No private cause of action for failure to report sex abuse

In a unanimous ruling, the State Supreme Court held yesterday in Arbaugh v. Bd. of Ed., County of Pendleton, et al., No. 31346 (Dec. 3, 2003) that "West Virginia Code § 49-6A-2 (2001) (Repl. Vol. 2001) does not give rise to an implied private civil cause of action, in addition to criminal penalties imposed by the statute, for failure to report suspected child abuse where an individual with a duty to report under the statute is alleged to have had reasonable cause to suspect that a child is being abused and has failed to report suspected abuse." Syl. Pt. 3, Arbaugh.

According to West Virginia Code § 55-7-9 (1923) (Repl. Vol. 2000) "Any person injured by the violation of any statute may recover from the offender such damages as he may sustain by reason of the violation, although a penalty or forfeiture for such violation be thereby imposed, unless the same be expressly mentioned to be in lieu of such damages." West Virginia Code § 49-6A-2 creates a mandatory duty to report suspected abuse for people working in certain professions.

To determine whether any given statute provides a civil remedy, the Court analyzes the circumstances under a 4-part test. See Syl. Pt. 1, Hurley v. Allied Chemical Corporation, 164 W.Va. 268, 262 S.E.2d 757 (1980). ("(1) the plaintiff must be a member of the class for whose benefit the statute was enacted; (2) consideration must be given to legislative intent, express or implied, to determine whether a private cause of action was intended; (3) an analysis must be made of whether a private cause of action is consistent with the underlying purposes of the legislative scheme; and (4) such private cause of action must not intrude into an area delegated exclusively to the federal government."

In this case, Mr. Arbaugh, a Pendleton County man, alleged that a teacher at Circleville School, sexually assaulted him for four years while he attended the school, and that teachers and other school officials who knew of the teacher's past abuse failed to report it. None of the defendants were criminally charged with failing to report the abuse.

The Court found that no private cause of action exists because two of the four Hurley factors were not met, namely the requirement that the legislature intend to provide a civil remedy, and that a private cause of action is not consistent with the underlying purposes of the legislative scheme. "When the provisions of the article are considered as a whole, we do not see that a private cause of action would meaningfully further the purposes of the article so as to find that such was intended by the Legislature," the Court ruled. "Under such nebulous circumstances, we are unwilling to recognize a new and broad field of tort liability without express legislative designation of a private cause of action."