State of New York OPINION Court of Appeals This opinion is uncorrected and subject to revision before publication in the New York Reports.

No. 90 William D. Maldovan, &c., Appellant, v. County of Erie et al., Respondents. John T. Loss, for appellant. Robert P. Goodwin, for respondents. City of New York, amicus curiae. TROUTMAN, J.: Plaintiff alleges that failures on the part of various government agencies, including two providing social services, caused grievous harm in this tragic case. Despite the heartbreaking events involved, in which the victim’s mother and brother, now serving -2- No. 90 lengthy prison terms for their actions, sexually assaulted, abused, and murdered her in her home, we decline to expand this Court’s special duty doctrine. “A well settled rule of law denies recovery in cases like this” (McLean v City of New York, 12 NY3d 194, 204 [2009]). “The rationale for this rule is that the cost to municipalities of allowing recovery would be excessive [and] the threat of liability might deter or paralyze useful activity,” endangering the ability of government agencies to provide crucial services to the public (Laratro v City of New York, 8 NY3d 79, 82 [2006]).

I.

Laura Cummings was a 23-year-old woman with developmental disabilities who lived with her mother, Eva Cummings. In 2009, Laura’s brother, Richard, who lived out of state, contacted a family friend with concerns about Laura’s well-being after another family member informed Richard that Laura had sustained suspicious injuries. Mistakenly believing that Laura was under 18 years old, the family friend contacted Child Protective Services (CPS) about these concerns. A CPS caseworker visited the home, and both Eva and Laura, when interviewed alone, provided the same benign explanation for Laura’s injuries. CPS thereafter closed the case and informed the family friend that the report was unfounded.

Months later, Richard heard again that Laura was injured, with facial bruising, and contacted the same family friend, who in turn contacted Adult Protective Services (APS). APS caseworkers visited the home, but Eva refused to allow them to speak with Laura alone. In Eva’s presence, Laura gave the caseworkers the same explanation for her injuries, and the caseworkers did not observe any facial bruising. After speaking with another -3- No. 90 family member, APS closed the case and told the family friend that the report was unfounded. Richard subsequently called APS but was told that the report was investigated, that caseworkers did not find anything of concern, and that he should call with any new developments.

In November 2009, Laura ran away from home and was found at an abandoned Girl Scout camp by two Erie County Sheriff’s deputies. Believing that Laura and Eva had a verbal altercation, and learning nothing to suggest that Laura should not be brought home, the deputies returned Laura to Eva’s care.

In January 2010, Eva and Laura’s brother, Luke Wright, tortured and murdered Laura in her home. Eva and Wright were convicted of various crimes and sentenced to lengthy prison terms (see People v Wright, 107 AD3d 1398 [4th Dept 2013], lv denied 23 NY3d 1026 [2014]). The public administrator of Laura’s estate commenced these actions against the County of Erie and the Erie County Sheriff (defendants), alleging, among other things, that the CPS and APS caseworkers, as well as the Sheriff’s deputies, were negligent in the performance of their duties, leading to Laura’s death.

The parties moved for summary judgment, and Supreme Court denied both motions. The Appellate Division affirmed the order denying plaintiff’s motion for summary judgment but reversed the order denying defendants’ motion and granted summary judgment to defendants, dismissing the complaints against them (see Maldovan v County of Erie, 188 AD3d 1597 [4th Dept 2020]; Maldovan v County of Erie, 188 AD3d 1601 [4th Dept 2020]). The Appellate Division concluded, as relevant here, that no special duty existed as a matter of law because “the fourth element [necessary to show a special -4- No. 90 relationship with the municipality], justifiable reliance, cannot be met in this case” (Maldovan, 188 AD3d at 1598-1599).

This Court granted plaintiff leave to appeal (37 NY3d 911 [2021]). We now affirm.

II.

When a negligence claim is asserted against a municipality acting in a governmental capacity, as here, the plaintiff must prove the existence of a special duty (see Ferreira v City of Binghamton, 38 NY3d 298, 308-310 [2022]; Turturro v City of New York, 28 NY3d 469, 477-478 [2016]). We have recognized that a special duty may arise in three situations: where “(1) the plaintiff belonged to a class for whose benefit a statute was enacted; (2) the government entity voluntarily assumed a duty to the plaintiff beyond what was owed to the public generally; or (3) the municipality took positive control of a known and dangerous safety condition” (Tara N.P. v Western Suffolk Bd. of Coop. Educ. Servs., 28 NY3d 709, 714 [2017] [internal quotation marks omitted]).

Although plaintiff raises an argument before this Court based on the first method (statutory duty), that argument is unpreserved for appellate review. Plaintiff alleged in the complaint that defendants voluntarily assumed a duty to Laura beyond that owed to the public generally. It is true, as the dissent notes, that in the bill of particulars plaintiff alleged a violation of Social Services Law § 473. Plaintiff does not assert, however, that he raised the issue of statutory duty either in support of plaintiff’s own motion for summary judgment or in opposition to defendants’ motion, and the Appellate Division did not address the issue. We note that if, as the dissent concludes, this Court’s decision in Mark G. v Sabol (93 NY2d 710, 721-722 [1999]) is distinguishable and the legislature had -5- No. 90 intended to create a private right of action in Social Services Law § 473 (3), the legislature is of course free to make that intent clear (see dissenting op at 20-26).

Plaintiff also relies on the second method, which we have sometimes referred to as a “special relationship” (see Tara N.P., 28 NY3d at 714; Valdez v City of New York, 18 NY3d 69, 80 [2011]). We conclude, however, that defendants met their prima facie burden to demonstrate that they did not voluntarily assume a duty to Laura, and plaintiff failed to raise a triable issue of material fact in opposition.

As we have often stated, to establish that the government voluntarily assumed a duty to the plaintiff beyond what it generally owes to the public, the plaintiff must establish:

“ ‘(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’ ” (Tara N.P., 28 NY3d at 714-715, quoting Cuffy v City of New York, 69 NY2d 255, 260 [1987] [emphasis omitted]). “[A]ll four elements must be present for a special duty to attach” (Tara N.P., 28 NY3d at 715).

We agree with the Appellate Division that under the circumstances presented here, defendants established as a matter of law that the government employees took no action that could have induced justifiable reliance, and plaintiff failed to raise a triable issue of fact in opposition. As we explained in Cuffy, the justifiable reliance element

“provides the essential causative link between the ‘special duty’ assumed by the municipality and the alleged injury. Indeed, at the heart of most of these ‘special duty’ cases is the -6- No. 90

unfairness that the courts have perceived in precluding recovery when a municipality’s voluntary undertaking has lulled the injured party into a false sense of security and has thereby induced [the injured party] either to relax [their] own vigilance or to forego other available avenues of protection” (Cuffy, 69 NY2d at 261).

Months before her death, both CPS and APS investigated the reports that Laura was being abused, concluded that those reports were unfounded, closed their investigations, and advised Richard that the investigations were closed and would not be reopened without new information. As the Appellate Division noted, Richard “did not in fact relax his own vigilance inasmuch as he made two follow-up calls to the APS caseworker asking her to reopen the investigation, and he was not induced to forego other avenues of relief” (Maldovan, 188 AD3d at 1599). Similarly, the Sheriff’s deputies took no action that could have induced reliance.

Plaintiff asserts that the Cuffy factors for establishing a special duty assume that the injured person is a competent adult who is reasonably capable of pursuing other avenues of protection if government has failed to do its job. Plaintiff argues that it is unfair to apply the Cuffy test when the injured party is a child or an adult of diminished capacity and urges us to adopt the Appellate Division decision in Boland v State of New York (218 AD2d 235 [3d Dept 1996]) to address that deficiency. In Boland, the Appellate Division relied on the existence of Social Services Law article 6, title 6, which established CPS, to satisfy the elements of a voluntarily assumed duty. Specifically, the Court held that the existence of that statutory scheme demonstrated that the State “affirmatively and voluntarily assumed a duty to act” on behalf of abused children, that the legislature had acknowledged that -7- No. 90 inaction could lead to harm, and that “the extensive and detailed statutory scheme at issue, which has as its avowed purpose the protection of a discrete class of individuals, i.e., abused and maltreated children . . . obviate[d] the need for claimant to independently establish the requisite contact and reliance” (id. at 240-241). Plaintiff asks us to adopt that reasoning here and hold that because Laura was part of the class of adults the legislature sought to protect when it established APS, plaintiff should not be required to establish justifiable reliance in this case. Our dissenting colleague similarly proposes that the special duty rule may be satisfied whenever CPS or APS receives a report of abuse, opens an investigation, and has contact with the injured party (see dissenting op at 26-27).

We decline plaintiff’s invitation. In an effort to acknowledge the difficulty vulnerable victims may face in demonstrating these factors, we have previously relaxed the requirements of the special duty rule to allow a competent family member of the injured party to satisfy the elements of direct contact and justifiable reliance (see Applewhite v Accuhealth, Inc., 21 NY3d 420, 431 [2013]; Sorichetti v City of New York, 65 NY2d 461, 469 [1985]). Such an approach, which requires the courts to construe the special relationship analysis in the plaintiff’s favor, provides a pathway for vulnerable victims to satisfy the special duty requirements where they may otherwise be unable to do so. Here, the Appellate Division appropriately assessed whether Richard justifiably relied on promises or actions by government employees that would have induced him to relax his vigilance regarding Laura’s safety and concluded that he did not (see Maldovan, 188 AD3d at 1599). We do not address whether or how the special duty rule should apply in a different case where the injured party was a child or adult with developmental disabilities -8- No. 90 incapable of pursuing other avenues of protection and did not have a competent adult family member advocating on their behalf.

III.

Contrary to the dissent’s suggestion, we do not blithely decline to amend the common law rule in this case without reason. It is undeniable that plaintiff alleges that the failure of government to do its job has caused immense harm under heartbreaking circumstances; this is unfortunately not unusual in special duty cases (see Tara N.P., 28 NY3d at 716; McLean, 12 NY3d at 197). As we recognized in McLean, however, the special duty rule is based on the rationale that exposing municipalities to tort liability may “render them less, not more, effective in protecting their citizens” (McLean, 12 NY3d at 204).

McLean is another tragic case, involving the government’s failure to remove a daycare program from the list of registered providers after substantiated complaints regarding child safety, which resulted in the plaintiff’s placement of her child in that program and the child’s subsequent serious injury (see id. at 197-199). The plaintiff argued, in part, that “the helplessness of young children, and the State’s powerful interest in protecting them from neglect or abuse, should lead [the Court] to announce the existence of a special relationship between those who register child care providers and parents and children who need child care” (id. at 204). The Court rejected that assertion:

“This is, in substance, an invitation to relax the special relationship rule to accommodate an especially appealing class of cases. 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 -9- No. 90 injury to people deserving of the government’s protection” (id.).

We must again, as in McLean, decline the “invitation to relax the special relationship rule to accommodate an especially appealing class of cases,” out of concern for the possibility that “exposing municipalities to tort liability would be likely to render them less, not more effective in protecting their citizens” (id.).1 Imposing liability here where Laura’s family members did not justifiably rely on any promises by CPS or APS and relax their vigilance as a result could impose a “crushing burden” on those agencies, which may render them less effective in fulfilling their mission to protect vulnerable individuals (id.). To the extent that CPS and APS caseworkers acted negligently in failing to protect Laura from the abuse and death she suffered at the hands of her mother and brother, lawsuits “are - 10 - No. 90 not the only way of dealing with government failure” (id.). The special duty rule “is intended, in part, to ensure that municipalities do not become insurers for the injurious conduct of third parties” (Ferreira, 38 NY3d at 316, citing Valdez, 18 NY3d at 75).2 Where, as here, the elements of a voluntarily assumed duty, including justifiable reliance, were capable of being satisfied through Laura’s family members, but simply were not met, the sound principles supporting the special duty rule require us to decline to amend that rule here.

In light of our holding, we do not address plaintiff’s remaining contentions, including whether the Appellate Division correctly concluded that a cause of action for negligent investigation is not recognized in New York.

Accordingly, the orders of the Appellate Division should be affirmed, with costs.

-2- No. 90 this happened despite numerous complaints to, and visits by, caseworkers from Erie County’s offices of Child Protective Services and Adult Protective Services.

I agree with the majority’s characterization of the circumstances as “tragic” and “heartbreaking;” one should not mistakenly believe that what happened to Laura is rare. In truth, the physical and psychological abuse of intellectually disabled children and adults, especially women, is commonplace.^[1] When the State decided to deinstitutionalize many such persons, it entrusted their safety to Adult Protective Services (APS) and Child Protective Services (CPS) districts throughout the state. The majority’s holding immunizes the very agencies bound by law to protect vulnerable adults, when the legislature has clearly stated those agencies do not enjoy immunity from grotesque agency failures such as those turning a blind eye to Laura’s horror.

While acknowledging Laura’s tragic and heartbreaking doom, the majority forthrightly explains why it thinks Laura’s claims against Erie County fail: the majority will not “expand this Court’s special duty doctrine” because “a well settled rule of law denies recovery in cases like this. . . The rationale for this rule is that the cost to

1 (Danny Hakim, At State-Run Homes, Abuse and Impunity, NY Times, Mar 12, 2011 [https://www.nytimes.com/2011/03/13/nyregion/13homes.html] [detailing rampant abuse of disabled people in state-run homes]; Erika Harrell, Crime Against Persons With Disabilities, 2009-2015-Statistical Tables, Bureau of Justice Statistics, US DOJ, July 2017 at pg 1 [https://bjs.ojp.gov/content/pub/pdf/capd0915st.pdf] [“In every year from 2009 to 2015, the rate of violent victimization against persons with disabilities was at least twice the age-adjusted rate for persons without disabilities”]; Joseph Shapiro, The Sexual Assault Epidemic No One Talks About, NPR. org, Jan 8, 2018 [https://www.npr.org/2018/01/08/570224090/the-sexual-assault-epidemic-no-one-talks- about] [“People with intellectual disabilities are sexually assaulted at a rate seven times higher than those without disabilities.”]).

-3- No. 90 municipalities . . . would be excessive [and] the threat of liability might deter or paralyze useful activity” (majority opinion at 1-2).

Keep in mind the following points about the majority’s explanation: (1) the majority recognizes that the “special duty” rule is a common-law rule created and periodically modified by the courts; (2) the “special duty” rule allows some persons injured by governmental actors to sue the government for its own negligence and recover money damages from the government, despite the cost of damage awards and threat of governmental paralysis; (3) the majority’s decision rests solely on its determination that Laura did not reasonably rely on the government – not any other requirement of the “special duty” test; and (4) there is no well settled rule in “cases like this” – cases in which the legislature has told us that governmental employees lack immunity for their acts of gross negligence in caring for a specified class of vulnerable persons.

I

Laura lived with her mother, Eva Cummings, and her brothers, among them, Luke Wright. Eva and Luke were convicted of Laura’s murder and are now in prison. Because Laura is dead and has no responsible relatives, the Erie County public administrator, William Maldovan, brought this suit on behalf of her estate. Unquestionably, the precedent and principle matter more than the profit.

Child Protective Services records show that the Cummings household had been subject to numerous reports of abuse over the years, and CPS had found several allegations of Eva abusing Laura as “indicated”, meaning that CPS found credible evidence to -4- No. 90 substantiate abuse. In the several months leading up to her death, Laura was often tied to a chair, with a bag over her head, and subjected to repeated physical and sexual abuse by her mother and her brother Luke, which included being violated with a broomstick.

Six months before Laura’s death, in July of 2009, Town Justice John Stevens, who was a neighbor of the Cummings family, contacted the Statewide Central Register of Child Abuse and Maltreatment to report that Richard Cummings, another one of Laura’s brothers stationed outside the country on military duty, was concerned about Laura’s well-being. Justice Stevens reported that Richard informed him that Eva had cut Laura’s arm with a knife. Justice Stevens also advised the Statewide Register that Laura was “mentally challenged”. Because he mistakenly thought Laura was 16, he reported the suspicion of abuse to CPS instead of APS.^[2]

CPS caseworker “LA”3 visited the Cummings home in response to Justice Stevens’ report of Laura’s possible abuse. CPS never made a referral to APS because LA, though learning the Laura was an adult and therefore not within CPS’s jurisdiction, concluded -5- No. 90 from her visit that the allegation of abuse was unfounded. During that visit, LA spoke separately with both Laura and Eva. Laura denied any abuse by anyone, including her mother, as did Eva. Both claimed that the cuts on Laura’s arms were a result of Laura falling on the porch while carrying a glass. LA testified that she was not sure when, and to what extent, she (or her supervisor at CPS) reviewed the extensive history of prior abuse reports but, in any case—LA ultimately decided Laura’s story seemed credible and nothing she observed signaled abuse. CPS sent a letter to Justice Stevens informing him the claims were unfounded and that it was closing the case.

Four months before Laura’s death, in September 2009, Justice Stevens called again, this time calling APS. He reported that Laura had facial bruising and would not respond to questions about where the bruising came from. There was also a recent change in her demeanor—she had become withdrawn and introverted. Justice Stevens again reported that Laura, Eva, as well as the brothers Luke and Edward, were developmentally delayed. The case was assigned to APS caseworker “HK”.

HK performed a home visit, accompanied by “MS”, a new caseworker there to “shadow” HK for training purposes. HK described Eva’s demeanor when answering the door as “brusque and standoffish”. She refused to let them into the house and refused to let them speak with Laura alone. Eva said she had to be present during Laura’s interview to make sure Laura did not “tell lies again”—Laura’s alleged “lies” were also the reason Eva gave for taking Laura out of school. HK made no further effort to speak to Laura alone -6- No. 90 or to enter the home, despite internal APS policies stating that case workers should always endeavor to interview clients alone and in their home environment.

HK did not recall observing any facial bruising except a friction burn mark on Laura’s nose and chin. When asked, in the presence of her mother, Laura said she fell coming up the porch steps. As they were leaving, MS noticed Laura’s feet were red and swollen. HK did not recall whether she noticed Laura’s feet and did not remember at what point that day she and MS discussed them. They did not go back to inquire about Laura’s feet, but HK called later to ask Eva about Laura’s feet.

When HK called, a woman named Joyce Landle answered the phone. She identified herself as Laura’s guardian and Eva’s cousin. During the visit, Eva had first said she herself was Laura’s legal guardian, then corrected herself to say that Joyce, her sister, was the legal guardian. Ms. Landle was aware of the referral and HK’s visit. HK asked about the swollen feet—Joyce answered that the feet had been like that for a “long time.” Ms. Landle told HK that the only doctor in town would not treat any of the family because of unpaid bills, but later in the conversation agreed to take Laura to the doctor to have her feet looked at. HK never followed up with Ms. Landle to ensure Laura had been taken to the doctor and admitted during her deposition that Ms. Landle’s story about unpaid bills made no sense because Medicaid covered Laura’s medical expenses. Instead, on the same day of -7- No. 90 the phone conversation with Ms. Landle, HK closed the case as unfounded and in December 2009 sent a letter addressed to Laura informing her of the same determination.^[4]

Richard Cummings called HK twice, after she closed the case. He insisted that Laura was being abused (saying she had a black eye) and that she should be removed from the home. HK responded that Laura did not have a black eye when she visited, and had only the friction burn mark on her nose and chin. She instructed Richard to call back if he had new information. She did not generate a new intake report for either of Richard’s calls.

In November of 2009, sheriff deputies Connolly and Barbaritz responded to a call about a suspicious person. According to the report, a mentally disabled woman was living in an old girl scout camp after an altercation with her mother. The woman was Laura. When the deputies arrived, Laura was huddled in the comer with a blanket, quiet and introverted, unable or unwilling to speak with them. Deputy Barbaritz could tell, however, that Laura was intellectually disabled. The deputies did not know of or ask about the altercation Laura had with her mother and did not find out whether anyone had hurt her. The deputies returned Laura to her mother without making any inquiry or evaluating whether she was a domestic abuse victim. Laura was murdered two months later.

Mr. Maldovan, on behalf of Laura, identified numerous APS policies violated by its caseworkers (and some by CPS, to the extent it failed to refer Laura’s case to APS and -8- No. 90 issued an “unsubstantiated” determination when it had no jurisdiction to do so). APS’s subsequent disciplinary action against HK provides further evidence of APS’s gross negligence.^[5] No extended discussion of the evidence demonstrating APS’s and CPS’s negligence is required here, because the majority’s sole basis for rejecting Laura’s claim is that “government employees took no action that could have induced justifiable reliance” (majority op at 5).

II

A

The prospect that New York State (and its political subdivisions) should pay for injuries it causes has been established for centuries. The Erie Canal Act of 1817 authorized canal commissioners to pay for takings of land required for the construction of the canal (L 1817, ch 262). In 1825, the commissioners were further empowered to assess and pay claims for all types of damages caused by or connected with the work on the Erie or Champlain canals (L 1825, ch 275), which was broadened in 1870 to include damages -9- No. 90 sustained by the use or management of the canals arising from the negligence of any state official (L 1870, ch 321).

Meanwhile, the “great mass of claims against the state were submitted to and passed on directly by the legislature, which provided for their payment” (People ex rel. Swift v Luce, 204 NY 478, 483-84 [1912]). However, the appropriations process for paying claims against the state,

“became so unsatisfactory that the Constitution was amended in 1874 so as to prohibit the Legislature from auditing or allowing any private claim or account against the State. (Article 3, § 19.) This prohibition made it necessary for the Legislature to provide some other means for auditing private claims and for that purpose it created the Board of Audit, consisting of the Comptroller, Secretary of State and State Treasurer, who were authorized to hear all private claims and accounts against the State, except such as were then heard by the canal appraisers.” (Fifteenth Annual Report of the Court of Claims of the State of New York, April 12, 1916, at 7-8). The Board of Audit was replaced by a Court of Claims in 1897 “with somewhat enlarged jurisdiction,” which was in turn replaced, briefly, by a Board of Claims, which was again replaced by the Court of Claims in 1915 (id. at 8). Throughout this time, the State maintained sovereign immunity, so only those claims (or types of claims) specifically allowed by statute could provide for recovery against the State. Thus, for example, in Smith v State (227 NY 405, 410 [1920]), we held that a plaintiff injured because of the negligence of State employees in placing a wire across a path on a State-owned walkway was barred from recovering because the State had not made “an express waiver of the state’s immunity from liability for the tortious acts of its officers and agents.”

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The sea change came in 1929, when New York enacted a blanket waiver of its sovereign immunity for tort actions: “The state hereby waives its immunity from liability for the torts of its officers and employees and consents to have its liability for such torts determined in accordance with the same rules of law as apply to an action in the supreme court against an individual or a corporation, and the state hereby assumes liability for such acts” (L 1929, ch 467). Ten years later, the legislature broadened the waiver to reach all causes of action, not just those sounding in tort (L 1939, ch 860). As we have explained:

“[T]he Smith Court's interpretation of the waiver provision of section 264 was at odds with the public policy which seeks to reduce rather than increase the obstacles to recovery of damages, whether defendant is a private person or a public body (see, Abbott v Page Airways, 23 NY2d 502, 507; see also, Bing v Thunig, 2 NY2d 656, 666 [“(l)iability is the rule, immunity the exception”], quoted with approval in Abbott, supra, at 507, n 2). Thus, the Legislature subsequently enacted a new statute to overcome the ruling in Smith. That revision, the substance of which was incorporated into the statute now before us, “extended, supplemented and enlarged” the waiver to remove the defense of sovereign immunity for tort actions” (Jackson v State of New York, 261 NY 134, 138, rearg denied 261 NY 637) (Brown v State, 89 NY2d 172, 180 [1996]). Following the legislature’s comprehensive waiver of sovereign immunity in 1939, we understood that the State (and other governmental subdivisions) must be held liable just as private parties would be. So, for example, we held that a child injured by other children in a State-created school for delinquent children could recover damages from the State on a theory of negligent supervision, distinguishing our prior contrary precedent on the basis of the State’s waiver of sovereign immunity (Bloom v Jewish Bd. of Guardians, 286 NY 349 [1941]). In Robison v State (292 NY 631 [1944]), we affirmed a negligence award against a State hospital brought by an attendant who slipped on cooked cereal on the dining

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- 11 - No. 90 room floor. In Bernardine v City of New York (294 NY 361 [1945]), we affirmed a damage judgment for the city’s negligence where the plaintiff was injured by a runaway police horse. The trial court granted judgment for the city “on the single ground that recovery was barred by the City’s common-law immunity from liability for wrongful performance of governmental duties;” the Appellate Division reversed, holding that the General Municipal Law rendered the city liable for negligence “in the operation of a municipally owned vehicle or other facility of transportation,” which included a police horse (id. at 364). We affirmed, noting that the statute was susceptible of the Appellate Division’s interpretation, but added:

“Even so, there was no compelling reason why this plaintiff should have taken his stand upon the above provision of the General Municipal Law. Section 8 of the Court of Claims Act says: “The state hereby waives its immunity from liability and action and hereby assumes liability and consents to have the same determined in accordance with the same rules of law as applied to actions in the supreme court against individuals or corporations”. . . . None of the civil divisions of the State - its counties, cities, towns and villages - has any independent sovereignty (see N.Y. Const., art. IX, § 9; City of Chicago v. Sturges, 222 U.S. 313, 323; Keifer & Keifer v. R.F.C., 306 U.S. 381. Cf. Gaglio v. City of New York, 143 F. 2d 904). The legal irresponsibility heretofore enjoyed by these governmental units was nothing more than an extension of the exemption from liability which the State possessed. (Murtha v. N.Y.H.M. Col. & Flower Hospital, 228 N.Y. 183, 185.) On the waiver by the State of its own sovereign dispensation, that extension naturally was at an end and thus we were brought all the way round to a point where the civil divisions of the State are answerable equally with individuals and private corporations for wrongs of officers and employees, - even if no separate statute sanctions that enlarged liability in a given instance” (id.).

The effect of the waiver of sovereign immunity on tort claims based on governmental negligence is illustrated by comparing two factually similar cases. In

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- 12 - No. 90 Hughes v Monroe County (147 NY 49 [1895]), we held that an employee of the Monroe County Insane Asylum, severely injured by operating a steam mangle, could not recover in tort from the County. We explained that because the County “shared with the state the burden of caring for the insane,” the State’s sovereign immunity protected the County as well. After the legislature waived the State’s sovereign immunity, we decided Paige v State (269 NY 352 [1936]), in which a police court committed a girl to a privately-owned reformatory authorized by statute to hold her until the age of majority. She was made to operate dangerous machinery, which maimed her. The Court of Claims held that the negligence of those in charge of the reformatory “was a tort of officers and employees of the State,” so that the State was liable in tort for her injuries. The Appellate Division increased the damage award and otherwise affirmed. We also affirmed, holding:

“The quasi-penal institution in which the claimant was confined was a governmental agency to which the State had committed in part its function to care for wayward minors. (Laws of 1902, ch. 603; Corbett v. St. Vincent's Industrial School, 177 N. Y. 16.) But the institution did not thereby acquire a status equivalent to that of the civil divisions of the State. (See Murtha v. New York Homeopathic Medical College & Flower Hospital, 228 N. Y. 183.) There is no misuse of language in saying that the State employed the institution. (Cf. People ex rel. State Board of Charities v. New York Society for Prevention of Cruelty to Children, 162 N. Y. 429, 434.) If the word "agent" were found in section 12-a of the Court of Claims Act would it be held that this case was outside the State's assumption of liability? The terms "agent" and "employee" have been used interchangeably in the cases that dealt with State immunity from liability for tort. (Litchfield v. Bond, 186 N. Y. 66, 82, 83; Murtha Case, supra, p.185.) In Jackson v. State (261 N. Y. 134, 138) it was said: "Section 12-a constitutes a recognition and acknowledgment of a moral duty demanded by the principles of equity and justice." In that spirit, we accept the construction of the section here adopted by the courts below.” (Paige v State, 269 NY 352, 356 [1936]).

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The above history establishes two important propositions. First, New York State and its municipalities have always been liable to pay damages for some types of injuries arising from their own negligence. Initially, the process was a mix of specific legislative appropriations and decisions of commissions or boards, which was subsequently transferred to the Court of Claims. Second, in waiving sovereign immunity 93 years ago, the legislature completely “remove[d] the defense of sovereign immunity for tort actions” (Brown, 89 NY2d at 180) such that governmental actors would be subjected to the same standards as private defendants. We further observed that “[i]nasmuch as there is no clear definition by which wrongs are classified as torts . . . [i]t is much more likely that the term was used generally to indicate a branch of the law broader than the then-existing categories and subject to expansion as new wrongs supporting liability were recognized” (id. at 182).

B

Although the legislature waived its sovereign immunity and required that it be treated no differently than any other defendant, the courts fashioned various immunities that barred recovery in some cases even when the government acted negligently. Relevant here is the doctrine of governmental function immunity. That doctrine is found in no statute; it is part of the common law fully within our control to make, shape, bend or alter. The doctrine makes use of a distinction created well before New York waived it sovereign immunity: the distinction that municipal corporations “are possessed of dual powers; the one governmental, legislative or public, and the other proprietary or private” (Missano v Mayor of NY, 160 NY 123 [1899], citing Dillon, Municipal Corporations [fourth ed.] at

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- 14 - No. 90 § 66).6 In Missano, we held that the city was liable in tort “for the death of a child, who was run over and killed by a horse attached to an ash cart of the street cleaning department,” because the city’s duty to keep the streets clean was proprietary, not public, even though “the discharge of this duty might incidentally benefit the public health” (id. at 126, 129). The distinction between the governmental (public) and proprietary (private) functions of municipal corporations was imported from English common law (see Springfield Fire & Mar. Ins. Co. v Keeseville, 148 NY 46, 52-53 [1895] (explaining that under English common law, when a municipal corporation acted in its governmental capacity – for “public purposes and is for the public good . . . the corporation is exempt from all liability”). We noted that “the line of demarkation [between public and private] at times may be difficult to ascertain” (id. at 52), which is well evidenced by our holdings that street cleaning is private and water service is public.

That basic distinction, which provides an exemption from liability for municipalities acting in their governmental capacity, is a creature of the common law, which we have carried forward to the present day (see Turturro v City of N.Y., 28 NY3d 469, 478-79 [2016]). In carrying that doctrine forward over the past two centuries, we have altered it many times, as is not just our right, but our duty. Cases in which our precedent has allowed for governmental liability (and, thus, necessarily are ones in which the government bore a As to commonsense, “the juristic philosophy of the common law is at bottom the philosophy of pragmatism” (Benjamin N. Cardozo, The Nature of the Judicial Process at 102). What sense does it make to apply a standard of reliance created for persons capable of reliance to someone incapable of reliance? The legislature understood that it would make no sense to do so, which is why its grant of immunity to those working with these specific vulnerable populations – definitionally incapable of self-care – was carefully limited.

The legislative history surrounding the 1979 amendments adding the immunity provisions explain that some measure of immunity from liability was needed to make sure that persons employed to protect these specialized, vulnerable populations be able to perform their responsibilities “in a professional and effective manner”, and that institutions hiring workers be able to attract caring and responsible employees (Bill Jacket 1979 ch. 446 at 8). Two important conclusions follow from the legislature’s decision that APS and CPS should be liable for the gross negligence or willful misconduct of their employees. First, the legislature understood that, without the immunity provided in the amendment, the common law would allow for ordinary negligence actions when against APS and CPS.

- 28 - - 29 - No. 90 Second, the legislature chose to strike a balance between the need for quality services and the need to redress wrongs by drawing the line at gross negligence. Those two points are crucial, each for its own reason. As to the first, we assume the legislature is familiar with our jurisprudence when it acts (see Transit Commn. v. Long Is. R.R. Co., 253 NY 345, 355 [1930]). Whereas many persons with disabilities like Laura’s had previously been housed in governmental institutions, the State’s policy in 1975, spurred by federal legislation, was to reduce the number of such institutions and, instead, provide protective services in noninstitutional settings (Bill Jacket 1975 ch 841 at 15-16). Under the prior regime, as evidenced by several of our prior decisions referenced earlier herein, such institutions would have been liable to their residents for acts of ordinary negligence. The legislature’s conclusion that, but for the statutory grant of limited immunity, APS and CPS would be liable for ordinary negligence, reinforces the understanding that under the common law, the state bore a special duty to such persons, whether physically housed in a state facility or, with the change in policy, supervised in the community. Viewed against the many examples in which we have found negligence claims against governmental actors viable, what does commonsense tell us about Laura’s ability to recover for gross negligence, when compared, for example, to an employee of a state institution who slips on cereal? The second point is even more important: the legislature itself has indicated the way in which the common law should draw the line as to governmental function immunity concerning these vulnerable populations. The majority cannot point to any other - 29 - - 30 - No. 90 circumstance in which the legislature has done so; none of our special duty cases involve a situation in which the legislature has indicated its choice that a governmental entity be liable under certain standards of care but not others. Had the legislature desired the majority’s result here, it would have provided a blanket immunity. It chose not to. I can find no other circumstance in which our Court has “declined the invitation” to render the government liable where the invitation comes from the government itself, in the form of a statute setting out the terms of the government’s own liability.

As to caselaw, the majority refuses to excuse Laura from the reliance element despite her severe intellectual disability, even though adapting a standard to the specificities of a particular type of plaintiff is a well-established practice in our common law (see, e.g., Silverstein v Metropolitan Life Ins. Co., 254 NY 81, 85 [1930] [“If a man with an abnormally thin skull be struck a blow which would not seriously injure a normal man, but which causes his death, it is perfectly plain that the cause of death is not the thinness of the skull, but the receipt of the blow”] [internal quotation marks and citation removed]; Dimino v Burriesci, 125 AD2d 361, 362 [2d Dept 1986] [“In this instance, where the infant plaintiff was 5 1/2 years old, the court improperly submitted this issue to the jury, and exacerbated the error by charging an objective standard of care, i.e., what a reasonably prudent child of the infant plaintiff's age would exercise, rather than the subjective one correctly employed in evaluating whether a child's conduct constitutes a

- 30 - - 31 - No. 90 statutory violation, i.e., what the infant plaintiff is mentally capable of, based on his age, experience, intelligence, and development” [emphasis added]). Our function as a common law court is to adapt the law to particular circumstances and current needs. Instead of attempting to fashion a standard suitable to plaintiffs like Laura, the majority sidesteps that responsibility entirely and chooses, instead, to focus on the reliance of Justice Stevens and Richard Cummings, holding that neither could have relied on CPS/APS because they were told the investigation was closed. The majority expresses its willingness to reconsider the question of reliance in another case, where the vulnerable adult does not have a “competent adult family member advocating on their behalf” (majority op at 7-8). That offer gets the reliance analysis backwards. In Applewhite and Sorchetti, we modified the common law to allow mothers who sought to protect their children to satisfy Cuffy’s reliance standard. In those cases, we did so as a way of expanding liability. Here, the majority is using it the opposite way – as if Richard or Justice Stevens had some legal responsibility for Laura or were acting as agents (unbeknownst to her), so that their supposed lack of reliance on APS can be attributed to Laura to negate the existence of a special duty. For a moment, imagine that the majority would have been willing to eliminate Cuffy’s reliance factor for Laura if she had no “competent adult family member advocating on [her] behalf.” Neither Richard nor Justice Stevens had any legal responsibility for Laura; Richard was overseas in the military and Justice Stevens is not a family member at all. Yet, if we take the majority’s future willingness seriously, Laura’s claim fails solely - 31 - - 32 - No. 90 because Richard and Justice Stevens bothered to call APS and CPS. Of course, had they not suspected anything, APS and CPS would not have investigated at all, which also would have spared those agencies liability. In any event, the facts here present a triable issue as to whether Richard and Justice Stevens relied on promises made by APS. Richard called APS twice, after it had closed the investigation. He insisted that Laura was being abused and had to be taken out of the home—the APS caseworker refused to generate a new intake after each of his calls and told him she had found no evidence of abuse. Justice Stevens also called twice, first CPS, then APS, before he was told the investigation had been closed. A trier of fact could conclude that the findings of no abuse constituted representations on which Richard and/or Justice Stevens could rely, and that APS’s instruction that Richard call back if he had new information assured him that APS would investigate properly. If I take my car to an auto mechanic because the brakes seem bad, and the mechanic assures me he has checked thoroughly and the brakes are fine, but then it turns out he never checked the brakes and I crash, haven’t I relied to my detriment on that representation? Essentially, Justice Stevens and Richard may have justifiably trusted CPS and APS’ assurances that they found no evidence of abuse. Whether they did so is a triable issue of fact. By bypassing Laura in its analysis and imputing the responsibility to rely to Justice Stevens and Richard, the majority defeats the legislature’s intent in enacting Social Services Law § 473—to create an agency, APS, which must help those adults who cannot help themselves and who have no one to assist them. With its decision, the majority - 32 - - 33 - No. 90 confirms for all adults like Laura what they fear most: they are alone. The legislature did not intend so, and the common law does not require so. Orders affirmed, with costs. Opinion by Judge Troutman. Acting Chief Judge Cannataro and Judges Garcia and Singas concur. Judge Wilson dissents in part in an opinion. Judge Rivera took no part. Decided November 22, 2022 - 33 -