The Court of Appeals, in Maldovan v. County of Erie, 2022 WL 17095561 [2022], reiterated that the burden necessary to defeat the absolute immunity of a municipality’s agent under the “Special Duty Doctrine” is extremely high.
The Court declined to expand the special duty doctrine to find actionable reliance when there is a claim made against government employees (Child Protective Services, Adult Protective Services, and Sheriff’s deputies) for negligence in the performance of their duties leading to the victim’s death.
Plaintiff (Decedent Laura Cumming’s estate) sought damages for pain and suffering and for wrongful death, after mentally disabled decedent was killed by her mother, Eva Cummings. Investigations detailed grisly physical and sexual torture by her half-brother, Luke Wright, and her mother in the months leading up to her murder in January 2010. Both Cummings and Wright were convicted and imprisoned.
Plaintiff’s suit against Erie County and the Erie County Sheriff’s Office asserted various negligence claims against Erie County based on investigations by Child Protective Services and Adult Protective Services stemming from complaints of possible abuse of Decedent in her home in June and September of 2009.
Plaintiff asserted that the Erie County Sheriff’s Office was, among other things, negligent in hiring, training, supervising, and retaining two deputies. The two deputies found the victim and returned her to her mother, after she ran away from her house in November 2009. She was murdered two months later.
When a negligence claim is asserted against a municipality, the court must first determine whether the municipality was (i) engaged in a propriety function, or (ii) acted in a governmental capacity. In this case, Child Protective Services and Adult Protective Services functioned in a governmental capacity.
When there is a negligence claim against a municipality, and the issue is whether there is a governmental capacity, or a propriety function, the courts rely on common law. A government entity works in a proprietary role when its “activities essentially substitute for or supplement traditionally private enterprises.” (Sebastian v. State of New York, 93 NY2d 790, 793 [1993]). A government entity engages in a governmental function when its acts are “undertaken for the protection and safety of the public pursuant to the general police powers.” (Sebastian at 793.)
Examples of a governmental function include police and fire departments (Harland Enters. v. Commander Oil Corp., 64 NY2d 708, 709 [1984]); security operation (Matter of World Trade Ctr. Bombing Litig., 17 NY3d 428, 450 [2011]); oversight of juvenile delinquents (Sebastian, 93 NY2d 790, 796); garbage collection (Nehrbas v. Incorporated Vi. Of Lloyd Harbor, 2 NY2d 190, 194-95 [1957]); boat inspection (Metz v. State of New York, 20 NY3d 175, 179-180 [2012]).
When the municipality is engaged in a governmental capacity, the entity may be subject to tort liability only if it had a “special relationship” to the injured party. (see Tara N.P., 28 N.Y.3d at 714 [2011]). Plaintiff in Maldovan asserted that there was a duty owed to keep Decedent safe, and that the Decedent relied on that duty.
The Court of Appeals concluded that the defendants met their prima facie “burden to demonstrate that they did not voluntary assume a duty to [Decedent].” Maldovan v. County of Erie, 2022 WL 17095561 at 2 [2022]. The Court found that “plaintiff failed to raise a triable issue of material fact in opposition.” id.
The Court of Appeals used a four-part test to determine whether a government agent voluntarily assumed a duty to the Plaintiff as provided in Cuffy v. City of New York, 69 N.Y.2d 255, 260 [1987], Applewhite v. Accuhealth, Inc., 21 N.Y.3d 420, 430- 31 [2017], and most recently, Tara N.P., 28 N.Y.3d at 714 [214]. Plaintiff must show all four of the following elements:
“(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.”
The Appellate Division unanimously agreed that the justifiable reliance prong was not met by the facts of the case. Citing Valdez v. City of New York, 18 N.Y.3d 69, 80 [2011], the Appellate Division described the reliance factor as “critical” due to the “causative link” it provides between the “special duty” assumed by the municipality and the alleged injury.”
The Court of Appeals agreed with the Appellate Division that the facts did not show government assumption of justifiable reliance through affirmative actions, and Plaintiff did not refute that with a triable issue of fact. The Court of Appeals expounded by revisiting the nature of the claims raised by Plaintiff.
Decedent’s brother Richard Cummings, who was living out of the state at the time, made a complaint of possible abuse that was relayed to Child Protective Services in June 2009, and to Adult Protective Services in September 2009. Those investigations were closed when the claims were determined to be unfounded by both agencies. The Court of Appeals stated Plaintiff was not in reliance of the agencies because Sheriff’s deputies did not do anything to induce reliance that would be interpreted as an “affirmative undertaking.” The Court of Appeals agrees with the Appellate Division’s opinion about Richard’s actions. Richard made two subsequent phone calls, and the Appellate Division determined that this was not evidence that Richard was “induced to forego other avenues of relief.” (Maldovan v. County of Erie, 188 A.D.3d at 1599).
On the Cuffy factors, the Court of Appeals rejected Plaintiff’s assertion that the four-part test was inappropriately applied to a case where a victim is incapacitated, citing Boland v. State of New York, 218 A.D.2d 235 [3d Dept. 1996]. In Boland, the Appellate Division relied on the Social Services Law article 6, title 6, which established Child Protective Services, to satisfy the elements of a voluntary assumed duty. The Boland court held that the very purpose of Child Protective Services is the State “affirmatively and voluntarily assum[ing] a duty to act” on behalf of the abused children within the boundaries of the state. By passing the statute, the logic goes, the legislature has acknowledged that avoiding action could lead to more harm. (Boland at 240-41.)
The lone dissenter in Maldovan, the Honorable Rowan Wilson, agreed with Plaintiff’s call for the Court of Appeals to adopt the Boland stance on a privileged plaintiff class which should not have to establish justifiable reliance. (Boland at 240-41.) The Court of Appeals clearly refused to adopt Boland.
The majority in Maldovan acknowledges that in Applewhite v. Accuhealth, Inc., 21 N.Y.3d 420, 431 [2013], the Court “previously relaxed the requirements of the special duty rule to allow a competent family member of the injured party to satisfy the elements of direct contact and justifiable reliance.” (Maldovan at 4.) However, the Court states that the Appellate Division appropriately assessed the issue of whether Plaintiff justifiably relied on actions or promises from the government. The Court affirmatively declares that it does “not address whether or how the special duty rule should apply in a different case where the injured party was a child or adult with developmental disabilities incapable of pursuing other avenues of protection.” id.
Maldovan is in line with New York common law in finding injuries that come from governmental entities in a governmental capacity require plaintiff’s allegations to meet the special relationship standard, even in cases involving children. Tragic cases which fail the special relationship test will fail in New York. Moreover, a claim that fails to create a material issue of fact about the existence of justifiable reliance will lead to dismissal prior to trial, particularly when the government is exercising discretion in its governmental capacity.
Two analogous cases that reinforce the idea that child abuse cases with circumstances that link them to government entities are subject to this special duty analysis are Sebastian v. State, 93 N.Y.2d 790, 793 [1993] and J.J. v. State, 158 N.Y.S.3d 780 [2021]. The argument raised by plaintiff in Maldovan, like the arguments raised there, have failed in New York in the cases after 2009.
In Sebastian v. State, a juvenile escaped state custody when government agents lowered security standards resulting from their discretion, the juvenile then committed assault and robbery and he was found guilty of attempted murder. There, no special duty was owed to the victim of the juvenile’s offenses by the government, when the government makes decisions that eventually lead to more harm despite being in state custody because the State enjoys immunity from negligence claims absent a “special relationship” between the injured party and the state. (Balsam v. Delma Eng’g Corp., 90 N.Y.2d 966,967 [1998]; Kircher v. City of Jamestown, 74 N.Y.2d 251 [1989]; Schrempf v. State of New York, 66 N.Y.2d 289, 293 [1985].) The state's actions, removal and confinement of unlawful juveniles, was a government function within their discretion. (Sebastian at 795.)
In J.J. v. State, 158 N.Y.S.3d 780 (2021), in front of the Court of Claims, a claimant argued that the state was negligent by having oversight of juvenile detention centers where he alleged to have been sexually assaulted. The Court dismissed the claim under CPLR 3211. The Court found that the oversight of “juvenile delinquents” was a governmental function under the general police power (citing Sebastion at 795). The Claimant unsuccessfully argued that there was no need to make a “special duty” plea, citing Sean M. v. City of New York, 20 A.D.3d 146 (1st Dept. 2005) and Barnes v. County of Nassau, 108 A.D.2d 50 (2d Dept. 1985). According to the J.J. Court, both Sean M. and Barnes were no longer applicable because they were decided before the Court of Appeals decision, McLean v. City of New York, 12 N.Y.3d 194, 203 [2009].
In McLean, it was held that if a government decision is discretionary, it may not be the basis for liability. (McLean at 203.) Subsequently, the foster care cases that came after McLean observe the special duty requirement, effectively overruling Sean M. (There, the First Department denied Defendant’s motion to dismiss based on statutory immunity and common-law immunity. Defendants in Sean M. were the City of New York and a child protective service, known as Louise Wise Agency.)
The Maldovan court relies on McLean, where Plaintiff, similarly argued, that the state has an interest in protecting children, and the Court should “announce the existence of a special relationship between those who register child care providers and parents and children who need child care.” (McLean at 204.)
The Maldovan court declined the “invitation to relax the special relationship rule to accommodate an especially appealing class of cases,” for the interest of preserving the effectiveness of government entities and their ability to help the most vulnerable. (Maldovan at 4, citing McLean at 204).
Kenneth E. Pitcoff and Kevin G. Faley are partners in the firm of Morris Duffy Alonso Faley & Pitcoff. Gabriel Tejada, a paralegal, assisted in the preparation of this article.