In McClean v. City of New York, a 3 month old baby sustained traumatic brain injuries while at the First Steps Family Day Care Center in 2000. The infant’s mother sued the City arguing that complaints made in 1997 and 1998 against First Steps by the City’s Adminsitraion for Children’s Services should have prevented the City’s Department of Health from relicensing the center in 1999. The City moved for summary judgment arguing that the City could not be liable for the negligent performance of a governmental function. The New York Supreme Court denied the City’s motion and the First Department affirmed holding that issues of fact existed about the City’s and State’s obligations to McLean and her daughter . The Court of Appeals, however, reversed, holding that a government agency “is not liable for the negligent performance of a governmental function unless there existed a special duty to the injured person, in contrast to a general duty owed to the public.”

Thanks to Cheryl Fuchs for her contribution to this post.

http://www.nycourts.gov/ctapps/decisions/2009/mar09/46opn09.pdf