concurring in part and dissenting in part.
I agree with the majority’s affirmance of summary judgment in favor of the Police Department. I respectfully disagree, however, with the majority’s affirmance of summary judgment in favor of Child Ser*1193vices on the basis that Indiana Code Section 81-33-18-4 does not confer a private right of action — an issue that was not argued by the parties below. I also disagree with Judge Vaidik’s (and the trial court’s) determination that Child Services is entitled to statutory immunity in any event.
I. Private Right of Action
The majority acknowledges that “[t]he parties do not make arguments about the existence of a private right of action in this case” but nevertheless insists that the issue “is appropriate for our review since ‘[w]e may affirm the trial court’s grant of summary judgment upon any basis supported by the record.’ ” Op. at 1189 (quoting Boushehry, 931 N.E.2d at 895). Although this language appears in many appellate opinions, I believe that, except in limited circumstances, we should refrain from affirming summary judgment on a basis that was not argued by the parties below. See, e.g., Shepard v. Schurz Commc’ns, Inc., 847 N.E.2d 219, 224 (Ind.Ct.App.2006) (“We may affirm the grant of summary judgment upon any basis argued hy the parties and supported by the record.”) (emphasis added). Doing otherwise may cast some doubt on the impartiality of this Court and deprives the other side of an opportunity to debate the issue. I believe that affirming summary judgment in favor of Child Services on the basis of a complicated issue that it neither raised nor litigated in this circumstance is both unfair and unwise. See Richardson v. Calderon, 713 N.E.2d 856, 863 (Ind.Ct.App.1999) (“Generally, we will consider only those issues which were briefed and argued by the parties before the trial court and which the trial court considered and ruled upon.”).
Indeed, I believe that a compelling argument can be made that Indiana Code Section 31-33-18-4 does implicitly create a private right of action. The majority acknowledges that “ ‘a private cause of action generally will be inferred where a statute imposes a duty for a particular individual’s benefit but will not be where the Legislature imposes a duty for the public’s benefit.’ ” Op. at 1190 (quoting Blanch, 829 N.E.2d at 509). It seems obvious to me that the duty imposed by Section 31-33-18-4 on Child Services to notify a child’s parents about the availability of “reports and information ... relating to the child abuse or neglect assessment” inures specifically to the benefit of a particular individual, i.e., an abused child, and not to the general public. Having access to reports and information regarding the abuse enables parents to protect and obtain the necessary rehabilitative services for their child.
On a similar note, because the duty imposed by Indiana Code Section 31-33-18-4 applies specifically to Child Services, I am unpersuaded by the majority’s reliance on C.T. and Borne, which involved child abuse reporting statutes that apply to the general public. In Borne, the court held that “the legislature did not intend to confer a private right of action for breach of the duty to report [suspected child abuse or neglect] imposed by” what are now Indiana Code Sections 31-33-5-1 and -4, concluding that it would “misdirect judicial time and attention from the very real problems of children in need of services in favor of pursuing collateral individuals, who are presumably capable of responding in money damages, on the ground that they knowingly failed to make an oral report.” 532 N.E.2d at 1203. The Parents correctly point out that Child Services is “far from” one of the “collateral individuals” mentioned in Borne and instead is one of the “primary organizations responsible for handling reports of child abuse and neglect.” Appellants’ Br. at 20. In fact, it is the only organization responsible for *1194informing parents about the availability of reports and information regarding child abuse pursuant to Indiana Code Section 31-33-18-4. Whereas members of the general public may be criminally prosecuted for failing to report suspected child abuse, Ind.Code § 31-33-22-1, no similar incentive is available to compel Child Services to fulfill its statutory duty to notify a child’s parents about the availability of “reports and information ... relating to the child abuse or neglect assessment” pursuant to Indiana Code Section 31-33-18-4.
Based on the foregoing, I would conclude that Indiana Code Section 31-33-18-4 implicitly creates a private right of action against Child Services, or, at the very least, that the issue is an inappropriate basis for affirming summary judgment in favor of Child Services in this appeal.
II. Statutory Immunity
Assuming that Indiana Code Section 31-33-18-4 creates a private right of action against Child Services (or that Child Services has waived any contrary argument by failing to raise it below), I would hold that the trial court erred in ruling that Child Services is entitled to statutory immunity for the Parents’ negligence claims. To prevail on a negligence claim, the plaintiff must prove the following: “(1) a duty owed by the defendant to the plaintiff; (2) a breach of that duty by the defendant; and (3) an injury to the plaintiff proximately caused by the breach.” Peters v. Forster, 804 N.E.2d 736, 738 (Ind.2004). “Duty is a question of law for the court to decide. Absent a duty, there can be no breach of duty and thus no negligence or liability based upon the breach.” Id. “A duty may arise from common law principles of negligence or from the violation of a statute.” Nat’l R.R. Passenger Corp. v. Everton by Everton, 655 N.E.2d 360, 364 (Ind.Ct.App.1995), trans. denied (1996).
Duty is closely linked to immunity, which is the basis for the trial court’s ruling in favor of Child Services. “To say [a] governmental entity is immune for acts or omissions in described areas is the functional equivalent of asserting the entity has no duty to anyone in carrying out those activities.” King v. Ne. Security, Inc., 790 N.E.2d 474, 479 (Ind.2003). Our supreme court has explained that the ITCA allows suits against governmental entities
for torts committed by their employees but grants immunity under the specific circumstances enumerated in Indiana Code section 34-13-3-3. Whether a governmental entity is immune from liability under the ITCA is a question of law for the court to decide. Because the ITCA is in derogation of the common law, we construe it narrowly against the grant of immunity. The party seeking immunity bears the burden of establishing that its conduct comes within the ITCA.
Mangold ex rel. Mangold v. Ind. Dep’t of Nat. Res., 756 N.E.2d 970, 975 (Ind.2001) (citations omitted). “Immunity, whether under Indiana common law or the ITCA, assumes negligence but denies liability.” Putnam Cnty. Sheriff v. Price, 954 N.E.2d 451, 453 (Ind.2011).
Indiana Code Section 34-13-3-3 reads in pertinent part as follows:
A governmental entity or an employee acting within the scope of the employee’s employment is not liable if a loss results from the following:
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(6) The initiation of a judicial or an administrative proceeding.
(7) The performance of a discretionary function; however, the provision of medical or optical care as provided in IC 34-6-2-38 shall be considered as a ministerial act.
*1195(8) The adoption and enforcement of or failure to adopt or enforce a law (including rules and regulations), unless the act of enforcement constitutes false arrest or false imprisonment.
(Emphasis added.) The trial court found that Child Services is entitled to immunity on all three grounds, which are addressed below. .
First, the court concluded that Child Services is entitled to immunity pursuant to Indiana Code Section 34-18-3-3(6) because Child Services, “by and acting through” Cage, “participated in” L.C.’s juvenile proceeding “by investigating the reports of suspected abuse against L.C. and relaying those findings to the [Police Department] pursuant to its protocols.” Appellants’ App. at 32. I respectfully disagree. Indiana Code Section 34-13-3-3(6) confers immunity for a governmental entity’s “initiation of,” not participation in, “a judicial or an administrative proceeding.” As the Parents correctly observe, Child Services had no authority to initiate the juvenile proceedings against L.C; only the prosecutor had authority to do so. See Ind.Code § 31-37-10-1 (“The prosecuting attorney may file a petition alleging that a child is a delinquent child.”). As such, I would find no basis for granting Child Services immunity pursuant to Indiana Code Section 34-13-3-3(6). See Ind. Dep’t of Fin. Insts., 728 N.E.2d at 902 (“The majority of decisions focusing upon [Indiana Code Section 34-13-3-3(6) ] have considered immunity as it relates to allegations of malicious prosecution. In those cases, our courts have held that in order to promote the efficient function of law enforcement, officers should be free from fear of liability for the initiation of criminal proceedings. Without immunity for such decisions, the system of law enforcement would break[]down resulting in the obstruction of the proper and efficient administration of justice.”), trans. denied. Moreover, the Parents’ alleged losses did not result from the initiation of a judicial or an administrative proceeding or from Child Services’ participation therein, but rather from Cage’s failure to comply with the relevant child abuse assessment statutes, which is addressed more fully below. For all these reasons, I would conclude that Indiana Code Section 34-13-3-3(6) is inapplicable here.
Next, the trial court determined that Child Services, “by and acting through” Cage, “was investigating a report of suspected child abuse and in so doing, exercised discretion in carrying out her duties,” and therefore is entitled to immunity pursuant to Indiana Code Section 34-13-3-3(7). Appellants’ App. at 32. Again, I respectfully disagree. As this Court explained in Gary Community School Corp. v. Boyd, 890 N.E.2d 794 (Ind.Ct.App.2008), trans. denied,
In Peavler v. Board of Commissioners of Monroe County, 528 N.E.2d 40, 45 (Ind.1988), our Supreme Court developed the “planning/operational” test for determining whether a particular function is discretionary. Through this test, we distinguish between decisions involving the formulation of basic policy, entitled to immunity, and decisions regarding only the execution or implementation of that policy, not entitled to immunity. The critical inquiry is not merely if judgment was exercised, but if the nature of the judgment called for policy considerations.
Id. at 800 (citations and some quotation marks omitted).
Here, the Parents’ alleged losses did not result from any decisions involving the formulation of basic policy, but rather from Cage’s failure to comply with the mandates of the relevant child abuse assessment statutes. Indiana Code Section 31-33-8-6 *1196provides that Child Services “shall promptly make a thorough assessment upon” a report of suspected child abuse or neglect. (Emphasis added.) Indiana Code Section 31-33-18-4(a) provides that Child Services “shall give verbal and written notice to each parent” of the availability of “reports and information ... relating to the child abuse or neglect assessment.” (Emphasis added.)
It is well settled that “when the word ‘shall’ appears in a statute, we construe it as mandatory rather than discretionary unless it appears clear from the context or the purpose of the statute that the legislature intended a different meaning.” Taylor v. Ford Motor Co., 944 N.E.2d 78, 82 (Ind.Ct.App.2011), trans. denied. Assuming as I must for purposes of summary judgment that Detective Minto told Cage in July 2007 that L.C. admitted molesting F.D., Cage was required by statute to “promptly make a thorough assessment” of the report and give verbal and written notice to the Parents that the report and information relating to the assessment were available upon request. Her alleged failure to do so does not entitle Child Services to discretionary immunity pursuant to Indiana Code Section 34-13-3-3(7).
Finally, the trial court found that Child Services is entitled to immunity pursuant to Indiana Code Section 34-13-3-3(8), which involves a governmental entity’s failure to adopt or enforce a law, including rules and regulations. I agree with the Parents that paragraph (8) does not apply to Child Services for any number of reasons, among which are that Child Services is not responsible for either adopting or enforcing laws and that the alleged losses did not result from any alleged failure by Child Services to adopt or enforce a law.4 Cf. Davis v. Animal Control—City of Evansville, 948 N.E.2d 1161, 1164 (Ind.2011) (“[T]he critical determination is not whether a governmental entity failed to follow procedures; it is whether a governmental entity or employee failed to enforce a law.”). In sum, then, I would hold that Child Services is not entitled to immunity pursuant to the ITCA.
In its summary judgment ruling, the trial court also found that Child Services is entitled to immunity pursuant to Indiana Code Section 31-33-6-1, which says,
Except as provided in section 2 of this chapter [which pertains to “a person who has acted maliciously or in bad faith”], a person, other than a person accused of child abuse or neglect, who:
(1) makes or causes to be made a report of a child who may be a victim of child abuse or neglect;
(2) is a health care provider and detains a child for purposes of causing photographs, x-rays, or a physical medical examination to be made under IC 31-33-10;
(3) makes any other report of a child who may be a victim of child abuse and neglect; or
(4) participates in any judicial proceeding or other proceeding:
(A) resulting from a report that a child may be a victim of child abuse or neglect; or
(B) relating to the subject matter of the report;
is immune from any civil or criminal liability that might otherwise be imposed because of such actions.
Specifically, the trial court found that Child Services is entitled to immunity be*1197cause it “participated” in L.C.’s delinquency proceeding by investigating the allegations against him. I cannot agree. Indiana Code Section 31-33-6-1 is inapplicable because the Parents do not seek to impose liability on Child Services because of its participation (if any) in the delinquency proceeding, but rather because of its failure to provide the Parents with any information regarding F.D.’s molestation. As such, I would hold that Child Services is not entitled to statutory immunity on any basis.
Yet to be determined is whether Child Services is entitled to summary judgment as to any of the elements of the Parents’ negligence claims. See Town of Avon v. W. Cent. Conservancy Dist., 957 N.E.2d 598, 602 (Ind.2011) (“Summary judgment is appropriate when the moving party demonstrates that there are no genuine issues of material fact with respect to a given issue or element of a claim.”). The Parents contend that “the duty alleged to have been breached is imposed by statute specifically on government entities.” Appellants’ Br. at 20. The unexcused or unjustified violation of a statutory duty “constitutes negligence per se if the statute or ordinance is intended to protect the class of persons in which the plaintiff is included and to protect against the risk of the type of harm which has occurred as a result of its violation.” Plesha v. Edmonds ex rel. Edmonds, 717 N.E.2d 981, 986 (Ind.Ct.App.1999), trans. denied (2000).
As for statutory duties, the Parents first observe that “an individual who has reason to believe that a child is a victim of child abuse or neglect” must “immediately make an oral report” to either Child Services or “the local law enforcement agency.” Ind. Code §§ 31-33-5-1, -4. They further observe that Child Services must “promptly make a thorough assessment upon the ... report. The primary purpose of the assessment is the protection of the child.” Ind.Code § 31-33-8-6. Finally, they note that Indiana Code Section 31-33-18-4 says,
Whenever a child abuse or neglect assessment is conducted under this article, the department [Child Services] shall give verbal and written notice to each parent, guardian, or custodian of the child that:
(1) the reports and information described under section 1 of this chapter relating to the child abuse or neglect assessment; and
(2) if the child abuse or neglect allegations are pursued in juvenile court, the juvenile court’s records described under IC 31-39;
are available upon the request of the parent, guardian, or custodian except as prohibited by federal law.
Ind.Code § 31-33-18 — 4(a).5
The Parents contend that, pursuant to the foregoing statutes, “Cage and Minto were obligated to report L.C.’s molestation of F.D., and [Child Services] was obligated to conduct a thorough assessment and provide oral and written notice to [the Parents] that the information compiled as part of that assessment [was] available to them.” Appellants’ Br. at 20-21. At this point, it is important to note that a genuine issue of material fact exists regarding whether Detective Minto reported to Cage *1198that L.C. admitted to molesting F.D.6 According to both Detective Minto and his supervisor, Sergeant Debbie Thompson, Detective Minto informed Cage about L.C.’s admissions regarding the additional molestations; Cage said that she would interview the alleged victims and contact him if they made any disclosures. According to Cage, however, she and Child Services did not learn about L.C.’s admission regarding F.D. until August 5, 2008, when she was contacted by Mother.7 In any event, it is undisputed that neither the Police Department nor Child Services notified the Parents about L.C.’s admission regarding F.D.
If Detective Minto did not inform Cage that L.C. admitted to molesting F.D., then one could argue that the Police Department prevented Child Services from fulfilling its statutory duty to promptly make an assessment and to notify the Parents regarding the availability of the reports and information relating to the assessment. If Detective Minto did in fact notify Cage, then one could argue that Child Services is solely responsible for failing to notify the Parents. All of this goes to say, however, that summary judgment in favor of Child Services would be inappropriate as to either duty or breach of duty. The same may be said for proximate cause, damages, and contributory negligence,’ all of which are issues “more appropriately left for the determination of a trier of fact.” Florio v. Tilley, 875 N.E.2d 253, 256 (Ind.Ct.App.2007) (proximate cause and contributory negligence); Bennett v. Broderick, 858 N.E.2d 1044, 1051 (Ind.Ct.App.2006) (damages), trans. denied (2007). In sum, then, I would reverse the trial court’s grant of summary judgment in favor of Child Services and remand for further proceedings.
. Indeed, Child Services admits that it "has never alleged that law enforcement immunity applies to it.” Child Services’ Br. at 10.
. Child Services asserts that the Parents made no argument regarding Indiana Code Section 31-33-18-4 before the trial court or in their original appellants’ brief and thus have waived any such argument. Child Services’ Br. at 9 n. 5. On the contrary, the Parents referenced the statute in paragraph 15 of their complaint and quoted it on page 20 of their original brief. As such, I find no merit in Child Services’ waiver argument.
. In their brief, Parents assert that ‘'on July 2, 2007, Minto himself observed an interview that Cage conducted of L.C. At that interview, L.C. disclosed that he had molested other victims, and gave their identities. L.C. named F.D. among those other victims at that time.” Appellants' Br. at 3 (citing Appellants’ App. at 55). My review of the cited document, which comprises four pages of Detective Minto’s deposition, indicates that this assertion is inaccurate. Detective Minto said that he observed Cage interview T.D., not L.C. Appellants’ App. at 55. He then said that he had only one interview with L.C, on July 2, 2007, during which L.C. admitted to molesting F.D., B.H., and M.H. Id. According to Detective Minto, he then "informed Melissa Cage,” who in turn "informed [him] she would be going out to interview” the other victims. Id. The Police Department does not contend that L.C.’s admission was insufficient to give Detective Minto reason to believe that F.D. was the victim of child abuse for purposes of Indiana Code Section 31-33-5-1. Nor does the Police Department contend that Detective Minto did not have a duty to report the abuse to Child Services pursuant to Indiana Code Section 31-33-5-4.
. Child Services says that
Cage completed a form in 2008 with respect to the additional allegation of abuse [regarding F.D.]. The date on the report is June 25, 2007. Cage entered this date pursuant to her supervisors' instructions so the dat[a]base would have complete information and to reflect the date [the Police Department] conducted the interview.
Child Services’ Br. at 3 n. 4 (citations to appendix omitted).