After its landmark Weisbrod-Moore v. Cayuga County1 decision earlier this year, in which New York State’s highest court departed from precedent, holding that a plaintiff asserting a negligence claim against a municipality in connection with its administration of foster care is not required to establish the existence of a special duty, the Court of Appeals has now ruled that plaintiffs in these types of cases must prove that the defendant either had prior knowledge of abuse or was otherwise aware of conduct that could have alerted the county to the potential for harm.
In Nellenback v. Madison County,2 the plaintiff sued Madison County for “negligent supervision” under the claim-revival provision of the Child Victims Act (CVA). The plaintiff alleged that when he was placed in the care of the Madison County Department of Social Services (DSS) as an 11-year-old in 1993, he was repeatedly sexually abused by his caseworker, Karl Hoch. In 1996, DSS received a report that Hoch had abused other children, which prompted his arrest and criminal conviction. Following the completion of discovery, Madison County moved for summary judgment dismissing the complaint because there was no evidence that the county had actual or constructive notice of Hoch’s abusive propensities at the time the plaintiff was allegedly abused. The trial court granted the county’s motion, and the Appellate Division affirmed.
The Court of Appeals affirmed, finding that the plaintiff failed to raise a triable issue of fact on the element of notice. It was undisputed that the county had no actual knowledge that Hoch “had previously committed or had any propensity to commit sexual abuse,” so the plaintiff had to demonstrate “constructive knowledge,” meaning that the county “was aware of facts from which it should have known” of Hoch’s propensity. The plaintiff argued that if Hoch’s DSS supervisor “had been more diligent in reviewing employees’ case notes, she would have realized” there was a gap in Hoch’s notes during the time spent with the plaintiff, indicating that he was “engaged in some untoward behavior.” The 6–1 majority rejected this argument, noting it was “simply too speculative to suggest that increased review of those kinds of records would have put the County on notice of the abuse.”
The court was also unpersuaded that evidence of “lax practices” were sufficient to prove notice, because the plaintiff failed “to point to any evidence that shows the County deviated from the standard of care that was reasonable at the time.” The majority further clarified that the trial court “must evaluate the reasonableness of the County’s supervision and training by the then-prevailing standards, not today’s” standards.
Nellenback is a sobering reminder that CVA plaintiffs are “disadvantaged . . . by the passage of time.” As the majority observed, “[a]lthough those evidentiary difficulties exist, the standard for summary judgment on a CVA claim, like any other claim, is whether there is sufficient proof to raise a triable issue of fact.” Meanwhile, “the standard of care is based on what was customary at the time of the alleged abuse,” not present-day standards, which have “evolved significantly in the past three decades.” While Weisbrod-Moore established that CVA cases against municipalities may proceed past the initial pleading stage, Nellenback demonstrates that they remain defensible on evidentiary grounds during dispositive motion practice following the completion of discovery.
If you have any questions regarding the content of this alert, please contact David Fulvio, counsel, at dfulvio@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.
12025 NY Slip Op 00903.
22025 NY Slip Op 02263