                                                                                    FILED
                                                                               May 26 2016, 9:00 am

                                                                                    CLERK
                                                                                Indiana Supreme Court
                                                                                   Court of Appeals
                                                                                     and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Christopher D. Wyant                                      Gregory F. Zoeller
      Indianapolis, Indiana                                     Attorney General of Indiana

                                                                Frances Barrow
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      John Doe #1, et al.,                                      May 26, 2016
      Appellants-Plaintiffs,                                    Court of Appeals Case No.
                                                                49A02-1506-CT-682
              v.                                                Appeal from the Marion Superior
                                                                Court
      Indiana Department of Child                               The Honorable John F. Hanley,
      Services,                                                 Judge
      Appellee-Defendant.                                       Trial Court Cause No.
                                                                49D11-1404-CT-11045



      Altice, Judge.


                                                Case Summary


[1]   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
      Court of Appeals of Indiana | Opinion 49A02-1506-CT-682 | May 26, 2016                            Page 1 of 18
      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.


[2]   We reverse and remand.


                                        Facts & Procedural History1


[3]   The Does live in the small town of Oolitic and have lived at the same address

      for about ten years.2 They are actively involved in their church, and Doe drives

      a church bus that regularly takes children in the neighborhood to church events.

      As a result of his involvement with many of these children, as well as incidents

      he witnessed in the neighborhood, Doe came to believe that children in various

      homes were being neglected. In late June 2013, Doe spoke to his wife about his

      concerns, which she shared, and she reluctantly agreed that Doe should make a

      report to DCS.




      1
        We heard oral argument in this case on April 21, 2016, at Martin University. We would like to thank the
      students, faculty, and administration of the school for their professionalism and hospitality, and we
      commend counsel for the quality of their presentations.
      2
       Doe and his wife separated for a brief period prior to the events relevant to this case. Between June 2012
      and May 2013, Doe remained in the home while the other members of the family moved into an apartment.
      Doe and his wife began rekindling their relationship around January 2013.

      Court of Appeals of Indiana | Opinion 49A02-1506-CT-682 | May 26, 2016                          Page 2 of 18
[4]   Doe called the DCS hotline to report his suspicions that children in five homes

      on his street were in need of services due to dangerous living situations. Doe

      believed the adult subjects of his report were involved in drugs or other criminal

      activities and were associated with serious and violent criminals. When he was

      about to end the call, the DCS employee asked for his name and phone

      number. Doe expressed reluctance and indicated that he did not want anyone

      to know that he had called. The employee responded that the information was

      confidential and nobody would find out that he made the report. Doe then

      agreed to give his first name and phone number, but not his last name. Of

      course, DCS also had the name of the street on which he lived.


[5]   About a week later, on July 3, 2013, Doe was confronted in his front yard by

      Heather Ditton, who lived across the street and was one of the neighbors Doe

      reported. While screaming and yelling obscenities, Ditton angrily accused Doe

      of calling DCS. Ditton had in her possession an unredacted copy of the DCS

      report, which identified Doe as the reporting source. Other neighbors quickly

      became aware of the report Doe made. Upon realizing the report was not kept

      confidential, Doe felt like “somebody ripped [his] heart out.” Appellants’

      Appendix at 46.


[6]   From that point on, the Doe family no longer felt comfortable outside their

      house. They wanted to relocate but could not afford to move. Doe indicated

      that he was “stared at, glared at, mooned, flipped off, yelled at, you know,

      every day, forever.” Id. at 45. His daughter, Jane Doe #2, was bullied by other

      children. Both Doe and his wife missed work due to stress and lack of sleep.

      Court of Appeals of Indiana | Opinion 49A02-1506-CT-682 | May 26, 2016   Page 3 of 18
      Although not present for the initial confrontation with Ditton, Doe’s wife was

      screamed at and threatened by Ditton on subsequent occasions. For example,

      Ditton threatened that she was going to “kick [Jane Doe #1’s] ass” and “cut

      that smirky grin off [her] face”. Id. at 65.


[7]   On April 4, 2014, the Does filed a complaint for damages against DCS. The

      complaint alleged that DCS was negligent in failing to protect Doe’s identity.

      DCS filed for summary judgment on March 11, 2015, arguing that the Does

      had no private right of action to bring a claim for violation of I.C. § 31-33-18-2.3

      The Does responded to the motion for summary judgment and argued that

      DCS owed a duty under the statute and common law. Following a hearing, the

      trial court summarily granted summary judgment in favor of DCS on May 28,

      2015. The Does now appeal.


                                              Standard of Review


[8]   On appeal, we apply the same standard applicable to the trial court: summary

      judgment may be granted only where the designated evidence shows that there

      is no genuine issue of material fact and the moving party is entitled to judgment

      as a matter of law. T.R. 56(C); Mangold ex rel. Mangold v. Ind. Dep’t of Natural

      Res., 756 N.E.2d 970, 973 (Ind. 2001). All facts and reasonable inferences are

      construed in favor of the non-moving party. Mangold, 756 N.E.2d at 973.




      3
       Alternatively, DCS briefly argued that it did not owe a duty to Doe’s family because their identities were
      not disclosed and that none of the Does could establish compensable damages. DCS does not reassert these
      arguments on appeal.

      Court of Appeals of Indiana | Opinion 49A02-1506-CT-682 | May 26, 2016                          Page 4 of 18
       Although summary judgment is a desirable tool to allow the trial court to

       dispose of cases where only legal issues exist, our Supreme Court has

       recognized that it is also a blunt instrument that prevents a party from having

       his or her day in court. See Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014).


[9]    Summary judgment is appropriate when the undisputed material evidence

       negates at least one element of a claim. Estate of Mintz v. Connecticut Gen. Life

       Ins. Co., 905 N.E.2d 994, 998 (Ind. 2009). In negligence cases, the

       determination of whether a duty exists is generally a question of law. Rhodes v.

       Wright, 805 N.E.2d 382, 386 (Ind. 2004). The existence of a duty, however,

       may depend on underlying facts that require resolution by the trier of fact. Id.


                                            Discussion & Decision


[10]   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. I.C. § 31-33-18-2 provides in relevant part that

       reports shall be made available to:


               (8)    Each parent, guardian, custodian, or other person
               responsible for the welfare of a child named in a report or
               record…with protection for the identity of reporters and other
               individuals.


                                                        ****


               (14) A person about whom a report has been made, with
               protection for the identity of:


       Court of Appeals of Indiana | Opinion 49A02-1506-CT-682 | May 26, 2016     Page 5 of 18
                        (A) any person reporting known or suspected child abuse or
                        neglect; and


                        (B) any other person if the person or agency making the
                        information available finds that disclosure of the information
                        would be likely to endanger the life or safety of the person.


                                                        ****


       (Emphases supplied.) Thus, the statute requires redaction of DCS reports

       before they are provided to certain individuals, like Ditton. DCS does not

       dispute this and acknowledges that its own policy manual and written code of

       conduct require confidentiality. While the disclosure of Doe’s identity clearly

       violated the statute, DCS argues that the statute does not confer a private right

       of action.


[11]   Not every breach of a statutory duty provides plaintiffs with a right of action.

       The legislature must have intended the violation to give rise to a negligence

       action. Where, as in this case, the statute does not expressly provide for a

       private right of action to enforce the statutory duty, we look to whether the

       legislature intended for a private right of action to be implied. See Blanck v. Ind.

       Dep’t of Correction, 829 N.E.2d 505, 509 (Ind. 2005). A private cause of action

       may 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. Id. But even where a duty benefits an individual, we will not infer a

       private right of action where it is clear that the legislature did not intend one.

       See id. at 510. “[T]he fact that an individual suffers a distinct injury unique
       Court of Appeals of Indiana | Opinion 49A02-1506-CT-682 | May 26, 2016            Page 6 of 18
       from the general public is not determinative.” Americanos v. State, 728 N.E.2d

       895, 897 (Ind. Ct. App. 2000), trans. denied. “Rather, it is legislative intent, as

       construed from the provisions of the statute, which determines whether a

       private cause of action is available.” Id.


[12]   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.


[13]   The existence of a duty is a question of law for the court. Mullin v. Mun. City of

       South Bend, 639 N.E.2d 278, 285 (Ind. 1994). In determining whether a duty

       exists, three factors must be balanced: (1) the relationship between the parties;

       (2) the reasonable foreseeability of harm to the person injured; and (3) public

       policy concerns. Webb v. Jarvis, 575 N.E.2d 992, 995 (Ind. 1991). Where a

       plaintiff seeks recovery against a governmental entity for negligence, the

       relationship between the parties must be one that gives rise to a private duty

       owed to a particular individual. Mullin, 639 N.E.2d at 285 (addressing the

       distinction between a duty owed to the public at large and a duty owed to a

       particular individual).


[14]   In the context of a governmental entity’s dispatch of emergency services, our

       Supreme Court has applied the Webb factors and set out three elements for

       imposition of a private duty: (1) an explicit assurance by the municipality


       Court of Appeals of Indiana | Opinion 49A02-1506-CT-682 | May 26, 2016      Page 7 of 18
       (through promises or actions) that it would act on behalf of the injured party;

       (2) knowledge on the part of the municipality that inaction could lead to harm;

       and (3) justifiable and detrimental reliance by the injured party. Kohler v. Dial,

       653 N.E.2d 524, 526 (Ind. Ct. App. 1995) (private duty found where 911

       dispatcher promised caller that an ambulance would be dispatched immediately

       but no dispatch followed), trans. denied; Mullin, 639 N.E.2d at 283-85 (adopting

       test but finding no private duty where neighbor called 911 about fire at

       plaintiffs’ house and no assurance was made that an ambulance would be

       dispatched with the fire trucks and there was no evidence of detrimental

       reliance by plaintiffs). Notably, this test does not require direct contact between

       the municipality’s agent and the injured party. Mullin, 639 N.E.2d at 284.


[15]   In establishing the test for imposition of a private duty on a governmental

       defendant, the Court in Mullin emphasized that more is required than a

       foreseeable plaintiff with a foreseeable injury. Indeed, Webb requires that the

       relationship between the parties and public policy concerns be addressed. The

       Court quoted Cuffy v. City of New York, 505 N.E.2d 937 (N.Y. 1987), as follows:


               [T]he injured party’s reliance is as critical in establishing the
               existence of a special relationship as is the municipality’s
               voluntary affirmative undertaking of a duty to act. That element
               provides the essential causative link between the “special duty”
               assumed by the municipality and the alleged injury. Indeed, at
               the heart of most of these “special duty” cases is the unfairness
               that the courts have perceived in precluding recovery when a
               municipality’s voluntary undertaking has lulled the injured party
               into a false sense of security and has thereby induced him either
               to relax his own vigilance or to forego other available avenues of

       Court of Appeals of Indiana | Opinion 49A02-1506-CT-682 | May 26, 2016     Page 8 of 18
               protection. On the other hand, when the reliance element is
               either not present at all or, if present, is not causally related to the
               ultimate harm, this underlying concern is inapplicable, and the
               invocation of the “special duty” exception is then no longer
               justified.


       Mullin, 639 N.E.2d at 284 (quoting Cuffy, 505 N.E.2d at 940) (citations from

       Cuffy omitted)).


[16]   With respect to public policy, the Court acknowledged existing law “reflecting a

       public policy that the mere existence of rescue services does not, standing alone,

       impose upon the governmental entity a duty to use them for the benefit of a

       particular individual.” Mullin, 639 N.E.2d at 284. The Court recognized,

       however, that “where a governmental entity is aware of the plight of a

       particular individual and leads that person to believe that governmental rescue

       services will be used, and the individual detrimentally relies on that promise, it

       would be unfair to leave that individual worse off than if the individual had not

       sought assistance from the government at all.” Id. at 284-85.


[17]   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



       Court of Appeals of Indiana | Opinion 49A02-1506-CT-682 | May 26, 2016         Page 9 of 18
       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.


[18]   DCS argues that Kohler and Mullin addressed a governmental entity’s failure to

       come to the rescue, not failure to maintain confidentiality. 4 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.


[19]   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.


[20]   Judgment reversed and cause remanded.


       Kirsch, J., concurs.




       4
         DCS also notes that a civil action based on the failure to report child abuse is not authorized at common
       law. Borne by Borne v. Nw. Allen Cnty. Sch. Corp., 532 N.E.2d 1196, 1203 (Ind. Ct. App. 1989), trans. denied. In
       Borne, we observed that maintenance of such an action at common law “would raise substantial questions of
       causation since the failure [to report] would not in the direct sense be a proximate cause of the injury to the
       child.” Id. Establishing causation in the case at hand will not raise similar problems because the alleged
       damages flowed directly from DCS’s failure to maintain confidentiality of Doe’s identity, which it obtained
       with an express assurance of confidentiality.

       Court of Appeals of Indiana | Opinion 49A02-1506-CT-682 | May 26, 2016                            Page 10 of 18
Vaidik, C.J., dissents with opinion.




Court of Appeals of Indiana | Opinion 49A02-1506-CT-682 | May 26, 2016   Page 11 of 18
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       John Doe #1, et al.,                                      Court of Appeals Case No.
                                                                 49A02-1506-CT-682
       Appellants - Plaintiffs,

               v.

       Indiana Department of Child
       Services,
       Appellee – Defendant.



       Vaidik, Chief Judge, dissenting


[21]   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-


       Court of Appeals of Indiana | Opinion 49A02-1506-CT-682 | May 26, 2016                Page 12 of 18
       18-2 requires. I would therefore affirm the trial court’s grant of summary

       judgment in favor of DCS.


[22]   I first note, as the majority recognizes, that Doe does not argue that there is a

       common-law duty of confidentiality between DCS and those who report child

       abuse or neglect. See slip op. at 10. Indeed, with the exception of the attorney-

       client privilege, there are no common-law privileges in Indiana. See, e.g., State v.

       Int’l Bus. Machs. Corp., 964 N.E.2d 206, 209-10 (Ind. 2012) (noting that in

       Indiana privileges are statutory in nature). The Indiana General Assembly,

       however, has enacted a comprehensive statutory scheme governing the

       reporting and investigation of child abuse or neglect, which includes

       confidentiality provisions. The scheme’s purpose is to:


               (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 abuse or neglect;


               (3) provide protection for an abused or a neglected child from
               further abuse or neglect;


               (4) provide rehabilitative services for an abused or a neglected
               child and the child’s parent, guardian, or custodian; and


               (5) establish a centralized statewide child abuse registry and an
               automated child protection system.




       Court of Appeals of Indiana | Opinion 49A02-1506-CT-682 | May 26, 2016        Page 13 of 18
       Ind. Code § 31-33-1-1. As part of this scheme, an individual who has reason to

       believe that a child is a victim of child abuse or neglect has a duty to

       immediately make a report to either DCS or local law enforcement. Ind. Code

       §§ 31-33-5-1, -4. The statutes presume that a report is made in good faith and

       immunize from civil or criminal liability the person who made the report. Ind.

       Code § 31-33-6-1, -3; see also Smith v. State, 8 N.E.3d 668, 683 (Ind. 2014)

       (explaining that this statutory scheme is designed “to err on the side of over

       reporting suspected child abuse or neglect”), reh’g denied. Although the reporter

       is immune from civil and criminal liability, a person who fails to make a report

       as required by Section 31-33-5-1 commits a Class B misdemeanor. Ind. Code §

       31-33-22-1(a).


[23]   This statutory scheme also addresses confidentiality. Indiana Code section 31-

       33-7-4 provides that DCS “shall make a written report” of a child who may be a

       victim of child abuse or neglect within forty-eight hours of receiving the oral

       report required of individuals by Section 31-33-5-4. The statute also lists the

       requirements of the written reports, including “[t]he source of the report.” Ind.

       Code § 31-33-7-4(b)(5). These reports are confidential. See Ind. Code § 31-33-

       18-1. Section 31-33-18-2 lists approximately twenty-five groups of people to

       whom such reports may be made available, including police, prosecutors, and

       doctors. Reports may be made available to other people too, provided that the

       reporter’s identity is protected. For example, Section 31-33-18-2(8) provides

       that the reports shall be made available to the parent, guardian, custodian, or

       other person responsible for the welfare of the child named in the report;


       Court of Appeals of Indiana | Opinion 49A02-1506-CT-682 | May 26, 2016     Page 14 of 18
       however, the identity of the reporter must be protected. Likewise, Section 31-

       33-18-2(14) provides that the reports shall be made available to the “person

       about whom a report has been made”; however, the identity of a person

       reporting known or suspected child abuse or neglect must be protected. A

       public employee or official who knowingly or intentionally discloses

       information classified as confidential by state statute commits a Class A

       infraction. Ind. Code § 5-14-3-10(a). In addition, the public employee may be

       disciplined. I.C. § 5-14-3-10(b).


[24]   With this statutory backdrop in mind, I address whether Indiana Code section

       31-33-18-2 creates a private right of action. Sometimes the legislature explicitly

       provides that a private citizen has a right to sue when a statute is violated.

       Blanck v. Ind. Dep’t of Corr., 829 N.E.2d 505, 509 (Ind. 2005); see also State Bd. of

       Tax Comm’rs v. Town of St. John, 751 N.E.2d 657, 661 (Ind. 2001) (giving

       numerous examples of where the legislature has explicitly provided a private

       right of action). But when the legislature has not explicitly provided a private

       right of action to enforce the provisions of a statute, courts are frequently asked

       to find that the legislature intended that a private right of action be implied.

       Blanck, 829 N.E.2d at 509. In order to decipher legislative intent in these

       circumstances, the general rule is that a private right of action will not be

       inferred where a statute (1) is designed to protect the public in general and (2)

       contains a comprehensive enforcement mechanism. LTV Steel Co. v. Griffin, 730

       N.E.2d 1251, 1260 (Ind. 2000); Blanck, 829 N.E.2d at 509; see also Borne by Borne

       v. Nw. Allen Cnty. Sch. Corp., 532 N.E.2d 1196, 1203 (Ind. Ct. App. 1989) (“[I]f


       Court of Appeals of Indiana | Opinion 49A02-1506-CT-682 | May 26, 2016      Page 15 of 18
       it appears that the duty imposed is merely for the benefit of the public, and the

       fine or penalty a means of enforcing the duty and punishing a breach thereof,

       the fine or penalty is exclusive, and a private action cannot be maintained for

       injury by reason of the breach.” (quotation omitted)), trans. denied. “However,

       even if a statute incidentally benefits individuals while furthering more general

       public goals, this “does not alone support the finding of a private cause of

       action.” Lockett v. Planned Parenthood of Ind., Inc., 42 N.E.3d 119, 128 (Ind. Ct.

       App. 2015), reh’g denied, trans. denied; see also F.D. v. Ind. Dep’t of Child Servs., 1

       N.E.3d 131, 143 (Ind. 2013) (“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.”) (Rush, J., concurring in part and dissenting in part). As then-Justice

       Rush pointed out in F.D., “Indiana courts have rarely concluded the Legislature

       intended to confer a private right of action.” F.D., 1 N.E.3d at 143 (Rush, J.,

       concurring in part and dissenting in part).


[25]   I do not believe that the legislature intended that a private right of action be

       implied here. The statutory scheme is designed to protect children, and it

       accomplishes this by encouraging effective reporting by the public and then

       providing for the quick investigation of those reports. See I.C. § 31-33-1-1;

       Borne, 532 N.E.2d at 1203 (“The legislative purpose relative to reports by

       members of the public is stated as one to encourage effective reporting.”). The

       purpose of the confidentiality requirement is to encourage reporting—not to

       protect against the harm that might occur when a reporter’s identity is revealed.

       Moreover, the statute contains no civil-enforcement provisions, and the

       Court of Appeals of Indiana | Opinion 49A02-1506-CT-682 | May 26, 2016         Page 16 of 18
       legislature has provided that public employees or officials who disclose

       confidential information are subject to a Class A infraction. See Americanos v.

       State, 728 N.E.2d 895, 898 (Ind. Ct. App. 2000) (explaining that the presence of

       a provision providing for a criminal penalty “impliedly reveals the legislature’s

       intent not to provide a civil remedy”), trans. denied.


[26]   In addition, this Court has already determined that victims of child abuse or

       neglect do not have a private right of action against people who fail to report

       the child abuse or neglect. See Sprunger v. Egli, 44 N.E.3d 690, 693 (Ind. Ct.

       App. 2015); C.T. v. Gammon, 928 N.E.2d 847 (Ind. Ct. App. 2010).

       Accordingly, if victims of child abuse or neglect do not have a private right of

       action under this statutory scheme, then it logically follows that reporters of child

       abuse or neglect should not either. I therefore conclude that the legislature did

       not intend to create a private right of action when DCS violates Section 31-33-

       18-2’s confidentiality requirement.


[27]   Also, I disagree with the majority’s conclusion that “DCS owed Doe a private

       duty based on the common law.” Slip op. at 7. First, I doubt whether the test

       in Mullin even applies to this situation because it appears that the test is geared

       toward the provision of “rescue services.” See Mullin v. Municipal City of South

       Bend, 639 N.E.2d 278, 284-85 (Ind. 1994) (“[W]here the governmental entity is

       aware of the plight of a particular individual and leads that person to believe

       that governmental rescue services will be used, and the individual detrimentally

       relies on that promise, it would be unfair to leave that individual worse off than

       if the individual had not sought assistance from the government at all.”

       Court of Appeals of Indiana | Opinion 49A02-1506-CT-682 | May 26, 2016    Page 17 of 18
       (emphasis added)). But even if the test applied here, I do not believe that a

       special relationship was created when Doe called the DCS hotline and the DCS

       employee told Doe the following about his name and phone number: “Well, it’s

       confidential. Nobody will find out.” Appellants’ App. p. 44. The DCS

       employee’s response to Doe was nothing more than a statement of what Section

       31-33-18-2 requires. To allow a common-law claim in these circumstances

       would provide an end-run around the legislature’s intent that Section 31-38-18-2

       does not create a private right of action when DCS fails to protect a reporter’s

       identity.


[28]   I would therefore affirm the trial court’s grant of summary judgment in favor of

       DCS.




       Court of Appeals of Indiana | Opinion 49A02-1506-CT-682 | May 26, 2016   Page 18 of 18
