In this negligence action, plaintiffs appeal the grant of summary disposition to defendant Bathani pursuant to MCR 2.116(C)(8). We affirm.
In August 1988, plaintiffs hired defendant Valerie Lux to baby-sit for their infant son Andrew. While in Lux’s care, Andrew was allegedly severely injured, displaying symptoms of "shaken *657 baby syndrome.” Plaintiffs sued the baby-sitter for negligence. The complaint further alleged that Dr. Bathani previously had treated an unidentified child whom Lux had allegedly abused and that Bathani suspected but failed to report Lux’s abuse of that child, 1 contrary to § 3 of the Child Protection Law, MCL 722.623(1); MSA 25.248(3)(1), with the following result:
The legal protections for children contained within [MCL 722.628(8);] MSA 25.248(8) et sec. [sic] did not come into place and as a result there was not an investigation as to Defendant Lux, and Defendant Lux continued to babysit as a licensed babysitter in the State of Michigan and the Plaintiffs Marcelletti’s [sic] were not able to be warned that Defendant Lux had been suspected of child abuse and as a result the Plaintiff Andrew Marcelletti in August, 1988 was severely injured as described aforesaid.
Plaintiffs also alleged that Bathani negligently failed to report suspected child abuse "as required by the common law.”
Bathani sought summary disposition on grounds that he owed no legal duty to plaintiffs. The lower court ruled:
In the instant action, there existed no relationship between Dr. Bathani and the Marcellettis nor was there a relationship between Dr. Bathani and defendant Lux. The parties have presented no evidence showing any relation between Dr. Bathani and defendant Lux. Alleging that Dr. Bathani examined another child who exhibited battered child symptoms and allegedly did not report this, in and of itself does not create a special relationship which the Court will recognize. Dr. *658 Bathani did not have a relationship with the third-party victim nor with the so-called "dangerous person,” defendant Lux.
. . . While defendant Bathani may have had a [moral] obligation to report all suspected abused children, it is not elevated to the level of a legal duty owed by defendant Bathani to a third party to report the suspected child abuse on another child.
A motion under MCR 2.116(C)(8) tests the legal sufficiency of a claim by the pleadings alone.
Michigan Ins Repair Co, Inc v Manufacturers Natl Bank of Detroit,
In a cause of action arising from a tortious injury, there are four elements: (1) the defendant must have owed a legal duty to the plaintiff; (2) the defendant must have breached the duty owed; (3) there must have been a proximate causal relationship between the breach of such duty and the injury to the plaintiff; and (4) the plaintiff must have suffered damages.
Lorencz v Ford Motor Co,
I. STATUTORY DUTY
Nothing in the Child Protection Law modifies the plaintiffs’ burden to prove the existence of a legal duty. Plaintiffs assert that Dr. Bathani had a statutory duty pursuant to the Child Protection Law, MCL 722.621 et seq.; MSA 25.248(1) et seq., to report the abuse of the unidentified child and that his failure to report the prior incident of abuse proximately cause Andrew’s injuries.
MCL 722.623(1); MSA 25.248(3)(1) provides in . part:
A physician . . . who has reasonable cause to suspect child abuse or neglect shall make immediately, by telephone or otherwise, an oral report, or cause an oral report to be made, of suspected child abuse or neglect to the department. Within 72 hours after making the oral report, the reporting person shall file a written report as required in this act.
In addition, MCL 722.633(1); MSA 25.248(13)(1) provides:
A person, required to report an instance of suspected child abuse or neglect, who is required to report under this act and who failed to do so, is civilly liable for the damages proximately caused by the failure. [Emphasis supplied.]
We agree with the circuit court’s conclusion that the Legislature intended that liability under the statute be limited to claims for-damages by the identified abused child about whom no report was made:
*660 The reporter’s liability, under the Act, is based on the failure to report the suspected abuse of that child to the appropriate authorities. The identified abused child is clearly the individual sought to be protected under the Child Protection Act, and continued physical abuse is the harm sought to be prevented. . . .
According to the statute, a doctor’s liability is based on his failure to report suspected child abuse and the reports required to be filed relate to that child, including the reporting of the child’s name, age, residence and other facts concerning that child. To allow a third child, who was not viewed by the doctor, to recover based on the doctor’s failure to report the suspected abuse of another child would extend the civil liability beyond that intended by the Legislature.
No reported Michigan case has considered whether the statutory reporting duty, with its attendant civil liability, runs to any person other than the allegedly abused child. The plaintiffs cite no law on point. Having surveyed jurisdictions that permit private rights of action for failure to comply with child abuse reporting laws, 2 we have found no authority that adopts the construction urged by plaintiffs.
Owens v Garfield,
Although the statute is intended to address the problem of child abuse, we are not persuaded that it can be read to create a legally enforceable duty on the part of the [Division of Family Services] to protect all children from child abuse in all circumstances. Such a duty would be impossible to perform. The statute sets up procedures to be followed by the dfs employees when they are alerted of suspected abuse of identified children, but it does not create a duty on the part of the dfs to protect children who are never identiñed as being in need of protection. [Id. at 1191. Emphasis added.]
In
Thelma D v St Louis Bd of Ed,
Michigan’s child abuse reporting statute creates a private right of action
only
in an identified abused child. A statute must be construed to effectuate the legislative purpose.
Williams v Coleman,
The written report shall contain the name of the child and a description of the abuse or neglect. If possible, the report shall contain the names and addresses of the child’s parents, the child’s guard *662 ian, the persons with whom the child resides, and the child’s age. [MCL 722.623(2); MSA 25.248(3)(2). Emphasis added.]
Further, the statute authorizes liability only for "damages proximately caused by the failure [to report abuse].” MCL 722.633(1); MSA 25.248(13)(1). If the defendant’s failure to make the required report was not the proximate cause of the plaintiff’s injury, then MCL 722.633(1); MSA 25.248(13) (1) cannot be applicable.
Proximate cause "can be thought of as a policy determination which is often indistinguishable from the duty question.”
McMillan v Hwy Comm,
An element in the link between Bathani’s alleged failure to report the prior abuse and the child’s injuries is missing. Even if Bathani had reported the earlier alleged incident, Andrew would not necessarily have been protected from Lux. The Child Protection Act assures that reports "filed with the department pursuant to this act shall be confidential.” MCL 733.627(1); MSA 25.248(7)(1). See also OAG, 1977-1978, No 5297, p 430 (April 28, 1978) (all reports to central registry are confidential). The statute names twelve agencies or groups of individuals to whom reports may *663 be released. 3 The plaintiffs do not fall into any of these categories. Bathani’s report would not have been available to warn plaintiffs of the threat Lux allegedly posed. Even if Lux was a licensed child care provider, pursuant to MCL 722.111 et seq.; MSA 25.358 et seq., and her license had been revoked, MCL 722.121(2); MSA 25.358(21X2), plaintiffs wholly failed to plead facts that, if proved, would establish that Andrew’s injuries could have been avoided. 4 Plaintiffs’ statutory claim was properly dismissed.
II. COMMON-LAW DUTY
Plaintiffs next contend that Bathani had a common-law duty to them. Michigan does not recognize any such common-law duty.
Duty is actually a " 'question of whether the defendant is under any obligation for the benefit of the particular plaintiff and concerns 'the problem of the relation between individuals which imposes upon one a legal obligation for the benefit of the other.’ ” Friedman v Dozorc,412 Mich 1 , 22;312 NW2d 585 (1981); Prosser & Keeton, Torts (5th ed), § 63, p 356. " 'Duty’ is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection.” Id., p 358. See also Friedman v Dozorc, supra, and Antcliff v State Employees Credit Union,414 Mich 624 , 631;327 NW2d 814 (1982). [Buczkowski v *664 McKay,441 Mich 96 , 100-101;490 NW2d 330 (1992).]
Generally, an individual has no duty to protect another who is endangered by a third person’s conduct.
Harrison v Director of Dep’t of Corrections,
No Michigan cases define a test to set forth the requirements of a special relationship.
Harrison, supra
at 457. "Special relationships” recognized under Michigan law include landlord-tenant, proprietor-patron, employer-employee, residential invitor-invitee, psychiatrist-patient, and doctor-patient.
Bell & Hudson, PC v Buhl Realty Co,
The rationale behind imposing a duty to protect in these special relationships is based on control. In each situation one person entrusts himself to the control and protection of another, with a consequent loss of control to protect himself. The duty to protect is imposed upon the person in control because he is best able to provide a place of safety. [Williams v Cunningham Drug Stores, Inc, 429 *665 Mich 495, 499;418 NW2d 381 (1988). Emphasis supplied.] [5]
The court will impose a "special relationship” duty only where a person’s actions directly influence another. Michigan courts have defined as third parties only "those persons readily identifiable as foreseeably endangered.”
Davis v Lhim,
Plaintiffs did not allege that Dr. Bathani had any direct control over either Lux or Andrew. On the pleadings before the court, Bathani was neither Lux’s physician nor Andrew’s. We decline to extend to physicians a common-law duty to warn unidentified persons who are not patients but who are potential victims concerning their suspicions of child abuse. Indeed, the recognition of such a broad duty would run afoul of our notions of privacy in the physician-patient relationship.
[T]he duty question turns on policy considerations: "whether one owes a duty of protection to another is ultimately a question of fairness.” . . . *666 The inquiry involves a weighing of the relationship of the parties, the nature of the risk, and the public interest in the proposed solution. [Buczkowski, supra at 101-102, n 5, citing Samsom v Saginaw Professional Bldg, Inc,393 Mich 393 , 419-420;224 NW2d 843 (1975) (Levin, J., dissenting).]
Although, the Child Protection Law abrogates all legally recognized privileges, except attorney-client, for purposes of reports required to be made, MCL 722.631; MSA 25.248(11);
People v Caviani,
After "weighing of the relationship of the parties, the nature of the risk, and the public interest in the proposed solution,” we conclude as a matter of law that the proposed duty should not be imposed. Summary disposition was properly granted.
Affirmed.
Notes
The complaint offered no specific information regarding the other alleged incident of child abuse or Bathani’s alleged role in it.
See, generally, anno: Validity, construction, and application of state statute requiring doctor or other person to report child abuse, 73 ALR4th 782.
A child protective agency; a law enforcement agency; physicians treating the child; "a person legally authorized to place a child in protective custody”; a person or agency responsible for the child’s health or welfare; a person named in the report; a court; a grand jury; a research project; the child’s attorney; an adoption agency; and staff of the juvenile court. It is self-evident that "the child” referred to is the allegedly abused child, not "any child” in Michigan.
For example, no statutory provision requires notification of license revocation to the clients of a daycare provider or to the general public.
5 A duty may also arise out of a
special circumstance where the defendant had knowledge of the assailant’s dangerous propensities or control of the premises . . . where the custodial circumstances involved imposed a duty to protect the individual against his own propensities ... [or a] products liability claim where an innocent bystander was injured by a defective product. [Buczkowsi, supra at 104, n 9.]