District of Columbia v Debra Ali Hampton No. 90-CV-1148

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 90-CV-1148

District of Columbia,

Appellant

v.

Debra Ali Hampton,

Appellee

Appeal from the Superior Court of the

District of Columbia

(Hon. Richard S. Salzman, Trial Judge)

(Argued March 24, 1992           Decided September 29, 1995)

Edward E. Schwab, Assistant Corporation Counsel, with whom John

Payton, Corporation Counsel at the time the brief was filed, and Charles

L. Reischel, Deputy Corporation Counsel, were on the brief, for

appellant.

H. Vincent McKnight, Jr., with whom Karl N. Marshall was on the

brief, for appellee.

Before Ferren, Terry, and King, Associate Judges.

Terry, Associate Judge:  In this negligence case the District of

Columbia appeals from the denial of its motion for judgment

notwithstanding the verdict.  Appellee, Debra Ali Hampton, is the mother

of Mykeeda Hampton, a two-year-old girl who died while in the care of

her foster mother, Geraldine Stevenson.  In August 1987 Mrs. Stevenson

left Mykeeda at home with her two sons, aged fifteen and twelve, for

over ten hours while she ran several errands, and during that time

Mykeeda was beaten to death by the twelve-year-old.  Appellee brought

this suit against the District of Columbia and Mrs. Stevenson raising

several claims:  that Mrs. Stevenson was negligent in leaving Mykeeda

with the two boys; that Mrs. Stevenson was the District's agent, so that

the District was liable for her negligent acts under the doctrine of

respondeat superior; that the District of Columbia Department of Human

Services (DHS) was negligent in selecting Mrs. Stevenson to be Mykeeda's

foster mother; and that DHS was negligent in monitoring Mykeeda's care

after she had been placed in Mrs. Stevenson's home.  The jury returned a

verdict in Mrs. Hampton's favor.  The District filed a motion seeking a

judgment notwithstanding the verdict, a new trial, or a remittitur, all

of which the trial court denied.

On appeal the District makes two assignments of error.  First, it

contends that Mrs. Hampton was required to introduce expert testimony to

prove the standard of care applicable to social workers involved in

foster care, and that without such testimony the jury could not have

found the District negligent in placing and monitoring Mykeeda.  Second,

the District maintains that it cannot be held liable for Mrs.

Stevenson's negligence on a theory of respondeat superior because she

was not its agent.  We hold that the conduct of the DHS social worker

responsible for monitoring Mykeeda's foster care was not self-evidently

negligent, and hence that expert testimony on the applicable standard of

care was required.  Since none was presented, and since we also hold

that the evidence failed to show that Mrs. Stevenson was the agent of

the District of Columbia, we reverse the judgment of the trial

court.*fn1

In the fall of 1985 Geraldine Stevenson decided that she would like

to be a foster parent.  At that time she was divorced and had four sons

living with her, ranging in age from ten to seventeen.  In October she

began attending DHS's training and orientation program for foster

parents,*fn2 and when that was completed, she filed an application to

become a foster parent.  A DHS social worker completed an investigation

of Mrs. Stevenson in May 1986 which included several visits to her home,

a check of her references and her employment, interviews with the four

boys, and an evaluation of Mrs. Stevenson's day care plan for potential

foster children.  The social worker noted in her report that Mrs.

Stevenson planned to use a next-door neighbor, Virgie Davis, as a

babysitter while she was at work.*fn3  The social worker found "no

evident areas of concern" and recommended that two children be placed in

Mrs. Stevenson's home.

In May 1986 Mrs. Stevenson signed a contract with DHS to be a

foster parent*fn4 and was given a list stating the "basic requirements"

necessary to maintain a foster home.*fn5  A two-week-old girl named

Amber was placed in Mrs. Stevenson's home in May 1986 and remained there

until Mykeeda's death in August 1987.  At various times between May 1986

and May 1987 five other children were placed in the Stevenson home for

periods ranging from a few days up to six months.  After Mrs.

Stevenson's oldest son moved away in the latter part of 1986, she was

authorized to care for as many as four foster children at a time.

In May 1987 DHS removed four of Debra Hampton's children from her

home and obtained court orders for their placement in foster homes.  The

four children were twin girls aged four, two-year-old Mykeeda, and a boy

less than one year old.  According to the testimony of a DHS social

worker, the children were removed because Mrs. Hampton had left them

alone and was not properly supervising them; in addition, her home was

"generally uninhabitable" and on occasion contained no edible food.*fn6

The twins were immediately placed with Geraldine Stevenson.  After

staying briefly in the home of her paternal grandparents, Mykeeda

Hampton was placed in another foster home.

Between May and August 1987 Mrs. Stevenson brought the Hampton

twins to the DHS office every week so that they could visit with their

mother, their sister Mykeeda, and their brother.  At some time during

that period, DHS officials told Mrs. Stevenson that they wanted to place

Mykeeda with her because they wanted to reunite the girl with her

sisters and because her foster parent was unable to keep her.  Mrs.

Stevenson testified that she objected to Mykeeda's being placed with her

"from the beginning" because during the family visits at DHS she had

seen that Mykeeda would not talk to anyone, was not toilet-trained, and

"would walk around with her head to the floor . . . [and] looked sad all

the time."  According to Mrs. Stevenson, a DHS official told her that

because she had a "vacancy" in her home, she had to take Mykeeda.

On August 4, 1987, Mykeeda was placed in Mrs. Stevenson's home.

Mrs. Stevenson testified that on the day Mykeeda was brought to her, she

told Mykeeda's social worker that the girl "was too much [for] me."

Stevenson also acknowledged that while Mykeeda was in her care, there

were two occasions on which the child was spanked.  In the first

incident Mrs. Stevenson herself spanked Mykeeda, leaving "a red bruise

because she was an easy bruiser."  Then, about a week or two later, Mrs.

Stevenson's twelve-year-old son hit Mykeeda on the rear end with a

wooden toy, breaking the skin.  Mrs. Stevenson reported both incidents

to the DHS social worker.

Mrs. Stevenson admitted in her testimony that she occasionally left

Mykeeda and the other foster children at home under the supervision of

her two eldest sons, who were seventeen and fifteen years old, while she

went on errands which sometimes lasted as long as three hours.  Although

Mrs. Stevenson never told the DHS social worker about this practice, the

social worker quickly realized what was going on when she would call

Mrs. Stevenson's home and one of the sons would answer.  On August 25,

the day after Mykeeda's death, the social worker wrote in her case

report that she was aware that Mrs. Stevenson sometimes left the foster

children at home without adult supervision.*fn7  When asked about this

report at trial, the social worker testified that there had been one

instance in which she telephoned the Stevenson house, and the young man

who answered the phone told her that Geraldine Stevenson was not at

home.

On August 24 Mrs. Stevenson went out at 7:30 a.m. to have some work

done on her car.  She left the four foster children (the twin girls,

Mykeeda, and Amber) in the care of two of her sons, fifteen-year-old

Darryl and twelve-year-old Patrick.  Mrs. Stevenson did not return home

until 5:30 in the evening, but during the day she made several telephone

calls to her home to check on the children and was told that everything

was fine.

At about 4:30 p.m., Robin Shorts, Mrs. Stevenson's sister-in-law,

came to the Stevenson apartment.  She found Patrick Stevenson, her own

son Marcus,*fn8 and three of the foster children (Amber and the twins)

watching television.  She went to Mykeeda's bedroom and saw her on the

bed, apparently asleep.  A few minutes later she sent Patrick to

Mykeeda's bedroom to wake her up.  When Patrick returned with the girl

in his arms, Shorts saw that Mykeeda was "limp . . . just lying there"

and did not appear to be breathing.  Shorts immediately called for an

ambulance and attempted to administer CPR, but Mykeeda could not be

revived.  By the time Mrs. Stevenson got back to the apartment at 5:30,

an ambulance, police, and a television news crew had arrived.  Mykeeda

died at about 6:00 p.m.*fn9  The other three foster children were

removed from Mrs. Stevenson's home that evening, and her foster care

license was taken away.

Mrs. Hampton filed suit against the District of Columbia and

Geraldine Stevenson seeking compensatory and punitive damages under the

survival statute, D.C. Code  12-101 (1989).*fn10  The District filed

two motions for summary judgment, but they were both denied.  The case

then went to trial before a jury.  After all the evidence was in, the

District moved for a directed verdict.  The court granted the motion in

part, but only on the limited issue of whether the District had been

negligent in training Geraldine Stevenson; as to all other issues the

motion was denied.  After the jury returned its verdict,*fn11 the

District moved for judgment n.o.v., a new trial, or a remittitur.  The

court denied the motion, and the District noted this appeal.

The case was submitted to the jury on three alternative theories of

liability:  (1) that the District, through DHS, had negligently selected

Mrs. Stevenson as a foster mother for Mykeeda, (2) that the District,

through DHS, had been negligent in its monitoring and supervision of

Mrs. Stevenson's performance of her duties as a foster mother, and (3)

that the District was liable under principles of respondeat superior for

Mrs. Stevenson's negligence because she was its agent.  Since any one of

these three theories, if sustained on appeal, would support the verdict,

we must address all three in considering the District's arguments.

Because the first two have as a common element the District's direct

negligence (if any) in selecting and supervising a foster parent, we

take them up together in part II of this opinion; then in part III we

discuss whether the District is vicariously liable for Mrs. Stevenson's

negligence.

II

To establish a standard of care for the placement and monitoring of

children in foster care, Mrs. Hampton sought to call a witness with a

Ph.D. in developmental psychology to testify as an expert on "the

provision of day care service in the foster care scenario."  Counsel for

the District raised an objection, however, and after a hearing outside

the presence of the jury, the court declined to accept the witness as an

expert.*fn12  No other expert testimony was offered.  In its motion for

judgment n.o.v., the District argued that Mrs. Hampton was required to

present expert testimony to establish the standard of care applicable to

the selection and supervision of a foster parent.  The court rejected

this argument, holding that no expert testimony was needed because the

jury "was fully capable of deciding for itself without an expert

witness" whether the District had been negligent in selecting Mrs.

Stevenson as a foster parent and in supervising her in the performance

of her duties.  The District now contends that this ruling was error.

The plaintiff in a negligence action bears the burden of proving

"the applicable standard of care, a deviation from that standard by the

defendant, and a causal relationship between that deviation and the

plaintiff's injury."  Meek v. Shepard, 484 A.2d 579, 581 (D.C. 1984)

(citations omitted).  Furthermore, "if the subject in question is so

distinctly related to some science, profession, or occupation as to be

beyond the ken of the average layperson," expert testimony is usually

required to prove the standard of care.  District of Columbia v. Peters,

527 A.2d 1269, 1273 (D.C. 1987).  There is, however, a partial exception

to this rule which we have characterized as "the `common knowledge'

exception to the expert testimony requirement."  O'Neil v. Bergan, 452

A.2d 337, 342 (D.C. 1982).  We summarized that exception in Beard v.

Goodyear Tire & Rubber Co., 587 A.2d 195 (D.C. 1991):

Where negligent conduct is alleged in a context

which is within the realm of common knowledge and

everyday experience, the plaintiff is not required to

adduce expert testimony either to establish the

applicable standard of care or to prove that the

defendant failed to adhere to it.

Id. at 200 (citations omitted).  The issue before us is whether the

instant case is controlled by this exception or whether it falls under

the general rule requiring expert testimony to prove the applicable

standard of care.

The general rule is most commonly applied, or at least its

application is at issue, in professional malpractice cases.  E.g., Eibl

v. Kogan, 494 A.2d 640, 642-643 (D.C. 1985) (medical malpractice); Meek

v. Shepard, supra, 484 A.2d at 581 (medical malpractice); O'Neil v.

Bergan, supra, 452 A.2d at 341 (legal malpractice); see Bell v. Jones,

523 A.2d 982, 988-990 (D.C. 1986) (summarizing evidence establishing

standard of care for surveyors).  Over the last decade or so, however,

the requirement has been applied more broadly in a variety of

situations.  E.g., Messina v. District of Columbia, No. 94-CV-17, slip

op. at 5 (D.C. August 17, 1995) (expert testimony necessary to prove

standard of care for construction of safe playground equipment); Beard

v. Goodyear Tire & Rubber Co., supra, 587 A.2d at 200 (expert testimony

necessary "to identify the appropriate standard of care to which retail

merchants should be held in processing applications for credit cards");

District of Columbia v. Carmichael, 577 A.2d 312, 314 (D.C. 1990)

(expert testimony necessary to prove standard of care for protecting

prison inmates from injury by other prisoners); Hughes v. District of

Columbia, 425 A.2d 1299, 1303 (D.C. 1981) (same); see Lenkin-N Limited

Partnership v. Nace, 568 A.2d 474, 477 (D.C. 1990) (testimony by

"experts in commercial office construction" necessary to determine

whether delay in completing construction of office space in commercial

building was reasonable); District of Columbia v. Freeman, 477 A.2d 713,

719 (D.C. 1984) (expert testimony necessary to determine "whether a

painted crosswalk is sufficient to render a particular intersection

reasonably safe").  The common thread running through all of these

cases, and many others, is that expert testimony is needed if "the

subject matter is too technical for the lay juror  . . . ."  Beard,

supra, 587 A.2d at 200; see Harris v. Cafritz Memorial Hospital, 364

A.2d 135, 137 (D.C. 1976) (in medical malpractice action, test is

whether the case "involves the merits and performance of scientific

treatment, complex medical procedures, or the exercise of professional

skill and judgment"), cert. denied, 430 U.S. 968 (1977).

In the substantially smaller number of cases falling within the

common knowledge exception, we have refused to require expert testimony

when the issue before the jury did not involve either a subject too

technical for lay jurors to understand or the exercise of sophisticated

professional judgment.  For example, in Washington Hospital Center v.

Martin, 454 A.2d 306 (D.C. 1982), a 93-year-old patient fell out of her

hospital bed and broke her hip.  She sued the hospital, alleging "that

it had been negligent in leaving her unattended and in failing to

protect her from falling out of bed."  Id. at 307.  We affirmed a

judgment in favor of the patient, holding that no expert testimony was

needed to establish the pertinent standard of care:

The issue in this case was not whether the doctor

correctly prescribed restraints for [the patient] or

whether the nursing staff applied them properly.  Those

are matters which generally involve professional

judgment and skill, and if the exercise of such judgment

and skill is at issue, expert testimony would no doubt

be needed in an appropriate case.  Here, however, the

issues before the jury were whether [the patient] was in

fact under restraints immediately prior to her fall and,

if not, whether the hospital was negligent in leaving

her unattended.

Id. at 308.  We agreed with the trial court "that these were not

questions on which expert testimony was either necessary or helpful."

Id.*fn13  Similarly, in Hamilton v. Needham, 519 A.2d 172 (D.C. 1986),

we held that expert testimony was not necessary to prove the standard of

care, when the evidence showed that an attorney drafting a will had

omitted a residuary clause requested by the testator, thereby causing

the residuary estate to pass by intestate succession contrary to the

testator's wishes.  We held that this evidence "facially demonstrated an

obvious lack of care and skill" and that "[n]o expert need guide the

factfinder here."  Id. at 175.

Although this case does not fit neatly into any of the categories

of cases in which this court has required expert testimony, we conclude

that the District is correct in arguing that the selection of foster

parents and the supervision of the care they provide are not activities

"within the realm of common knowledge and everyday experience  . . . ."

Matthews v. District of Columbia, 387 A.2d 731, 735 (D.C. 1978).

Consequently, expert testimony was needed to establish the standard of

care before the District could be found liable for either negligent

selection or negligent supervision of a foster parent.  As the District

points out in its brief, social work is a licensed profession in the

District of Columbia, the practice of which is limited to persons with

specialized training.  See D.C. Code  2-3305.1 (1994).*fn14  It is

regulated by a five-member Board of Social Work, four of whose members

must be licensed social workers.  D.C. Code  2-3302.12.  Under the

statutory scheme, social workers are considered "health professionals"

along with doctors, dentists, nurses, optometrists, pharmacists, and

nursing home administrators, among others, all of whom must be licensed.

D.C. Code  2-3305.1.  In the foster care context, the decisions that

social workers must make when placing children with foster parents are

clearly beyond "the everyday experiences of a lay person."  Hughes v.

District of Columbia, supra, 425 A.2d at 1303.  They must assess the

particular physical and emotional needs of each child, the availability

of vacancies in licensed foster homes, and the past performance of each

foster parent.  These are not matters that a jury of lay persons can

reasonably be expected to know about.

Mrs. Hampton suggests that the DHS social workers were on notice of

potentially serious problems in the Stevenson household, and that their

failure to intervene amounted to actionable negligence.  They knew, for

example, that on one occasion Mrs. Stevenson's twelve-year-old son had

struck Mykeeda with a wooden toy so hard as to break the skin.  We do

not think that this one incident would permit a jury to find that DHS

had a duty to withdraw Mykeeda from the Stevenson home, especially when

there was no evidence that Mrs. Stevenson herself was unable to keep the

situation under control by supervising her son more closely.  There was

also another time when Mrs. Stevenson left Mykeeda and her three other

foster children under the supervision of her teenaged sons, contrary to

the express requirements of DHS governing the children's placement.  As

far as the record shows, however, these incidents were not

frequent,*fn15 and Mrs. Stevenson was absent for a relatively short

period of time, three hours at most.  Nor is it commonly accepted that

leaving a two-year-old in the care of a fifteen-year-old, without more,

is negligent conduct.  DHS was not on notice that Mrs. Stevenson was

likely to leave the foster children with her own children for as long as

ten hours, as she did on August 24.  These incidents, in our view, do

not establish as a matter of "common knowledge and everyday experience,"

Matthews, supra, 387 A.2d at 735, that DHS was negligent in failing to

remove Mykeeda from Mrs. Stevenson's care; hence they do not vitiate the

need for Mrs. Hampton to prove the relevant standard of care by expert

testimony.  Without such testimony, a reasonable juror could not have

found that the social workers' failure to intervene after learning of

these events demonstrated a "lack of care and skill . . . so obvious

that the trier of fact [could] find negligence as a matter of common

knowledge."  O'Neil v. Bergan, supra, 452 A.2d at 341 (citations

omitted).

We hold, therefore, that Mrs. Hampton should have presented expert

testimony on the standard of care, and that the absence of such

testimony was fatal to her case.  "If the standard itself is not proven,

then a deviation from that standard is incapable of proof."  District of

Columbia v. Carmichael, supra, 577 A.2d at 314.  Without sufficient

proof of the standard of care, her claims of negligent selection and

negligent supervision should never have gone to the jury.  Messina v.

District of Columbia, supra, slip op. at 10; Meek v. Shepard, supra, 484

A.2d at 582.

III

The District also maintains that Geraldine Stevenson was not its

agent but an independent contractor, and thus that any negligence on her

part cannot be imputed to it under the doctrine of respondeat superior.

The trial court ruled that there was a jury issue as to whether Mrs.

Stevenson was the District's agent and instructed the jury accordingly.

The District argues, however, that an essential element of an agency

relationship -- the principal's right to control the agent -- was

missing in the instant case because there was no evidence that the

District had the right to exercise control over the day-to-day care that

Mrs. Stevenson, as a foster parent, provided to her foster

children.*fn16  On the record as a whole, we agree with the District

that Mrs. Hampton failed to prove this critical element, and that the

District was therefore entitled to judgment on the question of its

vicarious liability for Mrs. Stevenson's negligent conduct.

As it relates to foster care, this is an issue of first impression

for this court, and one that has not been addressed by many other

courts.  The trend of recent case law, however, seems to be that foster

parents are not deemed to be agents or employees of state family service

agencies.  See Kern v. Steele County, 322 N.W.2d 187 (Minn. 1982)

(evidence insufficient to prove that state social workers had a right to

control the manner in which foster home operated; state agency's right

to remove foster child at will is not conclusive of employer-employee

relationship); New Jersey Property Liability Insurance Guaranty Ass'n v.

State, 195 N.J. Super. 4, 477 A.2d 826 (1984) (evidence insufficient to

prove that state agency had a right to control foster parents); Blanca

C. v. County of Nassau, 103 A.D.2d 524, 532, 480 N.Y.S.2d 747, 752

(1984) (court refused to impose vicarious liability upon the county for

acts of foster parents because it would "inflict [a] potentially

crushing financial burden . . . on the public fisc"), aff'd, 65 N.Y.2d

712, 481 N.E.2d 545, 492 N.Y.S.2d 5 (1985); Simmons v. Robinson, 305

S.C. 428, 409 S.E.2d 381 (1991) (foster parent is a licensee of state

social services agency, not an employee or an independent

contractor).*fn17  The Supreme Court of Louisiana in one case did impute

liability to a state agency for the negligence of a foster parent, but

on the ground that when the state public welfare agency removes a child

from its natural parents, "the ultimate duty of care [for the child] is

non-delegable and remains [the state's] legal responsibility."  Vonner

v. State Dep't of Public Welfare, 273 So. 2d 252, 256 (La. 1973).  Since

the duty was not delegable, the court found it unnecessary to decide

whether the foster parent was an agent of the state or an independent

contractor.  Id. at 256 n.3.

Whether a master-servant (or principal-agent) relationship exists

in a given situation "depends on the particular facts of each case."

Safeway Stores, Inc. v. Kelly, 448 A.2d 856, 860 (D.C. 1982); accord,

e.g., McGinniss v. Frederick W. Berens Sales, Inc., 308 A.2d 765, 766

(D.C. 1973).  The person asserting the relationship -- in this case,

Mrs. Hampton -- has the burden of proof.  Henderson v. Charles E. Smith

Management, Inc., 567 A.2d 59, 62 (D.C. 1989); Smith v. Jenkins, 452

A.2d 333, 335 (D.C. 1982).  This court has recognized several factors to

be considered in determining whether such a relationship exists:

(1) the selection and engagement of the servant, (2) the

payment of wages, (3) the power to discharge, (4) the

power to control the servant's conduct, (5) and whether

the work is part of the regular business of the

employer.

LeGrand v. Insurance Co. of North America, 241 A.2d 734, 735 (D.C. 1968)

(citation and internal quotation marks omitted).  We have often held,

however, that of these five factors "the determinative factor" is

usually the fourth:  "the right to control an employee in the

performance of a task and in its result, and not the actual exercise of

control or supervision."  Safeway Stores, supra, 448 A.2d at 860

(citations omitted); accord, e.g., Levy v. Currier, 587 A.2d 205, 209

n.10 (D.C. 1991) ("[t]he right to control the [alleged agent], not only

as to the final result but in the performance of the task itself, is the

most important factor in determining whether someone is a servant or an

independent contractor" (citation omitted)); Henderson, supra, 567 A.2d

at 62 (court "must look for evidence that the activities of the agent

are subject to the principal's control" (emphasis in original)); Giles

v. Shell Oil Corp., supra note 16, 487 A.2d at 611 (determination of

agency relationship "basically turns on one of these factors:

control").

In analyzing the employer's right to control, this court has

generally looked to the actual relationship between the parties and, if

a written agreement existed between them, to the language of that

agreement.  For instance, in Safeway Stores, supra, there was evidence

of several instances in which Safeway management gave instructions to

store security guards, who in turn complied with those instructions.  We

said that "specific instances of actual control are evidence of the

general right of Safeway to control [the security guard] in the

performance of his duties."  448 A.2d at 861.  In Giles v. Shell Oil,

supra note 16, the court found nothing in "the parties' actual

relationship" to indicate that Shell had "the right to control the day-

to-day operation of the [gas] station or the day-to-day performance of

its employees."  487 A.2d at 613.  In Rose v. Silver, 394 A.2d 1368,

1372 (D.C. 1978), the court held that actions by a Connecticut

corporation (seeking out an attorney and directing him to set up an

office in the District of Columbia) showed that the attorney was the

corporation's agent.  Finally, in Henderson, supra, we looked to the

actual "dealings between the parties, as reflected in the record," 567

A.2d at 64, in order to determine whether they demonstrated "the crucial

element of right to control  . . . ."  Id. at 65.  The language of any

written contract between the parties may also be significant in

determining the right to control.  See Henderson, supra, 567 A.2d at 62-

63; Giles, supra note 16, 487 A.2d at 612-613.

In this case there was very little testimony about the actual

relationship between Mrs. Stevenson and the DHS social workers, and none

suggesting that the District had a right to control Stevenson's daily

performance of her foster care duties.  The testimony of Maria Clark,

the DHS social worker assigned to supervise Mykeeda's foster care, did

not establish that Mrs. Stevenson took direction from Clark in caring

for Mykeeda.  For example, on one occasion Stevenson telephoned Clark

and said that Mykeeda had developed bruises from being spanked by

Stevenson and her son Patrick, and from using a plastic potty trainer.

Clark testified that she did not go to the Stevenson home to check on

Mykeeda, but assumed that Mykeeda "simply . . . bruised easily."  Mrs.

Hampton offered no evidence that Clark or any other DHS representative

counseled Mrs. Stevenson about taking care of Mykeeda once she had been

placed in the Stevenson home.  In fact, as the District points out, Mrs.

Stevenson testified that she controlled many areas of her foster

children's lives and that she was responsible for making all the day-to-

day decisions about their care:  what they would eat, what clothes they

would wear, when they needed new clothes, when they would bathe, where

they would spend their time, and how they would be disciplined.  Without

any evidence that DHS actually controlled the manner in which Mrs.

Stevenson cared for Mykeeda, no reasonable juror could have found that

Mrs. Stevenson was the District's agent.

Mrs. Hampton argues that the many rules and regulations concerning

foster homes demonstrate that the District reserved the right to control

a foster parent.  The list of "basic requirements" for a foster home,

see note 5, supra, implicitly gives the District the right to control

such matters as the sleeping arrangements for a foster child, the

temperature of the foster home, the diet of the foster child, and

certain aspects of the foster parents' health.  The District also

reserves the right to inspect a foster home at any time.*fn18  There are

rules pertaining to the health care of a foster child,*fn19 and a foster

parent must obtain permission from DHS before taking a foster child on

an out-of-town trip.  Finally, the District has the right to remove a

foster child from the foster home at any time and without prior

notice.*fn20

These regulations obviously show that the District has the

authority to dictate many aspects of a foster child's life in a foster

home.  But that does not establish that the foster parent is under the

actual control of the District to a degree sufficient to make him or her

the District's agent.  To paraphrase what we said in Giles v. Shell Oil,

supra note 16, "the right to inspect" and "the right to set standards by

which [a foster parent performs her duties] are not indicia of control.

They in no way indicate that [the District] had the right to control the

day-to-day operation of the [foster home] or the day-to-day performance

of [the foster parent]."  487 A.2d at 613.  If the District did not have

the right to control the daily activities of caring for the foster

child, then even this plethora of regulations cannot be said to have

created a principal-agent relationship between the District and Mrs.

Stevenson.

Mrs. Hampton also asserts that the contract which Mrs. Stevenson

signed with DHS to become a foster parent "illustrates the authority and

right of [DHS] to control the foster parent's actions."  The language of

the contract does not support this proposition.  This "basic agreement"

states, in relevant part, that the foster parent agrees "to provide

board and care including . . . supervision and suitable training of

wards of the District," and that the foster parent "will render [these]

services . . . in the same manner as if [foster] children were members

of the family" of the foster parent.  For its part, the District "agrees

to assist the foster parent in the care and training of wards, by visits

and advice from [DHS] service workers  . . . ."  This language clearly

leaves it to the foster parent to make the day-to-day decisions

necessary to care for a foster child, just as any parent would do for

her own children.

The provisions outlining the District's duties do not reflect an

intent on the District's part to reserve any right to control the care

of foster children.  The District agrees only to "assist" and "advise"

the foster parent, not to direct her daily conduct.  The discussion in

the New Jersey Property Liability case, supra, is instructive on the

proper meaning to be given to these terms.  In that case the court

examined several statutes related to foster care, one of which required

foster parents to "consult" with a social worker from the Division of

Youth and Family Services (DYFS) "before making important decisions."

195 N.J. Super. at 13, 477 A.2d at 831.  Another required DYFS to

"assist the foster parents in carrying out their responsibility toward

the child by giving them information regarding the child's needs

. . . ."  Id. (internal punctuation omitted).  The court concluded that

although DYFS had "authority to direct the result to be accomplished

-- providing foster children with a normal, wholesome home life -- it

[did] not retain control over the means by which this was to be done."

Id.*fn21  The words used in the statutes -- "assist" and "consult"

-- "clearly reflect the diminished control DYFS exercised over the

[foster parents] regarding the means (as compared with the ends) of

foster care."  Id. (citation omitted).  Likewise in the instant case,

the terms "assist" and "advise" in Mrs. Stevenson's contract reflected

the District's limited right "to direct the result to be accomplished

-- providing [Mykeeda] with a normal, wholesome home life," but not to

control "the means by which this was to be done."

For these reasons we hold that the evidence was insufficient to

prove that Mrs. Stevenson was the District's agent, and that the trial

court therefore erred in allowing Mrs. Hampton's respondeat superior

claim to go to the jury.

IV

The judgment of the trial court is accordingly reversed, and this

case is remanded with directions to grant the District's motion for

judgment notwithstanding the verdict.

Reversed and remanded.

***** BEGIN FOOTNOTE(S) HERE *****

*fn1    The District does not challenge the trial court's denial of its

alternative request for a remittitur.

*fn2    The program consisted of eight one-hour sessions dealing with

such topics as the operation of the foster care system and the impact of

foster care on a host family.

*fn3    Mrs. Stevenson admitted that at that time Ms. Davis' home was

not licensed by DHS for day care of foster children.  Davis herself

testified, however, that she became licensed to care for foster children

in her home in May 1987.

*fn4    The "Basic Agreement for Board and Care by Foster Parents of

Wards of the District of Columbia" states in part:

The Foster Parents agree to provide board and care

including provision of food, shelter, laundry service,

supervision and suitable training of wards of the

District.  . . .  The District agrees to assist the

Foster Parents in the care and training of the wards, by

visits and advice from service workers of the Social

Rehabilitation Administration.

*fn5    The list sets forth minimum requirements in twenty-one areas,

including such items as cleanliness of the foster home, sleeping

arrangements for the foster children, heat and hot water, toilet and

bath facilities, smoke detectors, medical treatment of the foster

children, and the health of the foster parent.  It also states that

foster parents "must agree to accept any child referred for placement."

*fn6    Mrs. Hampton's husband had recently died, and she was

experiencing considerable emotional stress as a result of his death,

apparently to a degree that she was unable to care properly for her

children.

*fn7    Another DHS social worker, who had conducted the foster care

training sessions for Geraldine Stevenson, testified that Mrs. Stevenson

had been told that one requirement of foster care was to provide twenty-

four hour adult supervision of foster children.

*fn8    Shorts testified that earlier that day she had left her son

Marcus next door with Virgie Davis.  Some time later one of Mrs.

Stevenson's sons went to Davis' apartment, picked up Marcus, and brought

him back to the Stevenson apartment.  Marcus remained there until his

mother arrived.

*fn9    An autopsy later established that Mykeeda died of blunt force

injuries to the head, abdomen, and back, with internal hemorrhaging.

Patrick Stevenson admitted that he had struck her several times because

he was angry at having been left with the responsibility of caring for

four small children.  He was later found guilty of involuntary

manslaughter in a juvenile delinquency proceeding.

*fn10   A second claim under the wrongful death statute, D.C. Code

 16-2701 (1989), was withdrawn before trial.

*fn11   The jury made special findings that the District had been

"negligent in selecting Mrs. Stevenson as Mykeeda's foster mother" and

"negligent in supervising Mrs. Stevenson's foster care of Mykeeda," and

found as well that Mrs. Stevenson had been "the District of Columbia's

agent in providing foster care for Mykeeda."  The jury awarded Mrs.

Hampton $500,000 in damages "for Mykeeda's conscious pain and suffering

and other injuries  . . . ."

*fn12   This proffered witness was rejected by the court because she

lacked sufficient experience with municipal foster care programs and had

no relevant knowledge of the standards promulgated by the Child Welfare

League, which are widely accepted in the field.  The court concluded

that the witness could not aid the jury in determining the applicable

standard of care and refused to allow her to testify.  On appeal Mrs.

Hampton does not challenge this ruling; instead, she argues (as she did

below in opposing the District's post-trial motion) that expert

testimony was not necessary to establish the standard of care.

*fn13   In so holding, we relied on Washington Hospital Center v.

Butler, 127 U.S. App. D.C. 379, 384 F.2d 331 (1967), in which a hospital

patient was injured when she fell from an x-ray table as it was rotated

to a vertical position during an examination.  In Butler the court held

that expert testimony was not required to show that the hospital was

negligent, drawing "a distinction between cases in which the issue

involves `the merits and the performance of scientific treatment,'

requiring expert testimony for its resolution, and `ordinary' negligence

cases, in which jurors may apply their own experience in deciding how

any reasonably prudent person would have acted under the circumstances."

Martin, supra, 454 A.2d at 309 (citations and footnote omitted).

*fn14   Although the record does not reveal whether the social workers

in this case were licensed, it does show that both of the DHS social

workers who testified had master's degrees in social work.  Moreover,

under the statute, only licensed persons may practice the profession of

social work in the District of Columbia.

*fn15   Although Mrs. Stevenson admitted that she occasionally left the

foster children with her two eldest sons, the DHS social worker

testified only about one such incident, when she telephoned the

Stevenson home and was told that Mrs. Stevenson was not there.

*fn16   To prevail on a respondeat superior theory of liability, the

plaintiff must show that a principal-agent relationship existed and that

the agent's negligent act occurred within the scope of the relationship.

Giles v. Shell Oil Corp., 487 A.2d 610, 611 (D.C. 1985).  The District

does not dispute that Mrs. Stevenson's allegedly negligent actions were

within the scope of her duties as a foster parent.

*fn17   The state supreme court in Simmons reversed the decision of the

state court of appeals in Simmons v. Robinson, 303 S.C. 201, 399 S.E.2d

605 (S.C. Ct. App. 1990), which held that a foster parent was an agent

of the state's Department of Social Services.

*fn18   Other regulations pertain to such aspects of "physical set-up"

as the spacing of beds in a room, "provision for outdoor play," lighting

and ventilation, screens on windows, "furnishings and equipment suitable

to the age of the children cared for," and "adequate supply of linen and

bedding."  The regulations also state that "[t]he meals served should

meet the basic nutritional needs of the children.  Only wholesome foods

should be served . . . ."

*fn19   DHS provides free medical services for foster children, but

foster parents must obtain the consent of DHS before any surgery or

administration of anesthesia.

*fn20   The Foster Parents' Handbook and other documents setting forth

these rules and regulations were admitted into evidence at trial.

*fn21   The court also noted that the agency's right to control medical

treatment and travel by the foster child outside of the county was not

indicative of a right to control:  "the consent requirements here vest

DYFS with only negligible control over the way the [foster parents]

structure and carry out the work [of] caring for the foster child."  195

N.J. Super. at 14, 477 A.2d at 832.