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May 16, 2023

Child Victim Act Complaint Dismissed for Failure to Sufficiently Allege Special Duty

As noted in our prior legal alerts on the Child Victims Act (CVA) from May 5, 2023, and February 19, 2019, New York State enacted a statute that vastly expanded the time for minor victims of sexual abuse to bring civil claims against their abusers—as well as other individuals, private organizations, and governmental entities—at any time before the victim turns 55 years old. Many CVA cases seek to hold municipalities liable for the abuse that the plaintiff suffered at the hands of foster parents. The plaintiffs often allege that the municipality was negligent in the selection of the foster parents, the monitoring of the foster parents, or both and is vicariously liable for their abuse. A recent decision out of the Appellate Division, Fourth Department, however, has severely limited that theory of recovery.

In Weisbrod-Moore v. Cayuga County, the plaintiff claimed that she had suffered sexual and physical abuse by a foster father with whom Cayuga County had placed the plaintiff. She did not name the alleged perpetrator as a defendant but, instead, named the county, alleging that it owed her a duty of care with respect to the placement and had violated that duty by placing her with the alleged abuser and failing to monitor her well-being in the home. The county moved to dismiss the action, relying on the doctrine of governmental immunity, which holds that a municipality cannot be held liable for negligence when performing a discretionary function. The county also argued that it lacked a special duty to the plaintiff, a requisite element to municipal liability even where immunity does not apply. The motion court denied the motion, and the county appealed.

The Fourth Department reversed the lower court’s decision and dismissed the complaint. The court first determined that in placing the plaintiff in foster care, the county was acting in a governmental capacity, which meant that in order to prove liability, the plaintiff was required to “establish that the duty allegedly breached by the municipality was more than that owed to the public generally.”i The court explained that there are three ways a plaintiff can establish a special duty: 

  1. When the municipality violates a statutory duty enacted for the benefit of a particular class of persons
  2. When the municipality voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty 
  3. When the municipality assumes positive direction and control in the face of a known, blatant, and dangerous safety violation 

The court considered the first test of special duty and found that the sections of the Social Services Law relied upon by the plaintiff were not enacted for the class of persons to which the plaintiff belonged because the those sections did not provide a private right to enforce the statute. Under the second test, the court held that a municipality’s negligent performance of a statutorily mandated duty could not be equated with breach of a duty voluntarily assumed. Because the complaint did not allege any duty other than violation of the statute, the allegations were insufficient. The court also found that the plaintiff had failed to sufficiently allege the other elements necessary to prove a special duty between the parties and dismissed the complaint.

Even if the plaintiff were able to establish a special duty, a municipality remains immune from liability if it was performing a discretionary rather than ministerial act, but that issue remained undecided. Having found that the plaintiff failed to allege facts supporting a special duty, the court determined that “the County’s additional contention that it is immune from liability based upon the governmental immunity defense is academic.”

It is important to note that the Fourth Department’s decision in Weisbrod-Moore did not determine whether a municipal defendant is entitled to governmental immunity from a CVA claim for negligence in foster care placements. Arguably, if the plaintiff alleged sufficient facts to establish that a special duty existed, the immunity attached to discretionary governmental functions could still form the basis for dismissal of the complaint. The import of the Weisbrod-Moore case is that a CVA plaintiff must allege facts that meet the heightened requirements of a special duty in order to plead a cognizable cause of action against a municipal defendant. Governmental immunity remains a viable, though untested, separate defense. 

If you have any questions about the content of this alert, please contact Alan Peterman, partner, at apeterman@barclaydamon.com; Matthew Larkin, Torts & Products Liability Defense Practice Area chair, at mlarkin@barclaydamon.com; or another member of the firm’s Torts & Products Liability Defense Practice Area. 

iSee Ferreira v. City of Binghamton, 38 NY3d at 313 [2022] quoting Lauer v. City of New York, 92 NY2d, 95, 100 [2000]. 

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