Torts I, Pages 229–234

Perry v. S.N. and S.N.

Texas Supreme Court, 1998

Facts:

B.N. and K.N. attended a day care operated by the Kellers from March to August, 1991. Their parents, the plaintiffs S.N. and S.N., allege that during that period the Kellers abused the children, including theirs, both physically and sexually. Plaintiffs brought suit against the Kellers and three of the Kellers' friends: Perry, White, and Quintero. Plaintiffs say Keller confided his abuse to White, and that all three witnessed the Kellers abusing children, without attempting to stop or report them.

Procedural History:

Trial court granted summary judgment for defendants, but the court of appeals reversed and remanded plaintiffs' negligence per se and gross negligence claims for trial.

Issue:

LexisNexis IconWestLaw LogoGoogle Scholar LogoPage 231, Paragraph 2Is it appropriate to impose tort liability on any person who "has cause to believe that a child's physical or mental health or welfare has been or may be adversely affected by abuse or neglect and knowingly fails to report?"

Plaintiff's Argument:

LexisNexis IconWestLaw LogoGoogle Scholar LogoPage 230, Paragraph 2Defendants were negligent per se because they violated a statute requiring any person who "has cause to believe that a child's physical or mental health or welfare has been or may be adversely affected by abuse" to file a report with the police or the Department of Protective and Regulatory Services. This caused them harm by allowing the day care to remain open.

Defendant's Argument:

Plaintiffs failed to state a cause of action.

Rule:

A series of factors determines tort liability based off statute violations:

  • Whether there is a relevant common law duty
  • Whether the statute clearly defines the prohibited or required conduct
  • Whether applying negligence per se to the reporting statute would create liability without fault
  • Whether negligence per se would impose ruinous liability disproportionate to the seriousness of the defendant's conduct
  • Whether the injury resulted directly or indirectly from the violation of the statute

Reasoning:

  • Exceptions exist, but none apply here.

    LexisNexis IconWestLaw LogoGoogle Scholar LogoPage 231, Paragraph 4

    B.N. and K.N. are within the class of persons whom the child abuse reporting statute was meant to protect, and they suffered the kind of injury that the Legislature intended the statute to prevent.

  • Common law generally has no duty to protect another from criminal acts of another. In most negligence per se cases the defendant already owes the plaintiff a common law act. Recognizing a new statutory duty brings about a great change in the common law, especially when it criminalizes inaction like here.

  • Defendants allegedly had clear knowledge of the abuse that the statute concerns.

  • It would not create liability without fault because the statue criminalizes only failure to report when you know of the abuse.

  • It the defendants' conduct was failure to report child abuse, not child abuse itself.

  • The resulting injury was extremely indirect, a factor against imposing tort liability.

  • Other states with mandatory reporting statutes similar to Texas's have concluded that failure to report child abuse is not negligence per se.

Holding:

No, it is not appropriate to adopt the statute as establishing a duty and standard of conduct in tort. Judgment reversed; plaintiffs take nothing.

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