concurring in part and dissenting in part.
I fully concur in the majority's characterization of this case as a case involving "the tragic story of now twenty-three year old J.W. who suffered physical and sexual abuse at the hands of his foster father" [and at least four other molesters]. At 806. It is clear, however, that we do not here deal with civil liability of Edward Bramblett, the foster father, or upon the part of the other molesters. We are concerned solely with allegations of civil lability against third persons, *815some of whom had knowledge of the sexual abuse but failed to report those communications from J.W. to law enforcement authorities.
The plaintiff does not allege a civil conspiracy to perpetuate the molestation pattern perpetrated by Bramblett and his cohorts; the complaint does not allege that the various defendants here actively or by accessorial conduct participated in the molestations. The complaint alleges only that these defendants by failing to report the molestations caused compensable personal injury to J.W.
I concur in Parts I, II and IV. of the majority opinion. As to Part III, I concur in result as to Defendants Roberts, Bottorff, and Chastain, but dissent as to Defendant Francis. In doing so, I depart from the analysis of Judge Rucker and from that of Judge Barteau with regard to whether the existence of a duty is dependent upon a "special" relationship between the parties. I further disagree with their conclusion that there is or could be a material issue of fact as to proximate cause.
In her separate concurrence, Judge Bar-teau relies upon dictum from Lather v. Berg (1988) 2d Dist.Ind.App., 519 N.E.2d 755, 759. The quoted portion is dictum with regard to any perceived distinction between misfeasance and nonfeasance except, perhaps, with regard to a duty to control the conduct of a third person. See Restatement (Second) of Torts § 315 (1965). In Lather, the conduct involved was misfeasance. The case does discuss the concept that a defendant may be liable to a third person for failing to carvy out a duty which was gratuitously assumed, but such a "special" duty does not focus upon whether the duty was not carried out (non-feasance) or was carried out negligently (misfeasance). The fact remains, negligence, e., the failure to exercise reasonable care under the cireumstances, does not depend upon whether the conduct is misfeasance or non-feasance. In other words, negligence is negligence. Necessarily then, the analysis by which the existence of a duty is found to exist does not depend upon the distinction. See Miller v. Griesel (1974) 261 Ind. 604, 308 N.E.2d 701.
Webb v. Jarvis (1991) Ind., 575 N.E.2d 992, which controls our determination as to whether a duty existed between any or all of the various defendants and J.W., also involved misfeasance by a physician, le., over-prescribing anabolic steroids for a patient who in turn shot a third party. The suit was by the third party against the doctor. Webb draws no distinction between misfeasance and nonfeasance.
In terms of the relationship between the parties and insofar as it bears upon the establishment of a duty, it suffices to say that some relationship must exist. To say, however, that the relationship must be "special", if the defendant's conduct is nonfeasance, is not helpful. It simply means that failure to act must be gauged wunder the circumstances. One of the cireumstances to be examined is the nature and extent of the relationship between the parties. For this reason I discern no impediment to placing some significance, but not determinative significance, upon the existence of a special relationship, i.e., a fiduciary or other relationship of trust. Again, however, it is but one of the cireum-stances to be considered in applying the balancing test set forth in Webb v. Jarvis, supra.1
Making the application of the Webb test to defendants Roberts, Bottorff, and Chastain, the majority correctly, I believe, holds that no special relationship existed. I do not, however, agree that as to those defendants the summary judgments can be affirmed solely upon the absence of a "special" relationship. Rather, as earlier stated, the nature of the relationship is but one of several factors to be considered.
To be sure, as to defendant Francis, there are questions of fact with respect to the nature and extent of the relationship between him and J.W. Once again, however, the degree of the relationship is not the be all-end all of the inquiry. As extensively discussed *816by the majority, the matter of foreseeability must also be examined.
In this respect, the matter of proximate cause is intertwined with concepts of duty-foreseeability although the concepts are not identical. See Galbreath v. Engineering Construction Corp. (1971) 149 Ind.App. 347, 278 N.E.2d 121. The majority here clearly acknowledges the subtle difference. At 811-12.
In any event, I strongly disagree with the majority's conclusion that in this case proximate cause is an open factual question. Whether the defendants might have reasonably foreseen that failure to report might result in a continuation of the abuse is not, as correctly noted by the majority, determinative of the issue. The complaint alleges only that the various defendants are liable to J.W. because, having knowledge of the molestation, they did not report that fact to law enforcement or other governmental agencies. The unmistakable implication of the majority opinion is that having met the foreseeability component of the test, liability might well result if there were a "special" relationship with J.W. as to Roberts, Bottorff, and Chas-tain.
Even assuming the existence of some "special" relationship, and further assuming that reporting might or might not have foresee-ably led to removal of Bramblett and the four other perpetrators from society, or might have foreseeably led to complete removal of J.W. from arguably continuing and threatening cireumstances, this case is not resolved.
My review of the pleadings and other materials appropriately before the trial court leads to the conclusion that as a matter of law the requisite legal nexus between the defendants' conduct and J.W.'s trauma, ie., proximate cause, is wholly lacking. The trauma visited upon J.W. by Bramblett and the other molesters had already occasioned the irreversible damage to J.W.'s psyche. As to Francis, the only defendant determined by the majority to be subject to civil liability, the molestations began, at a minimum, six or seven years before Francis first met J.W. Furthermore, it is clear that the molestations had been reported to and investigated by the Department of Welfare and law enforcement authorities prior to March, 1985, ie., at a time prior to or near the time when Francis first met J.W. It is inconceivable that the conduct of Francis, or the lack thereof, could contribute to the trauma experienced by J.W.
In short, the nonfeasance of each and all of the defendants is so remote to the probability of ongoing magnification of past traumatizing events as to render proximate cause absent as a matter of law.
The summary judgments should be affirmed as to all remaining defendants.
. Notwithstanding strong criticism from some observers (see Jay Tidmarsh, Tort Law: The Languages of Duty, 25 Ind.L.Rev. 1419, 1424 et seq. (1992)) the Webb duty test was reaffirmed in Stump v. Commercial Union (1992) Ind., 601 N.E.2d 327.