State Created Danger Theory of Liability

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 5th 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 5th 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 5th Circuit to recognize the “state-created danger” theory.  Doe v. Covington County School District, 675 F.3d 849 (5th 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 3rd Circuit on September 6, 2016.


File this one under: LIABILITY

Tomorrow: Toolbox Tuesday!!