Tough-minded, old-school law professors teaching torts loved the hypothetical of the baby and the well: “if I am sitting on my front porch and I see my neighbor’s infant crawling towards an open well on my neighbor’s property, do I have any legal duty to do anything about it?” At common law, of course, the answer was a resounding “no.” Nowadays, with respect to the physical or sexual abuse of minors, the answer is not so clear. Statutes and regulations require various professions that deal with children to report suspected cases of abuse. The common law is moving in the same direction, creating a legal duty to act affirmatively to protect a child in particular circumstances when the individual knows of actual child abuse. A series of cases has, over the years, incrementally imposed a duty to report instances of child abuse on an individual with a “special relationship” with either a child or another person in a position to harm a child. Consistent with these principles, in J.S. v. R.T.H., the New Jersey Supreme Court held that the modern common law imposes that duty on a wife when she knows her husband is abusing a neighbor’s children.
Recently, in G.A-H v. K.G.G., the New Jersey Supreme Court avoided deciding whether the same duty exists when a co-worker has reason to know that a fellow worker is committing sexual abuse unrelated to their job. Although we agree with the result reached in G.A-H v. K.G.G., we think the time is coming where our Supreme Court will have to bite the bullet and decide whether there should be a more general duty to report child sexual abuse, imposed on anyone who has reasonably certain knowledge that such abuse is occurring or clearly forseeable. The question is a difficult one but, in our view, there may be good reasons to impose a more general duty, in contradistinction to the long standing common law “no-rescue” rule.
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