# Borne Ex Rel. Borne v. Northwest Allen County School Corp.

> Indiana Court of Appeals · January 17, 1989 · 532 N.E.2d 1196

URL: https://www.frixlaw.com/law-library/cases/9523405

## Case

- **Full name:** Amanda BORNE, by Next Friend Bruce BORNE and Marilou Borne, Plaintiffs-Appellants, v. NORTHWEST ALLEN COUNTY SCHOOL CORPORATION and Its Employees, Ellen West and Gilbert Baumgartner, Rita Michael, Lena Lindsey and Steven Fair, Defendants-Appellees
- **Court:** Indiana Court of Appeals
- **Decided:** January 17, 1989
- **Citations:** 532 N.E.2d 1196; 1989 Ind. App. LEXIS 18; 1989 WL 3581
- **Precedential status:** Published
- **Opinion:** Dissent by Hoffman
- **Judges:** Garrard, Sullivan, Hoffman
- **Cited by:** 52 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9523405

## How later opinions describe it (automated extraction)

- holding that a statute requiring individuals to orally report suspected child abuse and neglect did not create a private cause of action because, even though the reporting requirement individually benefitted potential victims of child abuse and neglect, “there [was] no apparen…
- holding that child abuse reporting statutes do not create a private right of action for failure to report abuse

## Opinion text

HOFFMAN, Judge,
dissenting.
I respectfully dissent. The majority opinion too broadly interprets the holding in Peavler v. Monroe Cty,. Bd. of Com'rs (1988), Ind., 528 N.E.2d 40 . While our Supreme Court rejected the traditional ministerial/discretionary test to determine governmental immunity in favor of the planning/operational test, it does not necessarily follow that West's actions were not the result of a conscious balancing of risks and weighing of priorities.
The Court enumerated factors to consider which would normally indicate a finding of immunity. One of the factors regarding the nature of the conduct seems applicable here: "[wlhether the conduct involved the balancing of factors without reliance on a readily ascertainable rule or standard." West's actions could fall into this category. Further, historically the same type of teacher function decision making has been found to be immune. See Driscol et al. v. Delphi School Corp. (1972), 155 Ind.App. 56 , 290 N.E.2d 769 . It is not apparent that the Peavier decision would alter that finding.
Also, the test announced in Peavier may suffer from an infirmity similar to that inherent in the former test; that is, the difficulty in determining at what level of policy making does the division between planning and operation commence. It is not inconceivable that West's actions were or were based upon some level of policy making.
For the reasons above I would vote to affirm the trial court.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9523405. Public record. Not legal advice.