Our office receives many consultation requests from those who are looking to take action against the Department of Social Services and other governmental agencies in claims for negligence. Potential clients ask “How could this slip through the cracks?” and “Why haven’t they done anything about this?” Sadly, both children and adults can fall victim to abuse due to mistakes made on the behalf of these governmental agencies.
The Department of Social Services and other governmental agencies who offer similar services have a statutory immunity which makes succeeding in causes of action for liability against them extremely difficult. There is a high threshold to overcome in order to be successful in those actions.
Social Services Law Section 419 states that “any person, official, or institution participating in good faith in the providing of a service pursuant to section four hundred twenty-four of this title, the making of a report, the taking of photographs, the removal or keeping of a child pursuant to this title, or the disclosure of child protective services information in compliance with sections twenty, four hundred twenty-two and four hundred twenty-two-a of this chapter shall have immunity from any liability, civil or criminal, that might otherwise result by reason of such actions. For the purpose of any proceeding, civil or criminal, the good faith of any such person, official, or institution required to report cases of child abuse or maltreatment or providing a service pursuant to section four hundred twenty-four or the disclosure of child protective services information in compliance with sections twenty, four hundred twenty-two and four hundred twenty-two-a of this chapter shall be presumed, provided such person, official or institution was acting in discharge of their duties and within the scope of their employment, and that such liability did not result from the willful misconduct or gross negligence of such person, official or institution.”
Additionally, Social Services Law section 420 provides for criminal and civil liability for the willful failure of persons, officials or institutions required by title 6 to report cases of “suspected child abuse or maltreatment.”
Section 420 of the Social Services Law creates a private right of action available for plaintiffs. The issue at hand is proving what is considered “willful” if the claim is that a Department of Social Services or other government agency employee failed to report the abuse.
Courts have found that Section 419 was intended to provide immunity only with respect to civil or criminal liability that would otherwise result from acts taken by persons, officials, or institutions in a good faith effort to comply with specific provisions of the Social Services Law. In addition, Courts have also noted that Section 419 is not intended to apply to failures to provide the services required by the Social Services law.
Evidence must be presented that the service agency engaged in willful misconduct or gross negligence. In order to overcome governmental immunity, the plaintiff must overcome the statutory presumption of good faith and must demonstrate “persuasive evidence of bad faith.”
Further, any action or inaction of a caseworker done in furtherance of investigating a report of suspected neglect is a discretionary act and cannot form the basis for liability. 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.
This is a well settled rule of law that denies recovery in cases where there have been injuries and the rule bars recovery even where a government blunder results in injury to people deserving of the government’s protection.
Courts continue to apply this standard in cases where state services are defendants and a lawsuit is brought against them on the basis of negligence. Plaintiffs have claimed governmental service agencies were negligent in their investigations of abuse or in failing to take action to prevent further abuse.
Cases often have similar fact patterns. Children are placed in foster care and are abused by someone in their foster home or there was abuse in their own home that a governmental service agency failed to remove them from. Courts have held that actions by the government employees working for these agencies did not rise to the level of gross negligence or willful misconduct. Mistakes or discretionary decisions that turned out to be wrong and caused injury will likely not meet the burden the law implies.