Negligence often causes injuries to children in New York.
If you or someone you love has been injured because of the negligence of someone else, it is important to have an experienced New York injury attorney to represent your rights.
A recent case illustrates the complexities that can arise when placing our loved ones in the hands of a care facility. Davis v. Devereux Foundation, No. 066800 (N.J. S.Ct. Feb. 29, 2012). Roland Davis (plaintiff) was diagnosed with autism, mental retardation, attention hyperactivity disorder and pervasive developmental disorder. Because of this, plaintiff acquired a history of aggressive and combative behavior. Plaintiff required constant supervision and relied on a picture system for his communication. Plaintiff was placed in a non-profit care facility called Devereux Foundation (defendant or Devereux) by his mother when he was twelve years old.
Devereux was a New Jersey organization that cared for people with emotional, educational and developmental disabilities. It was a general practice of the facility to assign a residence counselor for each resident to make sure that the resident received care, supervision and assistance throughout the resident’s daily schedule. These counselors documented the resident’s progress and development. Because these counselors had such a critical role in resident treatment, Devereux conducted special screening, background checks, a physical evaluation, drug testing and fingerprinting. Devereux even required recommendation letters. This thorough screening process was conducted when they hired Charlene McClain (McClain) as a resident counselor.
McClain had been assigned to care for plaintiff and on several occasions when the plaintiff became aggressive with McClain. Plaintiff was said to have been stomping, kicking, screaming, spitting and occasionally involved in a physical altercation. Plaintiff attacked McClain and had to be pulled off of her and taken to his room. The next day, McClain was assigned to care for plaintiff. McClain warned up water in the microwave and threw it on plaintiff as he was getting out of bed, scalding him. After doing this, McClain instructed the plaintiff to get in the shower where she brought another counselor in to look at the burns on his pelvis, groin, lower abdomen and leg. The burns were so bad that the plaintiff was admitted to the hospital for six days for treatment and remained permanently scarred.
Plaintiff’s mother saw the burns on the plaintiff and filed suit against McClain and Devereux. McClain later admitted that she brought the water to the plaintiff’s room because she was going to use it if the plaintiff kicked her. She also confessed that she was “just mad” and threw the cup of water at the plaintiff without any provocation. McClain pled guilty to second-degree bias intimidation and third-degree aggravated assault and was sentenced to three years in prison. The problem in this case was surrounding Devereux’s liability for breach of non-delegable duty to protect plaintiff. Plaintiff’s mother argued that Devereux is guilty of negligent care, negligent supervision, wanton and willful disregard for the plaintiff’s rights, and vicarious liability for the actions of McClain.
Plaintiff argued that Devereux had a duty to protect the plaintiff from harm and negligent care because the defendant was acting “in loco perentis.” This means that the defendant had assumed parental liability for the care and treatment of plaintiff. However, by imposing a non-delegable duty this would create even a more heightened liability that was not justified by the nature of potential risks. The court notes that by holding an employer liable for unforeseeable intentional acts of an employee would discourage non-profit companies from opening.
because the plaintiff could not show that McCain’s premeditated, unprovoked and unforeseeable violence was done to benefit Devereux, this court held that it would not accept the imposition of a non-delegable duty on Devereux.
If you have been injured contact New York injury attorneys at Law Offices of Nicholas Rose, PLLC to schedule a free appointment. Call 718-261-0546.