Morse v. Lower Merion School Dist., No. 96-2134

• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
• Writing for the Court: SCIRICA
• Citation: 132 F.3d 902
• Parties: 122 Ed. Law Rep. 1178 Jerome P. MORSE, Individually and as Executor of the Estate of Diane M. Morse, Deceased, and as Parent and Natural Guardian of Juree N. Morse, a Minor, Appellant, v. LOWER MERION SCHOOL DISTRICT; Daycare Association of Montgomery County, Inc., D/B/A Ardmore Child Care Center; Jamison Contractors, Inc.; Buttonwood Company, Inc.; United States Roofing Corporation.
• Docket Number: No. 96-2134
• Decision Date: 23 December 1997

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132 F.3d 902 122 Ed. Law Rep. 1178 Jerome P. MORSE, Individually and as Executor of the Estate
of Diane M. Morse, Deceased, and as Parent and
Natural Guardian of Juree N. Morse, a
Minor, Appellant,
v.
LOWER MERION SCHOOL DISTRICT; Daycare Association of
Montgomery County, Inc., D/B/A Ardmore Child Care Center;
Jamison Contractors, Inc.; Buttonwood Company, Inc.;
United States Roofing Corporation. No. 96-2134. United States Court of Appeals,
Third Circuit. Argued July 24, 1997.
Decided Dec. 23, 1997.

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Paul J. Drucker (argued), Jablon, Epstein, Wolf & Drucker, Philadelphia, PA, William F. Joseph, Philadelphia, PA, for Appellant

Diane C. Bernoff (argued) Jay B. Harris, Fineman & Bach, Philadelphia, PA, for Appellees, Lower Merion School District; Daycare Association of Montgomery County, Inc., d/b/a Ardmore Child Care Center.

James J. Gillespie, Jr., Stolarski, Gillespie & Hendrzak, Philadelphia, PA, for Appellee, Jamison Contractors, Inc.

Before: SCIRICA and NYGAARD, Circuit Judges and DEBEVOISE, District Judge ^*.

OPINION OF THE COURT

SCIRICA, Circuit Judge.

This civil rights action raises the question of what a plaintiff must plead in order to state a viable claim under the state-created danger theory of 42 U.S.C.A. § 1983 (West 1994 & Supp.1997). The district court granted defendants' motion to dismiss under Fed.R.Civ.P. 12(b)(6), finding plaintiff failed to plead one of the elements of the test set forth by this court in Kneipp v. Tedder, 95

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F.3d 1199 (3d Cir.1996) and thereby failed to state a claim upon which relief could be granted. Although we analyze the applicable law somewhat differently from the district court, we will affirm. ¹ I

Background and Procedural History

On July 28, 1994, Diane Morse, a teacher at the Ardmore Child Care Center, was shot and killed in front of a classroom of children by Arcelia Truman ("Trudy") Stovall, a local resident with a history of mental illness. The Ardmore Child Care Center, which is owned and operated by the Daycare Association of Montgomery County, has operated out of a wing of Lower Merion High School for several years, under a lease between the Daycare Association and the Lower Merion School District. Stovall, who was subsequently convicted of the murder of Diane Morse and incarcerated in a psychiatric hospital, was able to enter the building through an unlocked rear entrance.

In the weeks preceding the shooting, several contractors were working on construction projects at the high school, in the vicinity of the Ardmore Child Care Center location. Jamison Contractors, Inc. was engaged in construction and repair activities in and around the school building. Buttonwood Company, Inc. was painting a swimming pool within the building, and United States Roofing Corporation was repairing the roof in the area adjacent to the swimming pool. To accommodate their construction projects, the contractors made use of the back entrance to the building. Jamison employees would prop open the door to facilitate the movement of materials in and out of the building. As part of its work on the swimming pool, Buttonwood set up a compressor outside of the building, which was connected to air-driven tools in the pool area by a series of two inch cables. In order to reach the tools in the pool area, Buttonwood ran these cables through the back entrance to the school. For their part, the employees of U.S. Roofing used the open door as a means of access to the restrooms located within the building.

This action was brought under 42 U.S.C. § 1983 by Diane Morse's husband on his own behalf, as executor of her estate, and in a representative capacity on behalf of their daughter. The complaint alleges, inter alia, that the Lower Merion School District and the Daycare Association deprived Diane Morse of her right to be free from physical harm, and deprived plaintiff and his daughter of their fundamental right of association with the decedent. ² In particular, plaintiff claims the School District had a written policy which provided that all side and back entrances to the school were to be kept locked at all times. The complaint alleges that, although aware of the unsecured back entrance, the School District and the Daycare Association made no effort to correct the condition, and in fact facilitated the workers' access by unlocking the back entrance each day to assist the various contractors. In addition, the complaint alleges the School District and the Daycare Association were aware of other security breaches prior to July 1994 that had allowed unauthorized persons to gain access to the building. These previous incidents had resulted in theft, vandalism, and, in at least one instance, assault. As a result, plaintiff asserts, the "environment created by [defendants] was dangerous, was known by them to be dangerous and created the opportunity for Trudy Stovall's attack on the decedent that would not otherwise have existed."

Defendants filed a motion to dismiss under Rule 12(b)(6) on two grounds. First, defendants contended that neither the School District nor the Daycare Association was acting under color of state law, as required by

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Section 1983. ³ Second, defendants argued that Mr. Morse's complaint failed to meet the requirements for a state-created danger claim. The district court declined to address defendants' color of state law arguments, ruling only on the sufficiency of the state-created danger claim. ⁴

The district court read plaintiff's complaint to allege three distinct theories. ⁵ The first theory of liability was that defendants breached their duty to maintain a safe working environment by leaving the back entrance unsecured. The second theory premised liability on defendants' alleged policy of refusing to institute and maintain safety procedures, thus demonstrating a deliberate indifference to Ms. Morse's constitutional rights. The final theory alleged that the School District and the Daycare Association were liable under the state-created danger theory of § 1983. Although the district court analyzed each theory and found that plaintiff failed to state a claim under any of them, the only theory raised on appeal, and the only one reviewed here, is plaintiff's state-created danger theory.

The district court began its analysis of plaintiff's claim by examining our recent decision in Kneipp v. Tedder, in which we adopted the state-created danger theory of liability under § 1983. 95 F.3d 1199, 1211 (1996). In particular, the district court looked to whether "liability based on the state-created danger theory must be predicated on affirmative acts by a state actor." Morse v. Lower Merion Sch. Dist., 1996 WL 677514, at * 5 (E.D.Pa. Nov. 20, 1996). ⁶ The court noted that, unlike the facts in Kneipp, which involved affirmative acts by the police that created an inherently dangerous situation for the plaintiff, the complaint here attempted to establish liability based primarily on defendants' failure to act. Because such failures to act "have consistently been held non-actionable under Section 1983," ⁷ the district court concluded that plaintiff could not support his § 1983 claim by relying on allegations that defendants failed to prevent the contractors from propping open the back door (Complaint PP 26, 28, 30), failed to detain Ms. Stovall prior to the day of the murder (Complaint p 31), and refused to institute and maintain security (Complaint p 42). The district court held the only allegation in the complaint which could support plaintiff's state-created danger theory was that defendants themselves unlocked the back entrance to the school to facilitate the work of the various contractors. But the district court declined to examine whether this constituted an affirmative act, and instead based its decision on a different element of the Kneipp analysis.

The district court premised its decision on Kneipp 's holding that a state actor can only be held liable if "a relationship [existed] between the state and the person injured ...

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during which the state places the victim in danger of a foreseeable injury." Kneipp, 95 F.3d at 1209 (citations omitted). Because there was no dispute whether this relationship existed between the police and the plaintiff in Kneipp, the district court looked to pre-Kneipp decisions to analyze the parameters of this requirement. The district court examined Doe v. Methacton Sch. Dist., 880 F.Supp. 380, 386 (E.D.Pa.1995), aff'd, 124 F.3d 185 (3d Cir.1997), which held that the state-created danger theory would only affix liability if the victim of the resulting harm is "known and identified," and not "simply a member of the greater public," and Mark v. Borough of Hatboro, 51 F.3d 1137, 1153 (3d Cir.1995), cert. denied, 516 U.S. 858, 116 S.Ct. 165, 133 L.Ed.2d 107 (1995), where we held that "cases where the state-created danger theory was applied were based on discrete, grossly reckless acts committed by the state or state actors ... leaving a discrete plaintiff vulnerable to foreseeable injury." Based on its reading of these two cases, as well as Martinez v. California, 444 U.S. 277, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980) and Commonwealth Bank & Trust Co., N.A. v. Russell, 825 F.2d 12 (3d Cir.1987), the district court concluded that, "to make out a state-created danger claim, a plaintiff must allege facts indicating that there was a particular danger to the victim of the resulting harm." Morse, 1996 WL 677514, at * 8. Because plaintiff failed to allege that "Diane Morse faced a particular danger distinct from that faced by the population of persons inside the school" as a result of the back entrance being left unlocked, the district court granted defendants' motion to dismiss. Id. II

We have jurisdiction under 28 U.S.C. § 1291, and our review of the grant of a motion to dismiss is plenary. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250 (3d Cir.1994). When considering a Rule 12(b)(6)...