Injured Child Cannot Recover from Foster Parent on Claim Based Upon Negligent Supervision

It is a long-standing rule in New York that a child does not have a legally cognizable claim for damages against his parent for negligent supervision. A major impact of this rule upon personal injury practice is that it precludes a defendant in a case brought on behalf of a minor from bringing a claim (by either a counterclaim or a third-party impleader) against the minor’s parent for contribution on the basis of negligent supervision.

It would not be difficult in almost any situation for a defendant to concoct a theory as to how a parent, whether present at the accident scene or not, could have done something that somehow might have prevented the accident from occurring. One can easily imagine the tension between parent and child in such a circumstance.

In fact, the parent could easily be deterred from pursuing the case on behalf of his or her child at all. In McCabe v. Dutchess County, — N.Y.S.2d —-, 2010 WL 377677 (February 2, 2010), the Appellate Division was called upon to decide whether to extend the rule to a claim asserted by a child against his foster parent. The issue had never been addressed by an appellate court in New York.

The Second Department held that the rule did apply to foster parents for much of the same reasons as it applies to biological parents. But the court did note that children are not precluded from bringing other tort claims against their foster (or biological) parents, including those sounding in other variants of negligence, i.e., those not arising merely by reason of the foster parent-child relationship, such as motor vehicle accidents. In McCabe, after the infant plaintiff was born, toxicology tests revealed the presence of cocaine, opiates, marijuana, and methadone in his urine. The hospital contacted the defendant Dutchess County Department of Social Services, which caused the baby to be placed in the home of the defendant certified foster care parent, while his biological mother underwent treatment for drug addiction.

About 16 months later, while alone in his foster mother’s bedroom, he allegedly climbed out of his sleeping accommodation onto an adjacent dresser and fell to the floor, causing him to sustain personal injuries. The biological mother regained custody of infant shortly thereafter, and she commenced this action individually and on behalf of the infant against the foster mother, Dutchess County, Dutchess County Department of Social Services, and the Commissioner of Social Services of Dutchess County, alleging that their negligent care and supervision caused the infants injuries.

New York’s rule was established in the case of Holodook v. Spencer (36 N.Y.2d 35), in which the Court of Appeals held that a child does not have a legally cognizable claim for damages against his parent for negligent supervision based in large part upon the following rationale: We can conceive of few, if any, accidental injuries to children which could not have been prevented, or substantially mitigated, by keener parental guidance, broader foresight, closer protection and better example. … [I]t would be the rare parent who could not conceivably be called to account in the courts for his conduct towards his child

The McCabe court held that these same considerations apply to foster parents, who are responsible for the around-the-clock supervision of the day-to-day activities of children under their care for extended periods of time and are required to treat the children as members of their households. As with a parent, it would be the foster parent who could not conceivably be called to account in the courts for his or her conduct towards his or her foster child if negligent supervision claims against him or her were allowed.

The court found that there are additional reasons solely applicable to foster parents that support extending the rule. These reasons include that vulnerability to negligent supervision lawsuits might discourage foster parents from reporting injuries for fear of being sued by the biological parent on behalf of the child or impleaded as a third-party defendant in an action brought on behalf of the child against a third party. McCabe further noted that foster parents agree to care for children who often come from difficult backgrounds to whom they do not have any natural biological affinity, and to impose such a burden would serve to discourage otherwise qualified and able foster parents from taking on this responsibility, notwithstanding the compensation they receive for doing so.

The court also noted a potential for abuse of negligent supervision claims by biological parents who may have animosity toward foster parents, similar to potential abuse in a retaliatory context between estranged parents, one suing the other on the child’s behalf, or by children estranged from their parents who could sue after reaching majority. On the other hand, the McCabe court noted that an infant can have a viable claim for negligent supervision against grandparents and other temporary custodians who take the child for a day, in contrast to foster parents.

As for the Dutchess defendants, the court iterated the general rule that agencies and counties may be sued for their negligent supervision of children in foster care. However, the court found that these defendants lacked the requisite sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably have been anticipated, and thus the child care agency could not be found to have breached its duty to supervise the children entrusted to its care. Although the evidence submitted by the Dutchess defendants indicated that a caseworker employed by them had observed the nature and location of the baby’s sleeping accommodation during visits to the home, and had been informed of the baby’s attempts to climb out of his playpen, this evidence did not suggest that there was a dangerous condition on the premises or that any dangerous conduct was occurring.

Prior to Holodook, in Gelbman v. Gelbman (23 N.Y.2d 434), the Court of Appeals abolished the defense of intrafamily immunity, a defense that had barred suits between unemancipated children and their parents to recover damages for nonwillful torts, and allowed a mother to maintain a negligence action against her unemancipated son to recover damages for injuries she sustained while a passenger in an automobile driven by the son. In Holodook, the Court of Appeals clarified that the effect of Gelbman was only to allow suits between parents and children which would previously have been actionable between the parties if there were no family relationship, such as actions based on negligent operation of a vehicle.

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