NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0678-15T2
ROBERTA DIEUJUSTE,
individually and as
Administrator Ad
Prosequendum of the
Estate of David Pierre,
and ERNST PIERRE, and
ROBERTA DIEUJUSTE and
ERNST PIERRE, as natural
parents of W.P., E.P.,
David Pierre, A.P., and J.P.,
and ROBERTA DIEUJUSTE, as the
natural mother of V.M.,1
Plaintiffs-Appellants,
v.
DIVISION OF YOUTH AND
FAMILY SERVICES,
Defendant-Respondent.
___________________________________________
Argued April 25, 2017 – Decided August 1, 2017
Before Judges Espinosa and Grall.
On appeal from Superior Court of New Jersey,
Law Division, Union County, Docket No. L-2792-
11.
1
We use initials for the surviving minor children to protect
their privacy.
Robert A. Vort argued the cause for
appellants.
Ashley Gagnon, Deputy Attorney General, argued
the cause for respondent (Christopher S.
Porrino, Attorney General, attorney; Melissa
H. Raksa, Assistant Attorney General, of
counsel; James A. McGhee, Deputy Attorney
General, on the brief).
PER CURIAM
Plaintiffs Roberta Dieujuste and Ernest Pierre are the
parents of David Pierre, a four-year-old developmentally disabled
child who died while in the care of a foster mother, Taleka
Harriet, licensed by the Division of Youth and Family Services
(DYFS).2 They brought this wrongful death action3 against DYFS and
now appeal from an order that granted summary judgment to DYFS,
dismissing their complaint. We affirm.
We need not recite the facts regarding David's tragic drowning
in Harriet's bathtub. It is sufficient to note that, following
its investigation, DYFS determined that Harriet's "actions placed
David Pierre at some risk of harm but did not meet the statutory
2
DYFS is now known as the Division of Child Protection and
Permanency.
3
The complaint also alleged that DYFS wrongfully retained
plaintiffs' five children following a Dodd removal pursuant to
N.J.S.A. 9:6-8.29 and 9:6-8.30. Plaintiffs have not appealed from
the trial judge's dismissal of this count.
2 A-0678-15T2
requirement to find neglect." Harriet's license to serve as a
resource provider was revoked thereafter.
Plaintiffs did not file any action against Harriet.
Plaintiffs argue, however, the Family Part's award of "care,
custody and supervision" of David to DYFS following the Dodd
removal created a non-delegable duty that rendered DYFS liable for
Harriet's negligence. They also argue that liability is properly
imposed upon DYFS because Harriet was an employee of DYFS, rather
than an independent contractor. We are not persuaded by these
arguments.
As a governmental body, DYFS enjoys general immunity under
the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3.
The TCA provides general immunity for all governmental bodies
except in circumstances where the Legislature has specifically
provided for liability. See N.J.S.A. 59:1-2, :2-1; see also Bell
v. Bell, 83 N.J. 417, 423 (1980). Thus, "immunity is the norm,
unless liability is provided for by the [TCA]." Davenport v.
Borough of Closter, 294 N.J. Super. 635, 637 (App. Div. 1996).
N.J.S.A. 59:2-1(a) states:
Except as otherwise provided by this act, a
public entity is not liable for an injury,
whether such injury arises out of an act or
omission of the public entity or a public
employee or any other person.
[(Emphasis added).]
3 A-0678-15T2
N.J.S.A. 59:1-3 defines "employee" under the TCA:
"Employee" includes an officer, employee, or
servant, whether or not compensated or part-
time, who is authorized to perform any act or
service; provided, however, that the term does
not include an independent contractor.
In Estate of Kotsovska ex rel. Kotsovska v. Liebman, the
Supreme Court observed:
Our courts have utilized two different but
related tests to distinguish employees from
independent contractors: (1) the "control
test," which "is grounded in the common law
master-servant relationship"; and (2) the
"relative nature of the work test," which is
used in "various situations in which the
control test does not emerge as the
dispositive factor."
[221 N.J. 568, 592 (2015) (citation omitted).]
The Court explained that, under the control test, "the
factfinder considers the extent of the employer's right to control
the work of the employee." Id. at 593. The "variety of employment
conditions" to be considered include "'the degree of control
exercised by the employer over the means of completing the work,'
'the source of the worker's compensation,' 'the source of the
worker's equipment and resources,' 'the employer's termination
rights,' as well as the 'right of termination' and the 'method of
payment.'" Ibid. (citations omitted). "The greater the degree
of control exercised by the employer, the more likely the worker
4 A-0678-15T2
will be considered an employee." Id. at 593 (quoting Lowe v.
Zarghami, 158 N.J. 606, 616 (1999)).
In New Jersey Property-Liability Insurance Guaranty
Association v. State, 195 N.J. Super. 4 (App. Div.), certif.
denied, 99 N.J. 188 (1984) [hereinafter NJ-PLIGA], we addressed
the question whether foster parents were public employees under
the TCA, and held the control test was "the proper standard to
determine whether the . . . foster parents . . . are employees of
the state as defined in N.J.S.A. 59:1-3," id. at 11.
In applying that test, we reviewed the statutory definition
of foster parent, N.J.S.A. 30:4C-2(h), the responsibilities of the
foster parent, the maintenance payments DYFS was authorized to
give to foster parents for the benefit of the child in placement
pursuant to N.J.S.A. 30:4C-27, and the written agreements between
DYFS and the foster parents, which include the foster parents'
agreement to consult with a DYFS caseworker before making important
decisions. Id. at 12-13. We found, "these circumstances do not
denote a degree of control by DYFS over foster parents sufficient
to confer employee status . . . under the [TCA]." Id. at 13. We
noted further that, under the agreement with DYFS, the foster
parents' role is "more akin to that of independent contractors."
Id. at 14.
5 A-0678-15T2
In Stanley by Stanley v. State Industries, Inc., 267 N.J.
Super. 167 (Law Div. 1993), the trial court relied on our holding
in NJ-PLIGA to conclude DYFS could not be held vicariously liable
for the negligence of a foster parent under the doctrine of
respondeat superior because there was insufficient evidence of
control for the foster parent to be an employee of DYFS. Id. at
171-72.
Relying upon our decision in NJ-PLIGA and the trial court's
decision in Stanley, the trial judge here rejected plaintiffs'
arguments that Harriet was an employee of DYFS as defined in the
TCA and that DYFS could be held vicariously liable for her
negligence. Plaintiffs acknowledge these cases support the trial
judge's analysis, but contend the persuasive force of these cases
has been diminished by later cases decided by the Supreme Court
and the Appellate Division. To support this argument, they cite
D'Annunzio v. Prudential Insurance Co. of America, 192 N.J. 110
(2007), and Pukowsky v. Caruso, 312 N.J. Super. 171 (App. Div.
1998), both of which address the appropriate test to apply in
determining whether an individual has the requisite status to
bring a claim under the Conscientious Employee Protection Act
(CEPA), N.J.S.A. 34:19-1 to -14.
In NJ-PLIGA, supra, we acknowledged that "use of the control
test to determine whether one is an employee for purposes of social
6 A-0678-15T2
legislation such as the Workers' Compensation Act is inapposite
because '[the basic purpose for which the definition is used in
compensation law is entirely different from the common-law
purpose].'" 195 N.J. Super. at 9 (alteration in original)
(emphasis omitted) (citation omitted). CEPA is also social
legislation that advances its own unique purpose. D'Annunzio,
supra, 192 N.J. at 119. That a different test may be applicable
in determining whether a person is an employee under CEPA provides
no reasonable basis for abandoning our holding in NJ-PLIGA that
the control test applies and that foster parents are not employees
of DYFS.
Plaintiffs also argue DYFS had a "non-delegable duty" that
renders it liable for the negligence of foster parents. Other
than as a vehicle for the imposition of liability, plaintiffs have
not identified the scope of the "non-delegable duty" they assert
existed here. In opposing DYFS's summary judgment motion,
plaintiffs clarified that they did not allege DYFS was negligent
in authorizing Harriet to care for medically fragile children, for
failing to inspect the home properly or for failing to visit the
home sufficiently frequently.4 Clearly, DYFS must perform its
4
Plaintiffs suggest that DYFS's failure to require resource
parents to secure general liability insurance constitutes
negligence. This argument was quite properly rejected by the
trial court as unsustainable under the TCA.
7 A-0678-15T2
duties responsibly but there is no authority or legal standard in
New Jersey that requires it to be a guarantor that no harm will
befall children it has placed in resource homes. Having identified
no lapse in the performance of duties assigned to DYFS by statute
or regulation, plaintiffs' argument that DYFS breached a non-
delegable duty here lacks merit.
Affirm.
8 A-0678-15T2