Nelson v. Turner

COMBS, Chief Judge,

concurs in part and dissents in part by separate opinion.

COMBS, Chief Judge.

While I agree with the sound reasoning of the majority opinion on most of the issues before us, I differ as to the issue of the reporting requirement. As the majority correctly noted, the mandatory nature of the reporting requirement (KRS 620.030) would render the teacher’s duty to be ministerial rather than discretionary, thus depriving Ms. Turner of the protection of a qualified immunity.

The majority would remand this matter to the trial court for its analysis of the applicability of KRS 620.030. However, in reviewing a summary judgment, we must analyze issues of law de novo. Cinelli v. Ward, 997 S.W.2d 474 (Ky.App.1998). We are dealing with a pure issue of law requiring us to instruct the trial court on this point rather than to inquire as to its reasoning concerning the applicable law. I perceive our duty at this juncture to be to direct rather than to defer.

Kentucky case law appears to be clear on the mandatory nature of the duty to report incidents of suspected sexual abuse. In Commonwealth v. Allen, 980 S.W.2d 278 (Ky.1998),2 our Supreme Court upheld *45the criminal prosecution of a teacher who failed to report suspected sexual abuse of a student. In construing KRS 620.030(1), the Court held that the teacher was not entitled to rely upon the reporting of the conduct by the school principal but rather that she had an independent, mandatory duty of her own to report — even to the point of redundancy in the filing of multiple reports on the same occurrence.

Appellees argue that it is inconsistent to impose a reporting duty on a supervisor if an employee has an independent duty to make a report, a situation that would lead to multiple, and perhaps superfluous, reports of the same incident.
In a perfect world where every person discharged every legal duty, perhaps this would be so. However, in this world where imperfections abound, it is not illogical or inefficient for the legislature to require every individual entrusted with the care and supervision of children to be required to report crimes against those children. As stated by the high court of Florida with regard to that state’s child abuse reporting statute,
The reason for this requirement [that an individual report abuse even if the incident has already been reported] is that reports of the same incident of abuse from different sources tend to show the gravity of the situation. This also gives HRS workers the ability to contact more sources in order to investigate the incident and confirm or deny that it happened.

(Emphases added.) Id. at 279-280.

The Allen court emphasized the overarching nature of the legislative intent as to KRS 620.030(1) to insure the opportunity for an investigation (not necessarily a prosecution) of the alleged conduct:

By requiring each person with knowledge to report child abuse in his or her individual capacity, the General Assembly more nearly assured that the suspected abuse would be investigated by state authorities. Rather than relieving appellees of their duty to report, we believe the reporting requirement on supervisory personnel is demonstrative of unequivocal legislative intent.
If the legislature had intended to create an exception to the mandatory reporting duty, it could have explicitly done so....

Id., at 280 (Emphases addéd.)

As a result of Allen, Kentucky has adopted a tough (indeed almost harsh as applied) policy toward school personnel. As the Allen court noted, to construe this statute otherwise would be “at variance” with its clearly stated language in violation of established principles of statutory construction. Id.

Under the facts as recounted by Nelson, I am persuaded that Turner had a mandatory duty to make a report of the alleged inappropriate contact that occurred between the students in her classroom. Because I believe that this is an established issue of law, I would vacate entry of summary judgment and remand for a trial on the merits rather than remanding to ask the court to construe the applicability of KRS 620.030.

. This case was the subject of a rather exhaustive law review article; see Eric A. Hamilton, Note, Commonwealth v. Allen: An Eye-opener *45for Kentucky’s Teachers, 27 N.Ky.L.Rev. 447 (2000).