The Appellate Division felt "natural empathy" for the four parents involved in R.H. v. Mischenko, No. A-3140-09 (App. Div. June 3, 2011).  The plaintiffs were parents of a four-year-old autistic boy who was sexually and physically assaulted by Christine Mischenko, who was the daughter of the defendants.  At the time of the assault, Christine was twenty-three and lived with her parents.  She was a behavioral therapist, and heroin addict, who was providing services to the plaintiffs' son when she assaulted him.  The plaintiffs sued Christine's parents, claiming that their negligence caused the assault and injuries.  The Appellate Division had to decide whether the defendants had a duty to protect the plaintiffs from the actions of their heroin-addicted daughter.  The Appellate Division ruled that the defendants did not owe the plaintiffs a duty and affirmed the trial court's decision granting summary judgment to them.

Christine had been providing services to the plaintiffs' son since January 2003 either as an employee of New Horizons in Autism or through a private arrangement with the parents.  On September 1, 2004, Christine was providing services to the plaintiffs' son through their private arrangement.  Her assault of the son, along with her injection of heroin, was captured on videotape that day via a hidden camera.  The plaintiffs contacted the police and in 2005 Christine pled guilty to child endangerment.  She was sentenced to 9 years of imprisonment.

Christine had a long history of alcohol and drug abuse.  She was caught with beer when she was seventeen and began experimenting with drugs before she went to college.  She used alcohol and marijuana in her parents' home when they were not there, and she also started to use cocaine and ecstasy.  It was not until her sophomore or junior year of college, however, that she began using heroin.  She progressed from using heroin occasionally to injecting increasing amounts three times a day.

Even though she was heavily involved with drugs Christine was able to complete her course work and worked at New Horizons part-time.  It was in that role that she was first assigned to work with the plaintiffs' son at their home in January 2003.  In June 2003, Christine, then 22, completed college and returned to live at home with her parents and work full-time for New Horizons.  At home, she lived rent free and used a car provided by her parents.  She also continued to use heroin.  She would inject herself in her bedroom and in her car, and her boyfriend would as well.  There were times when she and her boyfriend were high in front of her parents.

In April 2004, her boyfriend's family alerted Christine's parents to her heroin use and they confronted her about it.  She admitted her heroin problem and that she needed help.  She admitted herself to a five-day program.  Her parents drove her to it but did not otherwise participate in the program.  Upon returning home Christine told her parents she was attending Narcotics Anonymous and she resumed her work with New Horizons.  Her parents did not inform New Horizons about her drug problem, nor did they check to see if she was staying clean or attending Narcotics Anonymous.  Although her parents knew that Christine worked with children in their homes, they did not know any of those people or if parents were present when she worked with their children.  Christine's parents stated that she was home regularly and they had no reason to suspect that she was still using drugs.

According to Christine's boyfriend, her parents were "on her" about drugs but were not too strict.  In that regard, they did not drug test Christine.  He did not think that they knew that Christine was still using heroin but thought they may have had an idea that she was.  He also indicated that Christine did a good job in hiding her track marks and maintaining a nice appearance.

The plaintiffs started to get concerned about Christine in the spring of 2004.  The mother noticed that her son became anxious when Christine arrived and that he clung to her and cried.  The plaintiffs did not express their concerns to New Horizons, and they entered their private arrangement with Christine after June 2004.  In late August 2004, the plaintiff mother noticed bruising on her son and when she asked Christine about it she avoided eye contact.  The plaintiffs then decided to install the hidden camera, which captured the assaults.  There was no evidence that Christine had ever acted violently before or assaulted anyone else.  A therapist who saw Christine after the assault opined she was in a drug induced black out during the assault.

The plaintiffs sued Christine's parents.  Following discovery, the trial court granted summary judgment to the defendants.  The court also denied the defendants' application for fees based on their argument that the litigation was frivolous.  Both sides appealed and the Appellate Division affirmed.

The Appellate Division began its analysis by reviewing well-established precedent concerning whether to impose a duty and the factors that are part of that analysis, which included the severity of the harm, the relationship of the parties, and the foreseeability of the harm.  Although the court stressed that the harm in the case was severe, and that there was a strong public policy favoring the protection of children from such abuse, it emphasized that "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."  The court declared that "[w]e 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." The Appellate Division further explained that as a general matter a person does not have a duty to control the conduct of another in order to prevent harm to a third party.  Although tort imposes a duty on parents for their children in some situations, "that rule does not apply once the child reaches the age of majority."

Ultimately, the Appellate Division concluded that the evidence was insufficient to impose a duty on Christine's parents.  The court explained that "[t]here is nothing to indicate that either of the [defendants] had 'particular knowledge' or 'special reason to know' that [the plaintiffs' son] 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 [defendants] were aware of prior violence or aggression on Christine's part.  The only evidence suggesting a 'special reason' to think [the plaintiffs' son] 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 [defendants].  On this record, the most favorable inference available to plaintiffs is that the [defendants] 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 [defendants] knew, their daughter was a behavioral therapist, not a babysitter."

"To the extent that plaintiffs suggest the [defendants] 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 [defendants] 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 [defendants]. It is true that the [defendants] may have been willfully ignorant of Christine's continued use of heroin and thereby facilitated that conduct in their home and [J.S. v. R.T.H., 155 N.J. 330, 340 (1998)] mentions a defendant's role in encouraging or facilitating child abuse. ...  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."

Accordingly, the Appellate Division affirmed the trial court's decision to grant summary judgment to the defendants.  Moreover, because the question of whether the defendants owed the plaintiffs a duty was "quite complex," the Appellate Division also affirmed the trial court's decision to not award attorneys' fees to the defendants.