# J.A.W. v. Roberts

> Indiana Court of Appeals · January 13, 1994 · 627 N.E.2d 802

URL: https://www.frixlaw.com/law-library/cases/9707289

## Case

- **Full name:** J.A.W., Appellant-Plaintiff, v. Loretta ROBERTS, Joseph F. Bottorff, Gordon Chastain, James Collins, Richard Francis, Fran Gummerson, Sharon Miller, Nicholas Sanders and Mark Wright, Appellees-Defendants
- **Court:** Indiana Court of Appeals
- **Decided:** January 13, 1994
- **Citations:** 627 N.E.2d 802; 1994 Ind. App. LEXIS 3; 1994 WL 6594
- **Precedential status:** Published
- **Opinion:** Concurrence by Barteau
- **Judges:** Rucker, Barteau, Sullivan
- **Cited by:** 41 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Abrogated on other grounds by Holt v. Quality Motor Sales, Inc., 776 N.E.2d 361 (2002).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9707289

## How later opinions describe it (automated extraction)

- 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"

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9707289. Public record. Not legal advice.