F: The children of P were being s-xually and physically abused by the husband and co-owner of a day care facility.
Friends of the owner’s had direct knowledge the abuse was occurring and failed to report it to the authorities as required by statute, nor did they attempt to stop the activity.
Ps Argument: The duty of care for the D would be established by the statute requiring them to report child abuse.
Ds Argument: D did not have knowledge of the conduct, only possible awareness or suspicion.
TC granted summary for D. AC affirmed summary, but reversed and remanded on issues of negligence per se and gross neg.
I: Whether P can maintain an action for negligence for D violations of statute requiring them to report the abuse of children? R: No
failure to report child abuse is not negligence per se.
A: The children are within a class of persons whom the statute seeks to protect, and they suffered the kind of injury the statute intended to prevent. To impose tort liability upon third parties would create great changes in tort liability law.
At common law there is not general duty to protect another from the criminal acts of a third party or to come to the aid of another in distress. Based on this ct’s practice and the observations of noted scholars, we conclude that the absence of a relevant common law duty should be considered in deciding whether to apply negligence per se to the statute.
Co: why is the statute is inappropriate in this case?
1. is the defining the preexisting c/l duty?
2. Suppose 3 test is met, now what? Enough. Then the only question remaining is the causation and damage. (Martin v. Herzog) However, (Zeni v. Anderson, in most states) – The story does not end here (not enough). Her walking on sidewalk by the violation of statute is reasonable. It was reasonable to do so, when violating the statute.
Effect of per se negligence - shifts burden to D; D acted reasonable.