Bartels v. Westchester County

• Decision Date: 07 July 1980
• Citation: 429 N.Y.S.2d 906,76 A.D.2d 517
• Parties: John R. BARTELS, as Guardian ad Litem, etc., Respondent, v. The COUNTY OF WESTCHESTER et al., Appellants, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 906

429 N.Y.S.2d 906

76 A.D.2d 517

John R. BARTELS, as Guardian ad Litem, etc., Respondent, v. The COUNTY OF WESTCHESTER et al., Appellants, et al., Defendants.

Supreme Court, Appellate Division, Second Department.

July 7, 1980.

Samuel S. Yasgur, County Atty., White Plains (Bein, Campbell & Cunnion, Scarsdale, Anthony J. Caputo, Joseph J. Buderwitz, Jr., White Plains, of counsel), for appellants.

Warren Whitfield Wells, White Plains (Grenville T. Keogh, New Rochelle, of counsel), for respondent.

Before MOLLEN, P. J., and HOPKINS, TITONE and MANGANO, JJ.

HOPKINS, Justice.

May a county be liable for injuries suffered by an infant remanded to the county's custody caused by the negligence of the county's employees in the placement and supervision of the infant in the care of persons who were not proper foster parents? We answer this question in the affirmative and thus affirm Trial Term which denied the appellants' motion to dismiss the amended complaint for failure to state a cause of action.

I

The infant plaintiff was born on October 18, 1971. This action was commenced in August, 1974.

The amended complaint, pieced out by the bill of particulars and the papers submitted on behalf of and in opposition to the motion to dismiss, alleges these facts:

Sometime after her birth, the infant plaintiff was remanded to the county's Department of Social Services and its Foster Care Program. The department thereafter placed the infant in the care of the defendants Thomas Murphy and Maryanne Murphy as foster parents.

On January 5, 1974, when the infant plaintiff was less than 3 years of age, she was severely scalded as the result of the unfitness and carelessness of the foster parents in bathing her; the infant plaintiff sustained extensive second and third degree burns, causing permanent scarring to 40% of her body, webbing of the fingers of the right hand, and a deformity known as "clawtoe."

The appellants served an answer, generally denying the plaintiff's allegations. Shortly before the case would have been reached for trial, the appellants moved to dismiss the amended complaint, contending, among other things, that the county and its employees were immune from liability because the care of children placed with foster parents is a governmental activity calling for day-to-day decisions of a highly sensitive and discretionary character which cannot be subjected to judicial scrutiny.

Trial Term denied the motion on the ground that the care and supervision of infants is not "uniquely governmental," and that the duty to provide adequate supervision by the selection of qualified and proper custodians rested on the county when it assumed the care of the infant plaintiff, for the breach of which duty the county would be liable.

On this appeal the appellants argue that: (1) foster parents are neither agents nor servants of the county, but independent contractors, for whose negligence the county would not be liable; (2) the county is free from liability under the doctrine of sovereign immunity; (3) the county undertook no special duty toward the infant plaintiff; and (4) since there is no liability by a parent to a child for inadequate supervision, the county, assuming the relationship of in loco parentis vis-a-vis the infant plaintiff, is likewise not liable.

II

From early times in our law the sovereign has been considered to be parens patriae of destitute or abandoned children, and our Constitution continues that obligation (N.Y.Const., art. XVII, § 1). Our statutes provide in specific terms for the care and custody of children found to be neglected or needy (Smith v. Organization of Foster Families for Equality & Reform, 431 U.S. 816, 823-832, 97 S.Ct. 2094, 2098-2103, 53 L.Ed.2d 14). Thus, the statutory provisions authorize the placement of children (Social Services Law, §§ 375, 376, 379; 18 NYCRR 444.1, 444.6), as well as the revocation of the licenses (Social Services Law, § 379). Moreover, the statutes permit review of the foster care status of the children by the Family Court (Social Services Law § 392). The duty to care for the welfare of children is in effect imposed on the county be the State (Social Services Law, §§ 395, 398, subd. 6, pars. (g), (i)), including the responsibility to supervise the children while in foster homes (Social Services Law, § 398, subd. 6, par. (h)), and to remove them from the foster home when necessary (Social Services Law, § 400).

In addition to this general legislative structure for the care and custody of children, statutes have been enacted for the protection of children from physical abuse (Social Services Law, art. 6, tit. 6, §§ 411-428). The physical abuse or maltreatment of a child is required to be reported by specifically designated persons, including social services workers and child care or foster care workers (Social Services Law, § 413; see, also, 18 NYCRR 432.3). In the event that this obligation is violated, the statute provides that "(a)ny person, official or institution required by this title to report a case of suspected child abuse or maltreatment who knowingly and willfully fails to do so shall be civilly liable for the damages proximately caused by such failure." (Social Services Law, § 420, subd. 2.)

The statute thus creates a liability which, under the rule directing the liberal construction of pleadings, would require us to sustain the amended complaint here. One of the claims alleged on behalf of the plaintiff is that the appellants had actual notice of conduct by the foster parents constituting maltreatment prior to the time that the infant plaintiff was scalded. Whether the nature of the conduct or other circumstances observed by the appellants amounted to a violation of the statute and the later injury which might have been thus occasioned are, of course, matters of proof to be determined at a trial.

Accordingly, we think that the statutory duties which the appellants are required to discharge are sufficient foundation for the cause of action asserted in the complaint.

III

Apart from the statutory warrant for the amended complaint, we view its allegations as sufficient for common law liability. It is well settled that one assuming to act, though not under a duty, must act with care, especially when looking after children (Glanzer v. Shepard, 233 N.Y. 236, 239, 135 N.E. 275; Zalak v. Carroll, 15 N.Y.2d 753, 754, 257 N.Y.S.2d 177, 205 N.E.2d 313; Willis v. Young Men's Christian Assn. of Amsterdam, 28 N.Y.2d 375, 379, 321 N.Y.S.2d 895, 270 N.E.2d 717; Kearney v. Roman Catholic Church of St. Paul, 31 A.D.2d 541, 542, 295 N.Y.S.2d 186; 2 Harper & James, The Law of Torts, § 118.6, pp. 1044-1046). Here, the appellants undertook to care for the infant plaintiff, and this duty, once assumed, had to be carried out with due regard for the child's safety. If, as has been asserted, the appellants knew of the incompetence of the foster parents or the indifferent discharge by them of their duties, the appellants might be held liable for an ensuing injury to the child, dependent on the evidence at a trial.

In other jurisdictions it has been held that the state or its subdivisions may be answerable for injuries suffered by children as the result of negligence in the placement or supervision of children taken in charge (Vonner v. State, 273 So.2d 252 (La.); Elton v. County of Orange, 3 Cal.App.3d 1053, 84 Cal.Rptr. 27; Koepf v. County of York, 198 Neb. 67, 251 N.W.2d 866; Hanson v. Rowe, 18 Ariz.App. 131, 500 P.2d 916; but see Pickett v. Washington County, 31 Or.App. 1263, 572 P.2d 1070). The appellants argue that at best they and the foster parents were in the relationship of in loco parentis with the infant plaintiff (cf. Rutkowski v. Wasko, 286...