A social worker’s duty to report suspected child abuse under the Child Protection Law (CPL); MCL 722.623(1)(a); Damages for failure to report the abuse; MCL 722.633(1); Whether the CPL requires a “mandatory reporter” who abuses a child to report that abuse; Right against self-incrimination; In re Blakeman; Kassey S v City of Turlock (CA App); Gross negligence; MCL 691.1407(8)(a); Governmental immunity; Negligent infliction of emotional distress (NIED); Intentional infliction of emotional distress (IIED)

Addressing an issue of first impression in Michigan, the court held that requiring a mandatory reporter who abuses a child to report that abuse would violate that individual’s right against self-incrimination. As such, it found that the trial court did not err by granting defendant-social worker (Aboulhosn) summary disposition of plaintiff-guardian’s claims that Aboulhosn violated the CPL by not reporting that he sexually assaulted IS (a legally incapacitated individual) in a school bathroom. It also held that the trial court did not err by granting Aboulhosn summary disposition of plaintiff’s gross negligence claim. But it found that the trial court did err by dismissing plaintiff’s remaining claims. Plaintiff sued defendants alleging negligence, gross negligence, assault and battery, NEID, and IIED. She also specifically alleged a CPL violation against Aboulhosn. On appeal, the court found that “[r]equiring a mandatory reporter who abuses a child to report that abuse would clearly incriminate the mandatory reporter and subject him or her to criminal prosecution.” As such, “requiring such a disclosure falls foul of the constitutional privilege against self-incrimination.” And to the extent that “MCL 722.623(1)(a) compels such a disclosure, it is unconstitutional.” Thus, plaintiff “cannot maintain a claim for relief against Aboulhosn based upon MCL 722.623(1)(a).” The trial court’s dismissal of this claim was proper. The court also rejected plaintiff’s contention that the trial court erred by granting summary disposition of the gross negligence claim because it was properly pleaded, noting that “no amount of artful pleading can transform the claim for intentional misconduct by Aboulhosn into a claim for gross negligence.” Finally, as to the remaining claims, the court found that although Aboulhosn directed it “to documentary evidence and testimony that very strongly suggest[ed] IS’s allegations of abuse lack[ed] credibility, it is the duty of the trier of fact to evaluate his credibility and resolve the factual disputes between IS’s testimony and the evidence presented by Aboulhosn.” The trial “court’s decision to grant summary disposition because it found Aboulhosn’s evidence to be more credible was improper.” Affirmed as to the dismissal of plaintiff’s claims for violation of the CPL and gross negligence, but reversed as to dismissal of the remaining claims, and remanded.