Court: Foster Agency Owed Duty to Disclose Foster Child’s History to Adoptive Parents

In a recent case, Stephanie L. v. House of the Good Shepherd, 2020 N.Y. Slip Op. 04643, 2020 WL 4876487 (N.Y.A.D. 4 Dept., Aug. 20, 2020), the court discusses and applies the foundational principle of “duty” in a negligence case.

The facts here are relatively straightforward; in sum, plaintiffs adopted a child through defendant (a not-for-profit corporation that administered a foster care program). One day after the adoption was finalized, the foster child sexually assaulted the plaintiffs’ biological child. Afterwards, plaintiffs discovered that they had not been given a complete set of records concerning the foster child, which records would have revealed his full history of engaging in animal abuse and sexually inappropriate behavior.

The court summarized the “black letter” law as follows:

The “threshold question” in any negligence action is whether a defendant owes a “legally recognized duty of care to [a] plaintiff” (Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222, 232, 727 N.Y.S.2d 7, 750 N.E.2d 1055 [2001]), which presents “a legal issue for the courts to decide” (Oddo v. Queens Vil. Comm. for Mental Health for Jamaica Community Adolescent Program, Inc., 28 N.Y.3d 731, 735, 49 N.Y.S.3d 358, 71 N.E.3d 946 [2017] [internal quotation marks omitted] ). To establish the existence of a legal duty, “[t]he injured party must show that a defendant owed not merely a general duty to society but a specific duty to him or her … in order to avoid subjecting an actor to limitless liability to an indeterminate class of persons conceivably injured by any negligence in that act” (Hamilton, 96 N.Y.2d at 232, 727 N.Y.S.2d 7, 750 N.E.2d 1055 [internal quotation marks omitted] ). “[A]ny extension of the scope of duty must be tailored to reflect accurately the extent that its social benefits outweigh its costs” (id.).

Additionally, as a general rule a defendant does not have a duty “to control the conduct of third persons so as to prevent them from harming others, even where as a practical matter defendant can exercise such control” (id. at 233, 727 N.Y.S.2d 7, 750 N.E.2d 1055 [internal quotation marks omitted] ). In determining whether a defendant owes a duty to a plaintiff injured by a third-person tortfeasor, the court must consider whether there is a relationship either: (1) “between [the] defendant and [the] third-person tortfeasor that encompasses [the] defendant’s actual control of the third person’s actions,” or (2) “between [the] defendant and [the] plaintiff that requires [the] defendant to protect [the] plaintiff from the conduct of others” (id.). The central concern under both of those prongs is whether “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” (id. [emphasis added] ). In other words, the “calculus is such that [courts] assign the responsibility of care to the person or entity that can most effectively fulfill th[e] obligation [of protecting against the risk of harm] at the lowest cost” (Davis, 26 N.Y.3d at 572, 26 N.Y.S.3d 231, 46 N.E.3d 614). Under those circumstances, “the specter of limitless liability is not present because the class of potential plaintiffs to whom the duty is owed is circumscribed by the relationship”

Applying the law, the court explained:

[W]e conclude that defendants 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 (see generally id. at 577, 26 N.Y.S.3d 231, 46 N.E.3d 614). Defendants were the entities that oversaw the foster child’s placement with plaintiffs in the four years preceding the adoption. 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 (see id.). 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, control over a third-person tortfeasor is just one way to establish a duty. As noted above, a duty may also exist 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” (Hamilton, 96 N.Y.2d at 233, 727 N.Y.S.2d 7, 750 N.E.2d 1055 [emphasis added] ).

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 (see generally id.). Defendants were in the best position to protect the biological child from that sexual abuse because of their superior knowledge of the foster child’s behavioral history and because of the relative ease with which they could have apprised plaintiffs of that history. Indeed, defendants were the only entities that “could have provided a proper warning” regarding the foster child’s full behavioral history.

The court rejected defendants’ contention that finding a duty here would raise the “specter of limitless liability,” reasoning that (1) the class of potential plaintiffs to whom the duty is owed – children of prospective adoptive parents – “is circumscribed by the relationship;” (2) the cost of the imposed duty is small (i.e., it simply requires defendants to disclose information in its possession); and (3) the duty was not determined to be owed by defendants to the public at large, but “rather to a very small, readily ascertainable population—children of prospective adoptive parents” such that “reasonable persons would recognize [the duty] and agree that it exists.”

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