December 28, 2024
A Lawyer’s Blog – Jon Michael Probstein, Esq.: CHILD WELFARE NOT IMMUNE FROM LIABILITY FOR PERSONAL INJURIES TO FOSTER CHILD

A Lawyer’s Blog – Jon Michael Probstein, Esq.: CHILD WELFARE NOT IMMUNE FROM LIABILITY FOR PERSONAL INJURIES TO FOSTER CHILD

PD v. County of Suffolk, 2024 NY Slip Op 3405 – NY: Appellate Div., 2nd Dept. 2024:

“WOOTEN, J.

APPEAL by the defendant County of Suffolk, in an action to recover
damages for personal injuries, etc., from an order of the Supreme Court
(David T. Reilly, J.), dated April 6, 2023, and entered in Suffolk
County. The order, insofar as appealed from, denied that branch of the
motion of the defendant County of Suffolk which was for summary judgment
dismissing the complaint insofar as asserted against it.

This appeal concerns the novel issue of whether a municipality is
immune from liability for personal injuries allegedly sustained by a
foster child during visitation supervised by a department of social
services caseworker. We hold that under such circumstances, a
municipality may assume a special duty to the foster child and be
subject to liability.

I. Background

The plaintiff father (hereinafter the father) and nonparty mother
(hereinafter the mother) have two children together, including the
infant plaintiff, who was born in 2017. In 2017, the children were
removed from their parents’ custody and placed in kinship foster care
with their paternal grandmother (hereinafter the foster parent).

On September 21, 2019, the foster parent drove the infant plaintiff,
then two years old, and the infant plaintiff’s four-year-old sister to
Mashashimuet Park in Sag Harbor for a supervised visit with the mother.
After leaving the children in the care of Kevin Byrne, the assigned
caseworker for the Suffolk County Department of Social Services
(hereinafter the DSS), the foster parent left the park to go to work.
Byrne testified at his deposition that it was the policy and procedure
of the DSS that no visit could start until an employee of the County was
present to supervise. After the foster parent dropped off the children,
Byrne walked them to the playground for the visit with the mother, who
had brought a 10-year-old daughter who was in the mother’s custody.

During the supervised visit, the infant plaintiff allegedly was
injured when she fell on a slide while attempting to walk up the portion
intended for children to slide down. The slide on which the accident
occurred was in an area of the playground designated with a sign as
intended for children 5 to 12 years old. The foster parent testified at
her deposition that she believed that the slide was “[w]ay too big for
[the infant plaintiff].” Byrne acknowledged that he did not observe the
accident or the infant plaintiff walking up the slide prior to the
accident, and that he learned of the accident shortly thereafter from
the mother’s 10-year-old daughter. Byrne estimated that the infant
plaintiff was playing on the slide for approximately four to five
minutes prior to the accident. According to Byrne, at the time of the
accident, the mother was standing by the top of the slide. The mother
testified at her deposition that after the accident, Byrne told her to
“give [the infant plaintiff] a couple of minutes” because there was no
visible redness or swelling.

The foster parent testified that when she arrived at the playground,
she learned that Byrne had not called for an ambulance because he was
“fumbled for words.” She also indicated that Byrne was “not in good
health” and, therefore, was “[p]hysically unable” to pick up the infant
plaintiff, who was unable to walk following the accident.

Byrne testified that his role during the supervised visit was to
“[b]asically observe,” although he acknowledged that he could intervene
if he observed anything during the visit that he believed “might be
inappropriate or dangerous for the child” or if the mother permitted the
infant plaintiff to engage in an activity that he felt was
inappropriate.

In 2020, the infant plaintiff, by the father, and the father
individually (hereinafter together the plaintiffs), commenced this
action, inter alia, to recover damages for personal injuries against,
among others, the County of Suffolk. The plaintiffs alleged, among other
things, that the accident was caused by the negligent supervision of
Byrne.

After joinder of issue, the County moved, inter alia, for summary
judgment dismissing the complaint insofar as asserted against it. In
support of the motion, the County argued, among other things, that it
was immune from liability, since Byrne was performing a governmental
function involving the exercise of discretion and did not owe a special
duty to the infant plaintiff. The County asserted that Byrne’s role was
“simply to observe that the children in fact visit with their parent in
an effort to maintain and strengthen the parental bond,” and that the
accident took place “under the direct supervision of [the infant
plaintiff’s] biological mother.” The County also argued that there was
no evidence that any action or inaction by Byrne proximately caused the
accident.

In an order dated April 6, 2023, the Supreme Court, inter alia,
denied that branch of the County’s motion which was for summary judgment
dismissing the complaint insofar as asserted against it. The court
determined, among other things, that the County failed to establish,
prima facie, that it was immune from liability based on discretionary
conduct and that Byrne’s alleged negligent supervision was not a
proximate cause of the infant plaintiff’s injuries. The County appeals.

On appeal, the County argues, inter alia, that it did not owe a
special duty to the infant plaintiff. The County also contends that even
assuming, arguendo, a special duty existed, it is immune from liability
for the performance of a governmental function involving the exercise
of discretion. In any event, the County argues that its alleged
negligent supervision was not a proximate cause of the accident.

II. Analysis

A. Governmental Immunity

“When a negligence claim is asserted against a municipality, the
first issue for a court to decide is whether the municipal entity was
engaged in a proprietary function or acted in a governmental capacity at
the time the claim arose” (Applewhite v Accuhealth, Inc., 21 NY3d 420, 425; see Marino v City of New York,
223 AD3d 888, 889). “If the municipality is engaged in a proprietary
function, it is subject to suit under the ordinary rules of negligence” (Trenholm-Owens v City of Yonkers, 197 AD3d 521, 523; see Applewhite v Accuhealth, Inc., 21 NY3d at 425).
“In contrast, a municipality will be deemed to have been engaged in a
governmental function when its acts are undertaken for the protection
and safety of the public pursuant to the general police powers” (Applewhite v Accuhealth, Inc., 21 NY3d at 425 [internal quotation marks omitted]).

“Once it is determined that a municipality was exercising a
governmental function, the next inquiry focuses on the extent to which
the municipality owed a duty to the injured party” (Santaiti v Town of Ramapo, 162 AD3d 921, 924; see Applewhite v Accuhealth, Inc., 21 NY3d at 426).
“In order to sustain liability against a municipality engaged in a
governmental function, `the duty breached must be more than that owed
the public generally'” (Santaiti v Town of Ramapo, 162 AD3d at 924, quoting Lauer v City of New York, 95 NY2d 95, 100).
“Indeed, `although a municipality owes a general duty to the public at
large . . . this does not create a duty of care running to a specific
individual sufficient to support a negligence claim, unless the facts
demonstrate that a special duty was created'” (Santaiti v Town of Ramapo, 162 AD3d at 924, quoting Valdez v City of New York, 18 NY3d 69, 75). The issue of whether a special duty exists “`is generally a question for the jury'” (Santaiti v Town of Ramapo, 162 AD3d at 924, quoting Coleson v City of New York, 24 NY3d 476, 483).
A special duty can arise where, as relevant here, “`the [municipality]
voluntarily assumed a duty to the plaintiff beyond what was owed to the
public generally'” (Koyko v City of New York, 189 AD3d 811, 812, quoting Applewhite v Accuhealth, Inc., 21 NY3d at 426).
“A municipality will be held to have voluntarily assumed a special duty
where there is: `(1) an assumption by the municipality, through
promises or actions, of an affirmative duty to act on behalf of the
party who was injured; (2) knowledge on the part of the municipality’s
agents that inaction could lead to harm; (3) some form of direct contact
between the municipality’s agents and the injured party; and (4) that
party’s justifiable reliance on the municipality’s affirmative
undertaking'” (Koyko v City of New York, 189 AD3d at 812, quoting Cuffy v City of New York, 69 NY2d 255, 260).

Further, “[u]nder the doctrine of governmental function immunity,
government action, if discretionary, may not be a basis for liability,
while ministerial actions may be, but only if they violate a special
duty owed to the plaintiff, apart from any duty to the public in
general” (Kralkin v City of New York, 204 AD3d 772, 772; see McLean v City of New York, 12 NY3d 194, 203).
“Discretionary or quasi-judicial acts involve the exercise of reasoned
judgment which could typically produce different acceptable results,
whereas a ministerial act envisions direct adherence to a governing rule
or standard with a compulsory result” (Kralkin v City of New York, 204 AD3d at 773; see Tango v Tulevech, 61 NY2d 34, 41).
Additionally, a municipality is not immune from liability based upon
the exercise of discretionary authority “`unless the municipal defendant
establishes that the discretion possessed by its employees was in fact
exercised in relation to the conduct on which liability is predicated'” (Ferreira v City of Binghamton, 38 NY3d 298, 311, quoting Valdez v City of New York, 18 NY3d at 76).

1. Governmental Function

Here, with regard to the threshold issue of whether the County acted
in a proprietary or governmental function, the plaintiffs do not dispute
that Byrne was engaged in a governmental function at the time of the
accident. “The function of dealing with children in need of foster care
is deemed best executed by government and is undertaken without thought
of profit or revenue” (Kochanski v City of New York, 76 AD3d 1050, 1052).
Since Byrne was supervising visitation as part of his duties for the
DSS on behalf of a child in foster care at the time of the accident, he
was engaged in a governmental function. Thus, the inquiry turns to
whether the County owed a special duty to the infant plaintiff.

2. Special Duty

Contrary to the County’s contention, it failed to establish, prima
facie, that it did not owe a special duty to the infant plaintiff.

The issue of whether a municipality owes a special duty to children
placed in foster care has generally arisen in the context of actions
involving children who were subjected to sexual or physical abuse while
in foster care. For instance, in Bartels v County of Westchester (76 AD2d 517, 522),
this Court determined that a county may be liable for physical injuries
suffered by an infant in a foster home, as the county “undertook to
care for the infant plaintiff, and this duty, once assumed, had to be
carried out with due regard for the child’s safety.”

Similarly, in G.F. v Westchester County (2024 NY Slip Op 30447[U]
[Sup Ct, Westchester County]), which involved allegations that a child
in foster care was sexually abused, the Supreme Court determined that a
county assumed a special duty to the infant plaintiff. The court
explained that “[i]n contrast to its general population, the [c]ounty
seized responsibility for plaintiff’s care and upbringing,” as the
county had custody of the child in foster care and “exercised its parens patriae function to safeguard the best interests of plaintiff and had control over him during the time of the abuse” (id. at *5).

By contrast, in Weisbrod-Moore v Cayuga County (216 AD3d 1459),
the Appellate Division, Fourth Department, determined that a complaint
alleging that the plaintiff was subjected to sexual and physical abuse
while in foster care was insufficient to allege the existence of a
special duty owed by a county to the plaintiff. The court explained that
the allegations in the complaint pertained specifically to the county’s
failure to meet its obligations to foster children pursuant to the
Social Services Law, and that “`[t]he failure to perform a statutory
duty, or the negligent performance of that duty, cannot be equated with
the breach of a duty voluntarily assumed'” (id. at 1462, quoting Estate of M.D. v State of New York, 199 AD3d 754, 757).

The circumstances of the case at bar are distinguishable from the
aforementioned cases, as the infant plaintiff did not sustain injuries
while in a foster home, but rather during visitation with the mother at a
public location under supervision by a caseworker for the DSS. It is an
issue of first impression whether the municipality assumed a special
duty to the foster child in such instance. We hold that under these
circumstances, a municipality may owe a special duty to the foster
child.

It is well settled that a school owes a special duty to provide its
students with adequate supervision, which “derives from the fact that
the school, in assuming physical custody and control of the students,
takes the place of the parents or guardians, and therefore acts in loco
parentis” (Hauburger v McMane, 211 AD3d 715, 716; see Pratt v Robinson, 39 NY2d 554, 560; Ferguson v City of New York, 118 AD3d 849, 849-850).
This special duty of a school to its students is temporary in nature
and ceases once a student “has passed out of the orbit of its authority”
(Pratt v Robinson, 39 NY2d at 560).

Here, the infant plaintiff was injured under circumstances analogous
to a child injured on a playground while at school. At the start of the
visit, the foster parent surrendered physical custody and control of the
infant plaintiff to Byrne and then left the park for the duration of
the visit. While the mother was present during the visit, it is
undisputed that she was not the custodial parent and, indeed, was not
even permitted to interact with the infant plaintiff outside the
presence of the assigned caseworker. Notably, Byrne acknowledged that it
was the policy and procedure of the DSS that no visit could start until
an employee of the County was present to supervise, and that he was
empowered to intervene if he observed anything he believed “might be
inappropriate or dangerous for the child” or if the mother permitted the
infant plaintiff to engage in an inappropriate activity. Therefore, the
mother did not possess an unfettered degree of control over the infant
plaintiff such that she could be deemed the party in physical custody of
the infant plaintiff during the supervised visit. Rather, by assuming
physical control over the infant plaintiff in the parking lot when the
foster parent dropped off the infant plaintiff for the visit, Byrne
acted in loco parentis during the visit.

Thus, the County’s contention that the mother was the individual
responsible for supervising the infant plaintiff is not supported by the
record. Moreover, the County cannot reasonably take the position that
it was entitled to rely on the mother to ensure the safety of the infant
plaintiff during visitation when the mother was not permitted to have
unsupervised visitation with the infant plaintiff. If the presence of a
caseworker was deemed necessary to ensure that the mother acted
appropriately during visitation, then it necessarily follows that the
caseworker was obligated to ensure that the mother did not permit the
infant plaintiff to engage in any unsafe behavior.

Consequently, we hold that the County may assume a special duty to a
foster child during the course of visitation supervised by a DSS
caseworker. We also determine that the County’s conclusory assertions
regarding the lack of a special duty were insufficient to meet its
burden of establishing, prima facie, that it did not owe a special duty
to the infant plaintiff (see Stevens v Town of E. Fishkill Police Dept., 198 AD3d 832, 833; Morgan-Word v New York City Dept. of Educ., 96 AD3d 1025, 1026).

3. Discretionary Conduct

Although discretionary governmental action, as opposed to ministerial
governmental action, may not be a basis for liability even if a special
duty exists (see Ferreira v City of Binghamton, 38 NY3d at 311-312; Kralkin v City of New York, 204 AD3d at 772-773),
the County’s bare assertion that Byrne’s conduct was discretionary was
insufficient to meet its prima facie burden, as “`a municipality must do
much more than merely allege that its employee was engaged in
activities involving the exercise of discretion'” (Coleson v City of New York, 125 AD3d 436, 437, quoting Valdez v City of New York, 18 NY3d at 79).

To the extent the County contends that Byrne’s conduct was
discretionary because “New York State guidelines set forth by the Office
of Children and Family Services” provide for “the least restrictive
level of supervision necessary for children in foster care,” the
County’s contention is improperly raised for the first time on appeal (see Shahid v City of New York, 144 AD3d 1127, 1129-1130).

Moreover, even assuming, arguendo, that the County established, prima
facie, that Byrne’s authority to supervise visitation was discretionary
in nature, the County failed to demonstrate that such discretion “`was
in fact exercised in relation to the conduct on which liability is
predicated'” (Ferreira v City of Binghamton, 38 NY3d at 311, quoting Valdez v City of New York, 18 NY3d at 76).
Since Byrne acknowledged that he did not observe the infant plaintiff
walking up the portion of the slide intended for children to slide down
prior to the accident, it cannot be said that he made a discretionary
decision whether or not the infant plaintiff’s behavior warranted his
intervention. Thus, any exercise of discretion by Byrne during
visitation bore no relation to the conduct on which liability is
predicated.

Consequently, the County failed to establish, prima facie, that it
was immune from liability for a claim of negligent supervision for the
subject accident.

B. Proximate Causation

Generally, the adequacy of a defendant’s supervision of children on a
playground and whether inadequate supervision was a proximate cause of
an accident are questions of fact for a jury (see L.S. v Massapequa Union Free Sch. Dist., 215 AD3d 708, 709-710).
“However, where an accident occurs in so short a span of time that even
the most intense supervision could not have prevented it, any lack of
supervision is not the proximate cause of the injury and summary
judgment in favor of the . . . defendant is warranted” (id. at 710; see R.B. v Sewanhaka Cent. High Sch. Dist., 207 AD3d 607, 610).

Contrary to the County’s contention, it failed to establish, prima
facie, that Byrne provided adequate supervision to the infant plaintiff,
or that a lack of adequate supervision was not a proximate cause of the
accident (see L.S. v Massapequa Union Free Sch. Dist., 215 AD3d at 710; B.T. v Bethpage Union Free Sch. Dist., 173 AD3d 806, 808). Viewing the evidence in the light most favorable to the plaintiffs (see Rodriguez v American Airlines, Inc., 219 AD3d 948),
there were triable issues of fact as to whether the infant plaintiff
was engaged for an extended period of time in a dangerous activity given
her young age, which warranted more heightened supervision, and if so,
whether such supervision would have prevented the accident (see SM v Plainedge Union Free Sch. Dist., 162 AD3d 814, 817; DiGiacomo v Town of Babylon, 124 AD3d 828, 829).
The mother testified that the infant plaintiff and her sister were
playing on the big slide where the accident occurred—which was intended
for older children ages 5 to 12—for approximately 10 to 15 minutes prior
to the accident, and Byrne estimated that they were playing on that
slide for 4 to 5 minutes. Thus, the County’s evidentiary submissions
were insufficient to establish, prima facie, that the accident occurred
in so short a span of time that even the most intense supervision could
not have prevented it (see M.P. v Mineola Union Free Sch. Dist., 166 AD3d 953, 955).

III. Conclusion

In light of the foregoing, the County failed to establish its prima
facie entitlement to judgment as a matter of law, and thus, we need not
consider the sufficiency of the plaintiffs’ submissions in opposition (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

The parties’ remaining contentions either were improperly raised for
the first time in reply papers, and thus, are not properly before this
Court, or are without merit.

Accordingly, the Supreme Court properly denied that branch of the
County’s motion which was for summary judgment dismissing the complaint
insofar as asserted against it, and the order is affirmed insofar as
appealed from.

BARROS, J.P., WARHIT and VENTURA, JJ., concur.

ORDERED that the order is affirmed insofar as appealed from, with costs.”

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