New York State’s highest court, in a stunning departure from its own precedent, holds that a plaintiff asserting a negligence claim against a municipality in connection with its administration of foster care is not required to establish the existence of a special duty. For several decades, it has been the law of the State of New York, as reiterated by the Court of Appeals as recently as 2022, that a plaintiff asserting a claim of negligence against a municipality based on its performance of a governmental function must plead and prove that the municipality owed the plaintiff a special duty beyond what is owed to the public at large.1 Recently, in Weisbrod-Moore v. Cayuga County,2 the Court of Appeals held that the special duty requirement does not apply to claims against a local government brought by children placed in private foster care. The court determined that a municipality’s legal custody over a foster child created a duty of care even though the child was in the physical custody of a private foster home.
In Weisbrod-Moore, the plaintiff sued Cayuga County pursuant to the Child Victims Act (CVA)—a revival statute enacted to reopen time-barred sexual abuse claims but not intended to expand the scope of substantive liability—alleging a single cause of action for negligence related to its placement and supervision of the plaintiff with an allegedly abusive foster parent during her early childhood in the 1970s. Cayuga County filed a pre-answer motion to dismiss on the grounds that the complaint failed to state a cause of action in that it did not allege that the county owed her a special duty and that it was entitled to governmental function immunity. The trial court denied the motion, but the Appellate Division, Fourth Department reversed and dismissed the complaint, finding that Court of Appeals precedent mandated that the plaintiff, who agreed the county was performing a governmental function, must allege facts establishing a special duty, which she failed to do.
The Court of Appeals reversed the Fourth Department in a split decision on February 18, 2025. The majority reasoned that the government owes a duty of care to safeguard those in its custody. The majority referred to prior case law in which a duty had been found to individuals in government custody without consideration of the special duty factors, such as incarcerated persons, juveniles in delinquency facilities, and schoolchildren. The majority found that foster children are also owed a duty of care because, “by assuming legal custody, government officials step in as the sole legal authority responsible for determining who has daily control over the child’s life.” The court did not view its precedent barring a statutory cause of action by an abused foster child as an obstacle because Weisbrod-Moore was only claiming common law negligence.
The stinging dissent, written by Judge Madeline Singas, admonished the majority as having “rashly enacted a staggering expansion of municipal liability,” abandoning precedent, and “giving in to the temptation to create an exception for an especially appealing class of cases”.3 The court was not only upending its special duty precedent; she argued it was also disregarding settled case law holding that an abused foster child cannot sue for breach of the Social Services Law. According to the dissent, “this Court, in essence, codifies a new private right of action that the legislature has heretofore declined to create.”
The dissent argued that prior cases finding a duty of care owed to those in the government’s physical custody were inapplicable to children in private foster care for “the obvious reason that plaintiff was not in the County’s physical custody when the alleged incidents occurred.” Rather, “municipalities relinquish day-to-day physical custody and control of foster children when they are placed with foster parents, even if municipalities retain legal custody.” The dissent pointed out that the result will be that the government has “all the liability associated with physical custody without the same control over the environment.” Citing the hundreds of CVA cases pending against local governments and reported verdicts exceeding $100 million, the dissent noted that the court’s holding “could well generate multimillion dollar judgments against localities for the acts of third parties.”
Questions remain as to the viability of foster care abuse cases like Weisbrod-Moore. Most notably, the Court of Appeals found that it was premature to address the branch of Cayuga County’s motion based on the doctrine of governmental function immunity, which precludes liability for discretionary acts performed in a governmental capacity. The applicability of this doctrine will be critical in defending these claims. It is equally unclear how the scope of a municipality’s common law duties to a foster child will be defined by the courts as the bar on statutory claims remains intact. Children are typically placed in foster care by the family court, and the municipality’s duties are defined by the Social Services Law and state regulations.
Questions also remain as to the scope of municipal liability arising from legal custody more generally. As the dissent pointed out, “[T]he majority leaves the lower courts to speculate what other duties the government might owe to those in its ‘legal custody.’” Further litigation will be required to clear up this now-muddy area of law.
If you have any questions regarding the content of this alert, please contact David Fulvio, counsel, at dfulvio@barclaydamon.com; Matthew Larkin, Torts & Products Liability Defense Practice Area chair, at mlarkin@barclaydamon.com; or another member of the firm’s Torts & Products Liability Defense Practice Area.
1See e.g., Ferreira v. City of Binghamton, 38 NY.3d 298 (2022).
22025 NY Slip Op 00903.
32025 NY Slip Op 00903 (February 18, 2025) (Singas, J., dissenting)