Van Orden v. Borough of Woodstown

• Decision Date: 11 March 2014
• Docket Number: Civil Action No. 13–5002 (JBS/AMD).
• Citation: 5 F.Supp.3d 676
• Parties: Kathryn M. VAN ORDEN, individually and as administratrix ad prosequendum of the Estate of Celena J. Sylvestri, Plaintiff, v. BOROUGH OF WOODSTOWN, et al., Defendants.
• Court: U.S. District Court — District of New Jersey

5 F.Supp.3d 676

Kathryn M. VAN ORDEN, individually and as administratrix ad prosequendum of the Estate of Celena J. Sylvestri, Plaintiff,

v.BOROUGH OF WOODSTOWN, et al., Defendants.

Civil Action No. 13–5002 (JBS/AMD).

United States District Court, D. New Jersey.

Signed March 11, 2014.

Thomas W. Sheridan, Esq., Christopher D. Hinderliter, Esq., Sheridan & Murray, LLC, Audubon, NJ, for Plaintiff.

A. Michael Barker, Esq., Vanessa Elaine James, Esq., Barker Scott & Gelfand, PC, Linwood, NJ, for Defendants Borough of Woodstown, Woodstown Police Department and Pilesgrove Township.

OPINION

SIMANDLE, Chief Judge:

I. INTRODUCTION

Plaintiff Kathryn M. Van Orden is the mother of Celena J. Sylvestri, who drowned in her car on August 28, 2011, after officials opened floodgates to the Veterans Memorial Lake Dam in anticipation of the arrival of Hurricane Irene without closing the affected road.

Before the Court is a motion for judgment on the pleadings, pursuant to Fed.R.Civ.P. 12(c), by Defendants Borough of Woodstown, the Woodstown Police Department, and Pilesgrove Township. [Docket Item 27.] For the reasons explained below, the Court will grant the motion as it pertains to the state-law tort claims, which is unopposed, because Plaintiff failed to comply with the notice requirements of the New Jersey Tort Claims Act. However, the Court will deny the motion as to the state-created danger claim, which Plaintiff sufficiently pleads.

II. BACKGROUND

The Court accepts as true the facts asserted in the Complaint for the purposes of this motion. On August 28, 2011, at approximately 1 a.m., Celena Sylvestri was driving on Route 40 in Salem County, New Jersey, when her car was “swept away by fast-moving water.” (Compl. ¶¶ 1, 8.) The water flowed from a floodgate at the Veterans Memorial Lake Dam (“the Dam”) in Woodstown, New Jersey, which Defendants had opened “to relieve pressure and control flood waters” as Hurricane Irene approached. ( Id. ¶¶ 2–3.)

At approximately 9:51 p.m. the previous evening, Defendants had announced their intention to open the floodgates and to close Route 40 “within the next few hours due to flooding caused by the intentional release of water from the Veterans Memorial Lake Dam,” but Defendants never blocked the road nor took any steps to prevent drivers from entering the path of the floodwater. ( Id. ¶¶ 5–6.) Ms. Sylvestri, who had lost power at her apartment, was attempting to evacuate on Route 40 when her car was overtaken by “raging flood water.” ( Id. ¶¶ 6, 8.)

Plaintiff, individually and as administratrix of her daughter's estate, filed this lawsuit against eight named defendants, alleging various state-law tort claims and a state-created danger claim under 42 U.S.C. § 1983 for a violation of the Due Process Clause of the Fifth and Fourteenth Amendments.

The Court granted an unopposed motion to dismiss all claims and counterclaims by and against Defendants State of New Jersey, New Jersey State Police, and the New Jersey Department of Environmental Protection Bureau of Dam Safety and Flood Control [Docket Item 33], on the Eleventh Amendment immunity grounds. See Van Orden v. Borough of Woodstown, No. 13–5002, 2013 WL 6447163, at *1–*2 (D.N.J. Dec. 9, 2013).

Defendants Borough of Woodstown, Woodstown Police Department and Pilesgrove Township brought the present motion for judgment on the pleadings.

III. STANDARD OF REVIEW

A motion for judgment on the pleadings based on the theory that plaintiff fails to state a claim is reviewed under the same standards that apply to a motion to dismiss under Fed.R.Civ.P. 12(b)(6). Caprio v. Healthcare Revenue Recovery Grp., LLC, 709 F.3d 142, 146–47 (3d Cir.2013). To survive a motion to dismiss, a “complaint must contain sufficient factual matter, which if accepted as true, states a facially plausible claim for relief.” Id. at 147 (citing Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir.2012)). A claim has “facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). The court must construe the complaint in the light most favorable to the plaintiff. Fleisher v. Standard Ins. Co., 679 F.3d 116, 120 (3d Cir.2012).

IV. DISCUSSIONA. New Jersey Tort Claims Act (Counts I, II, IV, V & VI)

Defendants move to dismiss Counts I (“Negligence”), II (“Vicarious Liability”), IV (“Strict Liability”), V (“Wrongful Death Action”), and VI (“Survival Action”) of the Complaint because Plaintiff did not comply with the notice requirements of the New Jersey Tort Claims Act (“TCA”), N.J.S.A. §§ 59:8–8, 59:8–9. (Def. Mot. [Docket Item 27] at 5–10.) Plaintiff does not oppose dismissal. She states: “While the Plaintiff initially included negligence theories of liability against Defendants ... at this time the Plaintiffs are only pursuing the State Created Danger Theory, under 42 U.S.C. § 1983, against the Moving Defendants....” (Pl. Opp'n [Docket Item 39–1] at 1.) Because the Complaint does not contain assertions of compliance with the notice requirements of the TCA, because the record does not contain evidence of compliance, and because Plaintiff no longer seeks to pursue these claims, the Court will grant Defendants' motion for judgment on the pleadings as to Counts I, II, IV, V, and VI.

B. State-created danger under 42 U.S.C. § 1983 (Count III)

To state a claim under 42 U.S.C. § 1983, a plaintiff must plead that a person acting under the color of state law deprived the plaintiff of a constitutional right. Phillips v. Cnty. of Allegheny, 515 F.3d 224, 235 (3d Cir.2008). Here, Plaintiff alleges a deprivation of her Fifth and Fourteenth Amendment rights. (Compl. ¶ 75.)

“Individuals have a constitutional liberty interest in personal bodily integrity that is protected by the Due Process Clause of the Fourteenth Amendment.” Phillips, 515 F.3d at 235. The Due Process Clause does not impose an affirmative obligation on the state to protect its citizens, id. (citing DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189, 195–96, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989)), but courts “have recognized that a state actor may be held liable under the ‘state-created danger’ doctrine” when the following four conditions are met:

(1) the harm ultimately caused was foreseeable and fairly direct;

(2) a state actor acted with a degree of culpability that shocks the conscience; (3) a relationship between the state and the plaintiff existed such that the plaintiff was a foreseeable victim of the defendant's acts, or a member of a discrete class of persons subjected to the potential harm brought about by the state's actions, as opposed to a member of the public in general; and

(4) a state actor affirmatively used his or her authority in a way that created a danger to the citizen or that had rendered the citizen more vulnerable to danger than had the state not acted at all.

Henry v. City of Erie, 728 F.3d 275, 281–82 (3d Cir.2013) (citing Morrow v. Balaski, 719 F.3d 160, 177 (3d Cir.2013)).

Defendants request judgment on the pleadings for the state-created danger claim because “the Complaint fails to allege any facts to suggest the level of culpability necessary,” and because alleged inaction, such as failing to close Route 40, cannot form the basis of a claim. (Def. Mot. Br. at 10–11.) Specifically, Defendants argue that the Complaint fails to describe conduct that shocks the conscience ( id. at 13), that no special relationship existed between Ms. Sylvestri and Defendants ( id.), and that inaction is not legally cognizable under the state-created danger doctrine ( id. at 16). Plaintiff opposes the motion. The Court will consider each of the elements of the state-created danger claim in turn.

1. Affirmative use of state authority to create a danger

Because Defendants argue that the conduct alleged cannot form the basis for a state-created danger claim, the Court will begin with the fourth factor articulated in Henry, 728 F.3d at 282: whether Defendants affirmatively used their state authority in a way that created a danger to Plaintiff.

The Third Circuit has held repeatedly that it “is the misuse of state authority, rather than a failure to use it, that can violate the Due Process Clause.” Phillips, 515 F.3d at 235 (quoting Bright v. Westmoreland Cnty., 443 F.3d 276, 282 (3d Cir.2006)) (emphasis in Phillips ). The Third Circuit has refused to find affirmative use of state power when the police “ ‘failed to more expeditiously seek someone's detention,’ ” or failed “to arrest someone who poses a threat.” Walter v. Pike Cnty., 544 F.3d 182, 194 (3d Cir.2008) (quoting Bright, 443 F.3d at 284, and citing Burella v. City of Phila., 501 F.3d 134, 147 (3d Cir.2007)). Likewise, the state's “mere failure to warn of a threat” by a private actor “cannot itself predicate liability” under the state-created danger doctrine. Walter, 544 F.3d at 194–95.

On the other hand, the Third Circuit has found affirmative use of state authority when, for example, two 911 Call Center employees provided a suspended colleague with information that assisted him in locating a man he later shot and killed, Phillips, 515 F.3d at 236, and when police officers detained an intoxicated woman walking home from a tavern, letting her sober husband continue home, and eventually releasing the wife to walk home unescorted in cold weather, which caused her to suffer hypothermia and permanent brain damage, Kneipp v. Tedder, 95 F.3d 1199, 1209 (3d Cir.1996).

Defendants liken the present case to Goss v. Alloway Twp. Sch., 790 F.Supp.2d 221, 227 (D.N.J.2011), in which the district court held that failure to add padding to a school playground or the failure to provide additional playground monitors was inaction, and therefore not legally cognizable under a state-created danger theory. In Goss, a first-grade student fell on the playground, which had a ...