DICKSON, Chief Justice.
In this action for damages, the plaintiffs (parents J.D. and M.D., individually and on behalf of their children, F.D., G.D., and T.D.) allege mishandling of child abuse reports by the Indiana Department of Child Services (DCS), the Evansville Police Department (EPD), and the Vanderburgh County Prosecutor's Office (VCPO).
In June of 2007, M.D. ("Mother") informed DCS that her then four-year-old son, T.D. ("Son"), had been molested by her then twelve-year-old nephew, L.C. ("Nephew"). DCS initiated an investigation and interviewed Son and his then two-year-old twin sisters, F.D. and G.D. Son disclosed that he had been inappropriately touched by Nephew. Both two-year-old twin daughters denied being inappropriately touched by Nephew. DCS then referred the matter to the EPD for a delinquency investigation. In July of 2007, Detective Jeff Minto of EPD interviewed Nephew. During the interview, Nephew admitted to inappropriately touching four of his cousins, including Son and one of the twin daughters, F.D. Detective Minto informed DCS of Nephew's admissions, including the touching of F.D., and DCS chronicled Nephew's admissions in a "Contact Log Report." Neither DCS nor EPD informed Mother or Father of Nephew's admission to inappropriately touching their daughter, F.D. EPD then referred Nephew's case to the Vanderburgh Juvenile Court for delinquency proceedings.
On July 26, 2007, Juvenile Probation Officer Bernie Faraone conducted an intake interview with Nephew. During this interview, Officer Faraone read an account of Nephew's alleged offenses, including Nephew's admission to touching F.D. Mother was present for at least a portion of this interview, but was not informed of Nephew's molestation of her daughter, F.D.
The plaintiffs filed suit alleging negligence. Specifically, the plaintiffs contend that DCS was negligent in failing to perform its statutory duty, pursuant to Indiana Code Section 31-33-18-4, to notify the plaintiffs of Nephew's alleged molestation of F.D. Additionally, plaintiffs argue that EPD was similarly negligent in failing to notify the plaintiffs and for not pursuing separate charges against Nephew for the molestation of F.D. On the defendants' motion, the trial court granted summary judgment in favor of all defendants,
On appeal, the plaintiffs contend that the trial court erred in granting summary judgment in favor of DCS and EPD. Specifically, plaintiffs argue that because of the "role" and the "conduct" of DCS and EPD in the events surrounding the adjudication of Nephew, that the Indiana Tort Claims Act does not confer immunity in this case. Appellants' Br. at 8. The plaintiffs further urge that the immunity granted by the child abuse reporting statute is inapplicable because "the claims against [DCS and EPD] do not arise out of [their] `participation'" in the delinquency proceedings against Nephew. Id. at 16.
On appeal of the grant or denial of a motion for summary judgment, we apply the same standard applicable to the trial court. Presbytery of Ohio Valley, Inc. v. OPC, Inc., 973 N.E.2d 1099, 1110 (Ind.2012) (citing Wilson v. Isaacs, 929 N.E.2d 200, 202 (Ind.2010)). The moving party "bears the initial burden of making a prima facie showing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law." Gill v. Evansville Sheet Metal Works, Inc., 970 N.E.2d 633, 637 (Ind.2012). If the moving party meets this burden, then the non-moving party must designate evidence demonstrating a genuine issue of material fact. Id. Review is limited to those facts designated to the trial court, Ind. Trial Rule 56(H), and summary judgment is appropriate where the designated evidence "shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law," id. 56(C). In applying the facts to the law, "[a]ll facts and reasonable inferences drawn from those facts are construed in favor of the non-moving party." Mangold ex rel. Mangold v. Ind. Dep't of Natural Res., 756 N.E.2d 970, 973 (Ind. 2001). "We must carefully review a decision on a summary judgment motion to ensure that a party was not improperly denied its day in court." Id. at 974.
More than forty years ago, a series of judicial decisions almost entirely abolished common law immunity for government entities and activities in this
Id. at 6 (quoting Peavler v. Bd. of Comm'rs of Monroe Cnty., 528 N.E.2d 40, 46-47 (Ind.1988)). This appeal involves only the issue of immunity, and thus we do not address any question regarding whether or not the plaintiffs have a valid cause of action against the defendants.
In interpreting statutes, such as the ITCA, we seek to give effect to the intent of the legislature. Clark v. Clark, 971 N.E.2d 58, 61 (Ind.2012). We thus look first to the statutory language and "presume that the words of an enactment were selected and employed to express their common and ordinary meanings." Porter Dev., LLC v. First Nat'l Bank of Valparaiso, 866 N.E.2d 775, 778 (Ind. 2007). "Where the statute is unambiguous, the Court will read each word and phrase in this plain, ordinary, and usual sense, without having to resort to rules of construction to decipher meanings." Id. "Because the ITCA is in derogation of the common law, we construe it narrowly against the grant of immunity." Mangold ex rel. Mangold, 756 N.E.2d at 975.
The plaintiffs claim that DCS was negligent in failing to fulfill its statutory duty, pursuant to Indiana Code Section 31-33-18-4,
In the present case, DCS "investigated the initial reports of abuse and referred [the] findings to the EPD," whose investigation was "the catalyst for the judicial proceeding against" Nephew. Appellee DCS's Br. at 5-6. That investigation and referral, DCS contends, should bring it under the protection of the ITCA's provision for the "initiation of a judicial or administrative proceeding." Ind.Code § 34-13-3-3(6). Even if we accepted DCS's contention that there is a sufficient nexus between its investigation and referral to EPD and the initiation of the delinquency proceeding by the Vanderburgh County Prosecutor, a question which we do not decide today, DCS would not be immune under subsection (6). This is so for two reasons. First, plaintiffs' claims against DCS do not relate to the allegation that resulted in Nephew's delinquency adjudication — the molestation of Son. Rather, plaintiffs contend that DCS failed to notify parents of the information it received regarding the molestation of their daughter, F.D., information which was not used in the delinquency proceeding against Nephew. Second, Indiana Code Section 34-13-3-3(6) provides immunity where "a loss results from" "[t]he initiation of a judicial or an administrative proceeding."
With respect to EPD, the plaintiffs claim that EPD was negligent in failing to notify the plaintiffs of Nephew's admission to the molestation of F.D. We first note, separate from the question of immunity, that at the time of these events, EPD had no duty to disclose to plaintiffs the information regarding the molestation of F.D.
Plaintiffs further claim that EPD was negligent in not pursuing separate charges against Nephew for the molestation of F.D. EPD asserts immunity under subsection (8) of the ITCA which grants immunity where the loss results from "[t]he adoption and enforcement of or failure to adopt or enforce a law (including rules and regulations), unless the act of enforcement constitutes false arrest or false imprisonment." Id. § 34-13-3-3(8).
In summary, we conclude that EPD's method of investigation is immune from liability under Indiana Code Section 34-13-3-3(8). Accordingly, summary judgment in favor of EPD is proper. However, because plaintiffs' claims against DCS do not result from the "initiation of a judicial or an administrative proceeding," DCS is not immune under Indiana Code Section 34-13-3-3(6) and summary judgment in favor of DCS is therefore improper as to this issue.
DCS contends that it is protected by the immunity provision of the child abuse reporting statute. Indiana Code Section 31-33-6-1 provides:
Id. § 31-33-6-1.
Indiana Code Section 31-33-6-1 unambiguously provides immunity from any civil liability "that might otherwise be imposed because of such actions." Id. (emphasis added). As the Court of Appeals has observed,
Anonymous Hosp. v. A.K., 920 N.E.2d 704, 709 (Ind.Ct.App.2010), trans. not sought. We agree. Here, however, DCS seeks to extend that immunity to its inaction on a separate report of abuse "because it learned of the information that it allegedly failed to reveal to [the plaintiffs] through its participation in the investigation" of the original child abuse report. Appellee DCS's Br. at 12. Again, assuming without deciding that DCS did "participate" in the delinquency proceeding, its contention fails as a matter of law. Indiana Code Section 31-33-6-1 provides immunity from liability "that might otherwise be imposed because of" participation in a judicial proceeding resulting from or relating to a report of child abuse (emphasis added). However, the plaintiffs do not allege that DCS's actions in the juvenile proceedings against Nephew caused them harm. Rather, plaintiffs' suit is founded upon DCS's statutorily delineated duty to "initiate an immediate and appropriately thorough child protection investigation of every report," Ind.Code § 31-33-8-1(a) (2007 Supp.), and to "give verbal and written notice to each parent, guardian, or custodian of the child that: (1) the reports and information ... relating to the child abuse or neglect investigation ... are available upon the request of the parent...." Id. § 31-33-18-4(a). Thus, plaintiffs contend that DCS's inaction with respect to the separate report of abuse to Daughter hindered their ability to obtain proper treatment. The facts, which we must construe in favor of the plaintiffs as the non-moving party on summary judgment, do not fall within the circumstances granting immunity under the plain words of the statute — a statute which is in derogation of the common law and must be narrowly construed against immunity. Accordingly, summary judgment is not proper as to this issue.
We affirm the grant of summary judgment in favor of the Evansville Police Department, finding that it is immune from the plaintiffs' claims under the Indiana Tort Claims Act. However, we reverse summary judgment with respect to the Department of Child Services, concluding that it is not immune under either the Indiana Tort Claims Act or the child abuse reporting statute. This case is remanded to the trial court for further proceedings.
RUCKER and DAVID, JJ., concur.
RUSH, J., concurs in part and dissents in part with separate opinion in which Massa, J., concurs.
RUSH, J., concurring in part and dissenting in part.
I respectfully dissent from the issue the majority decides — whether DCS is immune — as well as one that it doesn't — whether plaintiffs may hold DCS civilly liable. First, I disagree about the threshold immunity issue. I would conclude DCS is immune because plaintiffs' claim arises from DCS's participation in the initiation of a judicial proceeding. Second, the majority, without providing any guidance, leaves it to the trial court to determine whether plaintiffs have a valid claim — an issue that divided the Court of Appeals panel. In the absence of immunity, Indiana law requires us to analyze whether the Legislature intended the violation of the Notice Statute to give rise to a negligence action. Applying that analysis, I can find no such legislative intent here. I
DCS argues that statutory immunity bars plaintiffs' claim. Indiana Code section 34-13-3-3(6) (ITCA) grants immunity to governmental entities for losses resulting from "[t]he initiation of a judicial ... proceeding." I agree with the majority that we must address statutory immunity first because finding DCS immune "bars [plaintiffs'] recovery even where ordinary tort principles would impose liability." Gary Comm. Sch. Corp. v. Roach-Walker, 917 N.E.2d 1224, 1225 (Ind.2009). The majority concludes that DCS is not immune because "plaintiffs' claims against DCS do not relate to the allegation that resulted in Nephew's delinquency adjudication," and because plaintiffs' loss did not arise from the initiation of the proceeding. But that view construes the ITCA's protections more narrowly than Indiana law requires.
Immunity for the "initiation of a judicial proceeding" protects not just the prosecutor filing charges, but also the participants in the chain of events that leads to the prosecution. For example, in Hedges v. Rawley, the assistant superintendent of a municipal wastewater plant accused two employees of stealing gasoline. 419 N.E.2d 224, 225-26 (Ind.Ct.App.1981). The police investigated the accusations, and the State prosecuted the employees. Id. at 226. The court concluded the ITCA granted the assistant superintendent immunity because he participated in the initiation of a judicial proceeding — noting that the "Legislature utilized broad language" in that provision, when it "certainly could have adopted a statute which limited the immunity." Id. at 227-28.
DCS's actions similarly fall within the "broad language" of this immunity provision. See id. DCS has a statutory duty to investigate child abuse reports, I.C. § 31-33-8-1(a) (Supp.2005), make written findings available to law enforcement, I.C. § 31-33-7-5 (Supp.2005), and "assist the juvenile court ... during all stages of the proceedings," I.C. § 31-33-14-2 (Supp. 2005). Here, DCS investigated Mother's report of abuse and sent its findings to EPD. These actions resulted in the initiation of a judicial proceeding against Nephew — and DCS's alleged negligent act, the failure to notify, resulted from its participation in this process. See Estate of Mintz v. Conn. Gen. Life Ins. Co., 905 N.E.2d 994, 999-1000 (Ind.2009) (finding that the failure to act is nonetheless a negligent act). So, I would conclude, as Judge Vaidik did, that "[w]hile it was the Prosecutor's Office that finally filed the paperwork that initiated the legal proceedings against Juvenile, all agencies in the chain worked together" to initiate the proceedings. F.D., 973 N.E.2d at 1192.
The majority concludes DCS is not immune because plaintiffs' claims relate to "information which was not used in the delinquency proceeding against Nephew," and because plaintiffs "do not assert that any harm to them resulted from the initiation of proceedings against Nephew." But the ITCA's protections are not so limited. It provides immunity from damages even when they do not directly relate to an eventual prosecution. See Hupp v. Hill, 576 N.E.2d 1320, 1322, 1325 (Ind.Ct.App.1991). In Hupp, a homeowner incurred damages because of the execution of an invalid search warrant, but the search did not result in a prosecution. Id. at 1323. Despite the homeowners' damages not relating to any prosecution, the prosecutor was immune because the damages resulted from "the
After determining that DCS lacks immunity, the majority fails to analyze whether plaintiffs have a private right of action — the very issue plaintiffs presented on transfer. As the majority recognizes, the immunity determination is only a "threshold determination" — a starting point — and the "absence of immunity does not necessarily result in a legally cognizable claim of negligence." Mullin v. Mun. City of S. Bend, 639 N.E.2d 278, 283 (Ind.1994), limited on other grounds by Benton v. City of Oakland City, 721 N.E.2d 224, 231 (Ind. 1999). After determining that a defendant lacks immunity, we must next determine whether the defendant breached a duty that gives rise to a negligence claim. Cf. King v. Ne. Sec., Inc., 790 N.E.2d 474, 484 (Ind.2003); Mullin, 639 N.E.2d at 283. The majority leaves this issue, which already divided the Court of Appeals panel, F.D., 973 N.E.2d at 1192-94 (Crone, J., concurring in part and dissenting in part), to the trial court, without providing any guidance. Because this question of law is squarely before this Court,
Plaintiffs allege that DCS negligently violated Indiana Code section 31-33-18-4 (Notice Statute), which requires DCS to notify parents that a child abuse report involving their child is available. The statute does not expressly provide for a private right of action, but plaintiffs argue it implies one. The majority of the Court of Appeals concluded that the statute did not grant plaintiffs a private right of action. And I agree based on the statute's language and its purpose.
"When a civil tort action is premised upon violation of a duty imposed by statute, the initial question to be determined by the court is whether the statute in question confers a private right of action," Borne ex rel. Borne v. Nw. Allen Cnty. Sch. Corp., 532 N.E.2d 1196, 1203 (Ind.Ct. App.1989), trans. denied. To prevail on their negligence claim, plaintiffs need to show that DCS (1) owed them a duty, (2) breached that duty, and (3) the breach proximately caused their damages. Putnam Cnty. Sheriff v. Price, 954 N.E.2d 451, 453 (Ind.2011). Plaintiffs do not allege DCS breached a common law duty, such as the duty to use reasonable care. See Benton, 721 N.E.2d at 228. Rather, they allege DCS breached a statutory duty to notify a parent of the availability of a child abuse report — a duty not recognized at common law. Cf. J.A.W. v. Roberts, 627 N.E.2d 802, 813 (Ind.Ct.App.1994) (finding that there was no common law duty to report child abuse, and that the "[L]egislature has declined to codify a civil cause of action against an adult who knowingly fails to report alleged child abuse") (Rucker, J.), abrogated on other grounds by Holt v. Quality Motor Sales, Inc., 776 N.E.2d 361 (Ind.Ct.App.2002), trans. denied. Because plaintiffs allege DCS breached a statutory duty, we must determine whether the Legislature
To answer this question, we must look to the language of the statute and the Legislature's intent. "The determination of whether a civil cause of action exists begins with an examination of legislative intent." Roberts v. Sankey, 813 N.E.2d 1195, 1198 (Ind.Ct.App.2004), trans. denied. "[A] private cause of action generally will be inferred where a statute imposes a duty for a particular individual's benefit but will not be where the Legislature imposes a duty for the public's benefit." Blanck v. Ind. Dep't of Corr., 829 N.E.2d 505, 509 (Ind.2005) (citing Americanos v. State, 728 N.E.2d 895 (Ind.Ct.App.2000), trans. denied). But even where a duty benefits an individual, we will not infer a private right of action unless that appears to be the Legislature's intent. See id. at 509-10. And Indiana courts have rarely concluded the Legislature intended to confer a private right of action. See, e.g., id.; Borne, 532 N.E.2d at 1203.
Further, no matter whether plaintiffs predicate their claim upon a negligence theory or a freestanding private right of action, a court must still determine the larger question of whether the Legislature intended to hold the defendant civilly liable.
In this case, the Court of Appeals majority determined that the Notice Statute did not expressly provide an implied private right of action. F.D., 973 N.E.2d at 1190, 1198 (Vaidik, J. & Bradford, J. concurring in part). It found that the purpose of Article 33 ("Juvenile Law: Reporting and Investigation of Child Abuse and Neglect") was "to create a more effective, efficient, and accessible system to deal with the issue of child abuse and neglect for the public's benefit as a whole, not just for a particular individual's benefit." Id. I agree with this conclusion.
Moreover, "our [L]egislature has not [expressly] afforded a private right of action" for breach of the Notice Statute, F.D., 973 N.E.2d at 1191, while it has done so in other contexts. See, e.g., I.C. § 24-5-15-9 (2007) (expressly providing that a person damaged by a credit services organization may bring an action). Perhaps because the Legislature expressly creates private rights of action, Indiana courts have long been reluctant to infer them. See, e.g., Howard Reg'l Health Sys. v. Gordon,
I respectfully dissent from my colleagues because I conclude DCS is immune from liability, and even if it weren't, the Notice Statute would not provide plaintiffs with a private right of action. While I do not condone DCS's conduct, I would affirm the trial court's grant of summary judgment for all defendants.
MASSA, J., concurs.
Id. § 31-33-18-4(a) (emphasis added).
Ind.Code § 5-2-18-3 (effective July 1, 2011).
