Lary D. Garrett
Garrett & Garrett
Moorefield, West Virginia
Jeffrey R. Roth
Petersburg, West Virginia
Attorneys for the Plaintiff
Nancy W. Brown
Jacquelyn J. Core
M. Dawn Alexander
Steptoe & Johnson, PLLC
Clarksburg, West Virginia
Attorneys for the Defendants,
Pendleton County Board of Education,
Robin Kyle,, Charles R. Teter, and
Dr. Alan Canonico
Tamara J. DeFazio
Spilman, Thomas & Battle
Morgantown, West Virginia
Attorney for the defendant,
J. Victor Flanagan
Pullin, Knopf, Fowler & Flanagan
Charleston, West Virginia
Attorneys for the defendant,
Jeffrey D. Taylor
Rose, Padden & Petty
Fairmont, West Virginia
Attorney for the defendant,
Children's Home Society of West Virginia
Grafton, West Virginia
Attorney for Amicus Curiae,
JUSTICE ALBRIGHT delivered the Opinion of the Court.
1. A de novo standard is applied by this Court in addressing the legal issues
presented by a certified question from a federal district or appellate court. Syl. Pt. 1, Light
v. Allstate Insurance Company, 203 W.Va. 27, 506 S.E.2d 64 (1998).
2. The following is the appropriate test to determine when a State statute
gives rise by implication to a private cause of action: (1) the plaintiff must be a member of
the class for whose benefit the statute was enacted; (2) consideration must be given to
legislative intent, express or implied, to determine whether a private cause of action was
intended; (3) an analysis must be made of whether a private cause of action is consistent
with the underlying purposes of the legislative scheme; and (4) such private cause of action
must not intrude into an area delegated exclusively to the federal government. Syl. Pt. 1,
Hurley v. Allied Chemical Corporation, 164 W.Va. 268, 262 S.E.2d 757 (1980).
3. West Virginia Code § 49-6A-2 (2001) (Repl. Vol. 2001) does not give rise to an implied private civil cause of action, in addition to criminal penalties imposed by the statute, for failure to report suspected child abuse where an individual with a duty to report under the statute is alleged to have had reasonable cause to suspect that a child is being abused and has failed to report suspected abuse.
This case involves a certified question from the United States District Court
for the Northern District of West Virginia in which we are asked to resolve the question of
whether there is an implied private cause of action for failure to report suspected child abuse
as required by West Virginia Code § 49-6A-2 (2001) (Repl. Vol. 2001). We conclude that
relevant West Virginia law does not give rise to a private cause of action in this regard.
Whether W.Va. Code § 49-6A-2 creates a private civil cause of action, in addition to the criminal penalties imposed by the statute, for failure to report suspected sexual abuse where an individual is alleged to have had reasonable cause to suspect that a child is being sexually abused and has failed to report suspected abuse.
As related earlier, the federal magistrate to whom this question was referred answered the question in the affirmative based on the provisions of West Virginia Code §§ 49-6A-2 and 55-7-9 and application of this Court's decision in Hurley.
The case before the federal court involves a situation where a teacher sexually
abused several of his male students over a period of time.
(See footnote 2)
Mr. Arbaugh maintains that he
was sexually molested by the abuser for a span of four years and is entitled to recover
compensatory and punitive damages for the suffering caused by the defendants' failure to
act and report. The defendants to this action allegedly had some level of knowledge of
incidents of abuse of students by the teacher but never reported their suspicions of child
abuse to the authorities as required by the reporting statute. None of the defendants were
criminally charged for failure to report. W.Va. Code § 49-6A-8 (1984). While the facts are
hotly contested and not completely developed before the federal court, it is clear from the
representations made to this Court that Mr. Arbaugh believes civil liability should attach
whenever the requirements of the reporting statute are violated regardless of whether the
non-reporting teacher had knowledge of any offensive act being committed against the
individual student bringing suit.
In deciding whether West Virginia Code § 49-6A-2, relating to mandatory reporting of suspected child abuse and neglect, gives rise to an initial direct cause of action against a person who has failed to report by any child who is subsequently abused by the person who should have been reported, we first recognize that West Virginia Code § 55-7-9 (1923) (Repl. Vol. 2000) generally permits the recovery of damages stemming from a violation of a statute. This statute provides in its entirety that:
Any person injured by the violation of any statute may recover from the offender such damages as he may sustain by reason of the violation, although a penalty or forfeiture for such violation be thereby imposed, unless the same be expressly mentioned to be in lieu of such damages.
Id. Building on this statutory provision, we have consistently held that a violation of a statute is prima facie evidence of negligence, providing that such violation is the proximate cause of injury. See, e.g., Powell v. Mitchell, 120 W.Va. 9, 196 S.E. 153 (1938); Porterfield v. Sudduth, 117 W.Va. 231, 185 S.E. 209 (1936). Yourtee v. Hubbard, 196 W.Va. 683, 687, 474 S.E.2d 613, 617 (1996) (footnote omitted). See also Syl. Pt. 1, Anderson v. Moulder, 183 W.Va. 77, 394 S.E.2d 61 (1990) (Violation of a statute is prima facie evidence of negligence. In order to be actionable, such violation must be the proximate cause of the plaintiff's injury.). Consequently, a violation of a statute could give rise to a common law negligence action. We went on to say in Yourtee that [w]henever a violation of a statute is the centerpiece of a theory of liability, the question arises whether the statute creates an implied private cause of action. 196 W.Va. at 688, 474 S.E.2d at 618. Whether a private cause of action exists based on a violation of a statute is determined by applying the four-part test set forth in Hurley v. Allied Chemical Corporation, 164 W.Va. 268, 262 S.E.2d 757 (1980). Syllabus point one of Hurley states:
The following is the appropriate test to determine when a State statute gives rise by implication to a private cause of action: (1) the plaintiff must be a member of the class for whose benefit the statute was enacted; (2) consideration must be given to legislative intent, express or implied, to determine whether a private cause of action was intended; (3) an analysis must be made of whether a private cause of action is consistent with the underlying purposes of the legislative scheme; and (4) such private cause of action must not intrude into an area delegated exclusively to the federal government.
Id. at 268, 262 S.E.2d at 758.
Applying the Hurley test to the case before us, we first must ascertain whether Mr. Arbaugh is within the class of persons that the statute was meant to benefit. The Legislature expressed the following purpose for enacting the child abuse reporting article of the Code, wherein the obligation to report is established:
It is the purpose of this article, through the complete reporting of child abuse and neglect, to protect the best interests of the child, to offer protective services in order to prevent any further harm to the child or any other children living in the home, to stabilize the home environment, to preserve family life whenever possible and to encourage cooperation among the states in dealing with the problems of child abuse and neglect.
W.Va. Code § 49-6A-1 (1977). Assuming the facts presented as true, Mr. Arbaugh is unquestionably a member of the class for whose benefit the reporting statute was enacted, inasmuch as he was a child attending a school where alleged incidents of sexual abuse were occurring. We can also readily dispose of the fourth element of the Hurley test, since we find that a private cause of action would not intrude into an area delegated exclusively to the federal government.
The application of the second and third components of the Hurley test require a more detailed examination of the relevant statutes to determine whether the Legislature, by enacting the reporting statute, intended to protect a private interest through a private cause of action. According to the second Hurley factor, we must decide whether there is any implication that the Legislature intended to create a private cause of action by enacting West Virginia Code § 49-6A-2, despite the fact that the statute does not expressly provide for a private cause of action or otherwise reference civil liability. (See footnote 3) West Virginia Code § 49-6A-2 reads as follows:
When any medical, dental or mental health professional, christian science practitioner, religious healer, school teacher or other school personnel, social service worker, child care or foster care worker, emergency medical services personnel, peace officer or law-enforcement official, member of the clergy, circuit court judge, family law master, employee of the division of juvenile services or magistrate has reasonable cause to suspect that a child is neglected or abused or observes the child being subjected to conditions that are likely to result in abuse or neglect, such person shall immediately, and not more than forty- eight hours after suspecting this abuse, report the circumstances or cause a report to be made to the state department of human services: Provided, That in any case where the reporter believes that the child suffered serious physical abuse or sexual abuse or sexual assault, the reporter shall also immediately report, or cause a report to be made, to the division of public safety and any law-enforcement agency having jurisdiction to investigate the complaint: Provided, however, That any person required to report under this article who is a member of the staff of a public or private institution, school, facility or agency shall immediately notify the person in charge of such institution, school, facility or agency, or a designated agent thereof, who shall report or cause a report to be made. However, nothing in this article is intended to prevent individuals from reporting on their own behalf.
In addition to those persons and officials specifically required to report situations involving suspected abuse or neglect of children, any other person may make a report if such person has reasonable cause to suspect that a child has been abused or neglected in a home or institution or observes the child being subjected to conditions or circumstances that would reasonably result in abuse or neglect.
The Legislature has expressly provided that failure to report as required is a criminal misdemeanor offense. See W.Va. West Virginia Code § 49-6A-8 (1984). (See footnote 4)
The importance of reporting is definitely stressed in the statute by not only the
provisions which establish that reporting is mandatory for individuals in certain professions
and occupations, but also in the provisions which prescribe a limited time frame within
which the mandated reports are to be made and impose criminal liability for failing to report.
These measures clearly encourage early intervention to further the clear overall legislative
goal of protecting vulnerable children from abusive situations. The statutory reporting
requirement itself is triggered when the persons designated in the statute have reasonable
cause to suspect or observe the child being subjected to conditions that are likely to
result in abuse or neglect. W.Va. Code § 49-6A-2 (emphasis added). The plain meaning
of the statute
(See footnote 5)
is that the mandatory duty to report extends only to the child who is the object
of suspected abuse. Nonetheless, we hesitate to extend a private cause of action by
implication to any child injured by a non-reported abuser against the person responsible for
reporting since substantial questions of causation are raised and the failure to report would
not in the direct sense be a proximate cause of the injury to the child. Borne by Borne v.
Northwest Allen County School Corp., 532 N.E.2d 1196, 1203 (Ind.App. 1989). The
problems with causation are further complicated when one considers that the statute
conditions the reporting requirement on the exercise of judgment of an individual reporter
who may become aware of a possible case of child abuse only through rumors, innuendo or
second-hand reports. The diverse backgrounds, professions and occupations represented in
the statutorily defined class of persons required to report make it all the more difficult to
define what conduct is required in various conceivable situations. Under such nebulous
circumstances, we are unwilling to recognize a new and broad field of tort liability without
express legislative designation of a private cause of action. Accord Marquay v. Eno, 662
A.2d 272, 278 (N.H. 1995) (Where, as here, civil liability for a statutory violation would
represent an abrupt and sweeping departure from the general common law rule of
nonliability, we would expect that if the legislature . . . intended to impose civil liability it
would expressly so provide.); Freehauf v. School Board of Seminole County, 623 So.2d
761 (Fla.Dist.App. 1993). Application of the final factor in Hurley lends further support
for finding that a private cause of action is not implicated.
Pursuant to the third Hurley criterion, we must determine whether a private cause of action is consistent with the underlying purpose not just of the reporting statute but the entire legislative scheme of which the reporting statute is a part. The reporting statute is one of ten sections in article six-A, chapter forty-nine of the West Virginia Code, entitled Reports of Children Suspected to be Abused or Neglected. A review of all of the provisions of the article reveals that the primary objective of the enactment is to protect children who are subjected to abuse and neglect by establishing county-based child protective services offices whose purposes are to quickly investigate incidents of suspected abuse reported by those required to report under the article and to take all necessary measures to protect such children from further abuse and neglect, including providing individualized services to affected children and their families. In addition to the reporting and criminal liability provisions we have thus far discussed, the article also contains provisions regarding civil and criminal immunity for those who make a report and abrogation of the rule of privileged communications in certain instances. When the provisions of the article are considered as a whole, we do not see that a private cause of action would meaningfully further the purposes of the article so as to find that such was intended by the Legislature.
Accordingly we conclude that West Virginia Code § 49-6A-2 does not give rise to an implied private civil cause of action, in addition to criminal penalties imposed by the statute, for failure to report suspected child abuse where an individual with a duty to report under the statute is alleged to have had reasonable cause to suspect that a child is being abused and has failed to report suspected abuse. The same conclusion has been reached by a decided majority of states which have applied factors comparable to those in Hurley when considering whether a private cause of action was implied through mandatory reporting statutes similar to ours. See Freehauf v. School Board of Seminole County, 623 So.2d 761 (Fla.Dist.App. 1993); Cechman v. Travis, 414 S.E.2d 282 (Ga.App. 1991); Borne by Borne v. Northwest Allen County School Corp., 532 N.E.2d 1196 (Ind.App. 1989); Kansas State Bank & Trust Co., v. Specialized Transp. Services, Inc., 819 P.2d 587 (Kan. 1991); Bradley v. Ray, 904 S.W.2d 302, (Mo. App. 1995); Marquay v. Eno, 662 A.2d 272 (N.H. 1995); see also Isely v. Capuchin Province, 880 F.Supp. 1138 (D.Mich. 1995) (applying Wisconsin's reporting statute); Danny R. Veilleux, Validity, Construction, and Application of State Statute Requiring Doctor or Other Person to Report Child Abuse, 73 A.L.R.4th 782, 819 (1989). (See footnote 6)
In so holding, we have not ignored Mr. Arbaugh's plea to carve out a private
cause of action for more egregious situations, such as where an eye-witness has failed to
report. Despite the underlying merit to this request, we are bound to refrain from making
such policy determinations since '[i]t is not the province of the courts to make or supervise
legislation, and a statute may not, under the guise of interpretation, be modified, revised,
amended, distorted, remodeled, or rewritten[.]' State v. Richards, 206 W.Va. 573, 577, 526
S.E.2d 539, 543 (1999), quoting State v. General Daniel Morgan Post No. 548, V.F.W., 144
W.Va. 137, 145, 107 S.E.2d 353, 358 (1959) (citation omitted). We note that children
harmed by such egregious circumstances are not without remedy, where in an otherwise
proper case a cause of action may be brought based on negligence with the failure to report
admissible as evidence in that context.
For the reasons herein stated, we answer the certified question in the negative.
Reports of child abuse and neglect pursuant to this article
shall be made immediately by telephone to the local state
department child protective service agency and shall be
followed by a written report within forty-eight hours if so
requested by the receiving agency. The state department shall
establish and maintain a twenty-four hour, seven-day-a-week
telephone number to receive such calls reporting suspected or
known child abuse or neglect.
A copy of any report of serious physical abuse, sexual abuse or assault shall be forwarded by the department to the appropriate law-enforcement agency, the prosecuting attorney or the coroner or medical examiner's office. All reports under this article shall be confidential and unless there are pending proceedings with regard thereto shall be destroyed thirty years following their preparation. Reports of known or suspected institutional child abuse or neglect shall be made and received as all other reports made pursuant to this article.