In Tara N.P. v Western Suffolk Bd. of Cooperative Educational Services (No. 8) previewed here, a teenage female student was sexually assaulted by a Level III sex offender that Suffolk County had assigned to perform maintenance work at the BOCES program where the student was taking classes. The County owned the property and leased the building to the BOCES program, and also explicitly agreed that it would not assign anyone with a criminal record to work there. After the assault, the student sued the BOCES program and the County on negligence and premises liability grounds.
The Court of Appeals held, however, that the County was acting in its governmental capacity when it referred the offender to work at the BOCES-program, not in a proprietary capacity as landlord of the premises. The plaintiff’s allegation of negligence, the Court explained, was not the failure to implement security measures to prevent the sexual assault, but the County’s negligent referral of the offender to the BOCES program notwithstanding its promise not to send individuals with criminal records to the program. That, the Court held, was a failure within the County’s administration of the governmental program, which thus the County was immune from suit in the absence of a special duty owed to the Plaintiff.
The Court also rejected the Plaintiff’s assertion that the County voluntarily assumed a special duty to keep the Plaintiff safe while at the BOCES program. “Even if the County promised that it would not refer anyone with a criminal background, that promise would have been made only to NACEC and there is no evidence that plaintiff ever had any knowledge of NACEC’s request.” (Opn, at 7). Nor did the Plaintiff ever have any direct contact with the County that could have given rise to reasonable reliance on the County’s promise, the Court held. Accordingly, the Court held that the County was immune from liability for the suit.
The Court of Appeals’ opinion can be found here.