from the Marion Superior Court Civil Division 11, No.
49D11-1404-CT-11045 The Honorable John F. Hanley, Judge
Petition to Transfer from the Indiana Court of Appeals, No.
ATTORNEY FOR APPELLANTS Christopher D. Wyant Wyant Law
Office, LLC Indianapolis, Indiana
ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General
of Indiana Frances Barrow David Steiner Deputy Attorneys
General Indianapolis, Indiana
Indiana Department of Child Services told a child-abuse
reporter that his report was confidential, but then released
it without redacting his identity. The reporter and his
family sued DCS based on both the statute protecting reporter
anonymity and our common law. We denounce DCS's
thoughtlessness, but find no basis for liability under either
theory. The statute protecting anonymity provides no private
right of action-and we will not judicially infer one since
the statute's main purpose is to protect children in
general and since it already provides enforcement mechanisms.
Likewise, DCS's recitation of the confidentiality statute
did not create a common-law duty. We thus affirm summary
judgment for DCS.
and Procedural History
Doe #1 lived with his wife, two adult sons, and minor
daughter in a small southern-Indiana town where
"[e]verybody knows everybody." Each Wednesday, John
drove neighborhood children to church. Over time, he noticed
that something wasn't quite right with some of his young
passengers-eventually suspecting they were victims of abuse
talking it over with his wife, John called the DCS abuse and
neglect hotline to report his suspicions. Near the end of the
call, the DCS hotline employee asked for his contact
information. Hesitant, John said he did not want anyone to
know he called. But the operator explained, "Well,
it's confidential. Nobody will find out." John gave
his first name and phone number, then hung up.
days later, John was mowing the grass when an irate neighbor
began screaming at him while waving the DCS report-which was
unredacted. Word spread around town and the Does were soon
labeled "snitches." John was "stared at,
glared at, mooned, flipped off, [and] yelled at." His
wife was threatened that someone might "cut that smirky
grin off" her face. Their daughter required counseling
because of bullying at school. And the Does' sons
hesitated to go outside- thinking twice about cooking on the
grill or taking out the trash. All this harassment shook the
family, making them wish they could afford to leave their
longtime home for a different city.
Does sued DCS for negligently disclosing John's identity,
raising two theories: one statutory, the other common-law.
First, they claimed that the statute requiring DCS to protect
reporter identity-Indiana Code section 31-33-18-2
("Section 2")-implies a private right of action.
Second, they asserted that the DCS hotline operator's
statement that "[n]obody will find out" was a
promise creating a common-law duty of confidentiality. DCS
moved for summary judgment, asserting that Section 2 implies
no right of action because it was designed to protect
children by encouraging reporting, rather than to enable
lawsuits, and that the common law imposes no duty on this
record. The trial court granted summary judgment for DCS.
divided panel of the Court of Appeals reversed. Doe v.
Ind. Dep't of Child Servs., 53 N.E.3d 613
(Ind.Ct.App. 2016). The majority declined to address whether
Section 2 implied a right of action-finding instead that DCS
owed the Does a common-law "private duty" based on
the hotline worker's "promise" of
confidentiality. Id. at 616-17 (citing Mullin v.
Mun. City of S. Bend, 639 N.E.2d 278, 284-85 (Ind.
1994)). Chief Judge Vaidik dissented, believing that Section
2 implied no right of action because its thrust was
encouraging reporting, not enabling lawsuits, and that the
common-law claim failed as well because the private-duty test
applied only to emergency-dispatch situations. Id.
at 618-21 (Vaidik, C.J., dissenting).
granted DCS's petition to transfer, thereby vacating the
Court of Appeals decision. Ind. Appellate Rule 58(A).
review summary judgment de novo, affirming only when the
designated evidence reveals no genuine issue of material fact
and entitles the moving party-here, DCS-to judgment as a
matter of law. Ind. Trial Rule 56(C); Hughley v.
State, 15 N.E.3d 1000, 1003 (Ind. 2014).
issue are two legal questions that we also address de novo.
First, does Section 2, which prohibits DCS from identifying
reporters, create a private right of action? Howard
Reg'l Health Sys. v. Gordon, 952 N.E.2d 182, 185
(Ind. 2011) (reviewing the existence of a private right of
action as a matter of law). Second, if not, does the common
law nevertheless impose an actionable duty on DCS for telling
John that his report was "confidential"? Rogers
v. Martin, 63 N.E.3d 316, 320 (Ind. 2016) (reviewing the
existence of a common-law duty, absent genuine issues of
material fact, as a matter of law).
prevail on their negligence claims, the Does must prove that
DCS (1) owed them a duty, (2) breached that duty, and (3)
proximately caused their injuries. Rogers, 63 N.E.3d
at 321. Here, the parties dispute only the first element:
whether DCS owed a duty of confidentiality under Section 2
and, if not, whether it owed one under the common law. Though
DCS's disclosure was irresponsible, it cannot trigger
civil liability under either theory.
Section 2 Provides No Private Right of
parties agree that Section 2 does not expressly provide a
private right of action; they dispute only whether it implies
one. This is purely a question of legislative intent, not
judicial preference: did the General Assembly intend Section
2 to create a right of action, despite not saying so
expressly? See Alexander v. Sandoval, 532 U.S. 275,
286-87 (2001). We have "long been reluctant" to
infer this unwritten intent, since the legislature
often creates rights of action using clear
language. See F.D. v. Ind. Dep't of Child
Servs., 1 N.E.3d 131, 143-44 (Ind. 2013) (Rush, J.,
concurring in part and dissenting in part). This reluctance
to invade the legislature's purview has developed into a
two-part rule: we usually will not infer a private right of
action when the statute (1) primarily protects the public at
large and (2) contains an independent enforcement mechanism.
See, e.g., Gordon, 952 N.E.2d at 187
(citing Estate of Cullop v. State, 821 N.E.2d 403
(Ind.Ct.App. 2005)); LTV Steel Co. v. Griffin, 730
N.E.2d 1251, 1260 (Ind. 2000). We address each part in turn.
The statute's mission is to protect children, not
statute is designed mainly for public benefit, it implies no
right of action; incidental benefits to a private party make
no difference. See Sprunger v. Egli, 44 N.E.3d 690,
693-94 (Ind.Ct.App. 2015); C.T. v. Gammon, 928
N.E.2d 847, 853-54 (Ind.Ct.App. 2010); Whinery v.
Roberson, 819 N.E.2d 465, 475 (Ind.Ct.App. 2004),
trans. dismissed; Borne ex rel. Borne v. Nw.
Allen Cty. Sch. Corp., 532 N.E.2d 1196, 1203
(Ind.Ct.App. 1989), trans. denied. In
Borne, for example, a child-abuse victim sued an
elementary-school principal for breaching his statutory duty
to report abuse. 532 N.E.2d at 1202. Though that statutory
duty would have undeniably benefited the particular
child-abuse victim, the Court of Appeals refused to infer a
private right of action since the statute's "primary
thrust" was helping children in general. Id. at
statute here has the same "primary thrust" as the
statute in Borne. Indeed, they are both part of the
"Reporting and Investigation of Child Abuse and
Neglect" scheme, which declares five purposes all
revolving around helping children in general:
(1) encourage effective reporting of suspected or known
incidents of child abuse or neglect;
(2) provide effective child services to quickly investigate
reports of child ...