Davis v. Devereux Foundation

Justice PATTERSON

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 violence. 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 plaintiff. 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 daily 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 “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 also 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

After 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 the 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.” Plaintiff 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 duties. 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 employees 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. Tolbert, 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

(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).

Second, 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 parents 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 900; Hardwicke, supra, 368 N.J.Super. at 103, 845 A.2d 619. The primary focus of the ease was the impact of the CSAA, in which the Legislature provided for a private right of action against a “passive abuser” who knowingly permits or acquiesces in the sexual abuse of a child. See Hardwicke, supra, 188 N.J. at 84-94, 902 A.2d 900 (citing N.J.S.A 2A:61B-l(a)(l)). The Appellate Division also discussed common-law causes of action available to the Hardwicke plaintiff for the intentional conduct of the school employee notwithstanding the immunity afforded to the school by the CIA. In that context, the Appellate Division in Hardwicke characterized Frugis as standing for the proposition that “a school that stands in an in loco parentis relationship to a boarding student in its charge has ... a non-delegable duty to take reasonable measures to safeguard the student and ensure that its employees do not endanger or exploit the child.” Hardwicke, supra, 368 N.J.Super. at 104-05, 845 A.2d 619 (citing Frugis, supra, 177 N.J. at 268, 827 A.2d 1040).

The Appellate Division’s decision in Hardwicke described the duty imposed by Frugis as requiring “reasonable measures” and therefore restates negligence principles. Ibid. If the Appellate Division intended to impose a “non-delegable duty” such as that urged by plaintiff here, that analysis was not reached by this Court. Indeed, as the Appellate Division noted in Davis, supra, 414 N.J.Super. at 10, 997 A.2d 273, this Court’s decision in Hardwicke underscores the continued viability of reasonable care as the standard imposed upon in loco parentis institutions. In that opinion, the Court relied upon its analysis in Lehmann, supra, 132 N.J. at 619-20, 626 A.2d 445, and Abbamont, supra, 138 N.J. at 418, 650 A.2d 958, holding that “[t]he considerations that informed our analyses in Ijéhmann and Abbamont apply equally to claims predicated on facts indicating child abuse.” Hardwicke, supra, 188 N.J. at 102, 902 A.2d 900. In both Lehmann and Abbamont, the Court declined to substitute a “nondelegable duty” for traditional tort principles.⁴ 5As the Appellate Division panel noted in Davis, this Court’s opinion in Hardwicke cannot be read to introduce “what would clearly be a major doctrinal change respecting the law governing institutions that care for children and the disabled.” Davis, supra, 414 N.J.Super. at 10, 997 A.2d 273.⁵ The liability of in loco parentis institutions has thus been determined in accordance with traditional negligence principles; the “non-delegable” duty proposed here, amounting to an employer’s absolute liability for an employee’s criminal act, has not been accepted by this Court in any setting similar to that of this case.

VII.

Thus, traditional concepts of duty govern the liability of institutions with in loco parentis responsibilities. Subject to the limits imposed by the Legislature upon the liability of charitable institutions in the CIA, N.J.S.A. 2A:53A-7 to -11, Devereux owes to Davis a duty of reasonable care. That duty extends to the selection and supervision of employees such as McClain. Consistent with Restatement § 219(2)(b), New Jersey courts recognize the tort of negligent hiring, “where the employee either knew or should have known that the employee was violent or aggressive, or that the employee might engage in injurious conduct toward third persons.” Di Cosala, supra, 91 N.J. at 173, 450 A.2d 508; see also Puckrein v. ATI Transport, Inc., 186 N.J. 563, 579, 897 A.2d 1034 (2006); Lingar v. Live-In Companions, Inc., 300 N.J.Super. 22, 30, 692 A.2d 61 (App.Div.1997). And as discussed above, this Court has also imposed upon employers with in loco parentis responsibilities a duty to exercise reasonable care in the supervision of employees. See e.g., Frugis, supra, 177 N.J. at 270-71, 827 A.2d 1040. We recognize and reaffirm that a duty of due care— subject to the statutory immunities afforded by the CIA—is imposed upon institutions, such as Devereux, which are charged to protect vulnerable citizens of our State.

In that setting we consider the absolute duty, characterized as a “non-delegable duty,” that is proposed by plaintiff here. The analysis adopted in Goldberg, supra, 38 N.J. at 583, 186 A.2d 291, and further developed by this Court in Hopkins, supra, 132 N.J. at 439, 625 A.2d 1110, sets forth factors that are appropriate to our consideration of whether to adopt the duty at issue.⁶ The Court held in Hopkins:

Whether a person owes a duty of reasonable care toward another turns on whether the imposition of such a duty satisfies an abiding sense of basic fairness under all of the circumstances in light of considerations of public policy. That inquiry involves identifying, weighing, and balancing several factors—the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution. The analysis is both very fact-specific and principled; it must lead to solutions that properly and fairly resolve the specific ease and generate intelligible and sensible rules to govern future conduct.

[Hopkins, supra, 132 N.J. at 439, 625 A.2d 1110 (citing Goldberg, supra, 38 N.J. at 583, 186 A.2d 291).]

Applying the first factor identified in Hopkins, the Court analyzes the relationship among the parties—Davis, McClain and Devereux—to determine the necessity and fairness of the duty proposed. Davis and other individuals with developmental disabilities in residential facilities cannot defend themselves. They are often nonverbal and thus incapable of reporting abuse. They are dependent on their caregivers to protect them from harm. They require and deserve vigilant protection and care. Accordingly, the Legislature has determined that the relationship between residential facilities and their residents should be intensely regulated, pursuant to the strong state policy of protecting children and adults with developmental disabilities. Fees, supra, 105 N.J. at 338, 521 A.2d 824. The Legislature has enacted the DDRA to protect the safety and legal rights of people with developmental disabilities.⁷ It provides in part:

Every service for persons with developmental disabilities offered by any facility shall be designed to maximize the developmental potential of such persons and shall be provided in a humane manner in accordance with generally accepted standards for the delivery of such service and with full recognition and respect for the dignity, individuality and constitutional, civil and legal rights of each person receiving sueii service, and in a setting and manner which is least restrictive of each person’s personal liberty.

[N.J.S.A. 30:6D-9.]

Regulatory provisions require facilities that care for people with developmental disabilities to ensure their residents’ civil and legal rights. See, e.g., N.J.AC. 10:44A-3.1; N.J.AC. 10:44B-3.1; N.J.AC. 10:47-5.1. Other provisions govern administration, transportation and the provision of health care. The Department of Human Services has the authority to revoke the licenses of institutions that fail to comply with statutory or regulatory requirements. N.J.AC. 10:44A-1.8; N.J.AC. 10:44B-1.6.

The Legislature has also addressed another component of the relationship among the parties: the qualifications and conduct of employees charged with the care of individuals with developmental disabilities. Facilities are required to conduct background checks, and are prohibited from hiring individuals who have committed one in a list of enumerated crimes. N.J.S.A 30:6D-64. Caregivers must report incidents of abuse to the Department of Human Services. N.J.S.A. 30:6D-75. The statute establishes a “Central Registry of Offenders Against Individuals with Developmental Disabilities”; employers are prohibited from hiring individuals whose names appear on that Registry to care for people with developmental disabilities. N.J.S.A 30:6D~77.

Like the statutory and regulatory framework, existing principles of tort law underscore the importance of institutions’ strict oversight over employees charged with the care of residents with disabilities. Subject to the constraints of the CIA, the Tort Claims Act, N.J.S.A. 59:1-1 to 59:12-3, and other statutory immunities, causes of action for negligence or recklessness in the hiring and supervision of employees deter employers from engaging in such conduct. See Lynch v. Scheininger, 162 N.J. 209, 239-40, 744 A.2d 113 (2000) (quoting Procanik v. Cillo, 97 N.J. 339, 354, 478 A.2d 755 (1984)); Hopkins, supra, 132 N.J. at 448, 625 A.2d 1110 (“The imposition of liability should discourage negligent conduct by fostering reasonable conduct and creating incentives to minimize risks of harm.”); 1 The Law of Torts, supra, § 14, at 29. Employees who abuse persons with developmental disabilities can be held civilly liable. And as this case illustrates, the criminal justice system has a role in deterring and punishing conduct such as McClain’s.

Thus, the relationship among the parties—the resident, the institution and the employee—is addressed in statutes, regulations and the common law. Those sources of law assign to institutions serving people with developmental disabilities the responsibility to take precautions with respect to many factors within their control, including the hiring, training and supervision of employees. The record of this case does not establish a pervasive pattern of abuse that would signal that existing law had failed to protect these vulnerable members of our society.⁸ Although amici note that abuse of individuals with developmental disabilities is widespread nationally, the record contains no testimonial or documentary evidence addressing that issue in New Jersey. The Court has no evidence regarding the incidence of violence against New Jersey citizens with developmental disabilities, the various forms of abuse, the impact of alternative residential settings, or precautions that caregivers can take to prevent criminal acts. Such a record might support a finding under the first consideration identified in Hopkins that the existing duty should be expanded, but it has not been presented here. See Hopkins, supra, 132 N.J. at 439, 625 A.2d 1110; Goldberg, supra, 38 N.J. at 583, 186 A.2d 291. Absent an appropriate record, the Court declines to impose a broad and unprecedented duty on institutions caring for people with developmental disabilities.

The second consideration identified in Hopkins is “the nature of the attendant risk.” See Hopkins, supra, 132 N.J. at 439, 625 A.2d 1110; Goldberg, supra, 38 N.J. at 589, 186 A.2d 291. This aspect of the inquiry focuses the Court on the issue of whether the risk is foreseeable, whether it can be readily defined, and whether it is fair to place the burden of preventing the harm upon the defendant. As the Court has stated,

identifying a given risk does not itseif address the actual burden that would be placed on a party in preventing such a risk and whether that burden should be imposed.

[Hopkins, supra, 132 N.J. at 443, 625 A.2d 1110 (citing Weinberg v. Dinger, 106 N.J. 469, 524 A.2d 366 (1987)).]

In Goldberg, rejecting the imposition of a duty on the part of the owner of a housing project to provide police protection, the Court noted, “[t]he second consideration is the inevitable vagueness of the proposed duty. Fairness ordinarily requires that a man be able to ascertain in advance of a jury’s verdict whether the duty is his and whether he has performed it.” Goldberg, supra, 38 N.J. at 589, 186 A.2d 291.

As in Goldberg, the nature of the risk addressed here makes it impossible to clearly define the parameters of the duty. It is unclear on this record whether McClain’s crime is aberrational or typical of a statewide trend. Even the proponents of the duty in this case disagree about its proposed scope. Plaintiff urges the Court to impose a “non-delegable duty” on institutions that provide residential care for people with developmental disabilities. Amici Survivors Network for those Abused by Priests and the National Child Protection Training Center go further and seek to broaden such a duty to any institution charged with the care of children, whether or not they have developmental disabilities. The duty proposed could be extended to hospitals, nursing homes, assisted living facilities, day care centers and schools, and its parameters are uncertain. See Goldberg, supra, 38 N.J. at 590-91, 186 A.2d 291. The second prong of the Hopkins test does not support the imposition of such an expanded duty here on the present record.

The third factor—the opportunity and ability to exercise care—provides no support for plaintiffs claim. Existing law already places a duty of reasonable care on Devereux; plaintiff seeks to elevate that duty to one of absolute liability. In contrast to the setting of Hopkins, in which the Court articulated workable guidelines by which realtors could minimize the risk of harm, the “practicability of preventing the harm” is undefined here. See Hopkins, supra, 132 N.J. at 443, 625 A.2d 1110. There is no evidence that Devereux ignored hints that McClain had a potential for violence, that it condoned or tolerated aggressive behavior by its employees, or that it failed to teach its staff how to deliver respectful and compassionate care.⁹ The record reveals no deviation from sound hiring, screening and training practices. It defines no procedures by which an employer in Devereux’s situation could anticipate and forestall the harm visited by McClain upon Davis. The third consideration identified in Hopkins thus weighs against the duty proposed.

The fourth factor noted in Hopkins, the public interest in the proposed solution, does not support the creation of a “nondelegable duty.” There is no record in this case demonstrating the existence of a pervasive problem that would call for the elevation of the duty proposed here. The provision of high-quality institutional care to residents who are developmentally disabled is an important public policy of our State. Non-profit charitable organizations perform an invaluable service to their clients with developmental disabilities and the public as a whole. The imposition of liability upon these organizations for unforeseeable intentional acts of employees such as McClain could jeopardize their continued existence, deter the founding of new providers that could deliver quality services, and increase the cost incurred by residents, families and the State in maintaining residents in institutional care. This record provides no basis to impose such a burden on these institutions. Further, the “public interest” eonsideration identified in Hopkins is also negatively implicated by the amorphous boundaries of the duty proposed. The Hopkins test thus does not warrant the “non-delegable duty” proposed here.

Plaintiff relies upon Majestic Realty, supra, 30 N.J. at 425, 153 A.2d 321, and Great Northern, supra, 387 N.J.Super. at 591, 904 A.2d 846, for the proposition that a “non-delegable duty” is warranted when the social value to the community is so significant that the law bars the transfer of a duty to another. Both decisions address the liability of a principal who employs an independent contractor to undertake an inherently hazardous activity. In Majestic Realty, supra, 30 N.J. at 428, 153 A.2d 321, the activity was building demolition, and in Great Northern, supra, 387 N.J.Super. at 588, 904 A.2d 846, it was excavation involving the removal of lateral supports from adjacent land. While these cases discuss the societal interest in the activity as a foundation for a “non-delegable duty,” that discussion derives from the threat to public safety, unavoidable when a contractor performs these dangerous tasks, for which the principal is directly liable. Majestic Realty, supra, 30 N.J. at 438-39, 153 A.2d 321; Great Northern, supra, 387 N.J.Super. at 591-92, 904 A.2d 846. Majestic Realty and Great Northern are inapposite.

The heightened duty of care that has long been imposed upon the operators of common carriers is similarly irrelevant. See Lieberman v. Port Auth. of N.Y. & N.J., 132 N.J. 76, 85, 622 A.2d 1295 (1993) (“New Jersey has a long history of imposing liability on common carriers for failure to provide adequate security.”); Ricci v. Am. Airlines, 226 N.J.Super. 377, 381-82, 544 A.2d 428 (App.Div.1988); Sandler & Hudson v. Manhattan R.R., 8 N.J.Misc. 537, 538, 151 A. 99 (Sup.Ct.1930), aff'd, 108 N.J.L. 203, 156 A. 459 (E. & A.1931). Commentators have characterized the duty as one of “the highest degree of vigilance, care and precaution.” W. Page Keeton, Prosser & Keeton on the Law of Torts § 34, at 209 (5th ed.1984). However, the heightened duty of a common carrier is subject to a standard of reasonableness, and does not apply if the common carrier “neither knows nor should know of the unreasonable risk, or of the illness or injury.” Restatement (Second) of Torts § 314A cmt. e (1965). That duty does not support the imposition of liability upon Devereux for its employee’s intentional act.

Plaintiff also relies upon Stropes v. Heritage House Childrens Center of Shelbyville, Inc., 547 N.E.2d 244 (Ind.1989). The plaintiff in Stropes, an individual with severe developmental disabilities who was unable to care for himself, was placed in the defendant’s care by a county agency, where he was sexually assaulted by a nurse’s aide. Id. at 245. Relying on common-carrier cases, the Indiana Supreme Court imposed a “non-delegable duty” of care upon the defendant “[g]iven the degree of [plaintiffs] lack of autonomy and his dependence on [defendant] for care and the degree of [defendant’s] control” over plaintiff. Id. at 254; see also Miller v. Martin, 838 So.2d 761, 768-69 (La.2003) (imposing “nondelegable duty” on Louisiana Department of Social Services for intentional abuse of children by foster parents selected by Department).

Other state courts have rejected the imposition of the duty imposed in Stropes, determining that established tort law appropriately balanced the parties’ interests, or deferring the issue to their legislatures. In Niece v. Elmview Group Home, 131 Wash.2d 39, 929 P.2d 420 (1997), the Supreme Court of Washington declined to apply a “non-delegable duty” in circumstances similar to those of Stropes. Noting that “Indiana is apparently the only jurisdiction to adopt the nondelegable duty theory recognized in Stropes,” id. at 430, the court instead applied a direct duty of care upon the defendant, based upon negligence principles, to guard against harm to patients “unless it is so highly extraordinary or improbable as to be wholly beyond the range of expectability,” id. at 427 (citation omitted). The court confirmed the deterrent effect of the law of negligence, noting

the broad negligence liability that we have already recognized creates adequate incentives for the operators of group homes for developmentally disabled persons to take all reasonable precautions against sexual abuse in their facilities. The nondelegable duty theory would only impose additional liability without corresponding fault, making group homes insurers of their employees’ conduct.

[Id. at 430.]

In Regions Bank & Trust v. Stone County Skilled Nursing Facility, Inc., 345 Ark. 555, 49 S.W.3d 107 (2001), a case involving a sexual assault on a semicomatose, quadriplegic patient by a nursing assistant, the Supreme Court of Arkansas imposed “a duty of ordinary care to furnish [the patient] the care and attention reasonably required by her condition,” rather than a “nondelegable duty.” Id. at 112; see also Worcester Ins. Co. v. Fells Acres Day Sch. Inc., 408 Mass. 393, 558 N.E.2d 958, 968 (1990) (declining to impose common-law “non-delegable duty” on day care center); Maguire v. State, 254 Mont. 178, 835 P.2d 755, 759 (1992) (declining to impose “non-delegable duty” on institution for sexual assault committed by employee on woman with developmental disabilities, leaving issue for legislative attention). Our current state of the law is thus consistent with the decisions of almost every jurisdiction that has addressed this question.

The dissent asserts that Stropes heralded a trend toward the non-delegable duty pressed by plaintiff in this case. Post at 317-19, 37 A.3d at 498-99. Other than Stropes, supra, and Miller, supra, none of the decisions from other jurisdictions that are cited by the dissent imposed a duty analogous to the duty at issue here. Although the court deciding Hinckley v. Palm Beach County Board of Commissioners, 801 So.2d 193, 195-96 (Fla.Dist.Ct.App.2001), characterized the duty imposed by virtue of an independent contractor’s intentional act as “non-delegable,” it limited that duty to foreseeable harm, and thus defined it in terms of traditional negligence. In West v. Waymire, 114 F.3d 646, 649 (7th Cir.1997), the United States Court of Appeals for the Seventh Circuit did not find a “non-delegable duty” such as that suggested here. Dismissing a civil rights claim brought pursuant to 42 U.S.C. § 1983 for a municipal police officer’s sexual abuse of a minor whom he drove home while he was on duty, the court stated in dicta that the plaintiff should be able to prevail in a parallel state action because the officer’s acts “should be sufficiently within the orbit of his employer-conferred powers to bring the doctrine of respondeat superior into play.” We respectfully disagree with the dissent’s suggestion that the law of other states reflects a recent trend in favor of its view.

We decline to impose a “non-delegable duty” upon Devereux in this case.¹⁰ We therefore affirm that portion of the Appellate Division’s decision that upheld the trial court’s grant of the defendant’s motion for reconsideration and for summary judgment.

VIII.

The Appellate Division further held that the trial court should have denied Devereux’s motion for summary judgment because “plaintiffs are entitled to pursue their common law claims under the rule laid down in Gibson.” Davis, supra, 414 N.J.Super. at 16, 997 A.2d 273. We do not agree.

The “scope of employment” test requires a fact-specific inquiry:

The scope of employment standard, coneededly imprecise, is a formula designed to delineate generally which unauthorized acts of the servant can be charged to the master. Furthermore, the standard “refers to those acts which are so closely connected with what the servant is employed to do, and so fairly and reasonably incidental to it, that they may be regarded as methods, even though quite improper ones, of carrying out the objectives of the employment.”

[Di Cosala, supra, 91 N.J. at 169, 450 A.2d 508 (quoting W. Prosser, Law of Torts 460-61 (4th ed.1971)).]

The foreseeability of the employee’s act is a crucial inquiry. See Mason v. Sportsman’s Pub, 305 N.J.Super. 482, 499, 702 A.2d 1301 (App.Div.1997); Schisano v. Brickseal Refractory Co., 62 N.J.Super. 269, 275-76, 162 A.2d 904 (App.Div.1960).

Restatement § 228(1) describes four factors that collectively support a finding that an employee’s act is within the scope of his or her employment:

(a) it is of the kind he is employed to perform;

(b) it occurs substantially within the authorized time and space limits;

(c) it is actuated, at least in part, by a purpose to serve the master; and

(d) if force is intentionally used by the servant against another, the use of force is not unexpectable by the master.

[Restatement, supra, § 228(1).]

Conversely, an employee’s act is outside of the scope of his or her employment “if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.” Id. § 228(2). Only rarely will intentional torts fall within the scope of employment. Schultz v. Roman Catholic Archdiocese of Newark, 95 N.J. 530, 535 n.1, 472 A.2d 531 (1984); Di Cosala, supra, 91 N.J. at 173, 450 A.2d 508.

The difference between acts that are within the scope of employment and acts that are not is sharply illustrated when a employee, working for a lawful employer, commits a crime. Under Restatement § 231, “[a]n act may be within the scope of employment although consciously criminal or tortious.” However,

[t]he fact that the servant intends a crime, especially if the crime is of some magnitude, is considered in determining whether or not the act is within the employment, since the master is not responsible for acts which are clearly inappropriate to or unforeseeable in the accomplishment of the authorized result.

[Restatement, supra § 231 cmt. a.]

When the employee’s crime is serious, it is “in nature different from what servants in a lawful occupation are expected to do.” Ibid.

This distinction is illustrated by the decisions in Gibson, supra, and Nelson, supra, cited by the Appellate Division, and in related New Jersey authority. When the employee’s conduct—however aggressive and misguided'—originated in his or her effort to fulfill an assigned task, the act has been held to be within the scope of employment. In Gibson, supra, the defendant Kennedy was a railroad conductor charged with the responsibility of ensuring that the train departed the New Brunswick station without passengers. 23 N.J. at 150, 154-55, 128 A.2d 480. Gibson, another railroad employee, was authorized by the railroad to remain on the train beyond New Brunswick, but chose not to reveal that authorization to Kennedy. Id. at 155, 128 A.2d 480. He refused to comply with Kennedy’s direction to leave the train. Ibid. An altercation ensued in which Kennedy repeatedly struck Gibson with a lantern, leaving him unconscious. Id. at 156, 128 A.2d 480. The Court held that a reasonable jury could find that Kennedy, “who was in charge of the train, acted in the scope of his employment” when he “sought to prevent a person he believed to be unauthorized from boarding the train.” Id. at 156-57, 128 A.2d 480. It noted that if the employee acts within the scope of his employment and intends to further the employer’s business, “the employer is chargeable even though the employee’s conduct be ‘imbecilic.’ ” Id. at 158, 128 A.2d 480 (citation omitted).

The same principle guided the decision in Nelson, supra, 86 F.2d at 730, upon which this Court relied in Gibson. In Nelson, an inebriated boatswain, wrongly believing that a sailor whom he found sleeping was supposed to be on watch duty, punched him and ordered him to return to duty. Judge Learned Hand noted that “motives may be mixed,” id. at 731, but held that if the boatswain “really meant to rouse the plaintiff and send him upon duty,” his employer was liable for his conduct, id. at 732. As in Gibson, the focus was on the employee’s attempt, however unwise, to carry out his employer’s instructions.

Other courts have found employees’ acts to be within the scope of their employment when their attempts to enforce their employer’s rules instigated violence. In Mason, supra, 305 N.J.Super. at 488-91, 702 A.2d 1301, a bouncer was held to be acting within the scope of his employment when his attempt to eject a patron from the bar prompted a fistfight. The Appellate Division held that “the force used cannot be considered so unusual or exceptional so as to be ‘unexpectable’ from one acting as a bouncer in such a setting.” Id. at 499, 702 A.2d 1301. In Schisano, supra, 62 N.J.Super. at 271-73, 162 A.2d 904, an employee was charged with the duty of keeping his employer’s private parking lot clear of unauthorized cars. The employee argued with a man who had parked his car in the lot without permission, and eventually punched him, allegedly causing a fatal heart attack. Ibid. The Appellate Division held that the employee’s impulsive strike may have been in self-defense, but “may also have been [the employee’s] way of giving emphasis to the instructions” to remove the vehicle. Id. at 275, 162 A.2d 904; see also Smith v. Bosco, 126 N.J.L. 452, 453-54, 19 A.2d 637 (E. & A.1941) (holding that bridge employee’s attack on plaintiff, who refused to move his truck when instructed to and threw brick at employee’s guard dogs, could be considered within scope of his employment); Gates v. St. James Operating Co., Inc., 122 N.J.L. 610, 611-12, 7 A.2d 632 (Sup.Ct.1939) (assistant manager who slapped patron who disregarded his instruction to “take your feet down” could be held to be acting within scope of his employment).

The facts of these cases fit a common pattern. In each, the employee’s responsibilities include enforcement of the employer’s rules. The employee’s attempt to compel compliance with those rules was met with resistance and provoked a physical altercation. The courts attribute the conduct, in whole or in part, to the starting point of each incident: the employee’s attempt to serve the employer. Accordingly, the employer was potentially liable under principles of respondeat superior.

Cosgrove v. Lawrence, 214 N.J.Super. 670, 520 A.2d 844 (Law Div.1986), aff'd, 215 N.J.Super. 561, 522 A.2d 483 (App.Div.1987), provides an important contrast to the Gibson line of cases. In Cosgrove, a social worker-therapist employed by a county initiated a sexual relationship with his patient. Id. at 673, 520 A.2d 844. Because the sexual relationship allegedly commenced in the context of “transference,” a form of psychotherapy, the plaintiff and the defendant therapist contended that he was acting within the scope of his employment when he initiated the relationship. Ibid. Relying upon Restatement § 228, the court rejected the defendant therapist’s argument that the relationship “was a bona fide part of the therapy,” holding that his conduct “was not of the kind he was employed to perform but was different in kind from that authorized; it went far beyond authorized space limits; and was too little actuated by a purpose to serve the master.” Id. at 679, 520 A.2d 844. Accordingly, the plaintiffs claims against the employer were dismissed.

Like Cosgrove, this ease is inherently different from the Gibson line of cases. The incident at issue here did not begin with a thwarted effort by McClain to enforce her employer’s rules. By McClain’s own admission, she began her shift by briefly sitting alone and thinking, then surreptitiously boiling the water to be used in her attack. Notwithstanding the fact that she was the subject of a police investigation, McClain made no attempt to suggest that she scalded Davis with boiling water to defend herself from his violent conduct. She told the State Police that while she brought the water upstairs because “she thought that Roland was going to kick her,” he “did not kick or attack her,” but she poured the water on him anyway, because she was “just mad” about the murder of her boyfriend. Significantly, McClain denied her abuse in her conversations with Devereux supervisors, confessing to her assault of Davis only under police interrogation. There is no indication in the record that Devereux deviated from its mission of providing quality care to Davis. There is no suggestion that in its hiring, training and supervision of McClain, Devereux ever tolerated, let alone encouraged, physical' abuse or coercion of Davis, or that McClain was ever instructed to do anything but treat her assigned resident with compassionate care.

The dissent’s suggestion, post at 327-28, 37 A.3d at 504, that McClain’s act was provoked by Davis, rather than premeditated as the State Police reported, is contrary to the record. The dissent relies upon the statement of McClain’s co-worker, Mattie Benjamin, characterizing that statement as evidence that McClain acted in response to aggression by Davis. Post at 327-29, 37 A.3d at 504-05. Benjamin, who did not witness the attack but overheard it, said nothing about an altercation between McClain and Davis on the day of McClain’s attack. She gave a written statement which included the following account:

After Robin [another Devereux employee] left CM took off her coat went into the kitchen then heard the microwave, she then went upstairs, told D “I told you, you wasn’t sleeping,” and then RD started screaming and stomping, she told him to get in the shower and then she came back downstairs RD was still screaming his scream was different than he normally screams, he is saying something couldn’t make out what he was saying until when he come downstairs and SB [another Devereux employee] is looking at his burns he was saying “hot” S [McClain’s supervisor] arrived and took him to the hospital.

Benjamin thus confirmed McClain’s account that McClain’s act was not preceded or instigated by an altercation with Davis, but was an unprovoked attack that was planned by McClain before she entered Davis’s room that morning, and followed by Davis’s screams in reaction to his pain. The record establishes that McClain’s action was not a misguided effort to perform her job responsibilities, but a premeditated act of aggression.

Under Restatement § 228(1), McClain’s conduct is clearly outside of the scope of her employment. McClain’s decision to injure Davis was not only inconsistent with Devereux’s purpose in employing her, but directly contravened Devereux’s mission to protect a resident for whom Devereux had cared since his childhood. While McClain’s act was “substantially within the authorized time and place limits” of her job, it was not by any measure “actuated” by a purpose to serve Devereux. See Restatement, supra, § 228(1). McClain’s act of violence, concealed from supervisors before and during the assault and denied thereafter, could not have been foreseen by Devereux.

In short, the Court finds that no rational factfinder could construe McClain’s premeditated and unprovoked scalding of Davis to be an effort to serve Devereux. As a matter of law, McClain’s assault was not within the scope of her employment. The trial court properly granted summary judgment dismissing plaintiffs claims against Devereux.

IX.

In summary, we affirm the Appellate Division’s decision insofar as it rejected the imposition of a “non-delegable duty” upon Devereux. We reverse the Appellate Division’s decision to the extent that it held that the trial court’s grant of summary judgment was error.

1 On September 3, 2009, the trial court entered a default judgment against McClain, awarding plaintiff $500,000 in non-economic damages, $6,487.37 in medical expenses, and $250,000 in punitive damages.

2 The term “vicarious liability/' when used to define an employer's liability to third parties for an employee's acts, is synonymous with respondeat superior. 2 Dan B. Dobbs et ah, The Law of Torts § 425, at 779-80 (2d ed.2011).

3 Restatement (Third) of Agency § 7.05(2) (2006), abandons the use of the term "non-delegable duty.” That provision, which neither party has raised in this case, would impose upon the principal a duty of reasonable care with regard to the risk that an agent would harm a person in a "special relationship” with the principal, not a "non-delegable" duty such as that asserted by plaintiff here. Ibid.

4 In Lehmann, the Court specifically rejected "strict liability” as the standard for employer liability for sexual harassment in violation of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -42, and confirmed the continued viability of vicarious liability and negligent supervision principles as the governing standard. Lehmann, supra, 132 N.J. at 623-24, 626 A.2d 445. Abbamont, in which the Court applied its analysis in Lehmann to cases brought under the Conscientious Employee Protection Act, NJ.S.A. 34:19 -1 to -8, similarly relied on "agency principles, which includes negligence," rather than a non-delegable duty, as the measure of the employer’s liability for compensatory damages. Abbamont, supra, 138 N.J. at 417, 650 A.2d 958 (quotation omitted).

5 Plaintiff cites the Appellate Division’s decision in J.H., supra, 396 N.J.Super. at 16-18, 930 A.2d 1223, which concerned the CSAA. However, to the extent that the panel deciding J.H. invoked a "non-delegable" common-law duty, purportedly created by this Court in Hardwicke and Frugis, it misconstrued this Court's decisions in those cases. In J.H., the Appellate Division held that in Hardwicke, this Court "determined the application of Section 219(2)(d) of the Restatement, imposing liability on an employer for the torts of its employee committed while acting outside the scope of his employment when the conduct violated a nondelegable duty of the employer, applies to CSAA claims against the employer." J.H., supra, 396 N.J.Super. at 17-18, 930 A.2d 1223. As noted supra, the Restatement provision regarding the “non-delegable duty" is § 219(2)(c). Restatement 5 219(2)(d), cited by this Court in Hardwicke in its discussion of Lehmann, provides for liability if “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." Hardwicke, supra, 188 N.J. at 101 n. 13, 902 A.2d 900. Accordingly, J.H. does not support the duty urged here.

6 Contending that Goldberg and Hopkins set forth "an entirely inappropriate framework to use in this dispute, because ... Devereux unquestionably has a duty of care to Davis," the dissent asserts that "the only question that ihe Court should be addressing is whether or not that duty is non-delegable.” Post at 319, 37 A.3d at 499. The factors identified in Goldberg and Hopkins are not limited to cases in which a court considers the imposition of a duty upon a party who was previously held to bear no duty at all. Indeed, in Goldberg, the Court acknowledged various duties of care already imposed upon landlords such as the defendant housing authority. 38 N.J. at 586-88, 186 A.2d 291. Its analysis governed the issue before it: whether to impose a new duty, that of providing police protection, on the landlord. Here, plaintiff similarly seeks recognition of a new duty; she would impose liability upon Devereux for McClain's criminal assault, whether or not that assault was within the scope of her employment. The factors developed by this Court in Goldberg and Hopkins are thus instructive.

7 The Legislature and the Governor have consistently stated their concern for the protection of individuals with developmental disabilities. Should it be determined that the imposition of expanded liability upon such caregivers furthers the public policy of protecting developmentally disabled citizens, the Legislature can accomplish that objective by statute. The legislative process would provide the opportunity to consider such factors as the incidence of abuse, the potential impact of broadened liability upon nonprofit caregivers, and the additional cost that would be imposed upon residents, their families and the State. Currently, nothing in the language or legislative histoiy of the two relevant statutes—the CIA and DDRA—suggests the Legislature's intent that a “non-delegable duty” be imposed here.

8 Relying upon media reports that were not in the record of the trial court, the dissent cites examples of abuse of disabled individuals in custodial care. Post at 321-23, 37 A.3d at 501-02. As this Court has long held, appellate review is limited to the record developed before the trial court. See, e.g., Rule 2:5-4; New Jersey DYFS v. M.M., 189 N.J. 261, 278, 914 A.2d 1265 (2007) (stating "[o]ur scope of review ... is limited to whether the trial court’s decision is supported by the record as it existed at the time of trial”); State v. Golotta, 178 N.J. 205, 211-12, 837 A.2d 359 (2003) (stating ”[i]t would be inconsistent with appellate practice for us to accept the proffered information here, especially in view of the fact that the State had ample opportunity two years ago to present it at the proper forum, namely, at the original suppression hearing"). Had a record regarding the incidence of abuse of individuals with autism in New Jersey residential facilities been developed before the trial court, it would be available to be addressed by the parties and amici and considered by the Court. No such record was developed in this case.

9 The dissent asserts an "abject failure" by Devereux "to recognize the impending clash between [McClain] and Davis when her demand for relief was ignored." Post at 321, 37 A.3d at 500. The claim to which McClain's continued work assignment to care for Davis would be relevant—plaintiffs negligent supervision claim—is no longer in this case. Plaintiff's counsel conceded at oral argument before the trial court that her negligence claims against Devereux are barred by the CIA. The trial court's dismissal of those claims was not appealed, and the issue of the impact of the CIA upon plaintiff's negligent supervision claim, and her other negligence claims, is accordingly not before the Court.

10 It is undisputed that Devereux is a charitable institution entitled to the protection of the CIA, N.J.S.A. 2A:53A-7 to -11. We do not reach the issue of whether the "non-delegable duty” at issue, were such a duty to be recognized, would be barred by the CIA. See NJ.S.A. 2A:53A-7; P.V. ex rel. T.V. v. Camp Jaycee, 197 N.J. 132, 962 A.2d 453 (2008).