Perry
v. S.N. and S.N.
973
S.W.2d 301.
Prosser,
pp. 212-217
Facts: The plaintiff’s kids were
abused at day care. The defendants
allegedly witnessed the abuse but didn’t report it in violation of a criminal statute. The plaintiffs sued for negligence per se
based on violation of that statute. The defendants
moved for summary judgment on the ground that the plaintiffs failed to state a cause
of action.
Issue: Does the statute in
question establish a standard of conduct in tort?
Rule: The absence of an
equivalent common law duty should be considered when decided whether negligence
per se applies to the statute in question.
Beyond this, there are a variety of factors a court may consider in
deciding whether to create a new legal duty.
Analysis: Some statutes merely codify
common law duties. However, there is no
common law duty to report child abuse.
There
are several possible factors in favor of recognizing negligence per se in this
case:
1. The
legislature has implicitly declared by passing criminal statutes that those statutes
are practical to follow and socially desirable.
However, this is true with every criminal statute and doesn’t help
distinguish between those that should establish standards of conduct and those
that should not.
2. If a criminal statute
is on the books, citizens will have notice of their duties.
There
are also several possible factors cited against establishing a new duty:
1. It is too ambiguous
what conduct is required by the statute in many cases.
2. The statute
could establish liability without fault.
However, it is argued that this is not the case for this statute because
the offense requires the mens rea that the person knowingly fails
to report child abuse.
3. The statute
could impose liability grossly out of proportion with the seriousness of their
conduct. The legislature intended that
failure to report be punished much less severely than actual child abuse. However, in tort, the person who fails to
report could be held liable for all the damages of the abuser.
4. The injury
caused by the offense is indirect.
The
court decides that the statute does not establish a standard of conduct. Thus, it finds that the plaintiffs failed to
state a cause of action.
Conclusion: The court renders judgment
against the plaintiffs.