In Weisbrod-Moore v. Cayuga County, on May 5, 2023, the Appellate Division, Fourth Department, reversed the trial court’s denial of the county’s pre-answer motion to dismiss an action brought pursuant to the Child Victims Act. Without requiring discovery of the underlying facts, the court applied New York’s Public Duty Doctrine and held the plaintiff failed to allege that the county, which oversaw plaintiff’s foster care, owed a special duty to protect her from abuse by her foster father. The decision advances a line of cases that hold foster care placement is a governmental function subject to special duty and governmental immunity principles.

Plaintiff was placed with a foster family by the county as an infant. She alleged in the complaint brought pursuant to the Child Victims Act that she was sexually abused by her foster parent between 1975 and 1982. The complaint asserted, in a single negligence count, the County Health Services Department had a non-delegable duty to investigate, license, supervise and monitor foster care homes and providers and was therefore vicariously responsible for the abuse that was allegedly inflicted upon plaintiff. Without first engaging in discovery regarding these allegations that arose more than 40 years ago, the county moved to dismiss the complaint, asserting it was immune from liability arising from the provision of foster care and that plaintiff failed to assert a special duty was owed for her protection.

The appellate decision recites there was no dispute between the parties that the county acted in a governmental capacity administering its foster care system and supervising plaintiff’s foster placement. It therefore follows that when a tort claim is asserted against a municipality arising from its performance of a governmental function, plaintiff is required to plead and prove the duty owed to her goes beyond the duty government owes to the public generally—a special duty.

Court Determines Plaintiff Could Not Establish a Special Duty

When evaluating a motion to dismiss, the role of the court is to ascertain not merely whether plaintiff stated a cause of action, but whether she has a viable cause of action she could assert. The court therefore evaluated the two avenues of special duty related to the facts alleged. A special duty can arise from a governmental breach of a duty imposed by statute, but only where the statute in question specifically authorizes a private right of action by the alleged victims. Following the Court of Appeals precedent Mark G. v. Sabol, 93 NY2d 710 (1999), the Appellate Division held that provisions of the Social Services Law that protect foster children and endeavor to prevent child abuse do not create a right of action for alleged victims of abuse.

The court also determined that plaintiff could not make out the elements of a special duty predicated on an explicit or implied promise to protect her. This most common species of special duty requires proof not only of (1) an assumption by the municipality through promises or actions of an affirmative duty to protect the injured party, but also (2) knowledge on the part of municipal agents that inaction could lead to harm, (3) direct contact between the municipality and the victim and (4) justifiable reliance by the victim on the municipality’s promise. The violation of a statute that does not itself engender a special duty is not sufficient to constitute an assumption of an affirmative duty to protect plaintiff.

The court did not specifically address the third and rarest species of special duty that was recently discussed in the Court of Appeals decision of Ferreira v. City of Binghamton, 38 NY3d 298 (2022), finding it was not at issue. This type of special duty can potentially arise where a municipality assumes positive direction and control in the face of a known dangerous condition. Because the complaint alleged negligence as opposed to intentional conduct, the Appellate Division appears to have made an unarticulated determination that the county did not force plaintiff to endure abuse of which it had knowledge.

Court Notes Municipality is Immune from Liability in Performance of Government Functions

Having determined the plaintiff had no ability to assert the county owed her a special duty, the court put aside as “academic” the county’s additional claim it was immune from liability for injuries that allegedly arose from its exercise of discretion in the performance of governmental functions. Had plaintiff cleared her duty hurdle, the court noted a municipality is immune from liability if harm allegedly results from the exercise of discretion in the performance of governmental functions and provision of governmental services.

The Child Victims Act, as well as the Adult Survivors Act, provides a window to revive abuse claims that would otherwise be time-barred. These acts explicitly eliminate the requirement of a notice of claim before bringing these claims against municipalities and strip municipalities of the opportunity to evaluate them for settlement before they are placed in suit. Nevertheless, these claims are still subject to principles of the Public Duty Rule and Governmental Immunity for the exercise of discretion in the performance of governmental functions.

Harris Beach’s Municipalities and Local Agencies Industry Team is following this issue and will report back on developments. Should you have questions about this subject or related matters, please reach out to Attorney Andrew J. Orenstein at (212) 313-5473 and aorenstein@harrisbeach.com, attorney Bradley M. Wanner at (212) 912-3653 and bwanner@harrisbeach.com, or the Harris Beach attorney with whom you most frequently work.

This alert is not a substitute for advice of counsel on specific legal issues.

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