The court of appeals flounders while interpreting a residual clause. We suggest a better solution: toss the residual clause as void for vagueness.

The plaintiffs were sexually abused by their father, who later committed suicide while awaiting his criminal trial. Mom went to prison for allowing and not reporting the abuse. The plaintiffs sued the church they attended and individuals at their church, including Shaunice Warr, who was their Sunday school teacher and occasional babysitter. After agreeing with the trial court that a Sunday school teacher or occasional babysitter owes no common law duty, the court considers whether the mandatory reporter statute, A.R.S. § 13-3620, creates a separate statutory duty. The statute defines a mandatory reporter as 1. Any physician, physician’s assistant, optometrist, dentist, osteopathic physician, chiropractor, podiatrist, behavioral health professional, nurse, psychologist, counselor or social worker who develops the reasonable belief in the course of treating a patient; 2. Any peace officer, child welfare investigator, child safety worker, member of the clergy, priest or Christian Science practitioner. 3. The parent, stepparent or guardian of the minor. 4. School personnel, domestic violence victim advocates or sexual assault victim advocates who develop the reasonable belief in the course of their employment. 5. Any other person who has responsibility for the care or treatment of the minor. The court of appeals interprets this last category as including a Sunday school teacher or occasional babysitter.

The court does not discuss actual evidence, although the case was decided on summary judgment. “[T]he question of whether Warr was ever responsible for the care of the Does, and therefore owed them a duty under the statute, depends on underlying factual questions regarding the nature and extent of their relationship. The record before us is not sufficient to address that question.” Is the court telling us its statutory interpretative exercise may be for naught because the facts may not support a duty? The court further holds that because the mandatory reporter statute might support a duty, the separate claims for negligent and intentional infliction of emotional distress remain. That statement needs further explanation.

The dissent disagrees with the majority interpretation of “any other person.” The word “other” suggests the individual should be in a similar category as those listed. The dissent questions an expansive definition broader than the listed categories. This is a criminal statute; it is less than precise, and the consequences are serious. The dissent interprets the clause as requiring a professional relationship, as did the trial court.

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