John Doe 1 v. Indiana Department of Child Services , 2017 Ind. LEXIS 625 ( 2017 )


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  • ATTORNEY FOR APPELLANTS                                     ATTORNEYS FOR APPELLEE
    Christopher D. Wyant                                        Curtis T. Hill, Jr.
    Wyant Law Office, LLC                                       Attorney General of Indiana
    Indianapolis, Indiana
    Frances Barrow
    David Steiner
    Deputy Attorneys General
    Indianapolis, Indiana
    __________________________________________________________________________________
    FILED
    In the                                Aug 24 2017, 10:08 am
    CLERK
    Indiana Supreme Court                                      Indiana Supreme Court
    Court of Appeals
    and Tax Court
    _________________________________
    No. 49S02-1609-CT-464
    JOHN DOE #1, ET AL.,
    Appellants (Plaintiffs),
    V.
    INDIANA DEPARTMENT OF CHILD SERVICES,
    Appellee (Defendant).
    _________________________________
    Appeal from the Marion Superior Court Civil Division 11, No. 49D11-1404-CT-11045
    The Honorable John F. Hanley, Judge
    _________________________________
    On Petition to Transfer from the Indiana Court of Appeals, No. 49A02-1506-CT-682
    _________________________________
    August 24, 2017
    Rush, Chief Justice.
    The Indiana Department of Child Services told a child-abuse reporter that his report was
    confidential, but then released it without redacting his identity. The reporter and his family sued
    DCS based on both the statute protecting reporter anonymity and our common law. We denounce
    DCS’s thoughtlessness, but find no basis for liability under either theory. The statute protecting
    anonymity provides no private right of action—and we will not judicially infer one since the
    statute’s main purpose is to protect children in general and since it already provides enforcement
    mechanisms. Likewise, DCS’s recitation of the confidentiality statute did not create a common-
    law duty. We thus affirm summary judgment for DCS.
    Facts and Procedural History
    John Doe #1 lived with his wife, two adult sons, and minor daughter in a small southern-
    Indiana town where “[e]verybody knows everybody.” Each Wednesday, John drove neighborhood
    children to church. Over time, he noticed that something wasn’t quite right with some of his young
    passengers—eventually suspecting they were victims of abuse and neglect.
    After talking it over with his wife, John called the DCS abuse and neglect hotline to report
    his suspicions. Near the end of the call, the DCS hotline employee asked for his contact
    information. Hesitant, John said he did not want anyone to know he called. But the operator
    explained, “Well, it’s confidential. Nobody will find out.” John gave his first name and phone
    number, then hung up.
    A few days later, John was mowing the grass when an irate neighbor began screaming at
    him while waving the DCS report—which was unredacted. Word spread around town and the Does
    were soon labeled “snitches.” John was “stared at, glared at, mooned, flipped off, [and] yelled at.”
    His wife was threatened that someone might “cut that smirky grin off” her face. Their daughter
    required counseling because of bullying at school. And the Does’ sons hesitated to go outside—
    thinking twice about cooking on the grill or taking out the trash. All this harassment shook the
    family, making them wish they could afford to leave their longtime home for a different city.
    The Does sued DCS for negligently disclosing John’s identity, raising two theories: one
    statutory, the other common-law. First, they claimed that the statute requiring DCS to protect
    reporter identity—Indiana Code section 31-33-18-2 (“Section 2”)—implies a private right of
    action. Second, they asserted that the DCS hotline operator’s statement that “[n]obody will find
    out” was a promise creating a common-law duty of confidentiality. DCS moved for summary
    judgment, asserting that Section 2 implies no right of action because it was designed to protect
    children by encouraging reporting, rather than to enable lawsuits, and that the common law
    imposes no duty on this record. The trial court granted summary judgment for DCS.
    A divided panel of the Court of Appeals reversed. Doe v. Ind. Dep’t of Child Servs., 
    53 N.E.3d 613
     (Ind. Ct. App. 2016). The majority declined to address whether Section 2 implied a
    2
    right of action—finding instead that DCS owed the Does a common-law “private duty” based on
    the hotline worker’s “promise” of confidentiality. 
    Id.
     at 616–17 (citing Mullin v. Mun. City of S.
    Bend, 
    639 N.E.2d 278
    , 284–85 (Ind. 1994)). Chief Judge Vaidik dissented, believing that
    Section 2 implied no right of action because its thrust was encouraging reporting, not enabling
    lawsuits, and that the common-law claim failed as well because the private-duty test applied only
    to emergency-dispatch situations. 
    Id.
     at 618–21 (Vaidik, C.J., dissenting).
    We granted DCS’s petition to transfer, thereby vacating the Court of Appeals decision. Ind.
    Appellate Rule 58(A).
    Standard of Review
    We review summary judgment de novo, affirming only when the designated evidence reveals
    no genuine issue of material fact and entitles the moving party—here, DCS—to judgment as a matter
    of law. Ind. Trial Rule 56(C); Hughley v. State, 
    15 N.E.3d 1000
    , 1003 (Ind. 2014).
    At issue are two legal questions that we also address de novo. First, does Section 2, which
    prohibits DCS from identifying reporters, create a private right of action? Howard Reg’l Health
    Sys. v. Gordon, 
    952 N.E.2d 182
    , 185 (Ind. 2011) (reviewing the existence of a private right of
    action as a matter of law). Second, if not, does the common law nevertheless impose an actionable
    duty on DCS for telling John that his report was “confidential”? Rogers v. Martin, 
    63 N.E.3d 316
    ,
    320 (Ind. 2016) (reviewing the existence of a common-law duty, absent genuine issues of material
    fact, as a matter of law).
    Discussion and Decision
    To prevail on their negligence claims, the Does must prove that DCS (1) owed them a duty,
    (2) breached that duty, and (3) proximately caused their injuries. Rogers, 63 N.E.3d at 321. Here,
    the parties dispute only the first element: whether DCS owed a duty of confidentiality under
    Section 2 and, if not, whether it owed one under the common law. Though DCS’s disclosure was
    irresponsible, it cannot trigger civil liability under either theory.
    I.      Section 2 Provides No Private Right of Action.
    The parties agree that Section 2 does not expressly provide a private right of action; they
    dispute only whether it implies one. This is purely a question of legislative intent, not judicial
    preference: did the General Assembly intend Section 2 to create a right of action, despite not saying
    3
    so expressly? See Alexander v. Sandoval, 
    532 U.S. 275
    , 286–87 (2001). We have “long been
    reluctant” to infer this unwritten intent, since the legislature often1 creates rights of action using
    clear language. See F.D. v. Ind. Dep’t of Child Servs., 
    1 N.E.3d 131
    , 143–44 (Ind. 2013) (Rush,
    J., concurring in part and dissenting in part). This reluctance to invade the legislature’s purview
    has developed into a two-part rule: we usually will not infer a private right of action when the
    statute (1) primarily protects the public at large and (2) contains an independent enforcement
    mechanism. See, e.g., Gordon, 952 N.E.2d at 187 (citing Estate of Cullop v. State, 
    821 N.E.2d 403
    (Ind. Ct. App. 2005)); LTV Steel Co. v. Griffin, 
    730 N.E.2d 1251
    , 1260 (Ind. 2000). We address
    each part in turn.
    A. The statute’s mission is to protect children, not reporters.
    When a statute is designed mainly for public benefit, it implies no right of action; incidental
    benefits to a private party make no difference. See Sprunger v. Egli, 
    44 N.E.3d 690
    , 693–94 (Ind.
    Ct. App. 2015); C.T. v. Gammon, 
    928 N.E.2d 847
    , 853–54 (Ind. Ct. App. 2010); Whinery v.
    Roberson, 
    819 N.E.2d 465
    , 475 (Ind. Ct. App. 2004), trans. dismissed; Borne ex rel. Borne v. Nw.
    Allen Cty. Sch. Corp., 
    532 N.E.2d 1196
    , 1203 (Ind. Ct. App. 1989), trans. denied. In Borne, for
    example, a child-abuse victim sued an elementary-school principal for breaching his statutory duty
    to report abuse. 
    532 N.E.2d at 1202
    . Though that statutory duty would have undeniably benefited
    the particular child-abuse victim, the Court of Appeals refused to infer a private right of action
    since the statute’s “primary thrust” was helping children in general. 
    Id. at 1203
    .
    1
    See, e.g., 
    Ind. Code § 5-14-1.5
    -7 (Supp. 2016) (open door law); I.C. § 5-14-3-9 (Supp. 2016) (public
    records access); I.C. § 6-1.1-35-12 (2014) (disclosure of confidential tax information); I.C. § 9-22-3-36
    (2016) (salvage motor vehicles); I.C. § 16-41-2-7 (2008) (reporting communicable diseases); I.C. § 23-2-
    5-15 (2016) (loan brokers); I.C. § 23-19-5-9 (2016) (securities fraud); I.C. § 24-3-2-12(b) (2016) (cigarette
    fair trade); I.C. § 24-3-4-14 (2016) (cigarette import and distribution); I.C. § 24-4-5-7 (2016) (cloth product
    trademarks); I.C. § 24-4.8-3-1 (2016) (spyware); I.C. § 24-5-8-17 (2016) (business opportunity
    transactions); I.C. § 24-5-13.5-13 (2016) (buyback vehicle disclosures); I.C. § 24-5-15-9 (2016) (credit
    services); I.C. § 24-5-17-14 (2016) (environmental marketing claims); I.C. § 24-5-19-9 (2016) (deceptive
    commercial solicitation); I.C. § 24-5-21-6 (2016) (prescription drug discount cards); I.C. § 24-5-23-2
    (2016) (marketing by mortgage lenders); I.C. § 24-5-24-15 (2016) (security freezes for consumer reports);
    I.C. § 24-9-5-4 (2016) (home loan practices); I.C. § 24-11-5-1 (2016) (patent infringement); I.C. § 32-31-
    7-7 (2016) (tenant obligations); I.C. § 32-31-8-6 (2016) (landlord obligations); I.C. § 32-36-1-10 (2016)
    (rights of publicity); I.C. § 32-37-5-1 (2016) (copyright); I.C. § 34-28-7-3 (2014) (possessing firearms in
    locked vehicles); I.C. § 35-42-3.5-3 (2014) (human and sexual trafficking); I.C. § 36-7-11-21 (2012)
    (historic preservation).
    4
    The statute here has the same “primary thrust” as the statute in Borne. Indeed, they are both
    part of the “Reporting and Investigation of Child Abuse and Neglect” scheme, which declares five
    purposes all revolving around helping children in general:
    (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.
    I.C. § 31-33-1-1 (2008).
    This child-centered framework does not just encourage reporting; it consciously “err[s] on
    the side of over reporting.” Smith v. State, 
    8 N.E.3d 668
    , 683, 692 (Ind. 2014) (affirming a high-
    school principal’s conviction for failing to report a student’s alleged rape). It does so using two
    main tools. First, it imposes criminal liability—a Class B misdemeanor—for anyone who has
    reason to believe that a child may be a victim of abuse or neglect but fails to immediately report it
    to DCS or to police. I.C. §§ 31-33-5-1, -4, -22-1(a) (2008). Second, it immunizes good-faith
    reporters from any civil or criminal liability that may arise from their reports. I.C. § 31-33-6-1, -2
    (2008).
    And this framework’s confidentiality protections further facilitate the goal of “over
    reporting” to help identify abused or neglected children. After a report comes in, the statutes
    require DCS to act promptly while guarding the reporter’s identity. Within 48 hours, DCS must
    write a confidential report that identifies the child, the alleged perpetrator, and the “source of the
    report.” I.C. § 31-33-7-4 (2008); I.C. § 31-33-18-1(a) (Supp. 2012). DCS may disseminate this
    report to a closed universe of recipients—including police and prosecutors—but it must “protect[]”
    the reporter’s identity when disseminating the report to the victim’s parents and the accused. I.C.
    § 31-33-18-2 (Supp. 2012). This procedure ultimately serves the statutes’ express purpose of
    protecting children. See I.C. § 31-33-1-1.
    In sum, the objective of this statutory scheme is clear: helping and protecting Hoosier
    youth. Year after year, the number of Indiana’s child abuse and neglect investigations and cases
    5
    continues to climb.2 The General Assembly’s mission—expressed in the statutory scheme’s five
    purposes—is to reverse this trend through reporting. That one of the scheme’s provisions
    incidentally benefits reporters by requiring confidentiality does not change this goal—especially
    given the alternative confidentiality-enforcement mechanisms we now address.
    B. The statutory scheme already provides enforcement.
    When a statute expressly provides one enforcement mechanism, courts may not engraft
    another. See Gordon, 952 N.E.2d at 187 (citing Estate of Cullop, 
    821 N.E.2d 403
    ). Affirming this
    principle, Indiana courts find no private right of action where the General Assembly has provided
    independent enforcement—even if only an infraction. See id.; Kimrey v. Donahue, 
    861 N.E.2d 379
    , 382 (Ind. Ct. App. 2007), trans. denied; Stulajter v. Harrah’s Ind. Corp., 
    808 N.E.2d 746
    , 748
    (Ind. Ct. App. 2004); Estate of Cullop, 
    821 N.E.2d at 409
     (gleaning no right of action from a
    transportation statute as it already provided independent enforcement through a Class C
    infraction).
    Here, Section 2 contains two alternative enforcement mechanisms. First, a public
    employee—including a DCS hotline worker—who “knowingly or intentionally discloses”
    confidential information commits a Class A infraction carrying a fine of up to $10,000. See I.C. §
    5-14-3-10(a) (Supp. 2012); I.C. § 34-28-5-4(a) (Supp. 2012). Second, that employee may also be
    “disciplined in accordance with the personnel policies” of their agency. I.C. § 5-14-3-10(b). DCS’s
    personnel policies provide that employees who breach confidentiality face a range of discipline,
    including dismissal.
    We do not, of course, condone DCS’s thoughtless fumbling of sensitive information. Quite
    the opposite. Child-abuse reporters are DCS’s eyes and ears on the front lines of the fight to protect
    children—and without their trust and cooperation, DCS faces a nearly impossible uphill battle.
    Knowing this, our General Assembly might choose to impose a right of action, just as it has for
    Hoosiers falsely accused of child abuse. I.C. § 31-33-22-3(b) (Supp. 2012). But separation of
    powers requires us to leave that decision to the legislature, rather than make it ourselves under the
    guise of statutory interpretation.
    2
    See, e.g., Ind. Dep’t of Child Servs., Annual Report to the State Budget Committee & Legislative Council,
    at 23–24 (Dec. 2016), http://www.in.gov/dcs/files/SFY16DCSAnnualReportFINAL.pdf.
    6
    Thus, we cannot infer that the General Assembly intended Section 2 to impose civil
    liability. We now address the Does’ common-law claim.
    II.      There Is No Common-Law Basis to Impose a Duty on DCS.
    The Does do not assert that there is a general common-law duty to maintain confidentiality.
    Rather, they argue that DCS had a duty because John detrimentally relied on the DCS worker’s
    statement that reporter identity is confidential. In addressing this common-law argument, we
    discuss three theories (though the Does directly raise only the first): the “private duty” doctrine,
    the assumed-duty doctrine, and the three-part test for new duties in Webb v. Jarvis, 
    575 N.E.2d 992
     (Ind. 1991). For the reasons explained below, we hold that none of these theories creates a
    duty and thus reject the Does’ common-law claim.
    A. The “private duty” test applies only to a government’s promise to send emergency services.
    In asserting their detrimental-reliance claim, the Does invoke the “private duty” test from
    Mullin v. Mun. City of S. Bend, 
    639 N.E.2d 278
     (Ind. 1994), and Koher v. Dial, 
    653 N.E.2d 524
    (Ind. Ct. App. 1995), trans. denied. In Mullin, after a mother lost her son to a house fire, she sued
    the city for breaching its “private duty” to dispatch an ambulance. 639 N.E.2d at 280. On appeal,
    we adopted a three-part private-duty test rooted in detrimental reliance: (1) the government must
    give “explicit assurance” that it will assist the plaintiff, (2) it must know that inaction could harm
    the plaintiff, and (3) the plaintiff must justifiably and detrimentally rely on the government’s
    affirmative undertaking. Id. at 284 (citing City of Rome v. Jordan, 
    426 S.E.2d 861
    , 863 (Ga.
    1993)). We held, however, that the mother’s claim failed the test because the city never promised
    an ambulance and because she gave no evidence of detrimental reliance. Id. at 285. In other words,
    if there is no promise or no detrimental reliance, there can be no private duty.
    Though broadly worded, Mullin’s private-duty test was quickly confined to its original
    emergency-dispatch context. In Benton v. City of Oakland City, a man broke his neck diving into
    a lake and sued the city for breaching a duty to post shallow-water warnings. 
    721 N.E.2d 224
    , 225
    (Ind. 1999). The Court of Appeals affirmed summary judgment for the city since it never assumed
    any “private duty.” Id. at 226. On transfer, we agreed because the private-duty test applies only to
    situations like the one in Mullin—where a governmental unit is alleged to have breached a duty to
    provide “emergency services.” Id. at 233.
    7
    Here, as in Benton, the Does’ claim does not pertain to “emergency services” and thus falls
    short of the narrow private-duty test. Certainly, John relied on the hotline employee’s statement
    that reporter identity was confidential. But since that statement was about confidentiality—not
    emergency dispatch—the Does cannot establish a private duty.
    Mullin’s test, however, is not the only doctrine that encompasses detrimental-reliance
    claims. The Does also raised at the summary-judgment hearing the broader assumed-duty doctrine.
    We elect to address this issue.
    B. Assumed duty does not apply as DCS only paraphrased a statute.
    Indiana common law recognizes that one may gratuitously assume a duty by conduct. See,
    e.g., Yost v. Wabash Coll., 
    3 N.E.3d 509
    , 516–18, 521 (Ind. 2014). But we impose these duties
    “cautiously,” and have adopted the demanding test in the Restatement (Third) of Torts section 42,
    which requires a specific “undertaking”:
    An actor who undertakes to render services to another and who
    knows or should know that the services will reduce the risk of
    physical harm to the other has a duty of reasonable care to the other
    in conducting the undertaking if:
    (a) the failure to exercise such care increases the risk of
    harm beyond that which existed without the
    undertaking, or
    (b) the person to whom the services are rendered or
    another relies on the actor’s exercising reasonable
    care in the undertaking.
    See id. at 517; S. Shore Baseball, LLC v. DeJesus, 
    11 N.E.3d 903
    , 910–11 (Ind. 2014) (citing Yost
    as adopting the Restatement’s test). This “undertaking” element sets a high bar, requiring
    “affirmative, deliberate conduct.” Yost, 3 N.E.3d at 517.3
    Critical here, this high bar is not cleared when the defendant merely references some type
    of pre-existing rule—like a regulation, policy, or statute. See id. at 517–18. In Yost, for example,
    3
    See also Smith v. Delta Tau Delta, Inc., 
    9 N.E.3d 154
    , 161–63 (Ind. 2014) (finding fraternity’s published
    rules against underage drinking insufficient to assume a duty to prevent it); McCollough v. Noblesville
    Sch., 
    63 N.E.3d 334
    , 339, 346 (Ind. Ct. App. 2016) (finding school principal’s promise to investigate a
    basketball coach’s alleged battery insufficient to assume a duty to do so), trans. denied; McClure v. Strother,
    
    570 N.E.2d 1319
    , 1321 (Ind. Ct. App. 1991) (finding landowner’s promise that ground was firm insufficient
    to assume a duty to prevent plaintiff’s ladder from slipping on mud).
    8
    a college freshman suffered an injury during a fraternity hazing event and sued the college, arguing
    that it had assumed a duty to protect him in part because it had disseminated an anti-hazing policy.
    Id. at 513, 517–18. But we disagreed, finding this “do[es] not rise to the level of a specific
    undertaking that demonstrate[s] a special relationship.” Id. at 518. Communicating a rule was not
    enough.
    Nor did merely communicating a rule pass muster in Lanni v. NCAA, 
    42 N.E.3d 542
    , 553
    (Ind. Ct. App. 2015). There, a spectator at a college fencing match took a saber to the face and
    sued the NCAA, arguing that it had assumed a duty—by, among other things, setting boundaries
    around the fencing area—to prohibit spectators from standing too close to the action. Id. at 550,
    553. But, relying on Yost, the Court of Appeals disagreed, reasoning that communicating a rule
    for bystanders’ safety does not “rise to the level of assuring [bystanders’] protection.” Id. at 553.
    In short, conveying existing rules without an accompanying specific undertaking does not trigger
    liability.4
    And that is all the DCS hotline employee did here. By informing John that his report was
    confidential, the employee did no more than the college in Yost or the NCAA in Lanni—she
    simply communicated an existing rule. Granted, the employee did summarize Section 2 using her
    own words: “[I]t’s confidential. Nobody will find out.” But given the demanding standard for
    “specific undertaking,” and given our caution in finding gratuitously assumed duties, we cannot
    read the hotline worker’s words as an offer to take on additional common-law liability.
    This holding aligns with our reluctance to infer private rights of action. That is, when a
    statute provides no right of action, the fact that a defendant repeats it aloud does not trigger
    independent liability. Indeed, Indiana and other jurisdictions disfavor such end-runs around the
    legislature. See Sprunger v. Egli, 
    44 N.E.3d 690
    , 694 (Ind. Ct. App. 2015) (disagreeing that the
    plaintiff’s common-law claim was “something other than an attempt to assert a private right of
    action for failure to report [child] abuse”); Cruz v. TD Bank, N.A., 
    742 F.3d 520
    , 522–23 (2d Cir.
    2013); Kerusa Co. LLC v. W10Z/515 Real Estate Ltd. Partnership, 
    906 N.E.2d 1049
    , 1054–55
    (N.Y. 2009).
    4
    See Shawnee Constr. & Eng’g, Inc. v. Stanley, 
    962 N.E.2d 76
    , 80, 86 (Ind. Ct. App. 2011) (holding that
    a contractual provision ensuring compliance with safety regulations was not enough to find assumed duty),
    trans. denied; Marks v. N. Ind. Pub. Serv. Co., 
    954 N.E.2d 948
    , 956 (Ind. Ct. App. 2011) (“Having safety
    rules and requirements is insufficient without some affirmative conduct on the part of [the defendant].”).
    9
    In sum, DCS did not assume a duty of confidentiality on this record. But the Does also
    asserted—for the first time at the Court of Appeals oral argument—that we should recognize a
    new duty encompassing these facts under our three-part test in Webb v. Jarvis, 
    575 N.E.2d 992
    (Ind. 1991). We use our discretion to address this belated claim. But see Humphrey v. State, 
    73 N.E.3d 677
    , 687 n.2 (Ind. 2017) (deeming an argument waived when raised for the first time at
    oral argument); Vertucci v. NHP Mgmt. Co., 
    701 N.E.2d 604
    , 607 n.1 (Ind. Ct. App. 1998)
    (declining to address Webb since the plaintiffs “seemingly proceeded solely on the theory that
    [defendant] gratuitously assumed a duty”).
    C. The Webb test yields the same result as the assumed-duty doctrine.
    When determining a duty’s existence for the first time, we often look to our three-part test
    in Webb: balancing (1) the parties’ relationship, (2) the foreseeability of harm, and (3) public
    policy. 575 N.E.2d at 995. Here, Webb imposes no duty.
    We acknowledge that John satisfies the foreseeability prong, as retaliation against child-
    abuse reporters is an unfortunate reality for a town of any size, let alone one where “[e]verybody
    knows everybody.” The other two prongs, however, cut the other way. Like the college in Yost,
    DCS formed no “special relationship” with the Does by simply communicating a pre-existing rule.
    3 N.E.3d at 518.5 And as for public policy, we cannot ignore that Indiana common law already
    forecloses a child-abuse victim from suing a bystander for failing to report abuse. See, e.g., Borne
    ex rel. Borne v. Nw. Allen Cty. Sch. Corp., 
    532 N.E.2d 1196
    , 1203 (Ind. Ct. App. 1989), trans.
    denied.
    Regrettably, this result does not undo the wreckage. By relaying the statutory requirement
    of confidentiality and then violating it, DCS exposed an innocent family to harassment and threats.
    5
    The dissent’s “special relationship” analysis—“perhaps the crux” of its argument—focuses on detrimental
    reliance, arguing that John detrimentally relied on DCS’s “extra, explicit and specific assurance” that no
    one will learn his identity. Slip op. at 1–3. Yet Indiana’s common law already provides detrimental-reliance
    theories, and the Does do not satisfy the elements. The assumed-duty doctrine, for example, requires a
    “specific undertaking”; here there was none. See Yost, 3 N.E.3d at 518. Actual fraud requires a material
    misrepresentation of “past or existing facts”; here the promise concerned only the future. See Rice v. Strunk,
    
    670 N.E.2d 1280
    , 1289 (Ind. 1996) (citing Pugh’s IGA, Inc. v. Super Food Servs., Inc., 
    531 N.E.2d 1194
    ,
    1197 (Ind. Ct. App. 1988)). And constructive fraud requires either a material misrepresentation of “past or
    existing facts” or silence “when a duty to speak exists”; here there was neither. See 
    id. at 1284
    ; In re Scahill,
    
    767 N.E.2d 976
    , 979 (Ind. 2002). Our common law has thus carefully defined liability for promises, and
    this case—though distressing—does not warrant an ad hoc exception.
    10
    Our question on transfer, though, is narrow: should we expand our common law to impose a duty
    for summarizing a statute? On this record, we decline—seeing no reason why the common law
    should engulf an essentially statutory protection.
    Conclusion
    We do not condone DCS’s actions, but find no basis—in either statute or common law—
    for imposing a duty of confidentiality. We therefore affirm summary judgment for DCS.
    Massa, Slaughter, and Goff, JJ., concur.
    David, J., concurs in part and dissents in part with separate opinion.
    11
    David, J., concurring in part, dissenting in part
    I agree with the majority that John Doe does not have a private right of action under the
    statute. However, I disagree with the majority’s conclusion that he also does not have a common-
    law negligence claim. I believe under Webb, John may bring a common-law negligence claim.1
    Accordingly, I would reverse the trial court’s entry of summary judgment for DCS and remand for
    further proceedings.
    In order to determine whether a duty is owed at common law, 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).
    This three-part balancing test articulated in Webb is a useful tool in determining whether a duty
    exists in those instances where the element of duty has not already been declared or otherwise
    articulated. N. Indiana Pub. Serv. Co. v. Sharp, 
    790 N.E.2d 462
    , 465 (Ind. 2003). In Goodwin v.
    Yeakle’s Sports Bar & Grill, Inc., we modified the foreseeability component of Webb and held
    that “for purposes of determining whether an act is foreseeable in the context of duty, we assess
    whether there is some probability or likelihood of harm that is serious enough to induce a
    reasonable person to take precautions to avoid it.” 
    62 N.E.3d 384
    , 392 (Ind. 2016) (internal citation
    omitted).
    Although the majority found otherwise, I believe all three factors weigh in favor of John,
    not only foreseeability. I believe public policy strongly supports keeping John’s information
    confidential, to protect both the public and, incidentally, the reporting source. If the identity of the
    reporting source is not protected, this may chill reporters from coming forward at all. This is true
    despite the statutory mandate for those who have reason to suspect child abuse or neglect to come
    forward. Indeed, John stated in his deposition that if he were to see child abuse or neglect in the
    future, he “[doesn’t] think [he] could call [DCS] again.” (Appellant’s App at 46.) Thus, there is
    strong public policy supporting maintaining confidentiality for the reporting source because the
    goal is to encourage reporting and thereby, protect children.
    1
    The majority repeatedly states that there is no common-law duty of confidentiality. I don’t disagree.
    However, I believe that in this case, DCS had a duty to John pursuant to the Webb test.
    Whether a special relationship exists between John and DCS is perhaps the crux of the
    matter.      This is a fact-sensitive determination that depends on the level of interaction or
    dependency between the parties that surpasses what is common or usual. J.A.W. v. Roberts, 
    627 N.E.2d 802
    , 810 (Ind. Ct. App. 1994), abrogated on other grounds.
    Here, John called DCS to report that he suspected that several neighborhood children were
    being abused and/or neglected. When John was about to end the call, the DCS employee asked
    John to provide his name and phone number. John was hesitant to do so. He stated that he did not
    want anyone to know he was calling. The DCS employee then told John that his information was
    confidential and promised him that “nobody will find out.” John then gave his information, relying
    on the DCS employee’s assurance that his information would not get out. I construe DCS’ promise
    that “nobody will find out” as an explicit assurance that DCS would act on John’s behalf. John
    justifiably depended2 upon the DCS employee’s promise to his detriment.
    DCS makes several arguments in an effort to recharacterize its interaction with John and
    argue no special relationship was created, but I do not find them to be persuasive. First, DCS
    argues that it was not unreasonable to request this information from John and that John was not
    coerced. I agree.3 However, it is likely John would not have provided his name had he known his
    information would be made public. He relied on DCS’ assurance that his information would not
    get out.
    Second, DCS argues, and the majority found, that the DCS employee only told John what
    the statute requires and thus, no special relationship was created. However, DCS did more than
    just recite the statute. The majority cites Yost and Lanni in support of its position that merely
    2
    The majority states that Indiana common law already provides detrimental reliance theories and that they
    do not apply here. However, when determining whether there is a special relationship for purposes of the
    Webb test, which is separate and apart from the detrimental reliance test, dependency between the parties
    is considered. See Roberts, 
    627 N.E.2d at 810
    . Further, as discussed herein, I disagree with the majority’s
    premise that DCS did not engage in a specific undertaking when it promised John that no one would find
    out. These facts are not the same as those in Yost and Lanni. Nevertheless, I think that Webb alone gets us
    to a finding that John has a common-law negligence claim.
    3
    I am not suggesting that John would have a claim for actual or constructive fraud here.
    2
    communicating a rule is not enough to create a special relationship. However, in those cases the
    defendants did not make any extra or explicit promise to plaintiffs themselves. In Yost, plaintiff
    sought to hold a school liable for injuries he suffered during a hazing event because the school had
    disseminated an anti-hazing policy. That case would be more analogous, and therefore, more
    applicable to this case if the plaintiff in Yost had been hesitant to join the fraternity until someone
    from the school assured him personally that he would not get hurt. Similarly, the plaintiff in Lanni
    would be in a different position had he been hesitant to sit in his seat at the fencing match until
    someone from the NCAA assured him that he would be safe. But in both Yost and Lanni there
    was no extra or explicit promise made to those plaintiffs beyond the protection afforded by the
    rule.
    Here, John would be in the same position as the plaintiffs in Yost and Lanni, had he given
    his information without hesitation or if the DCS employee simply made reference to the statutory
    requirement that his information be kept confidential without the added promise of “[n]obody will
    find out.” In that case, John would not be able to establish a common-law duty like the plaintiffs
    in those cases. However, I believe the extra, explicit and specific assurance that no one would find
    out (which is more than what the statute promises) coupled with John’s expressed hesitation to
    provide his information, creates a special relationship between the parties. I believe this added
    promise to John is not a mere paraphrasing of the statute in light of the circumstances.
    Third, DCS argues, and the majority agrees, that because victims of child abuse have no
    private cause of action, neither do reporters of child abuse. Admittedly, at first blush, this seems
    like a compelling argument. However, in cases holding there is no private cause of action for
    victims, the courts did not apply the Webb test to the facts of those cases. Instead, the arguments
    were focused upon whether the statute provided a private cause of action. See, e.g., Borne ex rel.
    Borne, 
    532 N.E.2d at 1203
     (“An examination of I.C. 31–6–11–1 et seq. persuades us that the
    legislature did not intend to confer a private right of action for any breach of the duty to report
    imposed by the statute”); Sprunger v. Egli, 
    44 N.E.3d 690
    , 691 (Ind. Ct. App. 2015) (addressing
    the “threshold question of whether the reporting statutes confer a private right of action”).
    Additionally, in those cases, unlike this one, the would-be reporters did not make any specific or
    added promise to the parents above what the statute requires. Instead, only the statute required the
    3
    potential reporters to step forward. Here, the DCS employee was required by statute to keep John’s
    information confidential and she also promised explicitly that “nobody will find out.” It is this
    extra promise that is beyond the statute that gives rise to the common-law duty in this case. She
    could have told John that they would do their best but that there were no guarantees his information
    would not be revealed, that she could not give legal advice or that he was required to report in any
    case. She could have directed him to or referred to the statute. She could have said any number
    of things. But instead, she promised him nobody would find out. John then disclosed his identity.
    Similarly, as for DCS’ argument that allowing a common-law claim to proceed in this case
    would be an “end run” around the statute, I disagree. When the legislature enacts a statute in
    derogation of the common law, this Court presumes that the legislature is aware of the common
    law, and does not intend to make any change therein beyond what it declares either in express
    terms or by unmistakable implication. Caesars Riverboat Casino, LLC v. Kephart, 
    934 N.E.2d 1120
    , 1123 (Ind. 2010) (internal citation omitted); Bartrom v. Adjustment Bureau, Inc., 
    618 N.E.2d 1
    , 10 (Ind. 1993) (internal citation omitted). In cases of doubt, a statute is construed as not
    changing the common law. Bartrom, 618 N.E.2d at 10. Here, the statute at issue, by its plain
    language, is not meant to foreclose or even address the right of a reporter of suspected child
    abuse or neglect to bring a negligence action. Instead, the focus of the statute is to set forth
    guidelines for how reports of child abuse and neglect are to be maintained and kept and who is
    entitled to access what information. Thus, it does not seem the statute was meant to foreclose a
    common-law negligence action.
    Further, there are situations where the statute provides the only basis for recovery (for
    instance, Borne and Sprunger discussed above where the claims brought were premised upon
    violation of the statute only); this is not one of them. Even though John has no private right of
    action pursuant to the statute, this does not foreclose his common-law claim. As discussed above,
    the Webb test is employed in negligence cases to determine whether there is a common-law duty
    of care when no other test has been articulated. See Sharp, 790 N.E.2d at 465. In balancing the
    Webb factors, I believe John’s interaction with the DCS employee in this case was enough to
    establish a special relationship because John relied upon DCS’ promise that “[n]obody will find
    out.” I agree with the majority that the harm to John was foreseeable. I believe public policy
    4
    strongly supports keeping confidential the information of reporters of suspected child abuse or
    neglect. I also note that even if we held that DCS owed John a duty as a matter of law such that
    his common-law claim survives summary judgment, John would still have to prove the other
    elements of his negligence claim, including proximate cause and damages. See Goodwin, 62
    N.E.3d at 386.
    Finally, allowing John’s common-law claim to proceed is consistent with Article 1, Section
    12 of our Constitution and our summary judgment standard. Article 1, Section 12 provides in
    relevant part: “All courts shall be open; and every person, for injury done to him in his person,
    property, or reputation, shall have remedy by due course of law.” And in Hughley v. State, this
    Court acknowledged that: “Indiana consciously errs on the side of letting marginal cases proceed
    to trial on the merits, rather than risk short-circuiting meritorious claims.” 
    15 N.E.3d 1000
    , 1004
    (Ind. 2014). While I acknowledge that this case involves a question of law rather than an issue of
    fact, allowing the claim to proceed is consistent with our State’s constitutional mandate that
    plaintiffs may seek a remedy and our practice of letting cases proceed to trial. I think this is
    particularly important in a case like this where John relied upon a promise made by a government
    actor in response to his reluctance to provide information to the State, fearing consequences for
    himself and his family. I believe dismissing his claim on summary judgment might send a message
    that government actors can make false promises in an effort to achieve a desired result and not be
    held legally accountable when harm comes to the promisee.
    For all the reasons discussed above, I would reverse the trial court and let John have his
    day in court.
    5