Tort judgments concerning duty and liability, typically compensatory and tied to the facts of the particular case, provide a weak and inefficient regulatory mechanism. But individual actions do provide an opportunity to inform regulators by surveying the experience of others in comparable cases. Through precedent, broader rules may evolve. Thus the Appellate Division in the recently published Broach-Butts v. Therapeutic Alternatives, LLC surveyed the gradual extension of duty rules by New Jersey courts. Reversing a grant of summary judgment, the court declared that a private social welfare agency has a duty to prospective therapeutic foster care families to fully inform them of the problems a youth may present.

The youth D.M. lived in the home of the foster parents for nine months. After he left, he repeatedly returned and burglarized the house. Fifteen months after he left the foster home, he returned again, found the foster father home, was ordered to leave, grabbed a kitchen knife, and killed the foster father, stabbing him 25 times. Plaintiffs claimed that Therapeutic Alternatives had negligently placed and failed to warn the prospective foster parents. The agency allegedly failed to disclose to the prospective foster family the 14 year old's history of violence, parental abuse and neglect, assaults, and threats against other foster parents, children, and a teacher. Finding a duty based on those facts came rather readily, since such facts would be important to the foster family's decision to accept the placement. The panel found comparable liability principles enunciated in prior decisions in New Jersey (J.S. v. R.T.H. –duty to warn of spouse's likelihood of abuse of another person), California (Johnson v. State – state's failure to disclose violent tendencies to foster mother), Indiana (Snyder v. Mouser- private social welfare agency duty to inform of homicidal tendencies), and Nebraska (Haselhorst v. State – duty to inform of violent history). The panel's finding of a duty owed to prospective foster parents seems compelling to us.

Mindful that this was a common law decision relying on general principles rather than breach of standards, Judge Jack Sabatino concurred but added that this case is a wake-up call to the state. Recognizing that it is not for judges to devise policy solutions, Judge Sabatino suggests that 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…” The state might also insist upon contractual provisions “regarding the duty of notification” declared by the court. We hope that the Department of Human Services takes such suggestions to heart and works to translate the court's common law duty ruling into standard practices. Such measures may prevent tragedies such as that in Broach-Butts, and help to reassure prospective therapeutic foster care families who often undertake care of children with troubled histories.