WANDA BROACH-BUTTS VS. THERAPEUTIC ALTERNATIVES, INC. (L-2746-13, CAMDEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0755-16T2

WANDA BROACH-BUTTS,
Administratrix of the Estate
of THEOTIS BUTTS, deceased,
and WANDA BROACH-BUTTS, in
her own right,
APPROVED FOR PUBLICATION
Plaintiffs-Appellants, August 13, 2018

and APPELLATE DIVISION

KHALIA BUTTS, CANDICE
BUTTS, and FORES BUTTS,

Plaintiffs,

v.

THERAPEUTIC ALTERNATIVES, INC.,
d/b/a COMMUNITY TREATMENT
SOLUTIONS, DREW BARRETT,
JENNIFER LAWSON, and JENN HESS,

Defendants-Respondents,

and

DIVISION OF CHILD PROTECTION
AND PERMANENCY, DEPARTMENT OF
CHILDREN AND FAMILIES, STATE
OF NEW JERSEY, FAMILY SERVICES
ASSOCIATION, SEQUEL CAMELOT
HOLDINGS, LLC, and SEQUEL OF NEW
JERSEY, INC., d/b/a CAPITAL
ACADEMY,

Defendants,

and
PERFORMCARE,

Defendant/Third-Party
Plaintiff,

and

D.M.,

Third-Party Defendant-
Respondent.
__________________________________

Submitted October 30, 2017 – Decided August 13, 2018

Before Judges Sabatino, Ostrer and Whipple
(Judge Sabatino concurring).

On appeal from Superior Court of New Jersey,
Law Division, Camden County, Docket No. L-
2746-13.

Anapol Weiss, attorneys for appellants
(Lawrence R. Cohen and David J. Carney, on
the briefs).

Naulty, Scaricamazza & McDevitt, LLC,
attorneys for respondent Therapeutic
Alternatives, Inc., Drew Barrett, Jennifer
Lawson and Jenn Hess (Michael J. Follett, on
the brief).

Daniel E. Somers, attorney for respondent
D.M.

The opinion of the court was delivered by

OSTRER, J.A.D.

Plaintiffs Wanda Broach-Butts and the estate of her late

husband, Theotis (Ted) Butts, allege that defendant Therapeutic

Alternatives, Inc., a private social service agency, negligently

placed a troubled and dangerous child, D.M., then over fourteen

2 A-0755-16T2
years old, in the therapeutic foster home Wanda and Ted

operated, and failed to adequately warn them of D.M.'s history

of dangerous behavior.1 Plaintiffs claim that defendant's

negligent placement and failure to warn created an ultimately

deadly relationship between them and D.M. Fifteen months after

D.M. left plaintiffs' home, he returned and killed Ted.

We conclude that defendant owed a duty to plaintiffs to

exercise reasonable care in placing D.M. in plaintiffs' home,

and to reasonably disclose D.M.'s background to enable them to

make an informed decision whether to accept him. Whether

defendant breached that duty, and whether that breach

proximately caused the harm that followed, are questions for the

jury. We therefore reverse the trial court's order granting

summary judgment, dismissing plaintiffs' complaint against

Therapeutic Alternatives.2

1
We intend no disrespect in utilizing first names for
convenience. We will also refer to Wanda and Ted jointly as
"plaintiffs" when addressing matters that preceded Ted's death.
Although the summary judgment order also dismissed the claims of
Wanda's and Ted's children, they are not parties to the appeal.
2
The order also dismissed claims against three individuals
allegedly involved in handling D.M.'s case. Although plaintiffs
appealed from the entire order, they addressed in their brief
only their claims against Therapeutic Alternatives. We
therefore deem any appeal regarding the three alleged workers to
be abandoned. See Grubb v. Borough of Hightstown, 353 N.J.
Super. 333, 342 n.1 (App. Div. 2002). Furthermore, plaintiffs
did not directly sue D.M. He was only named as a third-party
(continued)

3 A-0755-16T2
 I.

We view the facts in a light most favorable to plaintiffs.

Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536

(1995). D.M. resided in plaintiffs' home between July 2009 and

April 2010. He was removed from the home at plaintiffs'

request. The removal was prompted by instances of eloping,

possessing "R" rated movies, bringing four girls into the home

without permission, and possessing a prescription medication

that was not prescribed for him, apparently to resell. He

returned to institutional settings unaffiliated with defendant,

and continued to engage in aggressive and erratic behaviors,

including acts of delinquency that resulted in contacts with the

juvenile justice system.

During the months after his removal, D.M. repeatedly

returned to burglarize plaintiffs' home. He returned for a

third time fifteen months after his removal. By that time,

there were active warrants for his arrest. D.M. intended to

flee to Florida, using the fruits of his burglary. But, on this

third occasion, he happened upon Ted, who told him to leave the

(continued)
defendant by another defendant-entity, Performcare, which was
dismissed with prejudice, along with the Division of Child
Protection and Permanency (Division), and other entities.
Plaintiffs did not appeal those prior dismissal orders. We
refer to Therapeutic Alternatives, Inc. as "defendant."

4 A-0755-16T2
home. D.M. grabbed a kitchen knife and stabbed Ted twenty-five

times and killed him.

Although plaintiffs were aware that D.M. was a troubled

youth — all children placed in their therapeutic home were —

defendant withheld significant information about D.M. Defendant

did not disclose D.M.'s psychological assessments; the incidents

of abuse and neglect by his own parents; the murder of his

mother; multiple ill-fated placements; an incident of arson

involving a previous foster parent's property; assaults of other

foster parents; threats of self-harm; and several instances of

terroristic threats, such as to kill with weapons, which he made

against multiple targets, including foster parents, a foster

child, and a teacher.

In particular, D.M. twisted the arm of one foster mother.

He threatened a psychological worker with a baseball bat. He

threatened to blow up a school and kill a teacher. He

threatened to break a glass over another foster mother who stood

in D.M.'s way, as he tried to reach a knife. The same foster

mother reported that D.M. attempted to kill himself and another

foster child with a knife, and threatened to burn down the home

and kill everyone inside. Plaintiffs were also not made aware

that immediately before D.M.'s placement in their home, a

clinician for another Division contractor recommended that D.M.

5 A-0755-16T2
laterally move to another residential treatment center from the

one that discharged him for impulsive and unsafe behaviors.

Plaintiffs allege that had defendant adequately disclosed

D.M.'s background, they would have rejected his placement,

preventing the subsequent homicide. They supplied expert

opinions that the placement of D.M. in a foster home, even a

therapeutic one, and the failure to inform plaintiffs of D.M.'s

dangerous background, violated governing standards of care. One

expert opined that the records reflected that D.M. should not

have been placed in a foster home and the "community needed to

be protected from him. His aggressive, assaultive behaviors

started early and did not change. The professional evaluations

were numerous and consistently predicted the danger that he

posed to others."

Defendant contends that it was obliged to comply with the

State's "no eject, no reject" policy, which required it to

accept all referrals.3 Defendant also contends that plaintiffs

3
See N.J.A.C. 10:73-3.11. A policy and procedure manual of
defendant states that while it "maintains a 'no reject, no
eject' policy," some clients may be discharged from the shelter
program for "behaviors [that] are not sustainable in the
treatment home" such as breaking the law or conditions of
release, physical violence to treatment home residents, and
"runaway behavior or other actions [that] compromise the well-
being of other clients." Even if defendant owed a duty to
accept all referrals from the Division, defendant does not rely
on a contractual provision or regulation that similarly bound
(continued)

6 A-0755-16T2
knew D.M. was troubled; he was incarcerated when Wanda first

talked to him. Wanda had advanced degrees in nursing, and

experience working in the mental health field. She and her

husband reported that D.M. was never violent or disrespectful

during his placement. Defendant also had no knowledge of D.M.'s

increasingly erratic behavior and criminal arrests after he left

plaintiffs' home.

After discovery, the trial court granted defendant's motion

for summary judgment. In a brief oral opinion, the trial court

held that defendant lacked a duty to warn plaintiffs about the

dangerous behavior and acts of delinquency that D.M. committed

in the months following his removal from their home.

II.

Exercising de novo review, see Henry v. N.J. Dep't of Human

Servs., 204 N.J. 320, 330 (2010), we conclude the trial court

erred.

As a threshold matter, the trial court misperceived the

nature of plaintiffs' claims. Plaintiffs do not contend that

(continued)
plaintiffs. We note, however, that the contract between
defendant and plaintiffs, as "Provider," states, "Provider
understands that a Client [a foster child] is assigned to the
Home and that Provider does not 'choose' a Client." Once a
child was placed, plaintiffs were required to give thirty days'
notice if they were no longer able to care for the child, and to
confer with defendant "[i]f the Provider feels unable to provide
care to a Client . . . ."

7 A-0755-16T2
defendant had a continuing duty to warn plaintiffs about D.M.

after he left their home. Rather, they contend defendant had a

duty, before D.M.'s initial placement, to exercise reasonable

care in determining whether he was suited for plaintiffs' home,

and to reasonably inform plaintiffs about D.M.'s history. The

crux of the case is whether defendant had such a duty; whether

defendant breached that duty; and whether that breach

proximately caused Ted's death and other alleged damages. See

Jersey Cent. Power & Light Co. v. Melcar Util. Co., 212 N.J.

576, 594 (2013) (stating a negligence action requires proof of

"(1) a duty of care, (2) a breach of that duty, (3) actual and

proximate causation, and (4) damages").4

A.

We first consider the issue of duty. The existence and

scope of a duty are legal questions. Peguero v. Tau Kappa

Epsilon Local Chapter, 439 N.J. Super. 77, 88 (App. Div. 2015).

Whether a duty exists "involves identifying, weighing, and

balancing several factors — the relationship of the parties, the

nature of the attendant risk, the opportunity and ability to

4
Plaintiffs' expert further opined that defendant failed to
provide adequate services and information during D.M.'s stay in
the foster home. However, plaintiffs do not argue before us
that their damages were caused by a breach of duty to provide
essential services while D.M. was placed in the home, or to
remove D.M. sooner than it did. We therefore do not address
such potential duties.

8 A-0755-16T2
exercise care, and the public interest in the proposed

solution." Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439

(1993). "The '[a]bility to foresee injury to a potential

plaintiff' is 'crucial' in determining whether a duty should be

imposed." J.S. v. R.T.H., 155 N.J. 330, 338 (1998) (quoting

Carter Lincoln-Mercury, Inc. v. EMAR Group, Inc., 135 N.J. 182,

194 (1994)). "Whether a duty exists is ultimately a question of

fairness." Goldberg v. Housing Auth. of Newark, 38 N.J. 578,

583 (1962).

Although we are unaware of any New Jersey case directly on

point, our Court has held that a person may owe a duty of care

to the victim of another person's intentional wrongs. In J.S.,

155 N.J. at 352, the Court held that "when a spouse has actual

knowledge or special reason to know of the likelihood of his or

her spouse engaging in sexually abusive behavior against a

particular person or persons, a spouse has a duty of care to

take reasonable steps to prevent or warn of the harm." The

Court has also recognized that landowners may owe a duty to

protect their invitees from a third-party's wrongful or criminal

acts. In Clohesy v. Food Circus Supermarkets, Inc., 149 N.J.

496, 519-20 (1997), the Court held that a supermarket owed a

duty, under the circumstances, to provide its customer with

"some measure of security" in the parking lot, where it was

9 A-0755-16T2
reasonably foreseeable the customer could suffer injury as a

result of a third party's criminal acts. In that case, a woman

was kidnapped from the supermarket parking lot and killed. See

also Butler v. Acme Markets, Inc., 89 N.J. 270 (1982).

We have no difficulty holding that a social service agency

like Therapeutic Alternatives, which places troubled youths into

foster homes, owes foster parents a duty to exercise reasonable

care in placing a child, and to reasonably disclose a child's

background to enable them to make an informed decision whether

to accept the child. The common law must adapt to establish

duties that "meet an ever-changing society's needs." G.A.-H. v.

K.G.G., ___ N.J. Super. ___, ___ (App. Div. 2018) (slip op. at

7) (considering whether a duty is owed by a defendant who knew

or had reason to suspect a co-worker sexually abused a minor).

Indeed, defendant "acknowledges it had a duty to the Butts[es]"

– without defining its scope – "during the nine months D.M. was

placed in the home." Having conceded it had a duty, defendant

instead contends the placement was not a proximate cause of

Ted's death (an issue we address below), and defendant had no

duty after D.M. left the home.

The duty to exercise reasonable care in placement and to

adequately warn, arises from the totality of the circumstances.

See Clohesy, 149 N.J. at 514 (stating that our courts "have

10 A-0755-16T2
consistently applied the totality of the circumstances rule when

determining the existence and scope of duty"). The placement

agency has a direct relationship with the foster parents. 5 The

parents likely rely upon the agency's judgment to assure the

placement is reasonably appropriate in light of the child's

needs and challenges, and the parents' resources and

capabilities. The parents also rely upon the agency to

adequately disclose the background and needs of the prospective

foster child, both so they can decide whether they want to

proceed, and so they can best address the child's needs once

placed.

Furthermore, the agency has a direct relationship with the

child it places, and is privy to details about the child that

the foster parents are not. See G.A.-H., ___ N.J. Super. at ___

(slip op. at 9-10) (considering "the scope of the relationship

between the abuser and the targeted defendant" and stating that

"the parties' relationships and the extent to which the

defendant had access to or otherwise possessed knowledge of the

5
Notably, plaintiffs do not assert that the duty arises out of
the contract – although their contract with defendant required
defendant to "communicate to Provider pertinent information
regarding Client(s) to be placed in the Home." Nor does
defendant point to a contractual provision that purports to
absolve them of liability. Therefore, we do not address
contractual grounds for liability, or the viability of contract-
based defenses. Similarly, neither party contends that a State
law or regulation governs the nature of defendant's duty.

11 A-0755-16T2
abuser's conduct" may justify imposing a duty). While some

placements will ultimately prove unsuccessful, even tragically

so, we perceive no reason why an agency would be incapable of

exercising reasonable care in the process, and making reasonable

disclosures.

One need not foresee a homicide to recognize that harmful

consequences are a foreseeable outcome of a failure to exercise

reasonable care in placement, and a failure to reasonably

disclose information about a foster child's violent

propensities. Defendant was aware of a specific history of

multiple violent acts and threats of violence by D.M. 6 Whether

defendant in this case could foresee the specific harm that

befell plaintiffs, fifteen months after D.M.'s removal, is

relevant to the issue of proximate cause, which we discuss

below. See Clohesy, 149 N.J. at 502-03 (distinguishing between

"[f]oreseeability as a determinant of a business owner's duty of

care to its customers" and "foreseeability as a determinate

whether a breach of duty is a proximate cause of an ultimate

injury"). However, recognition of the duty depends upon the

general foreseeable risk that harm could befall the foster

6
That specific knowledge of past behavior distinguishes this
case from Pequero, for example, where we held that a fraternity
did not owe a duty to the victim of a shooting at a fraternity
party, in significant part because the risk of gunfire was not
reasonably foreseeable. 439 N.J. Super. at 93-94.

12 A-0755-16T2
family or the child if reasonable care were not taken in placing

a child, and in adequately informing the foster parents.7

We do not imply that an agency's duty is boundless. Yet,

as a matter of public policy, the exercise of reasonable care in

placement and disclosure has the salutary effect of protecting

both foster parents and foster children. We recognize that

imposing a duty and potential civil liability on an agency like

defendant may deter some agencies from assisting the Division in

placing children. On the other hand, absent such a duty, some

potential foster parents may be deterred from offering

themselves as caregivers to children in need.

B.

Persuasive authority in other jurisdictions supports our

conclusion that a duty exists. In Johnson v. State of

California, 447 P.2d 352 (Cal. 1968), a foster child assaulted

the foster mother, who contended that state officials failed to

disclose the child's violent tendencies. "As the party placing

the youth with [the foster mother], the state's relationship

. . . was such that its duty extended to warning of latent,

7
We acknowledge the possibility that a troubled foster child
might also injure someone, or damage property, outside the
foster home. We do not reach the question of a placement
agency's duty to such a third-party victim. But see Sonya A.
Soehnel, "Governmental tort liability for social service
agency's negligence in placement, or supervision after placement
of children," 90 A.L.R.3d 1214 (2017).

13 A-0755-16T2
dangerous qualities suggested by the [child's] history or

character." Id. at 355. The court found "the state owed a duty

to inform [the foster mother] of any matter that its agents knew

or should have known that might endanger the [foster parents'

family] . . . ." Ibid. The duty to disclose "certainly would

have included 'homicidal tendencies, and a background of

violence and cruelty' as well as the youth's criminal record."

Ibid.8

Like this case, Snyder v. Mouser, 272 N.E.2d 627, 635 (Ind.

Ct. App. 1971), involved a foster mother's claim that a social

welfare agency negligently failed to warn that their foster

child had "homicidal propensities," which led him to kill her

husband. In reversing the trial court's dismissal, the

appellate court rejected the agency's argument that it "had no

duty to disclose to decedent the child's known dangerous

propensities, because no statute impose[d] that duty." Id. at

634. The court also rejected a claim that the child's records

were privileged. Ibid. The court found it difficult to fathom

"how it would be a violation of any confidence or privilege to

8
The court recognized that its broadly stated duty "may be
subject to some qualification — for example, in cases in which
sufficiently important policy objectives, achievable only by
silence, outweigh the obvious interest in cautioning persons
exposed to danger." Id. at 355 n.2. As the state had not
offered such a justification for its silence, the court did not
address the matter further.

14 A-0755-16T2
tell . . . prospective foster parents, everything about the

foster child which might be reasonably calculated to affect his

and their safety and well being while living together in the

relationship of parent and child." Ibid.

Haselhorst v. State, 485 N.W.2d 180 (Neb. 1992), involved

an appeal from a bench-trial verdict for damages after a foster

child sexually assaulted the foster parents' natural children.

The court affirmed the trial court's finding that the state owed

a duty to disclose the child's psychological profile. Id. at

186. In violation of the placement agreement entered into

between the foster agency and the foster parents, the state

agency failed to obtain records of the child's hospitalization

after he attacked his mother several times, and once threatened

to knife her, when she was pregnant, to kill her expected child.

Id. at 184.

In Savage v. Utah Youth Village, 104 P.3d 1242, 1250 (Utah

2004), the Utah Supreme Court recognized a cause of action for

negligent placement brought by foster parents after a foster

child sexually assaulted their three-year-old natural child.

Although the foster parents agreed to foster a child who

committed a sexual offense, they alleged that defendant, a

private placement agency, negligently placed the child in their

home after failing to warn them of the foster child's prior

15 A-0755-16T2
record of "serious sexual deviancy" and "habitual molestation of

young children." Id. at 1246. The court held, "Placement

agencies such as [defendant] have a special duty to prevent

abuse to and by the children they place in foster homes." Id.

at 1247. It also was reasonably foreseeable that a child with a

"known history of sexually abusing young children might sexually

abuse again if placed in a home with young children." Id. at

1246. The "duty to notify the [foster parents] of [the foster

child]'s past behavior" was not "too burdensome when weighed

against the potential harm of continued sexual abuse." Id. at

1246-47.

In sum, we are persuaded that defendant owed a duty to

plaintiffs to exercise reasonable care in placing a foster child

in their home. They also had a duty to inform plaintiffs of a

prospective placement's prior history, to enable plaintiffs to

make an informed decision as to whether they wished to accept

the child into their home.

C.

We return to the issue of proximate cause. Defendant

contends that the homicide, which occurred fifteen months after

D.M. left the home, was simply too remote and unforeseeable.

"Ordinarily, issues of proximate cause are considered to be jury

questions." Perez v. Wyeth Labs. Inc., 161 N.J. 1, 27 (1999)

16 A-0755-16T2
(quoting Garrison v. Twp. of Middletown, 154 N.J. 282, 308

(1998) (Stein, J., concurring)); Cruz-Mendez v. Isu/Insurance

Servs., 156 N.J. 556, 576 (1999); J.S., 155 N.J. at 351;

Goldberg, 38 N.J. at 604. However, a court may decide the issue

as a matter of law where "no reasonable jury could find that the

plaintiff's injuries were proximately caused . . . ." Vega by

Muniz v. Piedilato, 154 N.J. 496, 509 (1998).

Proximate cause is "a 'cause which in the natural and

continuous sequence, unbroken by an efficient intervening cause,

produces the result complained of and without which the result

would not have occurred.'" Cruz-Mendez, 156 N.J. at 575

(quoting Daniel v. Dep't of Transp., 239 N.J. Super. 563, 595

(App. Div.), aff'd o.b., 79 N.J. 547 (1979)). It is not enough

that the injury would not have occurred but for the defendant's

negligence, where there are other contributing causes of the

injury. A plaintiff must show that the negligence was a

"substantial factor" contributing to the result. See Komlodi v.

Picciano, 217 N.J. 387, 422 (2014) ("[T]he 'substantial factor'

test is given when there are concurrent causes potentially

capable of producing the harm or injury."); Verdicchio v. Ricca,

179 N.J. 1, 24-25 (2004). "A substantial factor is one that is

'not a remote, trivial or inconsequential cause.'" Komlodi, 217

N.J. at 423 (quoting Model Jury Charge (Civil) § 6.13,

17 A-0755-16T2
"Proximate Cause – Where There is Claim that Concurrent Causes

of Harm are Present and Claim that Specific Harm was Not

Foreseeable" (approved May 1998)).

Foreseeability is a factor in determining proximate cause.

However, it is not essential. "If the actor's conduct is a

substantial factor in bringing about harm to another, the fact

that the actor neither foresaw nor should have foreseen the

extent of the harm or the manner in which it occurred does not

prevent him [or her] from being liable." Restatement (Second)

of Torts § 435(1) (Am. Law Inst. 1965). Proximate cause "fixes

a point in a chain of events, some foreseeable and some

unforeseeable, beyond which the law will bar recovery." People

Express Airlines, Inc. v. Consolidated Rail Corp., 100 N.J. 246,

264 (1985) (emphasis added).

On the other hand, "[t]he actor's conduct may be held not

to be a legal cause of harm to another where after the event and

looking back from the harm to the actor's negligent conduct, it

appears to the court highly extraordinary that it should have

brought about the harm." Restatement (Second) of Torts §

435(2); see also J.S., 155 N.J. at 352. In Caputzal v. Lindsay

Co., 48 N.J. 69, 78-79 (1966), the Court relied on § 435(2) in

holding as a matter of law no liability for a plaintiff's heart

18 A-0755-16T2
attack prompted by fear of poisoning by discolored water because

it was "so highly extraordinary a result . . . ."

Defendant argues that D.M.'s homicide of Ted was so

unforeseeable and remote in time that we should hold as a matter

of law that any breach of duty regarding placement or disclosure

was not a proximate cause. We decline to do so.

A jury can make the following findings essential to

plaintiffs' claims: defendant breached its duty of care in

placing D.M. and making inadequate disclosure; but for that

breach, plaintiffs would not have accepted D.M. into their home;

the subsequent homicide would never have occurred; and

defendant's breach was a significant factor in the chain of

causation. We do not think the attack of Ted was so "highly

extraordinary" under the circumstances that we should find

proximate cause absent as a matter of law.

D.M. was a child who never had a stable family. A

reasonable jury could find it foreseeable that D.M. would form a

bond with plaintiffs that would lead him to return time and

again during the fifteen months following his removal. Put

another way, the remoteness in time of D.M.'s attack was

tempered by his two prior burglaries of the home. A jury could

reasonably find that the ties that defendant established between

D.M. and plaintiffs were never fully severed.

19 A-0755-16T2
 We acknowledge that the injuries in otherwise comparable

cases occurred more closely in time with the foster child's

placement than occurred here. See Snyder, 272 N.E.2d at 628

(noting that "[w]hile living in the Snyder home the ward shot

and killed Mr. Snyder"); Johnson, 447 P.2d at 354 (explaining

that the foster child's assault of the foster mother was five

days after the foster child was placed in the home). However,

"'[p]roximate cause connotes not nearness of time or distance,

but closeness of causal connection.'" Cruz-Mendez, 156 N.J. at

577 (quoting Powers v. Standard Oil Co., 98 N.J.L. 730 (Sup. Ct.

1923)).

Nor was it unforeseeable that D.M. would react with

violence when Ted confronted him. D.M. had an extensive history

of erratic, aggressive and violent behavior. In any event, it

is not essential that defendant could foresee the precise manner

and circumstances of the injury. See Restatement (Second) of

Torts § 435(1).

We do not view D.M.'s own criminal actions as an

intervening cause of plaintiffs' damages that relieves defendant

of liability. "Intervening causes that are reasonably

foreseeable or are normal incidents of a risk . . . do not

relieve a tortfeasor of liability." Cruz-Mendez, 156 N.J. at

575. "If the reasonably prudent person would foresee danger

20 A-0755-16T2
resulting from another's voluntary criminal acts, the fact that

another's actions are beyond defendant's control does not

preclude liability." Butler, 89 N.J. at 276. The court in

Haselhorst applied these principles to a case similar to the one

before us. "[T]he likelihood of the foster child acting out his

violent behavior was the hazard that made the department's

conduct negligent in failing to obtain the records from [the

child's prior hospitalization] and sharing that information with

the Haselhorsts, [and] in failing to properly investigate

. . . ." Haselhorst, 485 N.W.2d at 188.

In sum, we hold that defendant had a duty to exercise

reasonable care in placing D.M., and a duty to reasonably

disclose such aspects of D.M.'s background to enable plaintiffs

to make an informed decision whether to accept him into their

household. A jury shall determine whether defendant breached

that duty, and whether that breach proximately caused Ted's

death and the consequent damages.

Reversed and remanded for trial. We do not retain

jurisdiction.

21 A-0755-16T2
SABATINO, P.J.A.D., concurring.

I join in Judge Ostrer's erudite and well-reasoned analysis

of the common law principles that govern this litigation. I

write to add a few prospective comments.

Regardless of whether a jury imposes civil liability on

this particular defendant, I respectfully urge the State to

explore measures that might prevent the fatal tragedy in this

case – or some other violent assault by a youth inflicted upon a

resource parent – from being repeated.

For example, the State might adopt and enforce stringent

regulations obligating private placement agencies to provide

sufficient warning of the known dangerous characteristics of

troubled youths to resource families, before such youths are

taken into their homes. We are unaware that any regulations of

that sort exist at the present time.

As a separate measure, the State might insist upon

contractual provisions mandating placement agencies to carry out

the important responsibility of notification detailed in this

opinion. The contracts could specify, for instance, that such

agencies face termination, perhaps with financial penalties, if

they fail to perform that responsibility. Again, we are unsure

from this record if typical State contracts already contain such

language.

1 A-0755-16T2
 As it so happened, the State was not a participant in this

appeal, as plaintiffs did not seek review of the dismissal of

the State defendants from the case. We therefore lack the

benefit of the State's briefing and perspective on these weighty

issues. Nor have we been fully apprised of how the State's "no

eject, no reject" policy bears upon the circumstances, and

whether that policy imposes undue pressure on agencies to place

troubled children rapidly with families.

In any event, perhaps the spotlight of this tragic case

will spur more effective ways to protect host families from

harm. Ideally that can be done without diminishing the roster

of qualified caregivers who are willing to open their homes to

difficult needy children. We also are mindful that greater care

in the placement process can reciprocally protect children from

deficient foster caretakers.

It is not for us as judges, of course, to devise the

appropriate policy solutions. Although the specter of civil

liability can play an appropriate role in shaping future

conduct, well-crafted regulations and vigilant contractual

oversight may well offer more effective safeguards.

We therefore commend these policy issues to the efforts and

expertise of the other branches of government, and to possible

innovations of the private sector.

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 In the meantime, this litigation will continue in the trial

court, as it must, under the applicable rules of law. But no

matter who wins or loses before the jury, let us all hope that

the life that was senselessly lost in this case will somehow

result in more lives being spared in the future.

3 A-0755-16T2