A COUNTY MAY BE LIABLE FOR NEGLIGENT SUPERVSION OF A VISIT BETWEEN MOTHER AND CHILD BY A COUNTY SOCIAL SERVICES CASEWORKER AT A PUBLIC PARK; HERE THE CHILD FELL WALKING UP A SLIDE; THE CASEWORKER DID NOT OBSERVE THE ACCIDENT BUT MOTHER WAS NEXT TO THE SLIDE AT THE TIME (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Wooten, determined the county’s motion for summary judgment in this negligent supervision case was properly denied. Plaintiff father alleged the county social services caseworker (Byrne) who supervised a visit between mother and the infant plaintiff at a public playground was negligent in allowing the child to walk up a slide where the infant plaintiff fell. Byrne did not observe the accident. The Second Department held Byrne was performing a governmental function, the county owed infant plaintiff a special duty, Byrne’s actions were not demonstrated to be discretionary, and the county did not demonstrate Byrne’s acts or omissions were not a proximate cause of the accident. The opinion provides a clear explanation of the complex issues associated with governmental liability in this “negligent supervision” context:

“Once it is determined that a municipality was exercising a governmental function, the next inquiry focuses on the extent to which the municipality owed a duty to the injured party” … . “In order to sustain liability against a municipality engaged in a governmental function, ‘the duty breached must be more than that owed the public generally'” … . * * *

… “[U]nder the doctrine of governmental function immunity, government action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the plaintiff, apart from any duty to the public in general” … . * * *

… [T]he County may assume a special duty to a foster child during the course of visitation supervised by a DSS caseworker. * * *

Since Byrne acknowledged that he did not observe the infant plaintiff walking up the portion of the slide intended for children to slide down prior to the accident, it cannot be said that he made a discretionary decision whether or not the infant plaintiff’s behavior warranted his intervention. Thus, any exercise of discretion by Byrne during visitation bore no relation to the conduct on which liability is predicated. P.D. v County of Suffolk, 2024 NY Slip Op 03405, Second Dept 6-20-24

Practice Point: The complex criteria for government liability in a negligent-supervision-of-a-child case are clearly and comprehensively explained.