Back in 2009, New York's Court of Appeals (the highest State court in New York) was confronted by a troubling fact pattern in McLean v. City of New York:

Patricia Theroulde had a business caring for young children at her home in Manhattan. Her facility was of the kind classified by the Social Services Law as a "family day care home"—"a program caring for children for more than three hours per day per child in which child day care is provided in a family home for three to six children" (Social Services Law § 390 [1] [e]). Family day care homes are not licensed by the State, but are required to register with the State Department of Social Services (DSS) (id.§ 390 [2] [b]).

How the Department of Health (DOH) and Office of Children and Family Services Dropped the Ball

The Department of Social Services Law

Under the Social Services Law, a registration is valid for two years (id. § 390 [2] [d] [ii] [A]), and an application for the renewal of registration may not be accepted unless "the office of children and family services [OCFS] has received no complaints . . . alleging statutory or regulatory violations" or, having received such complaints, OCFS has inspected the home and determined that it is operated in compliance with law (id. § 390 [2] [d] [ii] [B] [4]).

What Happened in this Case

During that initial two-year period, a number of troubling allegations were made against Ms. Theroulde's day care, which resulted in two ACS cases being opened - and ultimately substantiated. Strangely - and shockingly - however, DOH did not make a practice of checking with OCFS before renewing registrations. And in this case, DOH blew it.

According to the plaintiff, she specifically called ACS to make sure she got a "spotless" referral for a daycare for her child; relying on that, she hired the defendant. Sadly, the information she received was markedly wrong, and one day, the day care (as it had on prior occasions) neglected to watch the three-month old child carefully, and she fell from a raised bed, suffering a brain injury.

What the Court of Appeals Held - and Why the City Was Immunized From Liability

In reversing the appellate court's denial of summary judgment to the City, the Court of Appeals stated as follows:

"We have long followed the rule that an agency of government is not liable for the negligent performance of a governmental function unless there existed "a special duty to the injured person, in contrast to a general duty owed to the public" (Garrett v Holiday Inns, 58 NY2d 253, 261 [1983]; see also e.g. Kircher v City of Jamestown, 74 NY2d 251 [1989]; Lauer v City of New York, 95 NY2d 95 [2000]; Pelaez v Seide, 2 NY3d 186 [2004]; Laratro v City of New York, 8 NY3d 79 [2006])."

The Special Duty Requirement

The Court continued to enumerate the requirements for demonstrating that a "special duty" existed as follows:

"A special relationship can be formed in three ways:

(1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons;

(2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or

(3) when the municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation."

(2 NY3d at 199-200 [citation omitted]; see also Garrett, 58 NY2d at 261-262.)

Why the Plaintiff Couldn't Establish a Statutory Duty

While you might think that the Social Services Law should have allowed the plaintiff to prove that the City, in fact, had a special duty to this plaintiff, the Court held otherwise, stating:

"To form a special relationship through breach of a statutory duty, the governing statute must authorize a private right of action. One may be fairly implied when (1) the plaintiff is one of the class for whose particular benefit the statute was enacted; (2) recognition of a private right of action would promote the legislative purpose of the governing statute; and (3) to do so would be consistent with the legislative scheme (see Sheehy v Big Flats Community Day, 73 NY2d 629, 633 [1989]). If one of these prerequisites is lacking, the claim will fail ...

"Social Services Law § 389 (1) imposes criminal liability for willful violations of the provisions of the Social Services Law, including section 390. But there is no statutory provision for governmental tort liability. It is fair to infer that the Legislature considered carefully the best means for enforcing{**12 NY3d at 201} the provisions of Social Services Law § 390, and would have created a private right of action against erring government agencies if it found it wise to do so. [Emphasis supplied].

The Takeaway

In short, regardless of whether a municipality messes up regarding your day care, the likelihood is that, at least in New York, they will remain utterly immune from liability.


Jonathan Cooper
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Non-Compete, Trade Secret and School Negligence Lawyer
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