Duty Per Se: Reading Child Abuse Statutes to Create a Common Law Duty in Favor of Victims
21 Pages Posted: 21 May 2012 Last revised: 24 May 2013
Date Written: May 21, 2012
This article examines recent high-profile cases involving the sexual abuse of children. It focuses on a case involving a Delaware pediatrician convicted of sexually molested hundreds of children, and also discusses cases of alleged abuse by priests and by a Pennsylvania State University football coach, Jerry Sandusky. The article proposes that courts use "duty to report" statutes to recognize a common law duty for medical professionals who know or suspect abuse to report it. Failure to discharge that duty should result in liability where the causal connection between that failure and subsequent abuse can be established.
The article introduces the concept of duty per se, and, building on insights from the Restatement (Third) of Torts, distinguishes cases of affirmative duty to act from cases of misfeasance that are considered under a negligence per se analysis. It proposes that courts consider four questions in deciding whether a statutory duty to act should create a corresponding duty under common law: (1) How important is the state’s interest in preventing the harm the statute covers? (2) How closely connected is the class of actors upon whom the duty is imposed to the harm suffered? (3) Is the prospect of tort liability for failure to follow the statutory directive likely to cause unintended consequences for those upon whom the duty is imposed? (4) How likely is it that this harm will be adequately addressed by other means?
In the case of child abuse statutes, the answers strongly counsel courts to recognize a duty by medical professionals to report child abuse, under penalty of tort liability for failing to do so.
Keywords: child abuse, duty to report, tort law, duty per se, torts
JEL Classification: K13
Suggested Citation: Suggested Citation