Fialkowski v. Greenwich Home for Children, Inc.

• Citation: 921 F.2d 459
• Decision Date: 03 January 1991
• Docket Number: No. 90-1136,90-1136
• Parties: Leona FIALKOWSKI, as mother and Administratrix of the Estate of Walter Fialkowski, and Marion Fialkowski, as father of Walter Fialkowski, Appellants, v. GREENWICH HOME FOR CHILDREN, INC.; Marva Lucas; Northeast Community Mental Health and Mental Retardation Center, Inc.; Richard C. Surles, Administrator, Office of Mental Health and Mental Retardation, City of Philadelphia; and Russell G. Rice, Jr., Regional Commissioner of Mental Retardation, Commonwealth of Pennsylvania, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 459

921 F.2d 459

Leona FIALKOWSKI, as mother and Administratrix of the Estate of Walter Fialkowski, and Marion Fialkowski, as father of Walter Fialkowski, Appellants, v. GREENWICH HOME FOR CHILDREN, INC.; Marva Lucas; Northeast Community Mental Health and Mental Retardation Center, Inc. Richard C. Surles, Administrator, Office of Mental Health and Mental Retardation, City of Philadelphia; and Russell G. Rice, Jr., Regional Commissioner of Mental Retardation Commonwealth of Pennsylvania, Appellees.

No. 90-1136.

United States Court of Appeals Third Circuit.

Argued July 31, 1990.

Decided Dec. 6, 1990.

Rehearing and Rehearing In Banc

Denied Jan. 3, 1991.

Alan M. Sandals (argued), Peter R. Kahana, Berger & Montague, P.C., Philadelphia, Pa., for appellants.

Andrew M. Duchovnay (argued), Rawle & Henderson, Philadelphia, Pa., for appellees.

Before HIGGINBOTHAM, Chief Judge, and SCIRICA and ALITO, Circuit Judges.

OPINION OF THE COURT

ALITO, Circuit Judge:

Leona and Marion Fialkowski ("the Fialkowskis"), appeal from a district court order granting summary judgment in favor of Northeast Community Mental Health and Mental Retardation Center, Inc. ("Northeast"), in their action seeking damages for the tragic choking death of their profoundly retarded adult son, Walter Fialkowski. Since we conclude that the undisputed facts cannot support a verdict against Northeast under the Due Process Clause of the Fourteenth Amendment or under state tort law, we will affirm.

I.

A. Walter Fialkowski, who was 33 years old at the time of his death, suffered from an eating disorder known as food shovelling and a hypoactive (i.e., abnormally low) gag reflex. Food shovelling is the act of stuffing excessive quantities of food in the mouth at one time; a hypoactive gag reflex renders a person abnormally susceptible to choking. As a result of Walter Fialkowski's condition, special precautions were necessary to prevent him from choking.

Walter Fialkowski lived at home and was cared for by his family from birth until age 21, when his parents placed him at the Woodhaven Center, a training facility for the mentally retarded. Two years later, the Fialkowskis felt that their son was no longer improving at Woodhaven Center and decided to transfer him to a group home.

The Fialkowskis made use of the system established by the Commonwealth of Pennsylvania "[t]o assure ... the availability and equitable provision of adequate ... mental retardation services to all persons who need them." 50 PA.STAT.ANN. Sec. 4201 (Purdon 1969). Under this system, counties, including Philadelphia, have the duty to evaluate the needs of mentally retarded persons and to develop plans to meet those needs. 50 PA.STAT.ANN. Secs. 4301-05 (Purdon 1969).

In order to ensure that necessary services are provided, each county mental health and mental retardation administrator is required to arrange for the operation of a "base service unit" ("BSU") (55 PA.CODE Sec. 4210.21). A county may operate a BSU with its own staff or contract for an outside organization to serve as the BSU. 55 PA.CODE Sec. 4210.26. Philadelphia entered into such a contract with Northeast, a nonprofit organization.

As the BSU handling Walter Fialkowski's case, Northeast had the responsibility, among others, for performing an "intake study" (55 PA.CODE Secs. 4210.22(1), 6201.13) and, if necessary, making arrangements for him to receive services directly from another facility under contract with the local authorities (55 PA.CODE Sec. 4210.101(d)). Northeast referred Walter Fialkowski to what is called under the Pennsylvania regulations a "Community Rehabilitation Residential Service" ("CRRS") ¹, commonly described as a "community living arrangement" or CLA. ² Walter Fialkowski was one of the first severely retarded persons in Philadelphia to reside in such a facility.

The CRRS in which Walter Fialkowski was voluntarily placed by his parents was operated by a private entity, Greenwich Home for Children, Inc. ("Greenwich"), under contract with the City of Philadelphia. One other mentally retarded person shared this facility with Walter Fialkowski, and a Greenwich staff member was present in the facility at all times. Walter Fialkowski had his own room, assisted in maintaining the house, and was free to leave the home under staff supervision. During weekdays, he generally attended educational programs at another facility under contract with the City of Philadelphia. On the day of his accident, he did not attend this program due to a mild illness. Greenwich arranged for Marva Lucas, a part-time employee, to supervise him at the CRRS. Lucas prepared two peanut butter sandwiches and cut them into quarters. When she turned her back momentarily, Walter apparently stuffed all of the sandwich quarters into his mouth and choked. Despite emergency efforts, he died.

B. The Fialkowskis began this action in 1986, naming as defendants Northeast, Greenwich, and Lucas, as well as the Pennsylvania Regional Commissioner of Mental Retardation (Russell G. Rice, Jr.) and the administrator of the Philadelphia Office of Mental Health and Mental Retardation (Richard C. Surles). Count one of the complaint asserted a claim under 42 U.S.C. Sec. 1983 for alleged violation of Fourteenth Amendment due process rights. Count two asserted a pendent state tort claim. The complaint sought compensatory and punitive damages and declaratory relief. The claims against Rice were subsequently dismissed on Eleventh Amendment grounds, and the Fialkowskis do not contest that dismissal on appeal.

After discovery, Northeast, Greenwich, and Lucas moved for summary judgment. The district court held that the Section 1983 claim was foreclosed by the Supreme Court's recent decision in DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989), because the defendants owed no constitutional duty to protect a person who was not in involuntary custody. The court also granted summary judgment in favor of Northeast and Lucas on the pendent state claim. The court noted that Northeast, as a nonprofit health care provider, was immune from a simple negligence claim under 50 PA.STAT.ANN. Sec. 4603 (Purdon 1969) for anything done pursuant to the Pennsylvania Mental Health and Mental Retardation Act, 50 PA.STAT.ANN. Sec. 4101 et seq.; the court likewise observed that Lucas, as a person employed under the Act, enjoyed the same limited immunity. The court then concluded that "the evidence, which would be available to plaintiffs at the time of trial, is insufficient to establish more than simple negligence on the part of [Northeast or Lucas]." By contrast, however, the court denied summary judgment for Greenwich on the state tort claim because Greenwich was not a nonprofit organization and thus lacked any civil immunity under 50 PA.STAT.ANN. Sec. 4603 (Purdon 1969).

The Fialkowskis moved for reconsideration in light of this court's subsequent decision in Stoneking v. Bradford Area School District, 882 F.2d 720 (3d Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 840, 107 L.Ed.2d 835 (1990). While this motion was pending, the Fialkowskis reached a settlement with Greenwich and Lucas. Shortly thereafter, the district court granted reconsideration but affirmed its earlier decision. The district court explained that under DeShaney, "plaintiffs could establish no set of facts which would impose upon defendants a constitutional duty to protect plaintiffs' decedent where his liberty was not restricted by defendants and his injury resulted from his own conduct." The court added that the "alternate theories of liability discussed in Stoneking are simply inapposite under the factual setting of this case." Finally, with respect to the pendent claim, the court reiterated its holding that the evidence available to the Fialkowskis could not show anything more than simple negligence on the part of Northeast or Lucas. This appeal followed.

II.

We turn first to the question whether the district court properly granted summary judgment in favor of Northeast on the Fialkowskis' pendent state tort claim. In order to prevail on their state tort claim, the Fialkowskis bore the burden of proving that Northeast, as a "recognized nonprofit health or welfare organization or agency," was guilty of "gross negligence or incompetence." 50 PA.STAT.ANN. Sec. 4603 (Purdon 1969). ³ Consequently, when Northeast moved for summary judgment "after adequate time for discovery," the district court was mandated to grant that motion unless the Fialkowskis made "a showing sufficient to establish the existence" of gross negligence, an essential element on which they bore the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Employing this legal standard, the district court concluded that the Fialkowskis' proof could establish no more than simple negligence on the part of Northeast.

Applying the same test as the district court, ⁴ we likewise conclude that the Fialkowskis' proof was not sufficient to establish that Northeast was guilty of gross negligence. ⁵ The meaning of the term "gross negligence" in 50 PA.STAT.ANN. Sec. 4603 (Purdon 1969) is not defined by statute or by any Pennsylvania cases decided under that provision. ⁶ Moreover, degrees of negligence are not generally recognized under Pennsylvania common law (Ferrick Excavating v. Senger Trucking, 506 Pa. 181, 484 A.2d 744, 749 (1984)), although the concept is employed in immunity statutes like that at issue here. See 42 PA.CONS.STAT.ANN. Sec. 8331-32 (good Samaritan civil immunities); Sec. 8336 (civil immunity for persons rendering requested assistance involving transportation of hazardous substances). ⁷ Lacking any other indication of legislative intent, we assume that "gross negligence" in 50 PA.STAT.ANN. Sec. 4603 (Purdon 1969) has the generally accepted meaning of that term.

Gross negligence generally signifies "a...