Proposed Legislation Would Codify and Expand City and County Liability for Child Abuse Post-Weisbrod-Moore

The New York State legislature is considering a bill (S.9778-B, A.4362-C) to add Social Services Law § 419-a, which would impose on cities and counties a statutory “nondelegable special duty” to children under 18 in their legal custody. The bill, which is currently pending in the Senate Children and Families Committee, would codify and extend Weisbrod-Moore v. Cayuga County,¹  in which the Court of Appeals held that a municipality, by assuming custody of a foster child, owes that child a common-law duty of care and need not separately establish a “special duty.” The Weisbrod-Moore dissent chided the majority for having “rashly enacted a staggering expansion of municipal liability,”² contrary to established precedent, and argued that such a consequential change should come from the legislature, not the courts. The legislature now appears poised to act.

Under the proposal, Social Services Law § 419-a would contain four key elements: 

1. a statutory nondelegable duty to provide for the safety of children in custody and to exercise reasonable care to prevent reasonably foreseeable harm, with liability for negligent placement or supervision in a temporary home or residential facility; 
2. liability “in the same manner and to the same extent as private entities, without entitlement to governmental immunity,” eliminating the governmental function immunity defense; 
3. municipal liability for the negligent acts or omissions of employees or agents of not-for-profit contract agencies performing placement or supervision; and 
4. an express statutory private right of action, limited to claims arising from certain specified sexual offenses under the New York State Penal Law.  

Thus, while the proposed law would prescribe a general duty, the statutory cause of action is limited to specific predicate offenses. Negligence claims for abuse beyond the predicate offenses may continue to advance under the principles articulated in Weisbrod-Moore.

The law would take effect immediately upon enactment and apply to claims filed before, on, or after the effective date, and retroactively to claims accruing before enactment—including the volume of Child Victims Act (CVA) foster care claims pending since 2019. The retroactivity provision may draw due process challenges, though New York State courts have generally upheld retroactive claim-revival in the CVA context. Either way, the legislation injects further uncertainty into cases that have already experienced years of delay while Weisbrod-Moore worked its way to the Court of Appeals.

If enacted, cities and counties should expect plaintiffs in pending foster care abuse cases to invoke the statute immediately and will need to reassess their exposure in those cases. They will also need to reexamine the terms of their contracts with foster care entities, as well as applicable insurance coverage, to address the increased potential for liability.

If you have any questions regarding the content of this alert, please contact David Fulvio, partner, 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.
                                                                                                                    
¹44 N.Y.3d 187 (2025).
²Id. at 198.