McLean v. City of New York

McLean v. City of New York, 12 NY3d 194 (2009) arose from a ministerial error on the part of the New York City Administration for Children's Services, when it renewed the license of a child care provider against whom there were outstanding complaints. The City was sued by a mother whose child had suffered an injury consistent with "shaken baby syndrome" while in the care of this provider and who, it was stipulated, would not have chosen to use the provider if it had not been listed as a licensed provider and if she had not been assured that that meant there were no outstanding complaints. The trial court denied the City's motion for summary judgment, holding that there was sufficient evidence for a common-law negligence claim and that if "for the sake of argument" it was necessary to find a "special relationship," that requirement could also be met (14 Misc 3d 922, 935, 831 NYS2d 665 Sup Ct, NY County 2007). The First Department affirmed, holding: (1) that if the act of renewing the provider's certification was considered ministerial, there was a question of fact as to whether the City had disregarded the governing rules; (2) that, in any event, the City owed a special duty to a protected class of individuals (children in registered day care facilities) that could result in liability for negligent acts or omissions "regardless of whether the al-leged acts or omissions were ministerial or discretionary" (49 AD3d 393, 393, 853 NYS2d 340 1st Dept 2008). The Court of Appeals reversed both holdings and dismissed the complaint, describing the applicable law in the following manner: "Tango and Lauer v City of New York, 95 NY2d 95, 733 NE2d 184, 711 NYS2d 112 (2000) hold that discre-tionary municipal acts may never be a basis for liability, while ministerial acts may support liability only where a special duty is found" (12 NY3d at 202). The Court concluded that the City did not owe the mother and/or the child a special duty because there was no statutory private right of action and there had been no direct assumption of a duty on the part of the City. It also flatly rejected plaintiff's argument that "because the acts for which she sues are ministerial, no special duty or special relationship need be established" (id.), stating that "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" (id. at 203). The Court stated the "long followed rule that an agency of government is not liable for the negligent perfor-mance of a governmental function unless there existed a special duty to the injured person, in contrast to a general duty owed to the public....such a duty...is born of a special relationship between the plaintiff and the governmental entity'." (McLean at 198.) The Court in McLean recited the three ways a special relationship can be formed "(1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily as-sumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation." In McLean, the Court of Appeals characterized the plaintiff's public policy argument as "an invitation to lax the special relationship rule to accommodate an especially appealing class of cases helpless young chil-dren" in order to find a special relationship between registered child care providers and parents and children requiring child care. Its decision was unequivocal: "We decline the invitation. A well settled rule of law denies recovery in cases like this, and that rule, by its nature, bars recovery even where a government blunder results in injury to people deserving of the government's protection. The rationale of the rule, as we explained in Laratro (8 NY3d at 82, 861 N.E.2d 95, 828 N.Y.S.2d 280), is that exposing municipalities to tort liability would be likely to render them less, not more, effective in protecting their citizens. Lawsuits, as we have said in Pelaez (2 NY3d at 201), are not the only way of dealing with governmental failure - and might even impel governments to withdraw or reduce their protective services. In Lauer (95 NY2d at 101), we quoted our warning in Steitz v. City of Beacon (295 NY 51, 55, 64 N.E.2d 704 1945) that a crushing burden' should not be imposed on a governmental body in the absence of statutory language clearly designed to have that effect.' These reasons forbid the making the sort of ad hoc exceptions to the special duty/special relationship rule that Ms. McLean seeks in this case." (McLean at p. 204.)