NYC Not Liable to Mother of Brain-Injured Infant for Not Following the Law and for Giving False Information About Day Care Home

When Charlene McLean was searching for a safe day care provider for her soon-to-be-born daughter she called the New York City Administration for Children’s Services (ACS) which sent her a list of registered providers taken from the New York City Department of Health (DOH)s database of registered providers. The list included a family day care program run by Patricia Theroulde in her home. Ms. McLean also spoke by telephone with ACS, which told her, she says, that all of the day cares on the list are licensed and investigated routinely, and that no complaints had been filed against any of the ones on the list.

In fact, family day care homes are not licensed by the State. Moreover, there had been two complaints lodged against Ms. Theroulde’s home, both of which had been found to be indicated i.e., substantiated, which meant that DOH’s renewal of the registration of Ms. Theroulde’s home violated New York’s Social Service Law 390.

Ms. McLean says she chose Ms. Theroulde’s home for her daughter in reliance upon the information the City provided. When Ms. McLean’s daughter, Briana, was three months old, she fell from a bed to the floor while in Ms. Theroulde’s care, and suffered a brain injury. Ms. McLean sued The City of New York to recover damages for her daughters injuries based upon the City’s negligence and breach of its statutory duty set forth in Social Services Law 390.

In a decision dated March 31, 2009, New York’s Court of Appeals dismissed Ms. McLean’s suit, reversing the Appellate Division, and granted summary judgment in favor of the City. McLean v. City of New York, — N.E.2d —, 2009 WL 813026. As the Courts decision begins: Once again we confront a case in which a failure by government to do its job has caused harm, and once again we hold that this is not one of the few cases in which such a failure subjects the government to tort liability. In this case, the City’s negligence was manifest. The Court stated that it seemed clear that the DOH should not have renewed the day care homes registration.

Social Services Law 390[2][d][ii][B][4] unequivocally provides that a renewal of registration may not be accepted unless the office of children and family services [OCFS] has received no complaints alleging statutory or regulatory violations, or, having received such complaints OCFS has inspected the home and determined that it is operated in compliance with law.

Here, two substantiated complaints had been made; one, that Ms. Theroulde’s husband had dipped a child’s hand into a bowl of hot oatmeal, and two, that a child had been left alone for an hour and a half in a nearby store. Amazingly, notes the Court, DOH did not make a practice of checking with OCFS before renewing registrations.

Predictably, the Court bases its decision on the lack of a special relationship between the City and Briana. The general rule is that an agency of government is not liable for the negligent performance of a governmental function unless there existed a special duty to the injured person, in contrast to a general duty owned to the public. The Court seemed to agree with plaintiffs allegations that Social Services Law 390 creates a statutory duty for the benefit of a class of which she and her daughter are members. However, the Court did not believe that the recognition of a private right of action was consistent with the legislative scheme.

Although the statute authorizes the imposition of civil penalties by OCFS and of criminal liability for violations of the Social Services Law, there is no statutory provision for governmental tort liability. The Court held that the telephone conversation between Ms. McLean and the ACS representative (who for purposes of the motion the Court assumed was negligent) was insufficient to create a special relationship. Importantly, the Court further held that even were government action considered ministerial rather than discretionary, ministerial actions may only be a basis for liability if they violate a special duty owed to the plaintiff, apart from any duty to the public in general. The Court held firm to the absence of a special relationship even in the face of the helplessness of young children and the States powerful interest in protecting them from neglect or abuse.

One must wonder how this decision in McLean could effect the outcome in the Court of Claims decision in Gamache v. State Of New York, 106968, decided 11/26/08, should that decision be appealed. In Gamache, the court found the “special relationship” rule did not preclude recovery based upon its conclusion that the regulatory regime for boxing is not simply a program of oversight in which the role of government is, in the main, administrative and advisory, but rather one where the regulatory body is directly responsible for a specific bout between two fighters, contrasting this extensive regime with lead paint regulations.

But in McLean, the Court of Appeals noted that Social Services Law 390 is a detailed statute with 13 subdivisions and many more subparts, occupying ten pages of McKinney’s Consolidated Laws.

Finally, it must be noted that Social Services Law 390 applies to day care centers but does not apply to nursery schools. Thus the rules could be different in a situation such as what happened on March 17, 2009, when 2-year-old Olivia Raspanti choked to death at the Carousel Day Care School in Hicksville, New York on a carrot stick that she apparently took from her teachers tote bag.

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