Davis v. Devereux Foundation, 2010 WL 2539765 (App. Div., June 25, 2010) – The Devereux Foundation is a national, charitable organization that provides services for people with emotional, developmental and educational disabilities, including the plaintiff – an autistic adult with aggressive tendencies. One of its employees, who was responsible for caring for the plaintiff, poured boiling water on the plaintiff while he laid in bed, causing severe burns to his chest. Although a verdict of $750,000 was entered against the employee, the trial judge dismissed the lawsuit brought against the foundation/employer on the basis that it was not vicariously liable for the egregious act of its employee. The plaintiff appealed that dismissal.
Notwithstanding the egregiousness of the employee’s act, the Appellate Division held that it was conceivable that it was at least in part motivated by a misguided attempt to further the aims of her employer – and thus reversed the dismissal. For instance, although the jury could find that the employee solely wanted to hurt the patient for personal reasons (such as retribution for his physical attacks on her in the past), the jury also could have found that the employee brought the cup of boiling water – at least in part – to use in disciplining the notoriously aggressive plaintiff in furtherance of her employment duties. Although this is not a traditional “employment law” case, employers should note that a similar analysis of the principles of “vicarious liability” applies to misconduct by employees against each other.