Arbaugh v. Board of Educ., 31346.

• Decision Date: 03 December 2003
• Docket Number: No. 31346.,31346.
• Citation: 214 W.Va. 677,591 S.E.2d 235
• Court: West Virginia Supreme Court
• Parties: Tony Dean ARBAUGH, Jr., Plaintiff Below v. BOARD OF EDUCATION, the COUNTY OF PENDLETON, a Public Corporation, Ferlin Heavener, Individually, and in His Capacity as an Employee of the Pendleton County Board of Education, Calvin Thompson, Individually, and in His Capacity as Principal of Circleville School for the Pendleton County Board of Education, Sandra Hedrick, Individually, and in Her Capacity as an Employee of the Pendleton County Board of Education, Robin Kyle, Individually, and in Her Capacity as an Employee of the Pendleton County Board of Education, Janice Raines, Individually, and in Her Capacity as an Employee of the Pendleton County Board of Education, Charles R. Teter, Individually, and in his Capacity as an Employee of the Pendleton County Board of Education, Dr. Alan Canonico, Individually, and in His Capacity as Superintendent and Principal of Circleville School for the Pendleton County Board of Education, Janie Ours, Individually, and in Her Capacity as an Employee of the West Virginia Department of Health and Human Resources, Lori Thomas, Individually, and in Her Capacity as an Employee of the Children's Home Society of West Virginia, West Virginia Department of Health and Human Resources, a Government Entity, and Children's Home Society of West Virginia, a Non-Profit Organization, Defendants Below.

591 S.E.2d 235

214 W.Va. 677

Tony Dean ARBAUGH, Jr., Plaintiff Below v. BOARD OF EDUCATION, the COUNTY OF PENDLETON, a Public Corporation, Ferlin Heavener, Individually, and in His Capacity as an Employee of the Pendleton County Board of Education, Calvin Thompson, Individually, and in His Capacity as Principal of Circleville School for the Pendleton County Board of Education, Sandra Hedrick, Individually, and in Her Capacity as an Employee of the Pendleton County Board of Education, Robin Kyle, Individually, and in Her Capacity as an Employee of the Pendleton County Board of Education, Janice Raines, Individually, and in Her Capacity as an Employee of the Pendleton County Board of Education, Charles R. Teter, Individually, and in his Capacity as an Employee of the Pendleton County Board of Education, Dr. Alan Canonico, Individually, and in His Capacity as Superintendent and Principal of Circleville School for the Pendleton County Board of Education, Janie Ours, Individually, and in Her Capacity as an Employee of the West Virginia Department of Health and Human Resources, Lori Thomas, Individually, and in Her Capacity as an Employee of the Children's Home Society of West Virginia, West Virginia Department of Health and Human Resources, a Government Entity, and Children's Home Society of West Virginia, a Non-Profit Organization, Defendants Below.

No. 31346.

Supreme Court of Appeals of West Virginia.

Submitted November 18, 2003.

Decided December 3, 2003.

Lary D. Garrett, Garrett & Garrett, Moorefield, and Jeffrey R. Roth, Petersburg, for the Plaintiff.

Nancy W. Brown, Jacquelyn J. Core, M. Dawn Alexander, Steptoe & Johnson, PLLC, Clarksburg, for the Defendants, Pendleton County Board of Education, Robin Kyle, Charles R. Teter, and Dr. Alan Canonico.

Tamara J. DeFazio, Spilman, Thomas & Battle, Morgantown, for the defendant, Calvin Thompson.

J. Victor Flanagan, Julie Meeks, Marianna McHugh, Pullin, Knopf, Fowler & Flanagan, Charleston, for the defendant, Sandra Hedrick.

Jeffrey D. Taylor, Rose, Padden & Petty, Fairmont, for the defendant, Children's Home Society of West Virginia.

LaVerne Sweeney, Grafton, for Amicus Curiae, John Barbina. ALBRIGHT, Justice:

This case involves a certified question from the United States District Court for the Northern District of West Virginia in which we are asked to resolve the question of whether there is an implied private cause of action for failure to report suspected child abuse as required by West Virginia Code § 49-6A-2 (2001) (Repl. Vol. 2001). We conclude that relevant West Virginia law does not give rise to a private cause of action in this regard.

I. Background

On July 7, 2001, Tony Dean Arbaugh, Jr. (hereinafter referred to as "Mr. Arbaugh") filed suit in the United States District Court for the Northern District of West Virginia, with one count in his complaint alleging a private cause of action against several education and social service defendants for failure to report suspected abuse pursuant to West Virginia Code § 49-6A-2 (sometimes hereinafter referred to as "reporting statute").¹ The defendants moved to dismiss this count of the complaint, alleging that West Virginia has never recognized a private cause of action for such reporting failure. The dismissal motion was among the preliminary matters assigned to a federal magistrate. After briefing and a hearing on the issues related to the motion to dismiss, the magistrate entered an order on May 9, 2002, in which he found that pursuant to West Virginia Code § 55-7-9 and this Court's decision in Hurley v. Allied Chemical Corporation, 164 W.Va. 268, 262 S.E.2d 757 (1980), a private cause of action is implied for violations of West Virginia Code § 49-6A-2. Defendants filed objections and requested review by the district court judge. By order entered April 8, 2003, the district court certified the question to this Court. We agreed to accept the certified question on May 21, 2003.

II. Standard of Review

As set forth in syllabus point one of Light v. Allstate Insurance Company, 203 W.Va. 27, 506 S.E.2d 64 (1998), "[a] de novo standard is applied by this Court in addressing the legal issues presented by a certified question from a federal district or appellate court." Accord Syl. Pt. 1, Bower v. Westinghouse Elec. Corp., 206 W.Va. 133, 522 S.E.2d 424 (1999) ("This Court undertakes plenary review of legal issues presented by certified question from a federal district or appellate court."). Likewise, the certified question before us requires an examination of two statutory provisions, and in such cases "[w]here the issue ... is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review." Syl. Pt. 1, in part, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).

III. Discussion

The question of law, as certified by the United States District Court for the Northern District of West Virginia, reads as follows:

Whether W.Va.Code § 49-6A-2 creates a private civil cause of action, in addition to the criminal penalties imposed by the statute, for failure to report suspected sexual abuse where an individual is alleged to have had reasonable cause to suspect that a child is being sexually abused and has failed to report suspected abuse.

As related earlier, the federal magistrate to whom this question was referred answered the question in the affirmative based on the provisions of West Virginia Code §§ 49-6A-2 and 55-7-9 and application of this Court's decision in Hurley.

The case before the federal court involves a situation where a teacher sexually abused several of his male students over a period of time.² Mr. Arbaugh maintains that he was sexually molested by the abuser for a span of four years and is entitled to recover compensatory and punitive damages for the suffering caused by the defendants' failure to act and report. The defendants to this action allegedly had some level of knowledge of incidents of abuse of students by the teacher but never reported their suspicions of child abuse to the authorities as required by the reporting statute. None of the defendants were criminally charged for failure to report. W.Va.Code § 49-6A-8 (1984). While the facts are hotly contested and not completely developed before the federal court, it is clear from the representations made to this Court that Mr. Arbaugh believes civil liability should attach whenever the requirements of the reporting statute are violated regardless of whether the non-reporting teacher had knowledge of any offensive act being committed against the individual student bringing suit.

In deciding whether West Virginia Code § 49-6A-2, relating to mandatory reporting of suspected child abuse and neglect, gives rise to an initial direct cause of action against a person who has failed to report by any child who is subsequently abused by the person who should have been reported, we first recognize that West Virginia Code § 55-7-9 (1923) (Repl. Vol. 2000) generally permits the recovery of damages stemming from a violation of a statute. This statute provides in its entirety that:

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.

Id. "Building on this statutory provision, we have consistently held that a violation of a statute is prima facie evidence of negligence, providing that such violation is the proximate cause of injury. See, e.g., Powell v. Mitchell, 120 W.Va. 9, 196 S.E. 153 (1938); Porterfield v. Sudduth, 117 W.Va. 231, 185 S.E. 209 (1936)." Yourtee v. Hubbard, 196 W.Va. 683, 687, 474 S.E.2d 613, 617 (1996) (footnote omitted). See also Syl. Pt. 1, Anderson v. Moulder, 183 W.Va. 77, 394 S.E.2d 61 (1990) ("Violation of a statute is prima facie evidence of negligence. In order to be actionable, such violation must be the proximate cause of the plaintiff's injury."). Consequently, a violation of a statute could give rise to a common law negligence action. We went on to say in Yourtee that "[w]henever a violation of a statute is the centerpiece of a theory of liability, the question arises whether the statute creates an implied private cause of action." 196 W.Va. at 688,474 S.E.2d at 618. Whether a private cause of action exists based on a violation of a statute is determined by applying the four-part test set forth in Hurley v. Allied Chemical Corporation, 164 W.Va. 268, 262 S.E.2d 757 (1980). Syllabus point one of Hurley states:

The following is the appropriate test to determine when a State statute gives rise by implication to a private cause of action: (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.

Id. at 268, 262 S.E.2d at 758.

Applying the Hurley test to the case before us, we first must ascertain whether Mr. Arbaugh is within the class of persons that the statute was meant to benefit. The Legislature expressed the following purpose for enacting the child abuse reporting article of the Code, wherein the obligation to report is established:

It is the purpose of this article, through the complete reporting of child abuse and neglect, to protect the best interests of the child, to offer protective services in order to prevent any further harm to the child or any other children living in the home, to stabilize the home environment, to preserve family life whenever possible and to encourage cooperation among the states in

...