Childcare Centers Did Not Owe a Duty of Care to the Victim

Key point 4-08. Every state has a child abuse reporting law that requires persons designated as mandatory reporters to report known or reasonably suspected incidents of child abuse. Ministers are mandatory reporters in many states. Some states exempt ministers from reporting child abuse if they learned of the abuse in the course of a conversation protected by the clergy-penitent privilege. Ministers may face criminal and civil liability for failing to report child abuse.

Key point 8-24. A reference letter is a letter that evaluates the qualifications and suitability of a person for a particular position. Churches, like other employers, often use reference letters to screen new employees and volunteers. Churches often are asked to provide reference letters on current or former workers. The law generally provides employers with important protections when responding to a reference letter request. However, liability may still arise in some cases, such as if the employer acts with malice in drafting a reference letter.

The Nebraska Supreme Court ruled that two childcare centers were not responsible for the death of an infant in another facility on the ground that they failed to report the worker’s prior acts of child abuse to civil authorities.

A married couple used an online service to find a nanny to provide in-home care for their infant daughter (the “victim”). The parents hired a young woman (the “defendant”) over approximately 30 other matches proposed by the online service, in part because the defendant had more experience working in childcare centers. Before selecting the defendant, the parents conducted a standard background check that revealed no concerns.

The defendant began working for the couple in January 2013. A month later, the defendant inflicted injuries on the infant. The victim died from his injuries several days later. The defendant was found guilty of intentional child abuse resulting in death and was sentenced to imprisonment for a term of 70 years to life.

In 2014, the couple sued the defendant for battery resulting in death. The trial court found her liable and assessed $5.2 million in compensatory damages. The parents also sued two childcare centers where the defendant previously worked claiming they were liable on the basis of negligence for the victim’s death because they knew or should have known that she was abusing children while in their employ and failed to report that abuse to authorities. The parents claimed that the childcare centers had a duty of reasonable care and breached that duty by failing to report the defendant’s abusive behavior. Such a duty, they argued, was based on the state child abuse reporting law that imposes a duty on “any person” having “reasonable cause to believe that a child has been subjected to child abuse or neglect” to “report such incident or cause a report of child abuse or neglect to be made to the proper law enforcement agency or to the Department of Health and Human Services.”

Like most states, Nebraska maintains a central registry of child protection cases containing records of all reports of child abuse or neglect opened for investigation. Any person listed as a perpetrator on the registry may not be on the premises of a childcare center during the hours of operation.

The two childcare centers where the defendant had previously worked were aware of incidents of child abuse involving the defendant, including the following:

• A coworker saw the defendant yell at, shove, and drop toddlers in her care. The defendant also was seen forcefully pulling a child down a playground slide, causing the child’s head to hit the ground. A coworker reported these events to the center’s director, who investigated and concluded they did not amount to reportable child abuse. Neither the director, the coworker, nor anyone else reported the defendant’s behavior to the authorities. The defendant was dismissed as an employee of the center.
• At the second center an employee observed the defendant verbally and physically abuse children. She was seen dragging children, yelling at children, and dropping children. On one occasion, a coworker saw her “shove” shoes and pants into a child’s mouth during a diaper change. On another occasion, a coworker saw her “fling” a child across the room, causing the child to hit her head on a table. These events were reported to the center’s director, who investigated and concluded they did not amount to reportable child abuse. Neither the director, coworkers, nor anyone else at the center reported the defendant to the authorities. The defendant was dismissed as an employee of the center.

The parents argued that if the defendant’s abusive behavior had been timely reported by the childcare centers, then authorities would have investigated the reports sooner, and the defendant’s name would have been placed on the central registry and been detected during the parent’s background check. The trial court agreed with the parents, and the childcare centers appealed.

The state supreme court began its opinion by observing: “When confronted with an unimaginable loss like the one experienced by the parents, it is natural to ask, What more could have been done? But tort law requires that a different question be answered first, Was there a legal duty to do something more?” The court noted that “in order to prevail in a negligence action, a plaintiff must establish the defendant’s duty to protect the plaintiff from injury, a failure to discharge that duty, and damages caused by the failure to discharge that duty. The threshold issue in any negligence action is whether the defendant owes a legal duty to the plaintiff.” The court concluded that the childcare centers did not owe a duty of care to the victim:

The failure to rescue or protect another from harm is not conduct creating a risk of harm and does not give rise to a duty of care. . . . When the only role of the actor is failing to intervene to protect others from risks created by third persons, the actor’s nonfeasance cannot be said to have created the risk. Generally speaking, the law does not recognize a duty of care when others are at risk of physical harm for reasons other than the conduct of the actor, even if the actor may be in a position to help. Ordinarily, the failure to act will not be the sort of affirmative conduct that gives rise to a duty. . . .

We cannot find that [the law] supports the existence of a legal duty owed by the childcare centers to the victim or his parents. Indeed, if we were to recognize a legal duty to protect others from harm based exclusively on the failure to report suspected abuse, such a duty could expose every citizen in Nebraska who witnesses possible abuse or neglect and fails to report it, to potentially limitless civil tort liability for the future criminal acts of abusers over whom they have no control, and with whom they have no special relationship.

What this means for churches

It is a fundamental principle of law that there can be no liability for a failure to protect another from harm or peril. As one court observed: “One human being, seeing a fellow man in dire peril, is under no legal obligation to aid him, but may sit on the dock, smoke his cigar, and watch the other fellow drown.” Evans v. Ohio State University, 680 N.E.2d 161 (Ohio App. 1996). The Nebraska Supreme Court recognized this principle when it observed that the two childcare centers where the defendant had been employed were under no legal duty to report incidents of child abuse to the state and therefore were not liable for failure to do so. This principle means that in any state that recognizes the general rule of non-liability for failure to warn a church cannot be liable for failing to warn another church of the dangerous propensities of a former employee or volunteer.

But note that some courts have recognized exceptions to the general rule in the case of an organization’s own employees, or if a “special relationship” exists between the former employer and the perpetrator.

In a leading case, the Wisconsin Supreme Court unanimously ruled that a church did not have an affirmative duty to warn future employers that one of its ministers had molested several boys. Hornback v. Archdiocese of Milwaukee, 752 N.W.2d 862 (Wis. 2008). The court concluded:

We decline to rule that under the general duty of ordinary care recognized in Wisconsin, an employer may be found negligent for failing to warn unforeseen third parties of a dangerous former employee. Such a ruling would extend an employer’s obligation to warn indefinitely into the future to a sweeping category of persons, thereby requiring employers to warn nearly all potential future employers or victims, as the plaintiffs in this case argue. . . . A decision to the contrary would create precedent suggesting that employers have an obligation to search out and disclose to all potential subsequent employers, which could include in an employment context every school in the country or beyond, all matters concerning an ex-employee’s history. . . . The primary public policy problem with recognizing the claim as presented by the plaintiffs is that there is no sensible stopping point to recognizing negligence claims for such an open-ended and ill-defined sweeping claim. Recognizing the plaintiffs’ claim against the Diocese in this case could result in requiring all employers to warn all unforeseen potential future employers of any number of problems related to any number of past employees. It could further result in all parents who become aware that their child was sexually abused then facing potential liability for not warning every other parent who might also have children at risk of being in contact with the perpetrator.

Bell v. Grow With Me Childcare & Preschool, 907 N.W.2d 705 (Neb. 2018).