The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
MICHAEL P., a minor, by and
through his mother, Elizabeth A.,
CIVIL ACTION NO. 3:21-cv-00902
Plaintiff,
v. (SAPORITO, M.J.)
EAST STROUDSBURG AREA
SCHOOL DISTRICT,
Defendant.
MEMORANDUM
This matter is before the court on the motion to dismiss (Doc. 13)
filed by the defendant, East Stroudsburg Area School District (the
“District”). The plaintiffs, Michael P., a minor with disabilities, and his
parent and natural guardian Elizabeth A., filed this action against the
District on May 18, 2021. In their complaint, the plaintiffs bring federal
claims under § 504 of the Rehabilitation Act of 1973 (“RA”), 29 U.S.C. §
794, and the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12131
et seq., state-law negligence and recklessness claims, and a state-law
breach of fiduciary duty claim. (Doc. 1).
In their opposition brief, the plaintiffs have expressly conceded the
dismissal of their recklessness subclaim within Count III pursuant to the
willful conduct exception of the Pennsylvania Political Subdivision Tort
Claims Act (“PSTCA”), 42 Pa. Const. Stat. Ann. § 8542, their requests for
punitive damages within all counts, and their breach of fiduciary duty
claim set out in Count IV. (Doc. 15-1, at 1). Those claims and the District’s
motion to dismiss regarding those claims and the plaintiffs’ request for
punitive damages within all counts will be granted. For the reasons set
forth herein, the District’s motion to dismiss regarding the RA claim in
Count I, the ADA claim in Count II, and the negligence and recklessness
claims in Count III will be denied.
I. Statement of Facts
The plaintiffs’ complaint alleges that, on June 5, 2019, the
plaintiff, Michael P., a minor with disabilities including down syndrome
and a first-grade student of the District, sustained injuries upon his
arrival at school. (Doc. 1 ¶ 2). They have alleged that the bus driver
opened the door before Michael P.’s aide was ready and attentive and
Michael P. threw himself off the bus steps, landing face-first on the
pavement, causing a traumatic brain injury, a brain hemorrhage, an
orbital fracture, frontal bone (forehead) fracture, long term behavior
changes, long term post-concussion syndrome, and other injuries with
long term consequences. (Id. 1 ¶¶ 1-3). Michael P. is no longer enrolled
as a student of the District. (Id. ¶ 12). Michael P., an eligible student
under the Individuals with Disabilities Education Act, 42 U.S.C. § 1400
et seq., was subject to an Individualized Education Program (“IEP”) with
a disability category of Intellectual Disability. (Id. ¶ 13). The complaint
further alleged that Michael P. is almost completely non-verbal, he has a
limited ability to understand and express language, he is sensitive to
noise, he lacks regard for his own safety, and he has a history of
dangerous elopement, including running off the school bus, all of which
resulted in the District agreeing in the IEP to provide specialized
transportation in assisting him getting on and off the school bus and a
driver who would not open the bus door until Michael P.’s aide was ready
to assist him. (Id. ¶ 14).
On June 5, 2019, the District operated a school bus with Michael
P. on board. (Id. ¶ 15). The plaintiffs allege that the District’s bus driver
and Michael P.’s aide, a District employee, knew or should have known
of Michael P.’s disabilities and transportation safety needs including
dangerous issues with elopement, on that date. (Id. ¶¶ 19-22).
II. Legal Standard
Rule 12 (b)(6) of the Federal Rules of Civil Procedure authorizes a
defendant to move to dismiss for “failure to state a claim upon which
relief is granted.” Fed. R. Civ. P. 12(b)(6). “Under Rule 12(b)(6), a motion
to dismiss may be granted only if, accepting all well-pleaded allegations
in the complaint as true and viewing them in the light most favorable to
the plaintiff, a court finds the plaintiff’s claims lack facial plausibility.”
Warren Gen. Hosp. v. Amgen, Inc., 643 F.3d 77, 84 (3d Cir. 2011) (citing
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). In deciding
the motion, the court may consider the facts alleged on the face of the
complaint, as well as “documents incorporated into the complaint by
reference, and matters of which a court may take judicial notice.” Tellab,
Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). Although
the Court must accept the fact allegations in the complaint as true, it is
not compelled to accept “unsupported conclusions and unwarranted
inferences, or a legal conclusion couched as a factual allegations.” Morrow
v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013) (quoting Baraka v. McGreevy,
481 F.3d 187, 195 (3d Cir. 2007). Nor is it required to credit factual
allegations contradicted by indisputably authentic documents on which
the complaint relies or matters of public record of which we may take
judicial notice. In re Washington Mut. Inc., 741 Fed. App’x 88, 91 n.3 (3d
Cir. 2018); Sourovelis v. City of Philadelphia, 246 F. Supp. 3d 1058, 1075
(E.D. Pa. 2017); Banks v. Cty. of Allegheny, 568 F. Supp. 2d 579, 588-89
(W.D. Pa. 2008).
III. Discussion
The complaint is comprised of four Counts. In Count I, the plaintiffs
assert a claim based upon § 504 of the RA. In Count II, they assert a claim
under the ADA. In Count III, they allege state-law claims for negligence
and recklessness. Finally, in Count IV, they bring a state-law claim for
breach of fiduciary duty. The District has moved to dismiss this action.
As indicated above, the plaintiffs concede the dismissal of their
recklessness subclaim within Count III pursuant to the willful conduct
exception of the PSTCA, the plaintiff’s requests for punitive damages
within all counts, and the breach of fiduciary duty claim set out in Count
IV.
The District argues that the RA and the ADA claims in Counts I
and II, respectively, should be dismissed because they fail to demonstrate
that the District denied Michael P. benefits of a program or was otherwise
subject to discrimination because of his disability, and that the plaintiffs
failed to meet the deliberate indifference standard required to prove
intentional discrimination, which is necessary to recover monetary
damages. The District seeks dismissal of the negligence claim in Count
III because it is barred by the PSTCA.
A. The RA and ADA Claims
Section 504 of the RA provides that “[n]o otherwise qualified
individual with a disability . . . shall, solely by reason of her or his
disability, be excluded from the participation in, be denied the benefits
of, or be subject to discrimination under any program or activity receiving
Federal financial assistance.” 29 U.S.C. § 794(a). Title II of the ADA
states that: “no qualified individual with a disability shall by reason of
such disability be excluded from participation in or be denied the benefits
of the services, programs, or activities of a public entity or be subjected
to discrimination by any such entity.” 42 U.S.C. § 12132.
Claims under the ADA and the RA are generally subject to the same
substantive standard. S.H. ex rel. Durrell v. Lower Merion Sch. Dist., 729
F.3d 248, 260 (3d Cir. 2013); Hewlette-Bullard ex rel. J.H-B. v. Pocono
Mountain Sch. Dist. 522 F. Supp. 3d 78, 103 (M.D. Pa. 2021). A student
alleging that he has been discriminated against by a school under the
ADA and the RA must prove that he “(1) has a disability; (2) was
otherwise qualified to participate in a school program; and (3) was denied
the benefits of the program or was otherwise subject to discrimination
because of [his] disability.” Chambers v. Sch. Dist. of Phila. Bd. of Educ.
587 F. 3d 176, 189 (3d Cir. 2009). Although claims under the RA and the
ADA are otherwise generally the same, the causation elements of the RA
and the ADA differ in that the “RA allows a plaintiff to recover if he or
she were deprived of an opportunity to participate in a program solely on
the basis of disability, while the ADA covers discrimination on the basis
of disability, even if there is another cause as well.” CG v. Pa. Dep’t. of
Educ., 734 F.3d 229, 235-36 (3d Cir. 2013) (emphasis added). Both
statutes require plaintiffs to prove “that they were treated differently
based on the protected characteristic, namely the existence of their
disability.” Id. at 236. A claim under the RA also requires that the school
or board of education receives federal financial assistance. A.C. v.
Scranton Sch. Dist., 191 F. Supp. 3d 375, 389 (M.D. Pa. 2016).
To obtain compensatory monetary damages under § 504 of the RA
and the ADA, however, the Third Circuit requires a plaintiff to prove
intentional discrimination. S.H. F.3d at 261. The Third Circuit has also
held that “a showing of deliberate indifference may satisfy a claim for
compensatory damages under § 504 of the RA [and the ADA]. S.H. 729
F.3d at 263; D.E. v. Cent. Dauphin Sch. Dist., 765 F.3d 260, 269 (3d Cir.
2014). The Third Circuit Court in D.E. stated:
To satisfy the deliberate indifference standard, a plaintiff
“must present evidence that shows both: (1) knowledge that a
federally protected right is substantially likely to be violated.
. ., and (2) failure to act despite that knowledge.” Id. at 265
(citing Duvall v. Cnty. of Kitsap, 260 F.3d 1124, 1139 (9th Cir.
2001)). “Deliberate indifference does not require a showing of
personal ill will or animosity toward the disabled person.” Id.
at 263 (quoting Meagley v. City of Little Rock, 639 F.3d 384,
389 (8th Cir. 2011) (internal quotation marks omitted)). It
does, however, require a “deliberate choice, rather than
negligence or bureaucratic inaction.’ ”Id. (quoting Loeffler v.
Staten Island Univ. Hosp., 582 F.3d 268, 276 (2d Cir. 2009)).
765 F.3d, at 269
The District contends that the plaintiffs failed to allege causes of
action under the RA and the ADA because the complaint fails to
demonstrate that the District denied Michael P. benefits of a program, or
that he was otherwise subject to discrimination because of his disability.
Also, the District asserts that the plaintiffs failed to meet the deliberate
indifference standard required to prove intentional discrimination.
The plaintiffs argue that the allegations of the complaint
sufficiently allege that Michael P. was denied benefits because of his
disability.
The complaint alleges that the District provided Michael P. with an
IEP for “specialized transportation that he needs, specifically an aide to
help him get on and off his school bus and a driver who would not open
the bus door until the aide was ready to assist Michael.” (Doc. 1 ¶¶ 13-
14). The plaintiffs maintain that under the RA, a plaintiff need only plead
that the student was placed in peril because of his disability. They rely
upon Adam C. v. Scranton Sch. Dist., Civ. Action No. 3:07-cv-532, 2011
WL 996171, at *4 (M.D. Pa. Mar. 17, 2011). Adam C. does not stand for
the legal assertion for which it is cited. Rather, in Adam C. the court
denied the defendant’s motion for summary judgment because the
plaintiff was part of a class that is discriminated against because of
disability. Id. (Emphasis added).
In the complaint, regarding the RA count, the plaintiffs allege that
the District received federal financial assistance, Michael P. was a
handicapped person under Section 504, the District knew of Michael P.’s
disability, and it discriminated against him on the basis of his disability
and denied him the equal benefits of his transportation program by
failing to provide him with safe and properly supervised transportation.
(Doc. 1 ¶¶ 39, 41-43). In addition, the plaintiffs alleged that the District
owed Michael P. the benefit of an appropriate and properly supervised
transportation program under Section 504, and it violated Section 504 by
denying Michael P. the benefits of his transportation program and failing
to provide him with safe and appropriate transportation free from injury
and bodily harm, whether at the hands of his caregivers or through their
neglect and indifference. (Id. ¶¶ 47-48). They also allege that the District
discriminated against Michael P. on the basis of his disability by failing
to provide him with a safe and properly supervised transportation
program, causing his injuries and as a direct and proximate result
thereof, Michael P. was injured. (Id. ¶¶ 49-50).
With respect to the ADA claim, similarly, the plaintiffs have alleged
that the District violated the ADA and denied Michael P. the benefits of
his transportation program by failing to provide him with a safe and
appropriate transportation free from injury and bodily harm and that its
conduct constituted a conscious disregard for and deliberate indifference
to Michael P.’s rights under the ADA to a safe, appropriate, and properly
supervised transportation program thereby resulting in his damages as
described in the complaint. (Id. ¶¶ 60-63). The District’s reliance upon
M.J.G. v. Sch. Dist. of Philadelphia, 774 Fed. App’x 736 (3d Cir. 2019), is
procedurally misplaced. In M.J.G., the court, in ruling on the defendant’s
motion for summary judgment, held that no reasonable juror could
conclude that the defendants were deliberately indifferent after
examining the evidence submitted. Here, we are tasked with examining
only the well-pleaded factual allegations of the complaint, which we must
accept as true. We find these allegations are sufficient to defeat the
District’s motion to dismiss and therefore, the motion to dismiss the
plaintiffs’ RA and ADA claims shall be denied. A decision to the contrary
is better left to a determination after a more complete factual record is
established.
B. The Negligence and Recklessness Claim.
In Count III, the plaintiffs allege that the District and its employees
had a duty, under applicable law, to appropriately supervise and
transport Michael P. safely, free from unreasonable and foreseeable risks
of harm; to hire, train, and supervise employees that would transport him
safely; and to refrain from taking unreasonable actions that would cause
him injury. (Id. ¶ 66). They further allege that the District breached its
duties, and its negligence caused injuries to Michael P. (Id. ¶¶ 68-70).
Here, the District asserts that the PSTCA bars their negligence
claims. It argues that the “vehicle liability” exception under 42 Pa. Cons.
Stat. Ann. § 8542(b)(1) does not apply because Michael P.’s injuries did
not arise from the operation of the bus. The vehicle liability exception
provides that liability may be imposed on a local agency where injury is
caused by the “operation of any motor vehicle in the possession or control
of the local agency.” 42 Pa. Cons. Stat. Ann. § 8542. The District relies
upon Thomas v. Harrisburg City Police Dept., Civil Action No. 1:20-cv-
01178, 2021 WL 694807, at *10 (M.D. Pa. Feb. 23, 2021), where our court
held that the vehicle exception does not apply where an individual was
safely transported in a vehicle only to later suffer a medical emergency.
The plaintiffs rely upon Balentine v. Chester Water Authority, 191
A.3d 799 (Pa. 2018). In Balentine, the Pennsylvania Supreme Court
defined the “operation of a vehicle” as “a continuum of activity . . . which
entails a series of decisions and actions taken together which transports
the individual from one place to another. The decisions of where and
whether to park, where and whether to turn, whether to engage brake
lights, whether to use appropriate signals, whether to turn lights on or
off, and the like, are all part of the ‘operation’ of a vehicle.” Id. at 810.1
In so ruling in Balentine, the Court overruled Love v. City of
Philadelphia, 543 A.2d 531 (Pa. 1988), and abrogated thirty years of
jurisprudence regarding a narrow definition of “operation” under 42 Pa.
Cons. Stat. Ann. § 8542(b)(1). In Love, the driver of the van would assist
the plaintiff, who was blind in one eye and had limited vision in the other
eye, on and off the van. There, the plaintiff fell while exiting a van owned
by the City of Philadelphia. The Love court held that the act of entering
into or alighting from a vehicle does not constitute the “operation” of a
motor vehicle under 42 Pa. Cons. Stat. Ann. § 8542(b)(1). Love, 543 A.2d
at 532. In overruling Love, the Court observed that this newly-adopted
definition of “operation” under the statute “avoids the illogical results
that have flowed from the emphasis on motion in Love and its progeny.”
Balentine, 191 A.3d at 810. Accordingly, we find that, as pleaded, the
1 In Balentine, the Pennsylvania Supreme Court adopted the
definition of “operation” as previously articulated by former Justice
Sandra Schultz Newman in a dissenting opinion in Warrick v. Pro Cor
Ambulance, Inc., 739 A.2d 127 (Pa. 1999) (Newman, J., dissenting).
complaint alleges a cause of action for negligence under the vehicle
liability exception to governmental immunity.
An appropriate order follows.
Joseph F. Saporito, Jr.
JOSEPH F. SAPORITO, JR.
United States Magistrate Judge
Dated: September 20, 2022