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

Texas Supreme Court, 1998.

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.


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