Bile v Erie County Dept. of Social Servs.

[*1] Bile v Erie County Dept. of Social Servs. 2018 NY Slip Op 51474(U) Decided on August 3, 2018 Supreme Court, Erie County Colaiacovo, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 3, 2018
Supreme Court, Erie County

Shukri Bile as Administrator of the Estate of Abdifatah Mohamud, Plaintiff,

against

Erie County Department of Social Services, Erie County Child Protection Services, and County of Erie, Defendants.



805972/2015, 804337/2014



For Plaintiff: DANIEL L. SCHOENBORN, ESQ.

For Defendants: MICHAEL A. SIRAGUSA, ESQ. (Jeremy C. Toth, Esq., Of Counsel)
Emilio Colaiacovo, J.

The Defendants have moved for summary judgment seeking to dismiss the Plaintiff's complaint. Plaintiff looks to recover damages based on an alleged negligent investigation by the Erie County Department of Social Services and Child Protection Services (hereinafter "CPS") that they maintain resulted in the wrongful death of Abdifatah Mohamud (hereinafter "minor child"), who at the time of his death was 10 (ten) years old. Defendants insist they owe no liability for the death of the child as their existed no special duty that would establish liability for his wrongful death.

FACTS & PROCEDURAL HISTORY

The minor child lived in Buffalo, New York with his mother, step-father, and siblings. He was the subject of two (2) calls to the child protection hotline. The first call to CPS was placed on or about April 11, 2011. The minor child alleged that his step-father, Ali Muhamud, choked him and threatened him with a machete. Thereafter, CPS investigated the allegation. In their investigation, they reported that the child subsequently recanted the allegation and services were arranged through the child's school to address his behavior. A second call to CPS was made on or about June 23, 2011. It was reported that the minor child had two black eyes that were believed to have been inflicted by the step-father. CPS investigated the allegations of abuse. The minor child denied being struck by his step-father and maintained that he was involved in a fight with other children on a school bus. The minor child's principal was interviewed and corroborated that Abdifatah was indeed involved in an altercation with other children on the bus. CPS reviewed the minor child's medical records and spoke with his siblings, who also confirmed that Abdifatah was involved in a fight on the school bus. The report was later unfounded.

Thereafter, on April 17, 2012, while the minor child's mother was not home, the step-[*2]father became angry and took the minor child into the basement after an alleged behavior incident. There, he "tied the child's wrists with an electrical cord, gagged his mouth with duct tape, and beat [the minor child] with a rolling pin. Abdifatah sustained holes in the back of his head. As a result, the child died due to blunt force trauma." See Defendant's Exhibit H, CPS Progress Note, April 18, 2012. It was reported that the child was struck more than seventy-times, that brain tissue was exposed, and that the child's skull was detached from the spinal column. The step-father, Ali Muhamud, was subsequently charged and convicted of murder 2nd degree and sentenced to twenty-five years to life in prison.

Plaintiff brought an Order to Show Cause in 2014 seeking permission to file a late notice of claim against the Defendants. The Court permitted the late notice of claim, but only as to the wrongful death action. See Defendant's Exhibit "B". Thereafter, Plaintiff commenced the current action in 2015 alleging wrongful death. The Court permitted Plaintiff access to confidential materials from the Department of Social Services, including progress notes and recordings from the County's 911 system. The Defendants filed their motion to dismiss on March 29, 2018. After several requests for adjournment and extensions to reply, oral argument was heard before this Court on June 8, 2018. Counsel was permitted to make post-argument submissions. Only Defendants filed a submission, which was received on June 14, 2018.

ARGUMENT

Plaintiff

In its Answering Affirmation, albeit a rather brief reply, Plaintiff, recites the facts and concludes that there existed a special duty, but did not to use that term. Instead, Plaintiff argues that by investigating the incidents in April 2011 and June 2011, the Defendant "undertook a duty to fully and completely investigate the claims" that were related to the minor child. See Plaintiff's Answering Affirmation, dated June 1, 2018, ¶15. Plaintiff submits that perhaps Defendant should have conducted "more regular and continuing home visits, meetings with the children and different locations separate from their parents." Id., at ¶16.

With respect to legal argument, Plaintiff concluded that there were issues of fact, though failed to identify those issues or address the legal question of whether a duty existed. Plaintiff also submitted that there existed a relaxed burden of proof in wrongful death actions, but did not include what that diminished burden was or how it applied to this action or its facts.

Defendant

In its Memorandum of Law, Defendant submits that that the case must be dismissed because private right of action exists for individuals against government agencies for the failure to provide adequate child protective services. For the right to exist, there must exist a special relationship between the parties. Defendant argues that no such right exists here. However, Defendant maintains that even if a special duty was found to exist, the "decisions made by Defendants were all based on the reasonable exercise of discretion and those decisions may not form the basis of a negligence action." See Defendant's Memorandum of Law, dated March 29, 2018.

Regarding the two previous reports to CPS, Defendant points out that CPS dispatched investigators to the home for each incident and interviewed the mother of the minor child, siblings, and the step-father. The CPS worker, Shukri Bile, testified that there was no evidence or indication to support the conclusion that the step-father was abusing the minor child. See Supporting Affirmation of Jeremy C. Toth, Esq., dated March 29, 2018, ¶9(g). Regarding the second incident, in June 2011, the mother testified she did not believe the step-father was [*3]abusing the minor child. Furthermore, the minor child told her, the doctor, principal at school, and the investigator that he had been involved in a fight at school. The case worker assigned, Kelly Flowers, testified that while she observed marks under both eyes, they were disproportionate in their bruising. The step-father denied abusing the child. The case worker reviewed a letter from the child's pediatrician regarding the incident and reviewed x-rays taken at Women & Children's Hospital, which indicated there were no fractures or other injuries. Id. at ¶¶10(g), (h) and (i). In speaking with the children, the case worker noted that the children said their parents got along and that the step-father did not abuse them. One of the minor child's siblings, an adult named Ahmed, confirmed that the minor child sustained injuries after the incident on the school bus. Id. at ¶10(h). The children acknowledged that the only discipline they received from their step-father would be a hit to the head with a pencil. Subsequently, the case worker made an unannounced visit to the home. At that visit, the minor child's mother told the worker she had spoken with school employees who confirmed the identity of the two boys who had injured Abdifatah on the school bus. Ms. Flowers also spoke with the school principal who indicated that the children were play fighting on the bus and that the minor child struck his head on a bar for the emergency exit. Id. at ¶10 (q). Based on her investigation, the case worker recommended the case be closed as unfounded. A supervisor later did so.

The Defendants insist that CPS exercised reasonable diligence in performing its investigation and that, even if a special duty was found, the County could not be held liable based on its actions in investigating the two (2) CPS calls reported to the central hotline.

CONCLUSIONS OF LAW

The Court recognizes that summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue of fact. See Kelsey v. Degan, 266 AD2d 843 (4th Dept. 1999); Moskowitz v. Garlock, 23 AD2d 943 (3d Dept. 1965). The party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence to demonstrate the absence of any material issues of fact. Alvarez v. Prospect Hospital, 68 NY2d 320 (1986). On a motion for summary judgment, the court is not to determine credibility, but whether there exists a factual issue, or if arguably there is a genuine issue of fact. S.J. Capelin Assoc. v. Globe Manufacturing Corp., 34 NY2d 338 (1974). To defeat a motion for summary judgment, the opponent must produce evidentiary proof in admissible form sufficient to require a trial of material issues of fact, and importantly mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient. Zuckerman v. City of New York, 49 NY2d 557 (1980).

However, before determining whether summary judgment is appropriate, the Court must first decide whether there existed a special duty otherwise imposing liability on the Defendant.

It is generally understood that a governmental entity, such as CPS, may not be held liable for injuries that result from alleged mistakes made by a representative of a municipality in the course of their investigation of those who are deserving of the government's protection. McLean v. City of New York, 13 NY3d 194 (2009). The Court of Appeals reasoned that "exposing municipalities to tort liability would be likely to render them less, not more, effective in protecting their citizens." Laratro v. City of New York, 8 NY3d 79 (2006). The Court also opined that imposing liability on governments for their efforts in extending protective services could "impel governments to withdraw or reduce their protective services." Pelaez v. Seide, 2 NY3d 186 (2005).

Nevertheless, this rule is not absolute. There are exceptions to the principle that [*4]governments are immune from liability in instances such as the one presently before this Court. In Cuffy v. City of New York, the Court of Appeals explained the "special relationship" exception to the well-established rule that a municipality is not liable to a person injured by an alleged breach of a duty, like the duty to provide child protective services, that the municipality owes to the general public. 69 NY2d 255 (1987). In Cuffy, the Court held,

"There exists . . . a narrow class of cases in which we have recognized an exception to this general rule and have upheld tort claims based upon a 'special relationship' between the municipality and the claimant. The elements of this 'special relationship' are: (1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) that party's justifiable reliance on the municipality's affirmative undertaking." Id. at 260.

Here, distilling the facts, there were two (2) separate CPS calls. CPS responded to both calls. In both instances, the mother of the minor child denied any abuse. Other children in the residence also denied any abuse by the step-father. With respect to the second call, the investigator not only spoke with the child, his mother, step-father, and other siblings, but also spoke with the school principal, reviewed the child's medical records, and even made an unannounced visit to the child's home. At every turn, the initial story of an altercation on a school bus was verified and the report was ultimately unfounded. Under these circumstances, it is difficult to question the efficiency of the investigation.

When tragedy strikes, and no one can dispute the misfortune of this incident, one often looks for someone to blame. That said, desire for justice does not establish liability. Finding otherwise would be inconsistent with established precedent. Even if this Court were to find that Plaintiff possessed a cause of action against the County, any action or inaction of the caseworker in investigating the report of suspected abuse is a discretionary act and cannot form the basis for liability. Rivera v. County of Westchester, 919 N.Y.S.2d 840 (Supreme Court, Westchester County 2011) citing Lauer, 95 NY2d at 99. "A public employee's discretionary acts, meaning conduct involving the exercise of reasoned judgment, may not result in the municipality's liability even when the conduct is negligent." Id. at 846, citing Tango v. Tulevech, 61 NY2d 34 (1983). However, that said, this Court finds that the Defendant's conduct in this matter was not negligent.

In reviewing the applicable standard, the Plaintiff's arguments are without merit. Plaintiff has failed to establish a special duty nor has it satisfied the necessary factors that would justify an exception to the rule that would impose liability on the Defendant. Second-guessing and suggestions as to what should have occurred, are insufficient to justify a deviation from the accepted standard that applies in this matter. A special duty is owed to the injured person and not to the public. To that end, this examination focuses on the particular incident free of emotion or sentiment. As such, none of the actions taken by the Defendant seem unreasonable or wanting that would otherwise defeat the current motion. Inasmuch as Plaintiffs has failed to establish the existence of any triable issues of fact as to the creation of a special relationship that would give rise to the recognition of a special duty, the Defendants motion for summary judgment is hereby GRANTED.

While the purpose of the Social Services Law is to encourage the reporting of abuse and maltreatment, the Department's own actions, or inactions in some instances, have led many to [*5]question the effectiveness of its role in the protection of our most vulnerable. The public record is replete with examples where the Defendants have failed in their charge. However, this decision is based solely on the record before it and nothing more. It is not the Court's responsibility to create special duties but instead apply the law as it exists. Many would prefer a Court simply to make law where the legislature or executive has failed to do so or because the facts are tragic. However, it is not the role of the judiciary to sit on high and promulgate what it believes should have been a policy determination made elsewhere. The courts have deferred to the wisdom of the legislature in defining what is actionable and what is not. Rosenfeld v. Isaacs, 79 AD2d 630 (2nd Dept. 1980); Mobil Oil Corp. v. Higginbotham, 436 U.S. 618 (1978). If the legislature wishes to confer liability in circumstances such as these, it should do so. The Court cannot right every wrong with its pen. While abetting a desire to address each and every tragedy, to do so does a greater disservice to the law and its purpose.

Dated: August 3, 2018

Buffalo, New York

Hon. Emilio Colaiacovo