Brief Fact Summary. The parents of two children who were sexually abused at their day care center filed a complaint against friends of the alleged abusers for failing to report the abuse. In failing to report, the defendants violated a section of the Family Code.
Synopsis of Rule of Law. A cause of action in negligence per se requires that there be an underlying duty at common law.
Issue. Whether the defendants breached a duty to the plaintiffs when they violated the Family Code.
Held. There cannot be negligence per se without an underlying common law duty.
Discussion. Although the plaintiff’s children are within the class of persons the legislation is intended to protect and the harm they suffered is of the type the legislation intended to prevent, the defendants here are not negligent per se for their violation of the Family Code. To sustain a cause of action for negligence per se, the defendant must owe the plaintiff a pre-existing duty of care in common law of which the violation of legislation is evidence of the negligence. In this case, the duty extends solely from the Family Code and there is no preexisting duty at common law between these defendants and the plaintiffs. To hold a person liable for a duty that is only imposed by legislation would create a new type of tort liability.