R.H. v. GEORGE MISCHENKO

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3140-09T4

R.H. and K.H., married individuals,

as natural parents and guardians ad

litem for their minor son, B.H., and

R.H. and K.H., individually,

Plaintiffs-Respondents/Cross-

Appellants,

v.

GEORGE MISCHENKO and VICTORIA

MISCHENKO, husband and wife,

Defendants-Appellants/Cross-

Respondents.

_____________________________________

June 3, 2011

Argued January 18, 2011 - Decided

Before Judges A.A. Rodr guez, Grall and

C.L. Miniman.

On appeal from Superior Court of New

Jersey, Law Division, Morris County,

Docket No. L-2373-06.

Alan L. Zegas argued the cause for

appellants/cross-respondents (Law

Offices of Alan L. Zegas, attorneys;

Mr. Zegas and Judson L. Hand, on the

brief).

Richard Grungo, Jr., argued the cause

for respondents/cross-appellants (Archer

& Greiner, attorneys; Mr. Grungo and

William A. Colarulo, on the brief).

PER CURIAM

On September 1, 2004, B.H., the four-year-old autistic and non-verbal son of R.H. and K.H. (plaintiffs), was physically and sexually assaulted multiple times by Christine Mischenko. Christine, then twenty-three years old, was a behavioral therapist and a heroin user, and she was living with her parents, George and Victoria Mischenko. Since January 2003, she had been providing services for B.H. in his home either as an employee of New Horizons in Autism pursuant to a contract between New Horizons and the child's school district or directly pursuant to a private and independent arrangement with plaintiffs. On the date of the attacks, she was providing services to B.H. by arrangement with his parents, not through New Horizons. The September 1 assaults, as well as Christine's injection of heroin, were captured by a hidden camera installed by B.H.'s parents. They contacted the police, and in 2005, Christine pled guilty to endangering B.H.'s welfare and was sentenced to nine years of imprisonment.

In 2006, plaintiffs, on their own behalf and as guardians of their son, filed a civil suit for damages contending that the Mischenkos' negligence made them, as well as their daughter, liable for their injuries.1 They relied on J.S. v. R.T.H., 155 N.J. 330 (1998), and the parents' failure to act to prevent the abuse inflicted on B.H. Relying on Sacci v. Metaxas, 355 N.J. Super. 499, 507 (App. Div. 1992), the Mischenkos contended they owed no duty to advise anyone of their adult daughter's drug problem. They filed a notice and demand under the frivolous litigation rule and statute, R. 1:4-8 and N.J.S.A. 2A:15-59.1, and moved to dismiss the complaint for failure to state a claim. R. 4:6-2(e).

Plaintiffs did not withdraw the complaint and prevailed on the Mischenkos' motion to dismiss. Following discovery, the judge dismissed their complaint on summary judgment and denied the Mischenkos' application for fees. The Mischenkos appeal, and plaintiffs cross-appeal.2

Both appeals turn on the legal issue of duty a question of whether plaintiffs' interests are entitled to legal protection against the Mischenkos' conduct. J.S., supra, 155 N.J. at 338. We conclude that they are not. Nevertheless, because of the complexity of the question presented, we further conclude that plaintiffs' action was not frivolous. Accordingly, we affirm both orders.

Christine has a history of drug and alcohol use. When she was seventeen, she was caught with an open beer can in a park. Thereafter, she went to two counseling sessions; her mother went with her to a session on the danger of drugs and alcohol. According to the young man who was Christine's boyfriend from their last years in high school until her arrest, she experimented with drugs before she went to college. She used alcohol and marijuana in her parents' home when they were not there and had experimented with cocaine and ecstasy. She did not use heroin until her sophomore or junior year of college, when she was living away from home. When using heroin, she progressed from snorting the drug on occasion to injecting ever- increasing amounts three times a day.

Despite her drug use, Christine managed to do her course work and work part-time for New Horizons as an after-school aide. In that capacity, she was first assigned to work with B.H. in his home in January 2003. She apparently did well enough. In June 2003, at age twenty-two, Christine returned from college to live in her parents' home and work as a full-time behavioral therapist for New Horizons with B.H. and others. By September 1, 2004, she had been promoted and had told her parents about it.

After moving back come, Christine lived rent free and continued to use a car given to her by her parents and registered in her mother's name. She also continued her regular use of heroin, injecting herself with the drug in her bedroom and her car. At times, her boyfriend also used heroin in her bedroom; they were high in the presence of her parents on occasion.

In April 2004, the boyfriend's sister discovered him using heroin in his bedroom. Consequently, his mother alerted the Mischenkos, and they confronted their daughter. She acknowledged her heroin use and needing help. Thereafter, Christine admitted herself to a five-day in-patient program in Princeton; her parents drove her there but did not participate or receive any reports from the facility or its professionals. They did know she was supposed to attend Narcotics Anonymous on a regular basis.

When Christine returned home, she told her parents she was attending Narcotics Anonymous and resumed her work with New Horizons. They did not consider telling New Horizons about their daughter's in-patient treatment or her drug problem and did not monitor her abstinence or try to confirm her attendance at Narcotics Anonymous. Although the Mischenkos knew their daughter worked with autistic children in their homes through New Horizons, they did not know her clients or that she worked in any home when a parent of the child was not present. The Mischenkos stated that their daughter was home virtually every night and that she was regularly eating meals with the family. They explained that they had "no reason" to suspect she had relapsed or was under the influence of drugs. As far as they knew, "she was working[,] doing her job, getting paid for it [and] doing what she was supposed to do."

Christine's boyfriend continued to visit her at the Mischenkos' home, though Christine had told him her parents did not want her to see him. By his account, after she returned from the program in Princeton, the Mischenkos asked about her drug use and were "on her" but not too strict. For instance, they did not test Christine to detect drug use. He did not think the Mischenkos knew she had resumed her heroin use, but he thought "maybe they might have had an idea" and "were denying it to themselves, that kind of thing." He said they had opportunity to see her constricted pupils and that "if you stretched out her arms, if you examined [them], I bet you would probably be able to find something." He explained, however, that Christine was good at using make-up to cover her track marks and to make herself look healthy. She kept herself looking nice and neat, and she kept her syringe and spoon in an eyeglass case, which she put in the purse she took with her when she left the house.

K.H. started to be concerned about Christine's treatment of her son in Spring 2004. She noticed that B.H. was becoming more anxious when Christine arrived at their home, noting he clung to K.H. more and cried for a longer period of time before the session got underway. On occasion, K.H. found Christine lying on the couch apparently sleeping, and once K.H. came home early and found Christine had a guest. Nothing in this record suggests that either K.H. or R.H. contacted New Horizons to express concerns about Christine's performance or her relationship with B.H., and it was after June 2004 that they retained Christine by arrangement independent of New Horizons.

In late August 2004, K.H. noticed bruising on her son's ears. When she asked Christine about it, Christine avoided eye contact. K.H. asked B.H. if Christine had touched him, and B.H. said "ears" and cupped them. At that point, plaintiffs installed the hidden video camera that captured Christine's multiple assaults of B.H. on September 1, 2004.

There is no evidence that Christine previously ever had a violent outburst or abused or assaulted a person other than B.H. Nor is there any evidence that a parent whose child was treated by her had complained to New Horizons about her performance or behavior. A therapist who saw Christine after her arrest was of the opinion that she was in a "drug induced black out" when she assaulted B.H. According to Christine's boyfriend, heroin use changed Christine's attitude in that "all she ever did was basically look for drugs."

Setting aside a natural empathy for the four parents involved in this litigation, we consider the central legal issue. The trial judge granted judgment to the Mischenkos because he found they had no duty to protect plaintiffs from the actions of their adult daughter. Because the question of duty was decided in favor of defendants on summary judgment, we must "accept[] as true all the evidence and favorable legitimate inferences that support" plaintiffs' claim. J.S., supra, 155 N.J. at 337.

The standard governing our review is well stated in Frederick v. Smith, 416 N.J. Super. 594, 599 (App. Div. 2010), certif. denied, 205 N.J. 317 (2011):

Whether a duty should be imposed is a matter of law, Kernan v. One Washington Park Urban Renewal Associates, 154 N.J. 437, 445 (1998); Arvanitis v. Hios, 307 N.J. Super. 577, 581 (App. Div. 1998), that poses "'a question of fairness'" involving "'a weighing of the relationship of the parties, the nature of the risk, and the public interest in the proposed solution,'" Kelly v. Gwinnell, 96 N.J. 538, 544 (1984) (quoting Goldberg v. Hous. Auth. of Newark, 38 N.J. 578, 583 (1962)). In reviewing a trial judge's determination that a duty does or does not arise in a particular situation, we are bound neither by the trial judge's interpretation of the law nor the judge's view of the legal consequences of the alleged facts. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

The duty analysis is "rather complex." J.S., supra, 155 N.J. at 337. "[I]n its determination whether to impose a duty, [a court] must also consider the scope or boundaries of that duty." Id. at 339. Moreover, the court must recognize "the more fundamental question whether plaintiff's interests are entitled to protection against defendant's conduct." Id. at 338 (internal quotations omitted). That assessment must include the relationship between the parties, defendant's "responsibility for conditions creating the risk of harm," and whether the "defendant had sufficient control, opportunity, and ability to have avoided the risk of harm." Id. at 339 (internal quotations omitted).

With respect to the nature of the risk, both the "foreseeability and severity" of the "underlying risk of harm" and "the opportunity and ability to exercise care to prevent the harm" are considered. Id. at 338. To that end, "[t]he ability to foresee injury to a potential plaintiff is crucial in determining whether a duty should be imposed." Id. at 338 (internal quotations omitted). The defendant must have actual knowledge or awareness of the risk of injury or constructive knowledge or awareness, which may be imputed when the defendant is "in a position to discover the risk of harm." Ibid. (internal quotations omitted).

The severity of the harm in this case cannot be overstated. The assaults on September 1, 2004 involved aggressive sexual contact and other violent physical abuse. The clear public policy favoring protection of children from such abuse, and the Legislature's action to effectuate it, was addressed at length in J.S. and need not be reiterated here. Id. at 343-49.

But, even a severe harm and a clear public policy to prevent it is not a sufficient basis for imposing a duty unless the harm is foreseeable. For instance, in recognizing a duty on the part of a spouse "to take reasonable steps to prevent or warn of the harm" posed by his or her spouse's risk of sexually abusing children, id. at 350, the Court limited the duty to cases in which a heightened standard of foreseeability is met cases where the defendant had "particular knowledge or special reason to know that a particular plaintiff or identifiable class of plaintiffs would suffer a particular type of injury." Id. at 342 (internal quotations omitted).

We see no basis for applying a less particularized standard of foreseeability with respect to a parent's supposed duty to prevent or warn against assaultive conduct by an adult offspring who is a heroin user. As a general rule, a person has no duty to control the conduct of another to prevent harm to a third person. See Champion v. Dunfee, 398 N.J. Super. 112, 122 (App. Div.), certif. denied, 195 N.J. 420 (2008); McIntosh v. Milano, 168 N.J. Super. 466, 483 (Law Div. 1979). The Court has applied the particularized foreseeability standard adopted in J.S. in other contexts where the duty imposed relates to a risk by a third party for whose conduct the defendant is not otherwise responsible, 155 N.J. at 342 (citing Clohesy v. Food Circus Supermarkets, Inc., 149 N.J. 496, 513 (1997)), and there is no reason to depart from it here. While tort law has recognized that parents are in some cases responsible for the actions of their minor children, that rule does not apply once the child reaches the age of majority. See Mazzilli v. Selger, 13 N.J. 296, 302 (1953) (quoting Restatement (First) of Torts 316 (1934)).

Measured against J.S.'s standard of particularized foreseeability, the evidence in this case is inadequate to warrant imposition of a duty on Christine's parents. There is nothing to indicate that either of the Mischenkos had "particular knowledge" or "special reason to know" that B.H. or an identifiable class of autistic children treated by Christine would suffer injury from an assault at her hands. The record is devoid of any evidence that the Mischenkos were aware of prior violence or aggression on Christine's part. The only evidence suggesting a "special reason" to think B.H. in particular, or as a member of the class of children Christine treated, was at risk of injury by Christine was the bruising noticed by his mother and not reported to the Mischenkos. On this record, the most favorable inference available to plaintiffs is that the Mischenkos should have known that Christine was using heroin again and that they could have expected her to leave her assignment to look for drugs or inject heroin or fall asleep on the job. Because they had no reason to suspect that she was providing therapy in a home unsupervised, the risk of harm they could have perceived was minimal. From what the Mischenkos knew, their daughter was a behavioral therapist, not a babysitter.

To the extent that plaintiffs suggest the Mischenkos contributed to risk by failing to prevent their daughters' drug use, we reject the argument. Understandably, plaintiffs focus on Christine's drug use as the risk of harm the Mischenkos could and should have prevented. Although Christine's therapist indicated that she committed the assaults during a drug-induced blackout, Christine's heroin use before the attacks had not indicated a risk of violence that was knowable to the Mischenkos. It is true that the Mischenkos may have been willfully ignorant of Christine's continued use of heroin and thereby facilitated that conduct in their home and J.S. mentions a defendant's role in encouraging or facilitating child abuse. 135 N.J. at 340. But absent evidence of resulting aggression or violence, the jump from heroin use at home to child abuse at work is too broad to qualify as facilitation of foreseeable abuse. See Sacci, supra, 355 N.J. Super. at 507-17 (holding that a wife's purchase of alcohol for her husband who had become violent on consumption was an inadequate basis for imposing a duty to warn).

For all of the foregoing reasons, we affirm the grant of summary judgment.

Our consideration of J.S. and the arguments for its extension to the facts of this case convinces us that the question of duty raised is quite complex. Given that complexity, we are convinced that the trial judge did not abuse his discretion in finding plaintiffs' pursuit of this claim through discovery and to summary judgment fell short of frivolous litigation that is remediable pursuant to N.J.S.A. 2A:15-59.1(b)(2) or Rule 1:4-8. See McKeown-Brand v. Trump Castle Hotel & Casino, 132 N.J. 546, 560-62 (1993); Masone v. Levine, 382 N.J. Super. 181, 192 (App. Div. 2005). We make the same finding of non-frivolousness with respect to plaintiffs' pursuit of the issue on this cross-appeal. Defendants' arguments to the contrary lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).3 Affirmed.

1 Plaintiffs also filed complaints against Christine, New Horizons and the child's school district that had initially entered into the contract with New Horizons for the services Christine and other therapists provided B.H. through New Horizons. The actions were consolidated and have been resolved. Plaintiffs obtained a default judgment against Christine and settled their claims against New Horizons. Plaintiffs' claims against the school district were dismissed at trial after the close of their case.

2 Because not all appearances of plaintiffs' names and other confidential information, N.J.S.A. 2A:61B-1(f), have been redacted from the documents in the appendicies, we impound the record. See Rule 1:38-11 and by analogy to Rule 1:38-3(c)(12).

3 In light of our disposition of the Mischenkos' appeal, we deny as moot their reserved motion to supplement the record

(M-0633-10).