Baker, J.
Courtney, Ruth, and Kevin Weikart filed a lawsuit against the Whitko Community School Corporation (the School) and the Town of South Whitley, Indiana (the Town), after a school resource officer allegedly failed to report Courtney’s allegation that she had twice been gang raped. The Appellees filed a motion to dismiss for failure to state a claim, which the trial court granted, finding as a matter of law that there is no civil cause of action based upon a failure to report. The Weikarts appeal, arguing that their complaint makes a prima facie case for breach of a special duty by a police officer. Finding no error, we affirm.
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The Weikarts concede that there is no private civil cause of action against a person who fails to report child abuse or neglect. E.g., Sprunger v. Egli, 44 N.E.3d 690, 693 (Ind. Ct. App. 2015). They argue, however, that their complaint is not based on Officer Gilbert’s failure to make a report; instead, they insist that it is based upon his “breach of special duty” as a law enforcement officer. Appellants’ Br. p. 9.
Initially, we note that this is the first time the Weikarts have raised this argument. Neither their complaint nor their response to the Appellees’ motion to dismiss includes a claim that Officer Gilbert breached a special duty. Therefore, they have waived this argument. E.g., Pardue v. Smith, 875 N.E.2d 285, 289-90 (Ind. Ct. App. 2007) (noting that appellants may not change their theory on appeal).
Waiver notwithstanding, the heart of this argument is the Weikarts’ new claim that Officer Gilbert “owed a duty, special to Courtney, to carry out his police duties and to protect her informant activities from public disclosure.”… Ultimately, the Tanasijevich Court held that “subsequent to a citizen’s collaboration with police in the investigation of criminal activities, a [s]pecial duty to protect that individual from criminal retaliation may arise if that danger appears reasonably likely to occur.” Id. at 674, 383 N.E.2d at 1084.
We find Tanasijevich readily distinguishable from the case before us because there are no factual allegations here tending to suggest a special relationship between Courtney and Officer Gilbert. The complaint does not allege that Officer Gilbert solicited Courtney to be an “informant.” Appellant’s Br. p. 10, 11. Instead, it merely states that he “obtained information” from her “with regard to drug activity.” Appellants’ App. Vol. II p. 8.3 Unlike in Tanasijevich, therefore, none of Officer Gilbert’s alleged actions narrowed his general public duty into a specific one owed to Courtney.
The Weikarts concede that there is no private right of action stemming from a failure to report. And even if they had not waived their argument related to a “special duty,” they have failed to show as a matter of law that such a duty existed in this case. Consequently, the trial court did not err by granting the Appellees’ motion to dismiss.
The judgment of the trial court is affirmed.
Kirsch, J., concurs.
Crone, J., concurs with a separate opinion.
Crone, Judge, concurring.
I concur because the Weikarts have stipulated that there is no private civil cause of action against a person who fails to report child abuse and because they have waived their “special duty” argument by raising it for the first time on appeal. I do so reluctantly, however, because the Indiana Supreme Court has not definitively held that the child abuse reporting statutes do not confer a private civil cause of action, and the school resource officer’s egregious violations of those statutes in the context of his special relationship with C.W. call out for a remedy for the injuries to her person and reputation as promised by Article 1, Section 12 of the Indiana Constitution.
This child was victimized by two horrible sexual assaults, and when Officer Gilbert failed to help her, she was victimized once again by the publicity surrounding his arrest. I have great respect for law enforcement officers, and they are often faced with difficult split-second decisions that can have life-or-death consequences for which they should not and do not incur civil liability. This was not one of those situations.
I apologize to this child and her family for being neither learned enough nor wise enough to think of an adequate remedy for them given the current state of our law, which leaves the constitutional promise of a remedy unfulfilled. It is not right, and I hope one day it will change.