Last week we told you about the horrific case from Pennsylvania in which the plaintiff alleges that a kindergarten teacher released a five-year old to a stranger, who sexually assaulted the child.  The Third Circuit held that the facts as alleged were sufficient to impose personal liability on the teacher for the sexual assault of the student. Today, we will focus on the court’s reliance on the “state created danger” theory of liability.

Background: the general rule is that the state is not required to protect all of us from all forms of harm.  If I am injured due to the actions of a private party, I should look for recourse from that individual—not from the police department that failed to protect me.  Our Constitution protects us from the government—not from each other.

That’s the general rule. One exception to the general rule is the “state-created danger” theory.  This theory of liability has not been accepted by all of our Circuit Courts.  Importantly, the 5^th Circuit, where we live, has not adopted it. The closest it came to recognizing this type of legal theory was in the litigation that resulted from the Texas A&M Bonfire tragedy in 1999.

Nevertheless, lawyers in Texas need to know about this theory. It keeps coming up, has been adopted by several Circuit Courts, and will continue to be pressed as a viable cause of action here in Texas.

In this case, the court identified four necessary elements in a “state-created danger” case:

1. The harm ultimately caused was foreseeable and direct;

2. A state actor acted with a degree of culpability that shocks the conscience;

3. A relationship existed between the state and the plaintiff existed such that the plaintiff was a foreseeable victim of the defendant’s act, 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 rendered the citizen more vulnerable to danger than had the state not acted at all.

In this case, the court concluded that the facts—as alleged—satisfied all four elements.  Releasing a five-year old to someone we don’t know, and who fails to provide any identification, “shocks the conscience” of the court.

The 5^th Circuit decided a case in 2012 with facts that may be even worse, and yet, it decided there would be no liability. The case involved a nine-year old who was allegedly released to a man claiming to be her father, but who actually had no relationship to the child and was not listed on the “check out” card. This happened not once, but six times. The suit alleged that the man sexually assaulted the child each time, and then brought her back to school. This was not bad enough for the 5^th Circuit to recognize the “state-created danger” theory.  Doe v. Covington County School District, 675 F.3d 849 (5^th Cir. 2012, en banc).

I have no explanation for that other than the obvious: different judges view things differently.  Present two judges with identical fact situations and one will rule for the plaintiff, while the other goes for the defendant. It’s just the nature of the law.

This Pennsylvania case is L.R. v. School District of Philadelphia, decided by the 3^rd Circuit on September 6, 2016.

DAWG BONE: STATE-CREATED DANGER THEORY WILL KEEP COMING UP.

File this one under: LIABILITY

Tomorrow: Toolbox Tuesday!!

The most likely person in a school district to be named as a defendant in a lawsuit is the superintendent. The least likely to be sued is the kindergarten teacher. But a kindergarten teacher in Philadelphia has been sued personally. And the 3rd Circuit Court of Appeals has held that the teacher may be held personally liable for violating a student’s constitutional rights.

This case is noteworthy for two reasons. First, it is one of the few in which a court refuses to grant “qualified immunity” to an educator. For educators, this is the main “takeaway” from today’s post. Secondly, this case endorses the legal theory of “state created danger” as a vehicle for imposing liability on school districts and school officials. This point will be of more interest to the lawyers than the educators, and we will expand on this next Monday.

What happened? The suit alleges that the kindergarten teacher allowed an unauthorized adult to take a five-year old out of class. The adult showed no identification. School policy did not allow this person to take the child out of class. The teacher asked for ID and the adult did not produce any. But the teacher allowed the adult to take the child out of class anyway. The adult sexually assaulted the child later that day. None of these allegations have been proven in court, but this is what the suit alleges. The teacher’s attorney filed a Motion to Dismiss the case, arguing that even if these facts turn out to be true, the teacher is protected by “qualified immunity.”

In its opening paragraph the court notes that teachers are usually protected from personal liability by the doctrine of “qualified immunity.” But the court also noted that “there are exceptions and this is one of those cases.” Here is the Key Quote:

We hold that the parent’s allegations sufficiently state a constitutional violation of the young child’s clearly established right to be free from exposure by her teacher to an obvious danger. In short, we conclude that it is shocking to the conscience that a kindergarten teacher would allow a child in his care to leave his classroom with a complete stranger.

It would be a good idea to double down on staff training on this issue. Let’s not let kids walk off with someone who is not authorized to take them.

The case is L.R. v School District of Philadelphia, decided by the 3rd Circuit Court of Appeals on September 6, 2016.

DAWG BONE: DOUBLE CHECK ON YOUR PROTOCOLS FOR TAKING KIDS OUT OF SCHOOL.

File this one under: LIABILITY

Tomorrow: When will this miserable football season end????

Like most school districts in Texas, Victoria ISD has a policy that permits employees to have electronic communication with students. A parent in Victoria alleged that it was that policy that caused the sexual harassment of her daughter. But the court dismissed the suit, making the obvious point: it wasn’t the policy of the district that caused the harassment. It was an employee’s violation of that policy.

Victoria ISD had adopted the same version of TASB Policy DH(Local) that many districts have adopted. It permits electronic communication with the kids, but only about school matters. Moreover, the policy notifies employees that they could be fired for improper use of e-communication, such as any kind of sexual harassment, or an effort to create a romantic relationship or any other “inappropriate social relationship.” In other words, there was nothing wrong with Victoria’s policy.

Jesse Earl Holmes, an athletic trainer at Victoria East High School, violated the policy. When reports of this reached the school, swift action followed. Mr. Holmes met with the superintendent on October 11, 2012 and resigned. He was later convicted of sexual assault of a minor and sentenced to prison for 15 years.

This lawsuit was not against Mr. Holmes. It was against the district. And that’s why the lawyer had to try to make a connection between the policy and the student’s injury. School districts are not liable in court just because they employed someone who committed a crime. They are liable if they have a policy that directly caused harm. That was certainly not the case here.

The case is Brown v. Victoria ISD, decided by the federal district court for the Southern District of Texas on May 12, 2016. We found it at 2016 WL 2758036.

DAWG BONE: MAKE SURE YOUR EMPLOYEES UNDERSTAND AND COMPLY WITH DH LOCAL!

File this one under: LIABILITY

Tomorrow: Toolbox Tuesday!!