Child Care Agency Could Be Found Negligent for Failure to Remove Child from Foster Parents’ Home

In a full-fledged opinion by Justice Acosta, the First Department reversed the trial court’s dismissal of a complaint against a child care agency which places children in foster homes.  A child the defendant placed allegedly started a fire in which members of the foster family were either killed or severely injured.  The First Department held that the child care agency, although it did not have a duty to control the child when he was in the foster family’s physical custody, had a duty to remove the child from the foster home upon notice of his propensity for setting fires:

In general, a defendant will not be liable for the conduct of third persons who cause harm to others … . However, the duty to control a third person’s conduct may arise when the defendant has authority to do so, and because of either the relationship between the defendant and the third person or the relation between the defendant and the plaintiff … . An example is the parent-child relationship … .

Thus, a child care agency, acting in loco parentis, has a duty to exercise reasonable care to prevent foster children under its supervision and control from harming others … .  Wynn, as Administratrix … v Little Flower Children’s Services, 2013 NY Slip Op 02156, 15276/95, 9200, 1st Dept 3-28-13