the residential facility had properly vetted the employee prior to hiring, that it had no indication that the employee would commit such an act, and that the act was not done in furtherance of any job responsibilities given to the employee. The Supreme Court upheld summary judgment that had been granted by the trial court since no rational factfinder could have concluded the scalding was done in the scope of employment.

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