Altice, J.
Case Summary
John Doe #1 (Doe) and his family, wife – Jane Doe #1, two young adult sons – John Doe #2 and John Doe #3, and minor daughter – Jane Doe #2, filed a civil action against the Indiana Department of Child Services (DCS) alleging negligence in failing to protect Doe’s identity as the reporting source of suspected child neglect. Although acknowledging that the disclosure violated Ind. Code § 31-33-18-2, DCS filed a motion for summary judgment arguing that the statue did not provide for a private right of action. The trial court granted summary judgment in favor of DCS and dismissed the action with prejudice. On appeal, the Does argue that summary judgment was improperly granted because DCS owed Doe a duty to maintain confidentiality under both the statute and common law.
We reverse and remand.
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The parties present us with an issue of first impression: whether I.C. § 31-33- 18-2 confers a private right of action for a violation of DCS’s statutory duty to protect a reporter’s identity….
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The parties dispute whether the legislature intended to hold DCS civilly liable for damages resulting from the violation of I.C. § 31-33-18-2’s confidentiality requirements. We leave this issue for another day because on the specific facts before us, we conclude that DCS owed Doe a private duty based on the common law.
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Similar considerations are at play in the instant case. A special relationship was clearly established when Doe made the call to the DCS hotline and, after making his report, indicated his reluctance to give identifying information. Justifiably relying on the DCS employee’s explicit assurance that such information would be kept confidential, Doe then provided the information. The reasonable foreseeability of harm to Doe and his family upon improper disclosure of this information was evident, as implicitly recognized by DCS’s own policies and I.C. § 31-33-18-2. Ultimately, the Does were left in a far worse position after Doe called the hotline and relied on DCS’s promise.
DCS argues that Kohler and Mullin addressed a governmental entity’s failure to come to the rescue, not failure to maintain confidentiality. [Footnote omitted.] Undeniably, this case presents a different context, but the factors set out in Mullin may be seamlessly applied here to determine whether to impose a private duty on DCS. Further, it is important to recognize that the Does are not seeking to enforce a general right of confidentiality. Their argument, rather, is based on the special relationship established between DCS and Doe during the call in which the assurance was made and reasonably relied upon to the Does’ detriment.
Under the specific circumstances of this case, the Does have established the existence of a private duty owed to Doe by DCS. Accordingly, we reverse the entry of summary judgment and remand this action to the trial court for further proceedings.
Judgment reversed and cause remanded.
Kirsch, J., concurs.
Vaidik, C.J., dissents with opinion.
Vaidik, Chief Judge, dissenting
I respectfully dissent. Although the majority left “for another day” the issue of whether Indiana Code section 31-33-18-2 creates a private right of action when DCS fails to protect the identity of a person who reports child abuse or neglect, I believe that this issue must be addressed and that the legislature did not intend to create a private right of action. And because there is no private right of action under the statute, there is no special relationship between DCS and a person who reports child abuse or neglect when that DCS employee essentially reiterates the requirements of the statute to the reporter. Put differently, no special relationship was created when Doe called the DCS hotline and was told by the DCS employee that his information was confidential, because the DCS employee’s response was nothing more than a statement of what Section 31-38-18-2 requires. I would therefore affirm the trial court’s grant of summary judgment in favor of DCS.
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