finding that there was no common law duty to report child abuse, and that the "[Llegisla-ture has declined to codify a civil cause of action against an adult who knowingly fails to report alleged child abuse"
How later courts described this case
- finding that there was no common law duty to report child abuse, and that the "[Llegisla-ture has declined to codify a civil cause of action against an adult who knowingly fails to report alleged child abuse"
- "[Olur legislature has already taken steps to encourage reporting of child abuse by making it a Class B misdemeanor for a person who has reason to believe such abuse or neglect exists to knowingly fail to report his or her belief to the local child protection service or law enforcement agency. However, like the majority of state legislatures, our legislature has declined to codify a civil cause of action against an adult who knowingly fails to report alleged child abuse.... Absent codification, we are not convinced that extending a civil remedy to a victim of abuse or neglect against all persons who know of child abuse and fail to report child abuse is good public policy. Rather, we agree with the [Borne ] majority."
- "This court has held that when a defendant's alleged negligence arises from nonfeasance, the complete omission or failure to perform, as opposed to misfeasance, negligent conduct or active misconduct, then the duty to act must arise from a special relationship between the parties"
- "As a civil society we certainly encourage third parties and bystanders to aid the helpless, the homeless, and victims of catastrophe. See, e.g., Ind.Code § 34-4-12-1 (commonly referred to as the "good Samaritan statute” which encourages persons to render emergency care to accident victims).”
Written by the judges who cited it.
Later courts went against this
Abrogated on other grounds by Holt v. Quality Motor Sales, Inc., 776 N.E.2d 361 (2002)
Cf. J.A.W. v. Roberts, 627 N.E.2d 802, 813 (Ind.Ct.App.1994) (finding that there was no common law duty to report child abuse, and that the "[Llegisla-ture has declined to codify a civil cause of action against an adult who knowingly fails to report alleged child abuse") (Rucker, J.), abrogated on other grounds by Holt v. Quality Motor Sales, Inc., 776 N.E.2d 361 (Ind.Ct.App.2002), trans. denied.
The opinion
BARTEAU, Judge,
concurring in result.
I fully concur with affirming the summary judgment in favor of James Collins. However, while I agree with the results reached as to the others, I do have concerns about the applicable law.
In determining whether a duty exists in a negligence action based on misfeasance, clearly, the proper balancing test to use is found in Webb v. Jarvis (1991), Ind., 575 N.E.2d 992 , reh'g denied: (1) the relationship between the plaintiff and defendant; (2) foreseeability of harm to the plaintiff; and (8) public policy concerns. However, this case concerns the nonfeasance of the defendants. As stated in the majority opinion:
[Wlhen a defendant's alleged negligence arises from nonfeasance, ... as opposed to misfeasance, ... then the duty to act must arise from a special relationship between the parties Lather v. Berg (1988), Ind.App., 519 N.E.2d 755 , reh'g denied. Absent a special relationship between a plaintiff and a defendant, we will not impose a duty on the defendant to take affirmative steps to prevent harm to the plaintiff. Ember v. B.F.D., Inc. (1986), Ind.App., 490 N.E.2d 764 , modified and reh'g denied, 521 N.E.2d 981 , trans. denied.
(At 809; my emphasis). I do not agree onee it is determined a special relationship does not exist, that we must continue analyzing the other factors in the Webb test to determine whether a duty exists. As stated in Lather, where the negligence action is for nonfeasance, absent a special relationship, no duty, and therefore no liability, will attach. 519 N.E.2d 755 . That ends our inquiry as to each of the defendants, except Francis. If the fact-finder determines that Francis did have a special relationship with J.W., then the remaining factors of the Webb test are appropriately balanced with the presence of a special relationship to determine whether a duty should be imposed.