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Adult Care Facility, in Which Residents Have a High Level of Autonomy, Can Not Be Held Liable for Assault by One Resident Upon Another

In finding that Lakeside, an adult care facility (ACF), was not liable for an assault by a resident, Fierro, upon the plaintiff (also a resident), the Second Department wrote:

…[C]ourts have imposed a duty of care where “there exist special circumstances in which there is sufficient authority and ability to control the conduct of third persons that [courts] have identified a duty to do so. Thus, [courts] have imposed a duty to control the conduct of others where there is a special relationship: a relationship between defendant and [the] third person whose actions expose plaintiff to harm such as would require [one] defendant to protect the plaintiff from the conduct of others” … .

…Lakeside [presented evidence that its] residents were free to come and go as they pleased, and that in order to remove a resident from the facility, it would need to commence an eviction proceeding. Because it is an ACF, Lakeside’s control over Fierro, “and consequent duty to prevent him from harming others, is more limited than in cases involving persons confined to mental institutions” …. Lakeside did not require the issuance of day passes, which would have been indicative of “a certain level of authority and control” over its residents …, who did not “relinquish general autonomy” … .  Malave v Lakeside Manor Homes for Adults, Inc, 2013 NY Slip Op 02547, 2012-00696, Index No 100904/10, 2nd Dept, 4-17-13​

THIRD PARTY ASSAULT

 

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