William D. Maldovan v. County of Erie

State of New York OPINION
Court of Appeals This opinion is uncorrected and subject to revision
before publication in the New York Reports.
No. 90
William D. Maldovan, &c.,
Appellant,
v.
County of Erie et al.,
Respondents.
John T. Loss, for appellant.
Robert P. Goodwin, for respondents.
City of New York, amicus curiae.
TROUTMAN, J.:
Plaintiff alleges that failures on the part of various government agencies, including
two providing social services, caused grievous harm in this tragic case. Despite the
heartbreaking events involved, in which the victim’s mother and brother, now serving
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lengthy prison terms for their actions, sexually assaulted, abused, and murdered her in her
home, we decline to expand this Court’s special duty doctrine. “A well settled rule of law
denies recovery in cases like this” (McLean v City of New York, 12 NY3d 194, 204 [2009]).
“The rationale for this rule is that the cost to municipalities of allowing recovery would be
excessive [and] the threat of liability might deter or paralyze useful activity,” endangering
the ability of government agencies to provide crucial services to the public (Laratro v City
of New York, 8 NY3d 79, 82 [2006]).
I.
Laura Cummings was a 23-year-old woman with developmental disabilities who
lived with her mother, Eva Cummings. In 2009, Laura’s brother, Richard, who lived out
of state, contacted a family friend with concerns about Laura’s well-being after another
family member informed Richard that Laura had sustained suspicious injuries. Mistakenly
believing that Laura was under 18 years old, the family friend contacted Child Protective
Services (CPS) about these concerns. A CPS caseworker visited the home, and both Eva
and Laura, when interviewed alone, provided the same benign explanation for Laura’s
injuries. CPS thereafter closed the case and informed the family friend that the report was
unfounded.
Months later, Richard heard again that Laura was injured, with facial bruising, and
contacted the same family friend, who in turn contacted Adult Protective Services (APS).
APS caseworkers visited the home, but Eva refused to allow them to speak with Laura
alone. In Eva’s presence, Laura gave the caseworkers the same explanation for her injuries,
and the caseworkers did not observe any facial bruising. After speaking with another
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family member, APS closed the case and told the family friend that the report was
unfounded. Richard subsequently called APS but was told that the report was investigated,
that caseworkers did not find anything of concern, and that he should call with any new
developments.
In November 2009, Laura ran away from home and was found at an abandoned Girl
Scout camp by two Erie County Sheriff’s deputies. Believing that Laura and Eva had a
verbal altercation, and learning nothing to suggest that Laura should not be brought home,
the deputies returned Laura to Eva’s care.
In January 2010, Eva and Laura’s brother, Luke Wright, tortured and murdered
Laura in her home. Eva and Wright were convicted of various crimes and sentenced to
lengthy prison terms (see People v Wright, 107 AD3d 1398 [4th Dept 2013], lv denied 23
NY3d 1026 [2014]). The public administrator of Laura’s estate commenced these actions
against the County of Erie and the Erie County Sheriff (defendants), alleging, among other
things, that the CPS and APS caseworkers, as well as the Sheriff’s deputies, were negligent
in the performance of their duties, leading to Laura’s death.
The parties moved for summary judgment, and Supreme Court denied both motions.
The Appellate Division affirmed the order denying plaintiff’s motion for summary
judgment but reversed the order denying defendants’ motion and granted summary
judgment to defendants, dismissing the complaints against them (see Maldovan v County
of Erie, 188 AD3d 1597 [4th Dept 2020]; Maldovan v County of Erie, 188 AD3d 1601 [4th
Dept 2020]). The Appellate Division concluded, as relevant here, that no special duty
existed as a matter of law because “the fourth element [necessary to show a special
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relationship with the municipality], justifiable reliance, cannot be met in this case”
(Maldovan, 188 AD3d at 1598-1599).
This Court granted plaintiff leave to appeal (37 NY3d 911 [2021]). We now affirm.
II.
When a negligence claim is asserted against a municipality acting in a governmental
capacity, as here, the plaintiff must prove the existence of a special duty (see Ferreira v
City of Binghamton, 38 NY3d 298, 308-310 [2022]; Turturro v City of New York, 28 NY3d
469, 477-478 [2016]). We have recognized that a special duty may arise in three situations:
where “(1) the plaintiff belonged to a class for whose benefit a statute was enacted; (2) the
government entity voluntarily assumed a duty to the plaintiff beyond what was owed to the
public generally; or (3) the municipality took positive control of a known and dangerous
safety condition” (Tara N.P. v Western Suffolk Bd. of Coop. Educ. Servs., 28 NY3d 709,
714 [2017] [internal quotation marks omitted]).
Although plaintiff raises an argument before this Court based on the first method
(statutory duty), that argument is unpreserved for appellate review. Plaintiff alleged in the
complaint that defendants voluntarily assumed a duty to Laura beyond that owed to the
public generally. It is true, as the dissent notes, that in the bill of particulars plaintiff alleged
a violation of Social Services Law § 473. Plaintiff does not assert, however, that he raised
the issue of statutory duty either in support of plaintiff’s own motion for summary
judgment or in opposition to defendants’ motion, and the Appellate Division did not
address the issue. We note that if, as the dissent concludes, this Court’s decision in Mark
G. v Sabol (93 NY2d 710, 721-722 [1999]) is distinguishable and the legislature had
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intended to create a private right of action in Social Services Law § 473 (3), the legislature
is of course free to make that intent clear (see dissenting op at 20-26).
Plaintiff also relies on the second method, which we have sometimes referred to as
a “special relationship” (see Tara N.P., 28 NY3d at 714; Valdez v City of New York, 18
NY3d 69, 80 [2011]). We conclude, however, that defendants met their prima facie burden
to demonstrate that they did not voluntarily assume a duty to Laura, and plaintiff failed to
raise a triable issue of material fact in opposition.
As we have often stated, to establish that the government voluntarily assumed a duty
to the plaintiff beyond what it generally owes to the public, the plaintiff must establish:
“ ‘(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’ ” (Tara N.P., 28 NY3d
at 714-715, quoting Cuffy v City of New York, 69 NY2d 255,
260 [1987] [emphasis omitted]).
“[A]ll four elements must be present for a special duty to attach” (Tara N.P., 28 NY3d at
715).
We agree with the Appellate Division that under the circumstances presented here,
defendants established as a matter of law that the government employees took no action
that could have induced justifiable reliance, and plaintiff failed to raise a triable issue of
fact in opposition. As we explained in Cuffy, the justifiable reliance element
“provides the essential causative link between the ‘special
duty’ assumed by the municipality and the alleged injury.
Indeed, at the heart of most of these ‘special duty’ cases is the
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unfairness that the courts have perceived in precluding
recovery when a municipality’s voluntary undertaking has
lulled the injured party into a false sense of security and has
thereby induced [the injured party] either to relax [their] own
vigilance or to forego other available avenues of protection”
(Cuffy, 69 NY2d at 261).
Months before her death, both CPS and APS investigated the reports that Laura was
being abused, concluded that those reports were unfounded, closed their investigations, and
advised Richard that the investigations were closed and would not be reopened without
new information. As the Appellate Division noted, Richard “did not in fact relax his own
vigilance inasmuch as he made two follow-up calls to the APS caseworker asking her to
reopen the investigation, and he was not induced to forego other avenues of relief”
(Maldovan, 188 AD3d at 1599). Similarly, the Sheriff’s deputies took no action that could
have induced reliance.
Plaintiff asserts that the Cuffy factors for establishing a special duty assume that the
injured person is a competent adult who is reasonably capable of pursuing other avenues
of protection if government has failed to do its job. Plaintiff argues that it is unfair to apply
the Cuffy test when the injured party is a child or an adult of diminished capacity and urges
us to adopt the Appellate Division decision in Boland v State of New York (218 AD2d 235
[3d Dept 1996]) to address that deficiency. In Boland, the Appellate Division relied on the
existence of Social Services Law article 6, title 6, which established CPS, to satisfy the
elements of a voluntarily assumed duty. Specifically, the Court held that the existence of
that statutory scheme demonstrated that the State “affirmatively and voluntarily assumed a
duty to act” on behalf of abused children, that the legislature had acknowledged that
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inaction could lead to harm, and that “the extensive and detailed statutory scheme at issue,
which has as its avowed purpose the protection of a discrete class of individuals, i.e.,
abused and maltreated children . . . obviate[d] the need for claimant to independently
establish the requisite contact and reliance” (id. at 240-241). Plaintiff asks us to adopt that
reasoning here and hold that because Laura was part of the class of adults the legislature
sought to protect when it established APS, plaintiff should not be required to establish
justifiable reliance in this case. Our dissenting colleague similarly proposes that the special
duty rule may be satisfied whenever CPS or APS receives a report of abuse, opens an
investigation, and has contact with the injured party (see dissenting op at 26-27).
We decline plaintiff’s invitation. In an effort to acknowledge the difficulty
vulnerable victims may face in demonstrating these factors, we have 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 (see Applewhite v
Accuhealth, Inc., 21 NY3d 420, 431 [2013]; Sorichetti v City of New York, 65 NY2d 461,
469 [1985]). Such an approach, which requires the courts to construe the special
relationship analysis in the plaintiff’s favor, provides a pathway for vulnerable victims to
satisfy the special duty requirements where they may otherwise be unable to do so. Here,
the Appellate Division appropriately assessed whether Richard justifiably relied on
promises or actions by government employees that would have induced him to relax his
vigilance regarding Laura’s safety and concluded that he did not (see Maldovan, 188 AD3d
at 1599). We do 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
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incapable of pursuing other avenues of protection and did not have a competent adult
family member advocating on their behalf.
III.
Contrary to the dissent’s suggestion, we do not blithely decline to amend the
common law rule in this case without reason. It is undeniable that plaintiff alleges that the
failure of government to do its job has caused immense harm under heartbreaking
circumstances; this is unfortunately not unusual in special duty cases (see Tara N.P., 28
NY3d at 716; McLean, 12 NY3d at 197). As we recognized in McLean, however, the
special duty rule is based on the rationale that exposing municipalities to tort liability may
“render them less, not more, effective in protecting their citizens” (McLean, 12 NY3d at
204).
McLean is another tragic case, involving the government’s failure to remove a
daycare program from the list of registered providers after substantiated complaints
regarding child safety, which resulted in the plaintiff’s placement of her child in that
program and the child’s subsequent serious injury (see id. at 197-199). The plaintiff argued,
in part, that “the helplessness of young children, and the State’s powerful interest in
protecting them from neglect or abuse, should lead [the Court] to announce the existence
of a special relationship between those who register child care providers and parents and
children who need child care” (id. at 204). The Court rejected that assertion:
“This is, in substance, an invitation to relax the special
relationship rule to accommodate an especially appealing class
of cases. We decline the invitation. A well settled rule of law
denies recovery in cases like this, and that rule, by its nature,
bars recovery even where a government blunder results in
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injury to people deserving of the government’s protection”
(id.).
We must again, as in McLean, decline the “invitation to relax the special relationship
rule to accommodate an especially appealing class of cases,” out of concern for the
possibility that “exposing municipalities to tort liability would be likely to render them
less, not more effective in protecting their citizens” (id.).1 Imposing liability here where
Laura’s family members did not justifiably rely on any promises by CPS or APS and relax
their vigilance as a result could impose a “crushing burden” on those agencies, which may
render them less effective in fulfilling their mission to protect vulnerable individuals (id.).
To the extent that CPS and APS caseworkers acted negligently in failing to protect Laura
from the abuse and death she suffered at the hands of her mother and brother, lawsuits “are
1
We are not persuaded by our dissenting colleague’s citation to a dissenting opinion that
this frequently cited rationale for the special duty rule is a “myth” (dissenting op at 18).
Although no one suggests that “allowing Laura’s claim to proceed would bankrupt Erie
County” (id. at 17), we must consider the impact of our decision beyond this case and these
parties. The potential for significant economic repercussions, and the resulting potential
decrease in beneficial services, have troubled our predecessors on this Court for decades
and contributed to the shaping of the special duty doctrine. If, as the dissent proposes, the
special duty rule may be satisfied whenever CPS or APS receives a report of abuse, opens
an investigation, and has contact with the injured party (see dissenting op at 26-27), it is
possible that the resulting, potentially “crushing” burden of liability might impel
government to “withdraw or reduce” these protective services (McLean, 12 NY3d at 204).
Furthermore, such a rule may cause CPS and APS to protectively remove children or
vulnerable adults from their homes when it is not warranted, in order to avoid the possibility
of subsequent liability, which may disproportionately impact families of color (see New
York State Bar Association, Committee on Families and the Law, Racial Justice and Child
Welfare, April 2022, available at https://nysba.org/app/uploads/2022/03/Committee-on-
Families-and-the-Law-April-2022-approved.pdf). Allowing such decisions regarding
allocation of resources and services to be made by the government, and not this Court, is
one of the primary reasons for the special duty rule (see Ferreira, 38 NY3d at 316).
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not the only way of dealing with government failure” (id.). The special duty rule “is
intended, in part, to ensure that municipalities do not become insurers for the injurious
conduct of third parties” (Ferreira, 38 NY3d at 316, citing Valdez, 18 NY3d at 75).2
Where, as here, the elements of a voluntarily assumed duty, including justifiable reliance,
were capable of being satisfied through Laura’s family members, but simply were not met,
the sound principles supporting the special duty rule require us to decline to amend that
rule here.
In light of our holding, we do not address plaintiff’s remaining contentions,
including whether the Appellate Division correctly concluded that a cause of action for
negligent investigation is not recognized in New York.
Accordingly, the orders of the Appellate Division should be affirmed, with costs.
2
We disagree with the dissent that Ferreira constituted a modification of the special duty
rule (see dissenting op at 16-17). Rather, in Ferreira, we concluded that the police planning
and execution of a no-knock warrant fits comfortably within the well-established third
category of special duty, i.e., where the municipality takes “positive control of a known
and dangerous safety condition” (see Ferreira, 38 NY3d at 317-318). That category of
special duty is not at issue in this case.
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WILSON, J. (dissenting in part):
Laura Cummings is dead. She was an intellectually disabled 23-year-old with the
mental age of an 8-year-old. Over at least the last six months of her short life, she was
continuously tortured, raped, sodomized and ultimately murdered. All of this happened in
her own home. All of this happened at the hands of her own mother and brother. All of
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this happened despite numerous complaints to, and visits by, caseworkers from Erie
County’s offices of Child Protective Services and Adult Protective Services.
I agree with the majority’s characterization of the circumstances as “tragic” and
“heartbreaking;” one should not mistakenly believe that what happened to Laura is rare.
In truth, the physical and psychological abuse of intellectually disabled children and adults,
especially women, is commonplace.1 When the State decided to deinstitutionalize many
such persons, it entrusted their safety to Adult Protective Services (APS) and Child
Protective Services (CPS) districts throughout the state. The majority’s holding immunizes
the very agencies bound by law to protect vulnerable adults, when the legislature has
clearly stated those agencies do not enjoy immunity from grotesque agency failures such
as those turning a blind eye to Laura’s horror.
While acknowledging Laura’s tragic and heartbreaking doom, the majority
forthrightly explains why it thinks Laura’s claims against Erie County fail: the majority
will not “expand this Court’s special duty doctrine” because “a well settled rule of law
denies recovery in cases like this. . . The rationale for this rule is that the cost to
1
(Danny Hakim, At State-Run Homes, Abuse and Impunity, NY Times, Mar 12, 2011
[https://www.nytimes.com/2011/03/13/nyregion/13homes.html] [detailing rampant abuse
of disabled people in state-run homes]; Erika Harrell, Crime Against Persons With
Disabilities, 2009-2015-Statistical Tables, Bureau of Justice Statistics, US DOJ, July
2017 at pg 1 [https://bjs.ojp.gov/content/pub/pdf/capd0915st.pdf] [“In every year from
2009 to 2015, the rate of violent victimization against persons with disabilities was at
least twice the age-adjusted rate for persons without disabilities”]; Joseph Shapiro, The
Sexual Assault Epidemic No One Talks About, NPR. org, Jan 8, 2018
[https://www.npr.org/2018/01/08/570224090/the-sexual-assault-epidemic-no-one-talks-
about] [“People with intellectual disabilities are sexually assaulted at a rate seven times
higher than those without disabilities.”]).
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municipalities . . . would be excessive [and] the threat of liability might deter or paralyze
useful activity” (majority opinion at 1-2).
Keep in mind the following points about the majority’s explanation: (1) the majority
recognizes that the “special duty” rule is a common-law rule created and periodically
modified by the courts; (2) the “special duty” rule allows some persons injured by
governmental actors to sue the government for its own negligence and recover money
damages from the government, despite the cost of damage awards and threat of
governmental paralysis; (3) the majority’s decision rests solely on its determination that
Laura did not reasonably rely on the government – not any other requirement of the “special
duty” test; and (4) there is no well settled rule in “cases like this” – cases in which the
legislature has told us that governmental employees lack immunity for their acts of gross
negligence in caring for a specified class of vulnerable persons.
I
Laura lived with her mother, Eva Cummings, and her brothers, among them, Luke
Wright. Eva and Luke were convicted of Laura’s murder and are now in prison. Because
Laura is dead and has no responsible relatives, the Erie County public administrator,
William Maldovan, brought this suit on behalf of her estate. Unquestionably, the precedent
and principle matter more than the profit.
Child Protective Services records show that the Cummings household had been
subject to numerous reports of abuse over the years, and CPS had found several allegations
of Eva abusing Laura as “indicated”, meaning that CPS found credible evidence to
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substantiate abuse. In the several months leading up to her death, Laura was often tied to
a chair, with a bag over her head, and subjected to repeated physical and sexual abuse by
her mother and her brother Luke, which included being violated with a broomstick.
Six months before Laura’s death, in July of 2009, Town Justice John Stevens, who
was a neighbor of the Cummings family, contacted the Statewide Central Register of Child
Abuse and Maltreatment to report that Richard Cummings, another one of Laura’s brothers
stationed outside the country on military duty, was concerned about Laura’s well-being.
Justice Stevens reported that Richard informed him that Eva had cut Laura’s arm with a
knife. Justice Stevens also advised the Statewide Register that Laura was “mentally
challenged”. Because he mistakenly thought Laura was 16, he reported the suspicion of
abuse to CPS instead of APS.2
CPS caseworker “LA”3 visited the Cummings home in response to Justice Stevens’
report of Laura’s possible abuse. CPS never made a referral to APS because LA, though
learning the Laura was an adult and therefore not within CPS’s jurisdiction, concluded
2
The record is unclear as to precisely when CPS determined Laura was an adult, and
therefore within APS’s jurisdiction instead of CPS’s. The initial report generated from
Justice Stevens’ call stated that the records of a previous abuse case concerning Laura
showed her age as 23. The CPS case worker assigned to Laura’s case testified that she
visited Laura’s home in response to Justice Stevens’ call even though she was unsure
whether Laura was a child or adult, deciding that, because her records showed that Laura’s
16-year-old sister, Crystal, lived in the house, Laura might be a child.
3
I have obscured the names of the caseworkers here because the standard of review
requires us to take the facts in the light most favorable to the party opposing summary
judgment. Because no factfinder was asked to determine any facts, it would be unfair to
the caseworkers involved should readers conclude the facts have been found to be as stated
herein.
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from her visit that the allegation of abuse was unfounded. During that visit, LA spoke
separately with both Laura and Eva. Laura denied any abuse by anyone, including her
mother, as did Eva. Both claimed that the cuts on Laura’s arms were a result of Laura
falling on the porch while carrying a glass. LA testified that she was not sure when, and
to what extent, she (or her supervisor at CPS) reviewed the extensive history of prior abuse
reports but, in any case—LA ultimately decided Laura’s story seemed credible and nothing
she observed signaled abuse. CPS sent a letter to Justice Stevens informing him the claims
were unfounded and that it was closing the case.
Four months before Laura’s death, in September 2009, Justice Stevens called again,
this time calling APS. He reported that Laura had facial bruising and would not respond
to questions about where the bruising came from. There was also a recent change in her
demeanor—she had become withdrawn and introverted. Justice Stevens again reported
that Laura, Eva, as well as the brothers Luke and Edward, were developmentally delayed.
The case was assigned to APS caseworker “HK”.
HK performed a home visit, accompanied by “MS”, a new caseworker there to
“shadow” HK for training purposes. HK described Eva’s demeanor when answering the
door as “brusque and standoffish”. She refused to let them into the house and refused to
let them speak with Laura alone. Eva said she had to be present during Laura’s interview
to make sure Laura did not “tell lies again”—Laura’s alleged “lies” were also the reason
Eva gave for taking Laura out of school. HK made no further effort to speak to Laura alone
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or to enter the home, despite internal APS policies stating that case workers should always
endeavor to interview clients alone and in their home environment.
HK did not recall observing any facial bruising except a friction burn mark on
Laura’s nose and chin. When asked, in the presence of her mother, Laura said she fell
coming up the porch steps. As they were leaving, MS noticed Laura’s feet were red and
swollen. HK did not recall whether she noticed Laura’s feet and did not remember at what
point that day she and MS discussed them. They did not go back to inquire about Laura’s
feet, but HK called later to ask Eva about Laura’s feet.
When HK called, a woman named Joyce Landle answered the phone. She identified
herself as Laura’s guardian and Eva’s cousin. During the visit, Eva had first said she herself
was Laura’s legal guardian, then corrected herself to say that Joyce, her sister, was the legal
guardian. Ms. Landle was aware of the referral and HK’s visit. HK asked about the
swollen feet—Joyce answered that the feet had been like that for a “long time.” Ms. Landle
told HK that the only doctor in town would not treat any of the family because of unpaid
bills, but later in the conversation agreed to take Laura to the doctor to have her feet looked
at. HK never followed up with Ms. Landle to ensure Laura had been taken to the doctor
and admitted during her deposition that Ms. Landle’s story about unpaid bills made no
sense because Medicaid covered Laura’s medical expenses. Instead, on the same day of
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the phone conversation with Ms. Landle, HK closed the case as unfounded and in
December 2009 sent a letter addressed to Laura informing her of the same determination.4
Richard Cummings called HK twice, after she closed the case. He insisted that
Laura was being abused (saying she had a black eye) and that she should be removed from
the home. HK responded that Laura did not have a black eye when she visited, and had
only the friction burn mark on her nose and chin. She instructed Richard to call back if he
had new information. She did not generate a new intake report for either of Richard’s calls.
In November of 2009, sheriff deputies Connolly and Barbaritz responded to a call
about a suspicious person. According to the report, a mentally disabled woman was living
in an old girl scout camp after an altercation with her mother. The woman was Laura.
When the deputies arrived, Laura was huddled in the comer with a blanket, quiet and
introverted, unable or unwilling to speak with them. Deputy Barbaritz could tell, however,
that Laura was intellectually disabled. The deputies did not know of or ask about the
altercation Laura had with her mother and did not find out whether anyone had hurt her.
The deputies returned Laura to her mother without making any inquiry or evaluating
whether she was a domestic abuse victim. Laura was murdered two months later.
Mr. Maldovan, on behalf of Laura, identified numerous APS policies violated by its
caseworkers (and some by CPS, to the extent it failed to refer Laura’s case to APS and
4
Running the text of the letter through a Flesh Kincaid reading level calculator shows its
complexity at the 11th grade level. The opening paragraph of my dissent produces a grade
level of 8.6. Laura had the mental age of a second or third grader.
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issued an “unsubstantiated” determination when it had no jurisdiction to do so). APS’s
subsequent disciplinary action against HK provides further evidence of APS’s gross
negligence.5 No extended discussion of the evidence demonstrating APS’s and CPS’s
negligence is required here, because the majority’s sole basis for rejecting Laura’s claim is
that “government employees took no action that could have induced justifiable reliance”
(majority op at 5).
II
A
The prospect that New York State (and its political subdivisions) should pay for
injuries it causes has been established for centuries. The Erie Canal Act of 1817 authorized
canal commissioners to pay for takings of land required for the construction of the canal
(L 1817, ch 262). In 1825, the commissioners were further empowered to assess and pay
claims for all types of damages caused by or connected with the work on the Erie or
Champlain canals (L 1825, ch 275), which was broadened in 1870 to include damages
5
The County’s disciplinary letter to HK listed numerous steps that “any reasonable
caseworker” should have taken, but which HK failed to do, including: returning for a
second visit to interview Laura in private or request the assistance of law enforcement to
speak with Laura alone, because access had been blocked by the very person suspected as
the perpetrator; assessing whether she should obtain a court order to access the home as
“environmental assessment is a critical element of the assessment process”; investigating
whether Laura’s needs could be best met in her home; verifying information provided to
her by collateral sources, in this case, Ms. Landle; following up on whether Laura was
receiving treatment for her red and swollen feet; and treating the two calls by Richard
Cummings, after APS closed the case, as new referrals and initiating an intake process for
each.
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sustained by the use or management of the canals arising from the negligence of any state
official (L 1870, ch 321).
Meanwhile, the “great mass of claims against the state were submitted to and passed
on directly by the legislature, which provided for their payment” (People ex rel. Swift v
Luce, 204 NY 478, 483-84 [1912]). However, the appropriations process for paying claims
against the state,
“became so unsatisfactory that the Constitution was amended in 1874 so as
to prohibit the Legislature from auditing or allowing any private claim or
account against the State. (Article 3, § 19.) This prohibition made it
necessary for the Legislature to provide some other means for auditing
private claims and for that purpose it created the Board of Audit, consisting
of the Comptroller, Secretary of State and State Treasurer, who were
authorized to hear all private claims and accounts against the State, except
such as were then heard by the canal appraisers.”
(Fifteenth Annual Report of the Court of Claims of the State of New York, April 12, 1916,
at 7-8). The Board of Audit was replaced by a Court of Claims in 1897 “with somewhat
enlarged jurisdiction,” which was in turn replaced, briefly, by a Board of Claims, which
was again replaced by the Court of Claims in 1915 (id. at 8). Throughout this time, the
State maintained sovereign immunity, so only those claims (or types of claims) specifically
allowed by statute could provide for recovery against the State. Thus, for example, in Smith
v State (227 NY 405, 410 [1920]), we held that a plaintiff injured because of the negligence
of State employees in placing a wire across a path on a State-owned walkway was barred
from recovering because the State had not made “an express waiver of the state’s immunity
from liability for the tortious acts of its officers and agents.”
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The sea change came in 1929, when New York enacted a blanket waiver of its
sovereign immunity for tort actions: “The state hereby waives its immunity from liability
for the torts of its officers and employees and consents to have its liability for such torts
determined in accordance with the same rules of law as apply to an action in the supreme
court against an individual or a corporation, and the state hereby assumes liability for such
acts” (L 1929, ch 467). Ten years later, the legislature broadened the waiver to reach all
causes of action, not just those sounding in tort (L 1939, ch 860). As we have explained:
“[T]he Smith Court's interpretation of the waiver provision of section 264
was at odds with the public policy which seeks to reduce rather than increase
the obstacles to recovery of damages, whether defendant is a private person
or a public body (see, Abbott v Page Airways, 23 NY2d 502, 507; see also,
Bing v Thunig, 2 NY2d 656, 666 [“(l)iability is the rule, immunity the
exception”], quoted with approval in Abbott, supra, at 507, n 2). Thus, the
Legislature subsequently enacted a new statute to overcome the ruling in
Smith. That revision, the substance of which was incorporated into the statute
now before us, “extended, supplemented and enlarged” the waiver to remove
the defense of sovereign immunity for tort actions” (Jackson v State of New
York, 261 NY 134, 138, rearg denied 261 NY 637) (Brown v State, 89 NY2d
172, 180 [1996]).
Following the legislature’s comprehensive waiver of sovereign immunity in 1939,
we understood that the State (and other governmental subdivisions) must be held liable just
as private parties would be. So, for example, we held that a child injured by other children
in a State-created school for delinquent children could recover damages from the State on
a theory of negligent supervision, distinguishing our prior contrary precedent on the basis
of the State’s waiver of sovereign immunity (Bloom v Jewish Bd. of Guardians, 286 NY
349 [1941]). In Robison v State (292 NY 631 [1944]), we affirmed a negligence award
against a State hospital brought by an attendant who slipped on cooked cereal on the dining
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room floor. In Bernardine v City of New York (294 NY 361 [1945]), we affirmed a damage
judgment for the city’s negligence where the plaintiff was injured by a runaway police
horse. The trial court granted judgment for the city “on the single ground that recovery
was barred by the City’s common-law immunity from liability for wrongful performance
of governmental duties;” the Appellate Division reversed, holding that the General
Municipal Law rendered the city liable for negligence “in the operation of a municipally
owned vehicle or other facility of transportation,” which included a police horse (id. at
364). We affirmed, noting that the statute was susceptible of the Appellate Division’s
interpretation, but added:
“Even so, there was no compelling reason why this plaintiff should have
taken his stand upon the above provision of the General Municipal
Law. Section 8 of the Court of Claims Act says: “The state hereby waives its
immunity from liability and action and hereby assumes liability and consents
to have the same determined in accordance with the same rules of law as
applied to actions in the supreme court against individuals or corporations”. .
. . None of the civil divisions of the State - its counties, cities, towns and
villages - has any independent sovereignty (see N.Y. Const., art. IX, § 9; City
of Chicago v. Sturges, 222 U.S. 313, 323; Keifer & Keifer v. R.F.C., 306
U.S. 381. Cf. Gaglio v. City of New York, 143 F. 2d 904). The legal
irresponsibility heretofore enjoyed by these governmental units was nothing
more than an extension of the exemption from liability which the State
possessed. (Murtha v. N.Y.H.M. Col. & Flower Hospital, 228 N.Y. 183,
185.) On the waiver by the State of its own sovereign dispensation, that
extension naturally was at an end and thus we were brought all the way round
to a point where the civil divisions of the State are answerable equally with
individuals and private corporations for wrongs of officers and employees, -
even if no separate statute sanctions that enlarged liability in a given
instance” (id.).
The effect of the waiver of sovereign immunity on tort claims based on
governmental negligence is illustrated by comparing two factually similar cases. In
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Hughes v Monroe County (147 NY 49 [1895]), we held that an employee of the Monroe
County Insane Asylum, severely injured by operating a steam mangle, could not recover
in tort from the County. We explained that because the County “shared with the state the
burden of caring for the insane,” the State’s sovereign immunity protected the County as
well. After the legislature waived the State’s sovereign immunity, we decided Paige v
State (269 NY 352 [1936]), in which a police court committed a girl to a privately-owned
reformatory authorized by statute to hold her until the age of majority. She was made to
operate dangerous machinery, which maimed her. The Court of Claims held that the
negligence of those in charge of the reformatory “was a tort of officers and employees of
the State,” so that the State was liable in tort for her injuries. The Appellate Division
increased the damage award and otherwise affirmed. We also affirmed, holding:
“The quasi-penal institution in which the claimant was confined was a
governmental agency to which the State had committed in part its function
to care for wayward minors. (Laws of 1902, ch. 603; Corbett v. St. Vincent's
Industrial School, 177 N. Y. 16.) But the institution did not thereby acquire
a status equivalent to that of the civil divisions of the
State. (See Murtha v. New York Homeopathic Medical College & Flower
Hospital, 228 N. Y. 183.) There is no misuse of language in saying that the
State employed the institution. (Cf. People ex rel. State Board of
Charities v. New York Society for Prevention of Cruelty to Children, 162 N.
Y. 429, 434.) If the word "agent" were found in section 12-a of the Court of
Claims Act would it be held that this case was outside the State's assumption
of liability? The terms "agent" and "employee" have been used
interchangeably in the cases that dealt with State immunity from liability for
tort. (Litchfield v. Bond, 186 N. Y. 66, 82, 83; Murtha Case, supra,
p.185.) In Jackson v. State (261 N. Y. 134, 138) it was said: "Section 12-a
constitutes a recognition and acknowledgment of a moral duty demanded by
the principles of equity and justice." In that spirit, we accept the construction
of the section here adopted by the courts below.” (Paige v State, 269 NY
352, 356 [1936]).
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The above history establishes two important propositions. First, New York State
and its municipalities have always been liable to pay damages for some types of injuries
arising from their own negligence. Initially, the process was a mix of specific legislative
appropriations and decisions of commissions or boards, which was subsequently
transferred to the Court of Claims. Second, in waiving sovereign immunity 93 years ago,
the legislature completely “remove[d] the defense of sovereign immunity for tort actions”
(Brown, 89 NY2d at 180) such that governmental actors would be subjected to the same
standards as private defendants. We further observed that “[i]nasmuch as there is no clear
definition by which wrongs are classified as torts . . . [i]t is much more likely that the term
was used generally to indicate a branch of the law broader than the then-existing categories
and subject to expansion as new wrongs supporting liability were recognized” (id. at 182).
B
Although the legislature waived its sovereign immunity and required that it be
treated no differently than any other defendant, the courts fashioned various immunities
that barred recovery in some cases even when the government acted negligently. Relevant
here is the doctrine of governmental function immunity. That doctrine is found in no
statute; it is part of the common law fully within our control to make, shape, bend or alter.
The doctrine makes use of a distinction created well before New York waived it sovereign
immunity: the distinction that municipal corporations “are possessed of dual powers; the
one governmental, legislative or public, and the other proprietary or private” (Missano v
Mayor of NY, 160 NY 123 [1899], citing Dillon, Municipal Corporations [fourth ed.] at
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§ 66).6 In Missano, we held that the city was liable in tort “for the death of a child, who
was run over and killed by a horse attached to an ash cart of the street cleaning department,”
because the city’s duty to keep the streets clean was proprietary, not public, even though
“the discharge of this duty might incidentally benefit the public health” (id. at 126, 129).
The distinction between the governmental (public) and proprietary (private) functions of
municipal corporations was imported from English common law (see Springfield Fire &
Mar. Ins. Co. v Keeseville, 148 NY 46, 52-53 [1895] (explaining that under English
common law, when a municipal corporation acted in its governmental capacity – for
“public purposes and is for the public good . . . the corporation is exempt from all liability”).
We noted that “the line of demarkation [between public and private] at times may be
difficult to ascertain” (id. at 52), which is well evidenced by our holdings that street
cleaning is private and water service is public.
That basic distinction, which provides an exemption from liability for municipalities
acting in their governmental capacity, is a creature of the common law, which we have
carried forward to the present day (see Turturro v City of N.Y., 28 NY3d 469, 478-79
[2016]). In carrying that doctrine forward over the past two centuries, we have altered it
many times, as is not just our right, but our duty. Cases in which our precedent has allowed
for governmental liability (and, thus, necessarily are ones in which the government bore a
6
That distinction arises from the legal status of municipal corporations. In theory, it should
be inapplicable to the state itself, which is not a corporation, but in more recent times that
distinction has been applied to all governmental actors without regard to its genesis in the
law of municipal corporations, which never had sovereign immunity to begin with.
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special duty to the plaintiff, breached that duty and failed to establish the defense of
governmental function immunity) , include, in addition to Bloom (negligent supervision of
delinquent children), Robison (slip on porridge), Bernadine (runaway police horse),
Missano (horse-drawn street cleaning cart) and Paige (negligently maintained laundry
equipment):
• Haddock v City of New York (75 NY2d 478 [1990]) (negligent screening of
candidates for employment);
• Brown v State of New York (31 NY3d 514 [2018]) (negligent maintenance of
highway);
• Florence v Goldberg (44 NY2d 189 [1978]) (negligence in failing to provide
crossing guard at school crosswalk);
• McCummings v NYC Transit Auth. (81 NY2d 923 [1993]) (police negligence in
shooting an unarmed fleeing suspect);
• Galvin v Mayor of New York (112 NY 223 [1888]) (negligently designed
courthouse grate crushed a delivery person);
• Garrett v Holiday Inns, Inc. (58 NY2d 253 [1983]) (negligent town inspection and
issuance of permits in violation of statutes);
• Flamer v City of Yonkers (309 NY 114 [1955]) (police negligence in shooting
intoxicated man who posed no threat);
• Mirand v City of New York (84 NY2d 44 [1994]) (negligent supervision of
students);
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• Meistinsky v City of New York (309 NY 998 [1956]) (police negligence in killing
an innocent bystander); and
• Martindale v State (269 NY 554 [1935]) (negligent supervision of mentally ill
patient in state-run hospital resulting in patient’s death)
Every one of those cases involved adjustments to the doctrines of special duty and
governmental function, even if only implicitly, to permit recovery of money damages
against the government in the circumstances described therein. Our court adapted the
common law in each of these cases by creating an exception from the basic common-law
proposition disallowing suit for negligent public acts by governmental entities acting in
their governmental capacity. Most recently in Ferreira, the United States Court of Appeals
for the Second Circuit spared us the effort of deciding whether Binghamton had met its
burden to establish governmental function immunity, but certified to us whether a plaintiff
needed to establish a special duty when the injurious governmental action was
nonproprietary. We once again adjusted our common-law doctrine of special duty, holding
that whenever the government owes a special duty to all persons within the premises at
which a no-knock warrant is executed, encompassing both the planning and execution of
the warrant.7
7
The majority explains Ferreira as fitting within the third prong of our established special
duty test: when a governmental actor takes control of a dangerous situation, and therefore
not an expansion or innovation in the common law (majority op at 10 n 2). That
characterization sells us short. The expansion of the common law comes in the holding
that, at least for the third prong of our special duty test, there is no need to establish the
special duty as to a particular known person, or even to an individual case: as a matter of
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In myriad examples where a governmental entity has been held liable in negligence,
the judgments have not caused the collapse of the government or paralyzed those
governments from trying to do better. Those concerns which form the basis for the
majority’s refusal to recognize a special duty here, would be weighty if, for example, we
were to impose tort liability whenever the police failed to stop a crime, or the fire
department failed to prevent a fire, making the government an insurer against all ills.
However, each of the above cases in which we have allowed an injured party to recover
tort damages from the government is far more constrained, almost always confined to
situations where the government had some reasonable ability to control the conduct,
whether that be mopping cereal from an institution’s floor, keeping a horse under control,
or screening candidates for employment. Here, nothing in the record suggests that allowing
Laura’s claim to proceed would bankrupt Erie County or cause APS or CPS to stop visiting
persons legally entitled to their support. Judge Keating addressed the fictional parade of
horribles thusly:
“The fear of financial disaster is a myth. The same argument was made a
generation ago in opposition to proposals that the State waive its defense of
“sovereign immunity”. The prophecy proved false then, and it would now.
The supposed astronomical financial burden does not and would not exist.
No municipality has gone bankrupt because it has had to respond in
damages when a policeman causes injury through carelessly driving a
police car or in the thousands of other situations where, by judicial fiat or
legislative enactment, the State and its subdivisions have been held liable
for the tortious conduct of their employees. . . . That Linda Riss should be
asked to bear the loss, which should properly fall on the city if we assume,
law, the special duty runs to all persons, known or unknown, in the case of all search
warrants. In every prior special duty case, we have examined the existence of a duty as to
that individual case, without setting out any broadly encompassing rule.
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as we must, in the present posture of the case, that her injuries resulted from
the city's failure to provide sufficient police to protect Linda is contrary to
the most elementary notions of justice” (Riss v New York, 22 NY2d 579,
585-586 [1968] [Keating, J., dissenting]).8
IV
The above discussion brings us to the following place: New York and its
municipalities have a long history of paying damages for their own negligence in a great
variety of circumstances, and the limits on such payments for nearly the past century arise
from judge-made doctrines that we have continually revised. Relevant here is the special
duty doctrine, which affords an avenue by which a plaintiff can recover for the
government’s negligence even when the government is acting in its public, nonproprietary
capacity.
8
Unimpressed by Judge Keating, the majority pursues the very slippery slope argument he
criticized. Recognizing a special duty would not lead to a damage award unless two other
conditions were met: (1) the agency acted with gross negligence or willful misconduct,
which are quite high standards (Food Pageant, Inc. v Consolidated Edison Co., 54 NY2d
167, 1972 [1981] [“gross negligence had been termed as the failure to exercise even slight
care”]; Colnaghi, USA. v Jewelers Protection Servs., Ltd., 81 NY2d 821, 823-24 [1993]
[“[gross negligence is] conduct that evinces a reckless disregard for the rights of others or
smacks of intentional wrongdoing” [internal citation and quotation marks omitted]); and
(2) the agency failed to demonstrate its entitlement to governmental function immunity,
which will completely immunize a governmental defendant even if a special duty has been
breached (Turturro v City of NY, 28 NY3d 469, 478-79 [2016]; Valdez v City of New York,
18 NY3d 69, 75 [2011]). Of course, a plaintiff would also have to prove the other elements
of a tort claim as well (proximate cause and damages). In any event, the short answer is
that the legislature already balanced the costs and benefits, by providing immunity for
ordinary negligence but not gross negligence (see infra at IV.A.).
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We have “recognized that a special duty can arise in three situations: (1) the plaintiff
belonged to a class for whose benefit a statute was enacted; (2) the government entity
voluntarily assumed a duty to the plaintiff beyond what was owed to the public generally;
or (3) the municipality took positive control of a known and dangerous safety condition”
(Ferreira, 38 NY3d at 334). I believe Laura can pursue her claim under the first and second
avenues by which a special duty may be established.
The majority contends that Laura’s argument under the first avenue, statutory duty,
is unpreserved. I conclude otherwise. The complaint avers that the County (that is, APS
and CPS) owed Laura a special duty, which is sufficient to encompass any arguments by
which a special duty may be established, including a special duty established by statute. In
any event, Plaintiff’s Verified Bill of Particulars states that Maldovan, on behalf of Laura’s
estate “will allege violations of statutes including, but not limited to, the applicable sections
of chapter 55 of New York Social Services Law and New York Social Services Law
§ 473”.9 Section 473 establishes APS’s statutory special duty to Laura.
9
Our preservation doctrine is not constitutionally compelled; it is of our own making, and
we can draw it as narrowly as we wish. Before the Court’s compulsory jurisdiction was
curtailed in 1894, we regularly heard argument in more than 800 cases a year. A stingy
preservation rule may have made sense then, purely as an ancillary means of docket
control; that justification is lacking now. In any event, we have held that:
“the general rule concerning questions raised neither at the trial nor at previous stages of
appeal is far less restrictive than some case language would indicate. Thus, it has been said:
"if a conclusive question is presented on appeal, it does not matter that the question is a
new one not previously suggested. No party should prevail on appeal, given an
unimpeachable showing that he had no case in the trial court." (Cohen & Karger, op.
cit. supra, pp. 627-628.) Of course, where new contentions could have been obviated or
cured by factual showings or legal countersteps, they may not be raised on appeal. But
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A
I turn first to the statutory duty argument. APS and CPS are governed by two
separate statutes that share similar purposes and impose similar responsibilities upon both
agencies. Social Services Law (“SSL”) § 473, governing APS, mandates the provision of
protective services, which includes investigation of alleged abuse and if necessary, removal
of the adult from their home, for all those who “because of mental or physical impairments,
are unable to manage their own resources, carry out the activities of daily living, or protect
themselves from physical abuse, sexual abuse, emotional abuse, active, passive or self-
neglect, financial exploitation or other hazardous situations without assistance from others
and have no one available who is willing and able to assist them responsibly” (Social
Services Law 473 [1] [emphasis added]). Similarly, Social Services Law, Title 6, which
established CPS, imposes several duties upon the agency including: receiving and
contentions which could not have been so obviated or cured below may be raised on appeal
for the first time (Telaro v Telaro, 25 NY2d 433, 439 [1969]; see also Richardson v Fiedler
Roofing, Inc., 67 NY2d 246, 251 [1986]; Wright v Wright, 226 NY 578 [1919]).
As we have explained, “In our review we are confined to the questions raised or argued at
the trial but not to the arguments there presented. Nor is it material whether the case was
well presented to the court below, in the arguments addressed to it. It was the duty of the
judges to ascertain and declare the whole law upon the undisputed facts spread before them;
and it is our duty now to give such judgment as they ought to have given’” (Persky v Bank
of Am. N.A., 261 NY 212, 218 [1933] [emphasis in original], quoting Oneida Bank v
Ontario Bank, 21 NY 490, 504 [1860]). We are presented here with a pure question of law
– common law, no less, which is our own special duty to develop – on a question that
matters greatly to highly vulnerable persons. The question turns on no factual showings
and cannot have been affected by legal countersteps: does SSL § 473 establish a statutory
special duty? By deferring that question to some unspecified day, we gain nothing, and
neither APS nor its clients are benefitted by that prolonged uncertainty.
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investigating reports of abuse through the Statewide Central Register of Child Abuse and
Mistreatment; making contact with the suspected abused child in his or her home within
24 hours of receiving a report; and, if denied access to the child or the home, seeking the
help of law enforcement and the courts to gain access to the home and child (Social
Services Law, Title 6, § 424).
Crucially, SSL § 473[3] facially contemplates that APS may be held liable in gross
negligence:
“Any social services official or his designee authorized or required to
determine the need for and/or provide or arrange for the provision of
protective services to adults in accordance with the provision of this section,
shall have immunity from any civil liability that might otherwise result by
reason of providing such services, provided such official or his designee was
acting in the discharge of his duties and within the scope of his employment,
and that such liability did not result from the willfull act or gross negligence
of such official or his designee” (emphasis added).
SSL § 419 (governing CPS) similarly provides child protective workers with “immunity
from any liability . . . provided that . . . such liability did not result from the willful
misconduct or gross negligence of such person, official or institution.”
The language of both statutes makes clear that the legislature immunized APS and
CPS from ordinary negligence only – not from their own gross negligence or willful
misconduct.
To establish a special duty through breach of a statutory duty, the governing statute
must satisfy our three-prong test applicable to implied causes of action (Pelaez v Seide, 2
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NY3d 186, 201 [2004]; Sheehy v Big Flats Community Day, Inc., 73 NY2d 629 [1989]).10
We articulated the implied cause of action test most recently in Ortiz v Ciox Health LLC,
37 NY3d 353, 360 [2021]: “(1) whether the plaintiff is one of the class for whose particular
benefit the statute was enacted; (2) whether recognition of a private right of action would
promote the legislative purpose; and (3) whether creation of such a right would be
consistent with the legislative scheme”.
It is undisputed that Laura is among the class of people for whom the statute was
enacted. Turning to the other two prongs, in Ortiz we explained that the second prong of
our implied cause of action test asks “what the Legislature was seeking to accomplish when
it enacted the statute, and then determine whether a private right of action would promote
that objective” (37 NY3d at 363). The third prong asks whether the legislature had
provided other methods of enforcement—which could make recognizing a private right of
action inconsistent with the scheme at large (id at 364).
The majority points out that in Mark G. v Sabol, 93 NY2d 710, 721-722 [1999], we
declined to find a private right of action from SSL § 419 (concerning CPS) (maj. op. at 4-
5) and so we should follow suit with regard to SSL § 473 and APS.11 However, this case
10
As set forth in a very long footnote in my dissenting opinion in Howell v City of New
York (decided today), I believe the test for implying a right of action should not be the same
as the test for determining whether a statutory special duty exists. I accept it here because
neither party has asked us to reconsider it and the choice of test is immaterial to my
analysis.
11
I pause to note the incongruity of the majority’s position that the statutory duty argument
is not preserved, and therefore cannot be addressed by us, and its substantive discussion of
its merits herein.
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is distinguishable from Mark G. in one key aspect: the legislative history of SSL § 473,
unlike the legislative history of § 419, fully supports the recognition of a private right of
action.
Both SSL § 473 and SSL § 419 facially limit the immunity of APS and CPS,
respectively, to ordinary negligence only. Of course, where the plain language of a statute
is clear, there is no need to look to the legislative history to construe it: we apply it as
written unless it produces an absurd result or irreconcilably conflicts with some other
statute, neither of which would apply to either SSL § 473 or § 419. However, in evaluating
the third prong of the implied right of action test, Mark G. relied on the legislative history
to overcome the plain language of SSL § 419 and conclude that allowing a private right of
action, even for gross negligence or willful misconduct, would compromise a statutory
scheme that provided for a different form of enforcement.
The third prong proved problematic for the plaintiff in Mark G. because the
legislative history showed that the CPS legislative plan “centered on improved monitoring
and on penalizing local social services districts with a loss of State reimbursement of funds
for their failure to provide services or meet the standards mandated by the statute” (93
NY2d at 720). In enacting SSL § 419, the legislature had provided an enforcement
mechanism—financial penalties for the offending districts.
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The legislative history of Section 473 is quite different. It contains none of the
factors we identified in Mark G.12 Instead, it shows that the legislature charged APS, and
APS alone, with the protection of those who had no one and could not take care of
themselves (Bill Jacket 1975 ch 841 at 22 [emphasis added]). The fact that the legislature
expected vulnerable adults to rely on APS to provide them with services and protection is
in line with larger national developments in the treatment of disabled and elderly adults at
the time that Section 473 was passed. Federal regulations due to become effective in
January of 1975 (SSL § 473 was introduced in March of 1975) included no federally
mandated services for vulnerable adults, hence the need to mandate services at the state
level (Bill Jacket 1975 ch 841 at 13-15). SSL § 473 allowed the State to continue to
12
Although it is not necessary to explain why the liability of APS and CPS workers might
be different, the difference may be explainable by the distinction in the State’s treatment
of vulnerable children as opposed to adults. Children most often reside with parents or
foster parents who are responsible for their care. Vulnerable adults often do not; the
legislative history of the Social Services Law governing vulnerable adults emphasizes that
many of them are completely on their own. In addition, before the wave of
deinstitutionalization spurred by changes in federal law and the passage of SSL § 473, the
State was held liable in ordinary negligence for failing to properly care for the mentally ill
or disabled adults under its supervision and care (see, e.g., Santana v State, 266 NYS2d
733, 738 [1966] [“On the evidence before it, the court finds that the failure of the State to
provide reasonably adequate care for its ward was the competent producing cause of his
death, and that the State must be held liable in damages for this unfortunate event.”]; Harris
v State, 117 AD2d 298, 306 [2d Dept 1986] [“The State’s duty herein was to provide
Adrienne with a reasonably safe environment given its knowledge of her known propensity
for seizures.”]; Patrick v. State of New York, 806 NYS2d 849, 867 [2005] [“Having
entrusted one’s child [who was a disabled adult] to the care of others, one hopes that those
entrusted do their utmost to earn and retain that trust. Unfortunately, through a series of
negligent omissions and acts, the State betrayed that faith”]). It therefore would make
sense that when vulnerable adults are removed from State institutions and relegated to the
care of APS, APS as the agent of the State that substituted institutional entities, bears some
duty towards them, even if not as great as it did while such persons were living in a state-
run facility.
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deinstitutionalize vulnerable adults (the new federal regulations sought to minimize
institutionalization), with APS taking on the mantle of protection previously held by
communal homes, hospitals and asylums (id. at 15-16). In the legislature’s judgment, it
was, and continues to be, the State’s responsibility to “care for those unable to care for
themselves” (id. at 7).
Most importantly, the legislative history of the immunity provision governing APS
shows that civil liability was the intended enforcement mechanism. The Governor’s
Approval Memorandum explains that the immunity from civil liability was designed to
“aid in the provision of services and to assure that services are provided in a professional
and effective manner” (Bill Jacket 1979 ch. 446 at 8). The Budget Report on Bills and the
memorandum from the Department of Social Services are to the same effect (id. at 9-12;
13-14). Thus, quite unlike the legislative history in Mark G., the legislative history of the
immunity provision governing APS demonstrates that the balance struck by that immunity
provision -- barring liability for ordinary negligence but preserving it for gross negligence
and willful misconduct -- was itself an integral part of the statutory scheme.
Therefore, implying a cause of action here would both promote the legislative
purpose and be fully consistent with the scheme. The legislative purpose clear on the
statute’s face was to immunize APS from claims of ordinary negligence but continue its
liability for gross negligence and willful misconduct – which itself is the enforcement
scheme contemplated by the legislature and Governor. Recognizing a claim would
promote the purpose of the statute: ensuring that APS is diligently providing services and
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investigating reports of abuse, and compensating those wronged by gross negligence or
willful misconduct while immunizing APS from ordinary negligence. A private right of
action is not just fully consistent with the legislature’s scheme, it is the scheme.
B
The creation of a statutory special duty as to APS is so clear here that it hardly seems
worth explaining why Laura can also succeed under the second avenue by which a statutory
duty can be established: voluntary assumption to a specific person. Keeping in mind the
first two of my introductory points – governmental function immunity and the special duty
test are common law inventions; and there are myriad situations in which we have held that
a plaintiff may prevail in a common-law negligence claim to recover money damages from
governmental entities acting in their public capacity – I turn to the reason given by the
majority for concluding that Laura cannot recover for the gross negligence of APS and
CPS: her failure to demonstrate justifiable reliance (majority op at 5).13
13
I concur in the majority’s judgment affirming the dismissal of Laura’s claims against the
Sheriff. Our precedents establish that the police are not held liable in tort when they fail
to protect the public at large (Cuffy v New York, 69 NY2d 255, 260 [1987]; Weiner v
Metropolitan Transp. Authority, 55 NY2d 175, 181 [1982]; Valdez v City of New York, 18
NY3d 69, 75 [2011]; see also H.R. Moch Co. v Rensselaer Water Co., 247 NY 160, 164
[1928]). The rationale underlying that proposition is that the police are unable to secure
the safety of all people at all times, must make discretionary choices about how to allocate
limited resources, and are not in the position of an insurer against all evil (see Cuffy, 69
NY2d at 75). Here, the Sheriff’s alleged liability is premised on a single incident: the
deputies were called to the location of runway disabled young woman and returned her
home. The Sheriff’s duty to protect Laura in that instance was little different from the duty
to protect any member of the public at large. Unlike CPS and APS, no statute imposes a
duty upon the Sheriff to, in this case, investigate the circumstances of Laura’s home life or
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Laura satisfies all the Cuffy factors: (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.
CPS and APS assumed a duty to act on Laura’s behalf when both decided, after
receiving reports of abuse, to open an investigation into the family. Investigation is one of
the responsibilities imposed on both agencies in the Social Services Law. It is clear from
the record that the agencies understood that inaction on their part, if they were wrong, could
lead to harm: that is the very calculation these agencies make in deciding to close a case
or move to remove a child or adult from a home. They know that if they are wrong in their
assessment and close a case, the abuse could continue or worsen. Direct contact is easily
satisfied—both CPS and APS visited Laura’s home and spoke with her.
The majority’s decision to bar Laura’s recovery on grounds of insufficient reliance
defies both commonsense and caselaw. The majority acknowledges that, in both
Applewhite v Accuhealth, Inc. (21 NY3d 420, 431 [2013]) and Sorichetti v City of New
York (65 NY2d 461, 469 [1985]), we modified the common law to permit a relative of the
injured party to satisfy the reliance factor set out in Cuffy. The majority’s declination of
the “invitation” to relax the reliance standard for intellectually disabled persons comes with
attempt to remove her from an abusive home. There is no evidence that the deputies made
any promise or representation to Laura.
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only the following explanation: Laura’s brother Richard, stationed overseas in the military,
caused Justice Stevens to call APS twice, but nothing APS did caused either Richard or
Justice Stevens to rely on APS’s promises.
1
As to commonsense, “the juristic philosophy of the common law is at bottom the
philosophy of pragmatism” (Benjamin N. Cardozo, The Nature of the Judicial Process at
102). What sense does it make to apply a standard of reliance created for persons capable
of reliance to someone incapable of reliance? The legislature understood that it would
make no sense to do so, which is why its grant of immunity to those working with these
specific vulnerable populations – definitionally incapable of self-care – was carefully
limited.
The legislative history surrounding the 1979 amendments adding the immunity
provisions explain that some measure of immunity from liability was needed to make sure
that persons employed to protect these specialized, vulnerable populations be able to
perform their responsibilities “in a professional and effective manner”, and that institutions
hiring workers be able to attract caring and responsible employees (Bill Jacket 1979 ch.
446 at 8). Two important conclusions follow from the legislature’s decision that APS and
CPS should be liable for the gross negligence or willful misconduct of their employees.
First, the legislature understood that, without the immunity provided in the amendment,
the common law would allow for ordinary negligence actions when against APS and CPS.
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Second, the legislature chose to strike a balance between the need for quality services and
the need to redress wrongs by drawing the line at gross negligence.
Those two points are crucial, each for its own reason. As to the first, we assume the
legislature is familiar with our jurisprudence when it acts (see Transit Commn. v. Long Is.
R.R. Co., 253 NY 345, 355 [1930]). Whereas many persons with disabilities like Laura’s
had previously been housed in governmental institutions, the State’s policy in 1975,
spurred by federal legislation, was to reduce the number of such institutions and, instead,
provide protective services in noninstitutional settings (Bill Jacket 1975 ch 841 at 15-16).
Under the prior regime, as evidenced by several of our prior decisions referenced earlier
herein, such institutions would have been liable to their residents for acts of ordinary
negligence. The legislature’s conclusion that, but for the statutory grant of limited
immunity, APS and CPS would be liable for ordinary negligence, reinforces the
understanding that under the common law, the state bore a special duty to such persons,
whether physically housed in a state facility or, with the change in policy, supervised in
the community. Viewed against the many examples in which we have found negligence
claims against governmental actors viable, what does commonsense tell us about Laura’s
ability to recover for gross negligence, when compared, for example, to an employee of a
state institution who slips on cereal?
The second point is even more important: the legislature itself has indicated the way
in which the common law should draw the line as to governmental function immunity
concerning these vulnerable populations. The majority cannot point to any other
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circumstance in which the legislature has done so; none of our special duty cases involve
a situation in which the legislature has indicated its choice that a governmental entity be
liable under certain standards of care but not others. Had the legislature desired the
majority’s result here, it would have provided a blanket immunity. It chose not to. I can
find no other circumstance in which our Court has “declined the invitation” to render the
government liable where the invitation comes from the government itself, in the form of a
statute setting out the terms of the government’s own liability.
2
As to caselaw, the majority refuses to excuse Laura from the reliance element
despite her severe intellectual disability, even though adapting a standard to the
specificities of a particular type of plaintiff is a well-established practice in our common
law (see, e.g., Silverstein v Metropolitan Life Ins. Co., 254 NY 81, 85 [1930] [“If a man
with an abnormally thin skull be struck a blow which would not seriously injure a normal
man, but which causes his death, it is perfectly plain that the cause of death is not the
thinness of the skull, but the receipt of the blow”] [internal quotation marks and citation
removed]; Dimino v Burriesci, 125 AD2d 361, 362 [2d Dept 1986] [“In this instance, where
the infant plaintiff was 5 1/2 years old, the court improperly submitted this issue to the jury,
and exacerbated the error by charging an objective standard of care, i.e., what a
reasonably prudent child of the infant plaintiff's age would exercise, rather than the
subjective one correctly employed in evaluating whether a child's conduct constitutes a
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statutory violation, i.e., what the infant plaintiff is mentally capable of, based on his age,
experience, intelligence, and development” [emphasis added]).
Our function as a common law court is to adapt the law to particular circumstances
and current needs. Instead of attempting to fashion a standard suitable to plaintiffs like
Laura, the majority sidesteps that responsibility entirely and chooses, instead, to focus on
the reliance of Justice Stevens and Richard Cummings, holding that neither could have
relied on CPS/APS because they were told the investigation was closed. The majority
expresses its willingness to reconsider the question of reliance in another case, where the
vulnerable adult does not have a “competent adult family member advocating on their
behalf” (majority op at 7-8). That offer gets the reliance analysis backwards. In Applewhite
and Sorchetti, we modified the common law to allow mothers who sought to protect their
children to satisfy Cuffy’s reliance standard. In those cases, we did so as a way of
expanding liability. Here, the majority is using it the opposite way – as if Richard or Justice
Stevens had some legal responsibility for Laura or were acting as agents (unbeknownst to
her), so that their supposed lack of reliance on APS can be attributed to Laura to negate the
existence of a special duty.
For a moment, imagine that the majority would have been willing to eliminate
Cuffy’s reliance factor for Laura if she had no “competent adult family member advocating
on [her] behalf.” Neither Richard nor Justice Stevens had any legal responsibility for
Laura; Richard was overseas in the military and Justice Stevens is not a family member at
all. Yet, if we take the majority’s future willingness seriously, Laura’s claim fails solely
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because Richard and Justice Stevens bothered to call APS and CPS. Of course, had they
not suspected anything, APS and CPS would not have investigated at all, which also would
have spared those agencies liability.
In any event, the facts here present a triable issue as to whether Richard and Justice
Stevens relied on promises made by APS. Richard called APS twice, after it had closed
the investigation. He insisted that Laura was being abused and had to be taken out of the
home—the APS caseworker refused to generate a new intake after each of his calls and
told him she had found no evidence of abuse. Justice Stevens also called twice, first CPS,
then APS, before he was told the investigation had been closed. A trier of fact could
conclude that the findings of no abuse constituted representations on which Richard and/or
Justice Stevens could rely, and that APS’s instruction that Richard call back if he had new
information assured him that APS would investigate properly. If I take my car to an auto
mechanic because the brakes seem bad, and the mechanic assures me he has checked
thoroughly and the brakes are fine, but then it turns out he never checked the brakes and I
crash, haven’t I relied to my detriment on that representation?
Essentially, Justice Stevens and Richard may have justifiably trusted CPS and APS’
assurances that they found no evidence of abuse. Whether they did so is a triable issue of
fact. By bypassing Laura in its analysis and imputing the responsibility to rely to Justice
Stevens and Richard, the majority defeats the legislature’s intent in enacting Social
Services Law § 473—to create an agency, APS, which must help those adults who cannot
help themselves and who have no one to assist them. With its decision, the majority
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confirms for all adults like Laura what they fear most: they are alone. The legislature did
not intend so, and the common law does not require so.
Orders affirmed, with costs. Opinion by Judge Troutman. Acting Chief Judge Cannataro
and Judges Garcia and Singas concur. Judge Wilson dissents in part in an opinion.
Judge Rivera took no part.
Decided November 22, 2022
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