It would impose an additional burden and liability for which compensation is unavailable. The only decision discussing in detail the definition of "employee" under the Tort Claims Act is N.J. Property — Liability Ins. Guar. v. State, 195 N.J. Super. 4, 477 A.2d 826 (App.Div. 1984). In that case, the Appellate Division held that DYFS foster parents were not employees for purposes of the act.

In determining under the Act whether an employee is an independent contractor, our courts have adopted two tests defining the work relationship which must be balanced under the totality of the circumstances. See New Jersey Property-Liability Ins. Guar. Ass'n v. State, 195 N.J. Super. 4, 10, 477 A.2d 826 (App.Div.), certif. denied, 99 N.J. 188, 491 A.2d 691 (1984). The first factor which a court considers is the degree of control maintained by the employer at the time the act complained of is performed.

In Kern v. Steele County, 322 N.W.2d 187 (Minn. 1982), where a foster child consumed varnish remover, the court held that her foster parents were not employees of the county, obligating the county's insurer to defend and indemnify the foster parents. As in the Simmons and Kern cases, supra, one New Jersey case has determined that foster parents are not employees of the State. New Jersey Property Liab. Ins. Guar. v. State, 195 N.J. Super. 4, 477 A.2d 826 (App.Div. 1984). In New Jersey Property, a foster child's natural parents brought an action against DYFS and its approved foster parents for personal injuries suffered by their child while in foster placement.

Here it is undisputed that Sloan had a contract with the DDD that labeled her an independent contractor. When faced with the question of whether persons labeled as independent contractors should nonetheless be considered employees or servants of a state entity, New Jersey courts applied the control test. New Jersey Property-Liability Ins. Guar. Ass'n v. State, 477 A.2d 826, 828-29 (N.J. Super. Ct. App. Div. 1984). "Under the control test, 'the relation of the master and servant exists whenever the employer retains the right to direct the manner in which the business shall be done, as well as the result to be accomplished, or in other words, not only what shall be done, but how it shall be done.'" Id. at 828 (quoting Errickson v. Schwiers Co., 158 A. 482 (E. & A. 1931).

New Jersey Prop. Liab.Ins. Guar. Assn. v. State, 195 N.J. Super. 4, 8 (App.Div.), certif.denied, 99 N.J. 188 (1984); seealsoRestatement (Second) of Agency § 220(1) (1958) ("A servant is a person employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to the other's control or right to control.").

The control test is grounded in the common law master-servant relationship. New Jersey Property-Liability Ins. Guar. Ass'n v.State, 195 N.J. Super. 4, 8, 477 A.2d 826 (App.Div.), cert. denied, 99 N.J. 188, 491 A.2d 691 (1984). The master-servant relationship exists whenever the employer controls both the nature of the work performed and the manner in which the work is completed.

N.J. Prop.-Liab. Ins. Guar. Ass'n v. State, 195 N.J. Super. 4, 8 (App. Div. 1984)(emphasis omitted). This "control test," provides that this master-servant relationship exists "whenever the employer retains the right to direct the manner in which the business shall be done, as well as the result to be accomplished, or in other words, not only what shall be done, but how it shall be done."

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 fise"), 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). 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 nondelegable and remains [the state's] legal responsibility."

322 N.W.2d at 189. In New Jersey Property-Liability Ins. Guar. v. State, 195 N.J. Super. 4, 477 A.2d 826 (1984), a foster child's natural parents brought an action against the New Jersey Division of Youth and Family Services (DYFS) and its approved foster parents for personal injuries suffered by their child while in foster placement. The foster parents filed a separate declaratory relief action to obligate the State to assume their defense.

There are New Jersey decisions which tend to suggest that state foster agencies owe no duty of care to foster children to protect them against the negligence of foster parents. SeeStanley by Stanley v. State Industries, Inc. , 267 N.J. Super. 167, 171–72, 630 A.2d 1188 (Law Div. 1993) ; see alsoDieujuste v. DYFS, 2017 WL 3255239 at *3, 2017 N.J. Super. Unpub. LEXIS 1946 at *4–6 (App. Div. Aug. 1, 2017) ("Clearly, DYFS must perform its duties responsibly but there is no authority or legal standard in New Jersey that requires it to be a guarantor that no harm will befall children it has placed in resource homes," so DYFS is not "liable for the negligence of foster parents"); New Jersey Property-Liab. Ins. Guar. v. State , 195 N.J. Super. 4, 16, 477 A.2d 826 (App. Div. 1984) ("To adopt such a theory would place an intolerable burden upon the State and might well diminish the beneficial effects of the foster parent program and compel a return to institutional care"). Stanley itself, however, distinguished such a derivative claim from one based directly on the negligence of the foster-care authorities themselves: While "courts appear reluctant to hold agencies liable where the child's injuries result from the foster parent's ordinary negligence," they will nevertheless hold them liable "where the agency has negligently placed or supervised a child with assaultive or abusive foster parents."