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McCabe v. Dutchess County

February 2, 2010

DANIEL J. MCCABE, AS GUARDIAN AD LITEM FOR JACOB A. HARRIS, RESPONDENT,
v.
DUTCHESS COUNTY, ET AL., APPELLANTS.



APPEAL by the defendants Dutchess County, Dutchess County Department of Social Services, and Commissioner of Social Services of Dutchess County, in an action to recover damages for personal injuries, as limited by their brief, from so much of an order of the Supreme Court (James V. Brands, J.), dated January 18, 2008, and entered in Dutchess County, as denied that branch of their motion which was for summary judgment dismissing the complaint insofar as asserted against them on behalf of Jacob A. Harris; SEPARATE APPEAL by the defendant Diane Sherwood, as limited by her brief, from so much of the same order as denied that branch of her motion which was for summary judgment dismissing the complaint insofar as asserted against her on behalf of Jacob A. Harris.

The opinion of the court was delivered by: Lott, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

PETER B. SKELOS, J.P., STEVEN W. FISHER, JOHN M. LEVENTHAL and PLUMMER E. LOTT, JJ.

(Index No. 18000/07)

OPINION & ORDER

In Holodook v Spencer (36 NY2d 35), the Court of Appeals held that a child does not have a legally cognizable claim for damages against his parent for negligent supervision. One question presented to us in this appeal is whether a child may assert such a claim against his foster parent. We answer this question in the negative.

Factual and Procedural Background

After the infant plaintiff, Jacob A. Harris, was born on January 30, 2004, 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 Jacob to be placed in the home of the defendant Diane Sherwood, a certified foster care parent, while his biological mother, Taylor Harris (hereinafter Taylor), underwent treatment for drug addiction. About 16 months later, on June 22, 2005, while alone in Sherwood's bedroom, Jacob allegedly climbed out of his sleeping accommodation onto an adjacent dresser and fell to the floor, causing him to sustain personal injuries. Taylor regained custody of Jacob shortly thereafter, and she commenced this action individually and on behalf of Jacob against Sherwood, Dutchess County, Dutchess County Department of Social Services, and the Commissioner of Social Services of Dutchess County, alleging that their negligent care and supervision of Jacob caused his injuries.

After joinder of issue and discovery, Sherwood moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against her on behalf of Jacob. Dutchess County, Dutchess County Department of Social Services, and the Commissioner of Social Services of Dutchess County (hereinafter collectively the Dutchess defendants) separately moved, among other things, for summary judgment dismissing the complaint insofar as asserted against them on behalf of Jacob. In an order dated January 18, 2008, the Supreme Court, inter alia, denied those branches of the motions, and Sherwood and the Dutchess defendants now separately appeal from so much of the order as denied those branches of the motions. We reverse the order insofar as appealed from.*fn1

Sherwood's Motion

In Holodook v Spencer (36 NY2d 35), the Court of Appeals held that a "child does not have a legally cognizable claim for damages against his parent for negligent supervision" (id. at 40). Sherwood contends that a child should similarly have no claim against his or her foster parent based on negligent supervision. The question of whether a child has such a legally cognizable claim has yet to be addressed by an appellate court in this State. Nationwide, some jurisdictions that hold parents immune from suits brought by their children apply such immunity to foster parents (see Nichol v Stass, 192 Ill2d 233, 735 NE2d 582; Mitchell v Davis, 598 So 2d 801[Ala]; Brown v Phillips, 178 Ga App 316, 342 SE2d 786), while others do not (see Rourk v State, 170 Ariz 6, 821 P2d 273; Mayberry v Pryor, 422 Mich 579, 374 NW2d 683). The Supreme Court, following Andrews v County of Ostego (112 Misc 2d 37), a prior Supreme Court decision, concluded that a child in New York may bring an action alleging negligent supervision against his foster parent. We disagree.

In Gelbman v Gelbman (23 NY2d 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 non-willful 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. The Court noted, however, that in abolishing the immunity defense, it was not creating any new liabilities. Rather, it was merely permitting recovery previously barred by the intrafamily immunity doctrine (id. at 439).

In Holodook (36 NY2d at 44), 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. The Holodook Court declined to recognize a new cause of action, not previously recognized ...


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