As a general rule, school actors are immune from tort claims under theories of sovereign immunity. However, in a recent case coming out of the Third Circuit, there seems to be a slight shift towards textualism when applying the doctrine.
How does this “state-created danger” theory of liability affect school districts?
Generally speaking, school districts are immune from lawsuits for injuries to persons. There are exceptions to the rule, such as motor vehicle accidents or defective real estate, but even with those exceptions, damages are limited by statute and injuries have to arise to a certain degree of severity before suit is possible.
In 1992, LRDR v Middle Bucks Vo-Tech gave plaintiff’s lawyers a convenient route to bypass school districts’ statutory immunity by making a constitutional claim under the 14th Amendment’s Liberty Clause by using a theory referred to as the “state-created danger” doctrine. If successfully applied, plaintiffs can sue school districts for unlimited amounts and recover substantial attorneys’ fees if they prevail.
The state-created danger theory has been used to expose school districts to liability for everything from injuries during high school wrestling matches to a special education student swallowing a small bear used for a counting exercise. While the state-created doctrine has been available for plaintiff lawyers in the Third Circuit to get hefty awards and settlements in school cases since 1992, the approach to liability has never been endorsed by the U.S. Supreme Court. Most recently, the Third Circuit itself is having second thoughts about where the doctrine should survive.
In Johnson v. City of Philadelphia (decided September 22, 2020), the U.S. Court of Appeals for the Third Circuit dismissed claims against the City of Philadelphia, the Fire Department of Philadelphia, the Fire Department Operator, and a 911 dispatcher alleging they violated plaintiff’s constitutional rights under the state-created danger theory. The dispatcher gave the wrong address to the firefighters of a burning building, and neither the dispatcher nor the operator told them about the family inside the building. The firemen fought the fire without knowing to even look for the family. Subsequently, the family died of smoke inhalation. The court dismissed the claims, holding the plaintiff did not allege any affirmative action, but rather just failed communication. Additionally, the court believed the defendants’ behaviors and reactions did not shock the conscience.
Judge Matey highlighted the criticism this theory has faced, especially since it does not stem from the text of the Constitution. There is little guidance for public employees on how to better handle or avoid certain situations. Writing a concurrence, Judge Porter explains it is time for the court to reexamine the doctrine, especially the test for analyzing whether a state actor’s behavior “shocks the conscience.” Judge Porter suggested combined the second and their levels of culpability, making for a much more straightforward test.
The Third Circuit judges called for a revision of the doctrine, and their language suggests the state-created danger doctrine has reached too far. Plaintiffs are now masking tort claims as constitutional violations. As the opinion indicates, these events are tragic and devastating, but the Due Process Clause of the 14th Amendment should not be used to transform every day, run of the mill tort claims into constitutional violations. Defense attorneys, especially for school districts, should consider aggressively using this language to limit or restrict liability in these types of claims.
While it is unknown if this language will be enough for the Third Circuit to consider limiting or reshaping the state-created doctrine, it is a step, and is not calling into question the scope and reach of the doctrine. Plaintiff’s attorneys may still very well transform an ordinary tort claim into a constitutional violation in order to attach liability onto school districts, in situations like school-related injuries or COVID-19 policies and protocols. Using the language from the Third Circuit, school Districts should heavily consider attacking this doctrine.
Bottom Line for Schools
This language pushes for a reconsideration of the doctrine itself, how it is applied, and how that application could eventually impact and restrict or limit a school’s liability. There may be some relief from over-reaching lawsuits on the horizon.
If you have a question, please contact your legal counsel or one of the Education attorneys at KingSpry.
School Law Bullets are a publication of KingSpry’s Education Law Practice Group. This article is meant to be informational and does not constitute legal advice.