Lawsuit: House of Good Shepherd, Oneida County
“An upstate foster care organization owed a duty of care to a young, biological child who was sexually assaulted by a teenager the child’s parents had adopted, after it failed to give the parents the “full history” of the foster child’s sexually inappropriate behavior and animal abuse, a state appeals court has ruled.
In a decision that looks to an important 2015 Court of Appeals ruling on duty of care in a negligence case, and that says the facts before it leading to a duty of care are stronger than in the high court’s case, an Appellate Division, Fourth Department panel has ruled that negligence causes of action lodged by the adoptive parents against the foster care organization and Oneida County, which had responsibility for the foster child, will go forward.
In rejecting dismissal arguments made foster-care organization House of the Good Shepherd in Utica, and by Oneida County, the panel wrote that “we conclude that defendants [House of Good Shepherd and the county] owed a duty of care to the biological child to warn plaintiffs, as the child’s parents, of the foster child’s complete behavioral history.”
The panel later wrote that, “indeed, defendants were the only entities that ‘could have provided a proper warning’ regarding the foster child’s full behavioral history,’” while quoting the Court of Appeals 2015 decision in Davis v South Nassau Communities Hosp., 26 NY3d 563, which the panel referred to throughout its opinion while comparing its facts and circumstances to the foster care-driven case before it.
The panel continued, “Although defendants contend that they did not owe the biological child a duty because they lacked control over the foster child during the four years that he lived with plaintiffs [before the plaintiff-parents completed the child’s adoption in 2012], control over a third-person tortfeasor is just one way to establish a duty” of care.
“A duty may also exist,” continued the unanimous panel. “where ‘there is a relationship … between [the] defendant and [the] plaintiff that requires [the] defendant to protect [the] plaintiff from the conduct of others,’ and ‘the key … is that the defendant’s relationship with either the tortfeasor or the plaintiff places the defendant in the best position to protect against the risk of harm,’” quoting Hamilton v Beretta U.S.A. Corp., 96 NY2d 222.
“The amended complaint in this action alleged a relationship between the parties that placed defendants in the best position to protect the biological child from the risk of harm and that required defendants to protect the child from the sexual abuse by the foster child by warning plaintiffs of the foster child’s history of sexually inappropriate behavior,” the panel wrote.
Richard Montes, a partner at Mauro Lilling Naparty in Woodbury, who represented the House of Good Shepherd in the appeal, could not be reached for comment.
Daniel Cartwright, an attorney in Jamesville, who was listed in the decision as appellate counsel to Oneida County, also couldn’t be reached.
The Fourth Department panel pointed to the Court of Appeals’ Davis decision repeatedly and explained that, in that case, the high court had “recently determined that the defendant medical providers … owed a duty to the plaintiffs, who were injured in a car accident caused by the defendants’ patient, to warn their patient about the danger of medication administered by the defendants that may have impaired the patient’s ability to safely operate an automobile.”
The panel wrote that the Court of Appeals in Davis “noted that the Defendants [medical providers] were the only ones who could have provided a proper warning of the effects of that medication,” and it determined that “(1) the cost of the duty imposed [to give the patient a warning about driving] was small; (2) the duty could be easily satisfied ‘merely by advising one to whom such medication is administered of the dangers of that medication’; and (3) its decision did not ‘ero[de] … the prevailing principle that courts should proceed cautiously and carefully in recognizing a duty of care,’” quoting Davis.
In its own case regarding the alleged lack of warning given to the plaintiff-parents of the assaulted child, the panel wrote that “in our view, the relationship between defendants and the biological child here was far more substantive than the relationship that supported the finding of a duty in Davis.”
The panel later added that “contrary to defendants’ contention, finding a duty here would not raise the specter of limitless liability” since the “class of potential plaintiffs to whom the duty is owed,” the children of prospective adoptive parents, “is circumscribed by the relationship.”
“Additionally, we conclude that the cost of the duty imposed on defendants is a small one, i.e., simply disclosing to plaintiffs the information regarding the foster child’s behavioral history that was in defendants’ possession,” said the panel in its Aug. 20 decision.
It added that “we are not determining that defendants owed a duty to the public at large, but rather to a very small, readily ascertainable population—children of prospective adoptive parents.”
Gennaro Calabrese of The Calabrese Law Firm in Albany represented the plaintiff-parents. In an email Thursday, he noted that “the courts are sometimes presented with the opportunity to address specific wrongs that would otherwise be without remedy.” In his clients’ case, he said, “both the trial court and the Appellate Division, when presented with a very specific set of allegations, brought the common law into accord with justice by finding that the entity that oversaw the foster child’s placement owed a duty of care to the biological child to warn his parents of the … complete behavioral history.”
This panel’s decision, he added, will give the assaulted biological child “the opportunity to remedy the wrongs to which he was subjected.” He did not elaborate on exactly how so.
The Fourth Department panel was composed of Justices Gerald Whalen, John Centra, John Curran, Joanne Winslow and Tracey Bannister.”
[Law.com 9/17/2020 by Jason Grant]
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