Morse v. Lower Merion School District

Opinions of the United

1997 Decisions States Court of Appeals

for the Third Circuit

12-23-1997

Morse v. Lower Merion Sch

Precedential or Non-Precedential:

Docket 96-2134

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Filed December 23, 1997

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 96-2134

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

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil Action No. 96-cv-04576)

Argued July 24, 1997

Before: SCIRICA and NYGAARD, Circuit Judges

and DEBEVOISE, District Judge*

(Filed December 23, 1997)

_________________________________________________________________

*The Honorable Dickinson R. Debevoise, United States District Judge for

the District of New Jersey, sitting by designation.

PAUL J. DRUCKER, ESQUIRE

(ARGUED)

Jablon, Epstein, Wolf & Drucker

The Bellevue, Ninth Floor

Broad Street at Walnut

Philadelphia, Pennsylvania 19102

WILLIAM F. JOSEPH, ESQUIRE

1831 Chestnut Street, Suite 1001

Philadelphia, Pennsylvania 19103

Attorneys for Appellant

DIANE C. BERNOFF, ESQUIRE

(ARGUED)

JAY B. HARRIS, ESQUIRE

Fineman & Bach

1608 Walnut Street, 19th Floor

Philadelphia, Pennsylvania 19103

Attorneys for Appellees,

Lower Merion School District;

Daycare Association of

Montgomery County, Inc., d/b/a

Ardmore Child Care Center

JAMES J. GILLESPIE, JR.,

ESQUIRE

Stolarski, Gillespie & Hendrzak

2005 Market Street, Suite 2030

Philadelphia, Pennsylvania 19103

Attorney for Appellee,

Jamison Contractors, Inc.

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. S 1983 (West

1994 & Supp. 1997). The district court granted defendants'

motion to dismiss under Fed. R. Civ. P. 12(b)(6), finding

2

plaintiff failed to plead one of the elements of the test set

forth by this court in Kneipp v. Tedder, 95 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

_________________________________________________________________

1. We may affirm the lower court's ruling on different grounds, provided

the issue which forms the basis of our decision was before the lower

court. See Mark v. Borough of Hatboro, 51 F.3d 1137, 1139 n.1 (3d Cir.

1995), cert. denied, 116 S. Ct. 165 (1995); Neely v. Zimmerman, 858 F.2d

144, 149 (3d Cir. 1988).

3

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. S 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)

_________________________________________________________________

2. The complaint also raised various state law claims against Jamison,

Buttonwood and U.S. Roofing. The district court dismissed the state law

claims for lack of supplemental jurisdiction. In order to protect these

claims, plaintiff subsequently filed an action in state court against the

private defendants.

4

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 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 ofS 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 S 1983. 95 F.3d 1199, 1211 (1996). In particular, the

district court looked to whether "liability based on the

_________________________________________________________________

3. With respect to this ground, defendants submitted the lease

agreement between the Daycare Association and the School District, as

well as the affidavit of the Daycare Association's Executive Director, in

support of their 12(b)(6) motion. The district court noted that it could

have, at its discretion, converted the motion into a motion for summary

judgment. It declined to do so, however, finding these documents

inconclusive on the color of state law issue. Morse v. Lower Merion Sch.

Dist., 1996 WL 677514, *2 (E.D. Pa. Nov. 20, 1996).

4. Because we, too, find that plaintiff has failed to state a claim under

the state-created danger theory, we need not address the question

whether the School District or the Daycare Association were acting

under color of state law at the time of Diane Morse's death.

5. In his briefs on appeal, plaintiff denies this, and states that his

complaint relied solely on the state-created danger theory of liability.

5

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 S 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 . . . 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

_________________________________________________________________

6. The district court acknowledged that "the line between action and

omission is not always clear." The affirmative act requirement is

discussed in greater detail, infra.

7. Morse, 1996 WL 677514, at *6 (citing DeShaney v. Winnebago County

Dept. of Social Serv., 489 U.S. 189 (1989); D.R. v. Middle Bucks Area

Vocational Tech. Sch., 972 F.2d 1364 (3d Cir. 1992) (en banc), cert.

denied, 506 U.S. 1079 (1993); Searles v. Southeastern Pennsylvania

Transp. Auth., 990 F.2d 789 (3d Cir. 1993); Brown v. Grabowski, 922

F.2d 1097 (3d Cir. 1990), cert. denied, 501 U.S. 1218 (1991); Huston v.

Montgomery County, No. Civ. A. 95-4209, 1995 WL 766308 (E.D. Pa.

Dec. 28, 1995)).

6

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, 116 S. Ct. 165

(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 (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. S 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) motion, we are

required to accept as true all of the allegations in the

complaint and all reasonable inferences that can be drawn

therefrom, and view them in the light most favorable to the

plaintiff. Rocks v. City of Philadelphia, 868 F.2d 644, 645

(3d Cir. 1989); D.P. Enter. Inc. v. Bucks County Community

College, 725 F.2d 943, 944 (3d Cir. 1984). A Rule 12(b)(6)

motion should be granted "if it appears to a certainty that

no relief could be granted under any set of facts which

could be proved." D.P. Enter. Inc., 725 F.2d at 944;

Richardson v. Pennsylvania Dep't of Health, 561 F.2d 489,

7

492 (3d Cir. 1977). But a court need not credit a

complaint's "bald assertions" or "legal conclusions" when

deciding a motion to dismiss. In re Burlington Coat Factory

Securities Litigation, 114 F.3d 1410, 1429-30 (3d Cir.

1997)(quoting Glassman v. Computervision Corp., 90 F.3d

617, 628(1st Cir. 1996)).8 Mitchell v. Duvall County Sch. Bd.,

107 F.3d 837, 839-40 (11th Cir. 1997)(affirming dismissal

of state-created danger claim where it was "beyond doubt

that appellant cannot prove a set of facts" which support

his claim); Johnson v. Dallas Indep. Sch. Dist., 38 F.3d 198

(5th Cir. 1994), cert. denied, 514 U.S. 1017 (1995)(same).

III

Discussion

Plaintiff brought this civil rights action under 42 U.S.C.

S 1983.9 By itself, Section 1983 does not create any rights,

but provides a remedy for violations of those rights created

by the Constitution or federal law. Baker v. McCollan, 443

_________________________________________________________________

8. See also Charles Alan Wright & Arthur R. Miller, Federal Practice and

Procedure S 1357 (2d ed. 1997) (noting that courts, when examining

12(b)(6) motions, have rejected "legal conclusions," "unsupported

conclusions," "unwarranted inferences," "unwarranted deductions,"

"footless conclusions of law," or "sweeping legal conclusions cast in the

form of factual allegations"); Leeds v. Meltz, 85 F.3d 51, 53 (2d Cir.

1996)(affirming dismissal of S 1983 action and noting that "[w]hile the

pleading standard is a liberal one, bald assertions and conclusions of

law will not suffice."); Fernandez-Montes v. Allied Pilots Ass'n, 987 F.2d

278, 284 (5th Cir. 1993) ("[C]onclusory allegations or legal conclusions

masquerading as factual conclusions will not suffice to prevent a motion

to dismiss.").

9. Section 1983 provides:

Every person who, under color of any statute, ordinance,

regulation,

custom, or usage, of any State or Territory or the District of

Columbia, subjects, or causes to be subjected, any citizen of the

United States or other person within the jurisdiction thereof to

the

deprivation of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper proceeding for

redress.

42 U.S.C.A. S 1983.

8

U.S. 137, 144 n.3 (1979); Kneipp, 95 F.3d at 1204. In order

to state a claim, plaintiff must show that defendants, acting

under color of state law, deprived him of a right secured by

the Constitution or the laws of the United States. See

Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on

other grounds, Daniels v. Williams, 474 U.S. 327 (1986).

As noted, plaintiff alleged defendants subjected Diane

Morse to a dangerous and ultimately fatal situation, in

violation of her Fourteenth Amendment right to substantive

due process, by allowing a mentally deranged and

homicidal third party to have access to the day care center

where Diane Morse worked. Although the general rule is

that the state has no affirmative obligation to protect its

citizens from the violent acts of private individuals, courts

have recognized two exceptions to this rule. See, e.g., D.R.

v. Middle Bucks Area Vocational Tech. Sch., 972 F.2d 1364,

1369-73 (3d Cir. 1992) (en banc), cert. denied, 506 U.S.

1079 (1993); Uhlrig v. Harder, 64 F.3d 567, 572 (10th Cir.

1995), cert. denied, ___ U.S. #6D6D 6D#, 116 S. Ct. 924 (1996). The

first of these is commonly known as the "special

relationship" exception, and allows a plaintiff to recover

"when the state enters into a special relationship with a

particular citizen . . . [and] fails, under sufficiently culpable

circumstances, to protect the health and safety of the

citizen to whom it owes an affirmative duty." D.R., 972 F.2d

at 1369; see also Black v. Indiana Area Sch. Dist., 985 F.2d

707, 713 (3d Cir. 1993). The second exception is the"state-

created danger" theory of liability.

The state-created danger theory had it origins in the

Supreme Court's decision in DeShaney v. Winnebago

County Dep't of Social Serv., 489 U.S. 189 (1989). The

petitioner in that case was a young boy who was

chronically abused by his father. The county department of

social services, after receiving many complaints about the

boy's mistreatment, took several steps to ensure his safety.

But despite these efforts, the boy remained in his father's

custody, and was eventually beaten so savagely that he

suffered severe brain damage. The boy and his mother sued

the department of social services under the "special

relationship" theory of 42 U.S.C. S 1983 for their failure to

protect the boy from his father. Although the Court

9

ultimately rejected plaintiff's claim, 489 U.S. at 195-96, it

went on to explain that, "[w]hile the State may have been

aware of the dangers that Joshua faced in the free world,

it played no part in their creation, nor did it do anything to

render him any more vulnerable to them." 495 U.S. at 201.

Based on that language, several courts of appeals have

allowed claims under Section 1983 on the "state-created

danger" theory. See, e.g., Dwares v. City of New York, 985

F.2d 94, 99 (2d Cir. 1993); Reed v. Gardner, 986 F.2d

1122, 1125 (7th Cir. 1993), cert. denied, 510 U.S. 947

(1993); Freeman v. Ferguson, 911 F.2d 52, 55 (8th Cir.

1990); Cornelius v. Town of Highland Lake, 880 F.2d 348

(11th Cir. 1989), cert. denied, 494 U.S. 1066 (1990); Wood

v. Ostrander, 879 F.2d 583 (9th Cir. 1989), cert. denied,

498 U.S. 938 (1990).

We adopted the "state-created danger" theory in Kneipp v.

Tedder. The plaintiffs there were the parents and legal

guardians of Samantha Kneipp. Samantha and her

husband, Joseph, were stopped by police while returning

home on foot on a cold night in January. The police

stopped the Kneipps a short distance from their home for

allegedly causing a disturbance. According to the police,

Samantha was visibly intoxicated - she had difficulty

walking, and smelled of alcohol and urine. During the

course of their discussion Joseph Kniepp expressed the

need to relieve the Kneipps' babysitter, and asked the police

if he could return home. Joseph testified that the police

informed him he could leave, and he left assuming that

they would either take Samantha to a hospital or the police

station. But the police sent Samantha home alone shortly

thereafter. Approximately two hours later, Samantha was

found lying at the bottom of an embankment across the

street from the Kneipps' home. As a result of her exposure

to the cold, Samantha suffered permanent brain damage.

Plaintiffs brought suit, alleging the police officers' actions

deprived Samantha of her right to substantive due process

and her liberty interest in personal security. The district

court granted summary judgment in favor of the

defendants. We reversed, holding that the "state-created

danger theory is a viable mechanism for establishing a

constitutional claim under 42 U.S.C. S 1983," and that

10

plaintiffs had raised a triable issue of fact under that

theory. Kneipp, 95 F.3d at 1211.

In reaching this conclusion, we applied the four-part test

articulated in Mark v. Hatboro, which holds a state actor

liable if:

(1) the harm ultimately caused was foreseeable and

fairly direct; (2) the state actor acted in willful

disregard for the safety of the plaintiff; (3) there existed

some relationship between the state and the plaintiff;

(4) the state actors used their authority to create an

opportunity that otherwise would not have existed for

the third party's crime to occur.

Kneipp, 95 F.3d at 1208 (quoting Mark, 51 F.3d at 1152).

We also noted that "[t]hose courts which have recognized

the state-created danger theory have employed a deliberate

indifference standard." Id. at 1208 (citations omitted). When

this test is applied to the facts of this case, it becomes clear

that plaintiff has not set forth a claim under S 1983 upon

which relief can be granted.

A. Foreseeable and Fairly Direct Harm

The first element of the Kneipp test requires that the

harm ultimately caused was a foreseeable and a fairly

direct result of the state's actions. Although the plaintiff

asserted this conclusion in his complaint, this is not

necessarily sufficient to overcome defendants motion to

dismiss. As we have noted, we need not accept "bald

assertions" or "legal conclusions" contained in the

complaint. In re Burlington Coat Factory Securities

Litigation, 114 F.3d 1410, 1429-30 (3d Cir. 1997)(quoting

Glassman v. Computervision Corp., 90 F.3d 617, 628 (1st

Cir. 1996)). We hold that defendants, as a matter of law,

could not have foreseen that allowing construction workers

to use an unlocked back entrance for access to the school

building would result in the murderous act of a mentally

unstable third party, and that the tragic harm which

ultimately befell Diane Morse was too attenuated from

defendants' actions to support liability.

First, the complaint did not allege that defendants were

aware of Stovall's violent propensities. There are no

11

allegations that Stovall had made threats against Diane

Morse or any other persons at the Lower Merion High

School, or even that she had a history of violent behavior.

The only allegation in the complaint that addresses whether

defendants should have foreseen the danger posed by

Stovall that day was that, during the week preceding the

murder, she had been seen "loitering in the school and the

school area." (Complaint P 31). Assuming that defendants

were aware of this fact, as we must when reviewing the

grant of a motion to dismiss, this is insufficient as a matter

of law to put defendants on notice that Stovall would return

in a few days with a .38 revolver and a homicidal intent.

Second, there is no allegation that defendants were aware

of anyone posing a credible threat of violence to persons

inside the school building. Although the complaint alleges

that defendants were aware of previous "security breaches"

by unnamed persons, it does not allege that Stovall, or any

other mentally deranged person, had entered the school

building previously. In addition, the complaint contains no

allegation, and plaintiff cannot prove any set of facts, that

would demonstrate that defendants were aware of the

likelihood that a mentally deranged person would enter the

school in search of a victim.

Third, Stovall's attack was not a "fairly direct" result of

defendants' actions. We recognize that plaintiff has alleged

that the harm which befell Ms. Morse was "a direct result

of defendants' acts." But we are not bound to accept a

conclusory statement, and as a matter of law this cannot

be true. Plaintiff's allegation that, as a result of defendants'

decision to allow construction workers to have access to the

school through an unlocked rear entrance, Stovall was able

to enter the building and murder Diane Morse is

insufficient to support liability. While we must accept the

allegation that Stovall gained access to the building

through the unlocked rear entrance, this does not mean the

attack on Diane Morse occurred as a direct result of

defendants allowing the construction crews to prop open

the door. The causation, if any, is too attenuated. Plaintiff

can prove no set of facts which will provide the direct

causal connection between Stovall's deadly attack and any

of defendants' allegedly improper acts.

12

The cases which have found liability under the state-

created danger theory do not stretch the concepts of

foreseeability and causation this far. Kneipp itself involved

a visibly inebriated and incapacitated woman who was left

alone on the road by police. Consequently we concluded

that "a reasonable jury could find that the harm likely to

befall Samantha if separated from [her husband] while in a

highly intoxicated state in cold weather was indeed

foreseeable" and could have led directly to her injuries. 95

F.3d at 1208.

Similarly, the decisions to hold the state actors liable

under the state-created danger theory in Wood v.

Ostrander, 879 F.2d 583 (9th Cir. 1989), and Cornelius v.

Town of Highland Lake, 880 F.2d 348 (11th Cir. 1989),

were premised on facts in which the harm visited on the

plaintiffs was more foreseeable than the random attack

perpetrated by Stovall here. The plaintiff in Wood was the

female passenger of a drunk driver who was pulled over late

one evening by police. The driver was arrested and the car

impounded, leaving Ms. Wood stranded on the road in a

notoriously high crime area. After beginning thefive mile

walk to her home, Ms. Wood accepted a ride from an

unknown man who subsequently took her to a secluded

area and raped her. Addressing the issue of foreseeable

harm, the court noted that the "inherent danger facing a

woman left alone at night in an unsafe area is a matter of

common sense." 879 F.2d at 590 (citations omitted).

In Cornelius, the United States Court of Appeals for the

Eleventh Circuit found that prison and town officials could

be liable to the plaintiff, who was abducted and held

hostage for several days by prison inmates assigned to a

community work program in the town hall where she was

employed. Reversing the lower court's grant of summary

judgment, the court of appeals found that genuine issues of

fact existed which related to the "special danger" created by

the work squad's presence in the town hall. The court

noted that the defendants in Cornelius knew of the

dangerous propensities of the prison inmates assigned to

the work program, as well as the lack of supervision over

those inmates, and thus "were aware of the danger present

from the community work squad inmates." 880 F.2d at

13

358. The ultimate manifestation of that danger was

therefore foreseeable. By contrast, there is no allegation in

the complaint here that defendants knew that Stovall posed

a threat to anyone at Lower Merion High School, let alone

Diane Morse.

In this respect the case before us is more analogous to

the facts in Gregory v. City of Rogers, 974 F.2d 1006 (8th

Cir. 1992), cert. denied, 507 U.S. 913 (1993). In Gregory,

three friends were returning home from an evening of

drinking, with one of them, Stanley Turner, serving as

designated driver. The police stopped their vehicle for

running a red light, and in the process of making a routine

warrant check, discovered an outstanding warrant for

Turner's arrest. At his request, the police allowed Turner to

drive to the station in order to clear up the matter. After

arriving at the station, Turner parked and went inside,

leaving behind his two intoxicated passengers, and leaving

the keys in the ignition. After waiting for thirty minutes, the

passengers drove off, and were involved in a single car

accident which killed the driver and injured the other

passenger. Plaintiffs - the surviving passenger and the wife,

son and estate of the decedent - brought a claim against

the police under the state-created danger theory. The

district court granted the defendants' motion for summary

judgment, and the United States Court of Appeals for the

Eighth Circuit, sitting en banc, affirmed. The court

concluded that even if the police were aware that both

passengers were intoxicated, a reasonable trier of fact could

not find that the police placed them in a dangerous

situation by merely leaving them alone in the car. Id. at

1011 (contrasting the facts there with the facts in Wood).

"Simply put, it was not unsafe for the intoxicated

[passengers] to wait for Turner inside the car where it was

parked until Turner inexplicably left the keys with them."

Id. at 1012. The court ruled that because Turner's

unforeseeable act was the catalyst for the injury which

plaintiffs suffered, the police could not be held liable. Id.

The same can be said in the case before us. Here, it was

not defendants' decision to allow the rear entrance to the

school to remain open that precipitated or was the catalyst

for the attack on Ms. Morse. Furthermore, we believe that

14

the harm allegedly created by the defendants in Gregory

was more foreseeable than the harm allegedly created here.

Unlike the situation in Gregory, where the defendants were

aware that intoxicated passengers were left behind in the

car, the defendants here were unaware that any mentally

deranged person, let alone Stovall, was waiting outside the

building for an opportunity to cause harm. Based on a

review of the complaint, we find that plaintiff can prove no

set of facts which will entitle him to relief. Defendants could

not have foreseen the danger to Diane Morse, nor, as a

matter of law, can their actions be said to have directly

caused the attack. Consequently, plaintiff has failed to

plead adequately the foreseeable injury element of the

Kneipp test.

B. Willful Disregard for Plaintiff's Safety

The second prong of the Kneipp test asks whether the

state actor acted with willful disregard for or deliberate

indifference to plaintiff's safety. Kneipp , 95 F.3d at 1208 &

n.21. "[T]he environment created by the state actors must

be dangerous; they must know it to be dangerous; and . . .

[they] must have been at least deliberately indifferent."

Johnson v. Dallas Indep. Sch. Dist., 38 F.3d 198, 201 (5th

Cir. 1994), cert. denied, 514 U.S. 1017 (1995). See also

Leffal v. Dallas Indep. Sch. Dist., 28 F.3d 521, 531 (5th Cir.

1994) ("[I]t is not enough to show that the state increased

the danger of harm from third persons; the [S] 1983

plaintiff must also show that the state acted with the

requisite degree of culpability in failing to protect the

plaintiff."). In other words, the state's actions must evince

a willingness to ignore a foreseeable danger or risk. Of

course, the notion of deliberate indifference contemplates a

danger that must at least be foreseeable. In Kneipp, we

focused on the police officers' decision to send Samantha

Kneipp home alone, despite their awareness of her

intoxicated and incapacitated state, as evidence of their

deliberate indifference. In Cornelius, the court held the

defendants could be liable based on their knowledge of the

risk created by the presence of the community work squad

inmates. 880 F.2d at 358. These factors are not present

here. Defendants could not have been aware of the danger

posed by Stovall, nor could they have foreseen it. As a

15

matter of law they cannot have acted with willful disregard

for Diane Morse's safety.10

Our decision in Mark v. Borough of Hatboro is instructive.

The plaintiff owned an auto repair business that was

destroyed in a fire set by a volunteer firefighter. The

plaintiff filed a S 1983 action against the borough and the

_________________________________________________________________

10. The Kneipp court noted that "we have declined to distinguish such

terms as "deliberate indifference," "reckless indifference," "gross

negligence," or "reckless disregard" in the context of a violation of

substantive due process under the Fourteenth Amendment." 95 F.3d at

1208 n.21 (citing Williams v. Borough of West Chester, 891 F.2d 458,

464 n. 10 (3d Cir. 1989)). The concept of "willful disregard" fits within

this same ill-defined category of mens rea. "Willful disregard" and

"reckless indifference" appear to fall somewhere between intent, which

"includes proceeding with knowledge that the harm is substantially

certain to occur" and negligence, which involves"the mere unreasonable

risk of harm to another." W. Page Keeton et al, Prosser & Keeton on

Torts S 34 at 212 (5th ed. 1984). Thus the term "willful" indifference is

somewhat misleading, requiring not an intent to harm, but a failure to

act appropriately in light of a known or obvious risk. Id. at 213-14 ("The

`willful' requirement, therefore, breaks down and receives at best lip

service, where it is clear from the facts that the defendant, whatever his

state of mind, has proceeded in disregard of a high and excessive degree

of danger, either known to him or apparent to a reasonable person in his

position.").

The Restatement (Second) on Torts S 500 reiterates this standard:

The actor's conduct is in reckless disregard of the safety of

another

if he does an act or intentionally fails to do an act which it is

his

duty to the other to do, knowing or having reason to know of facts

which would lead a reasonable man to realize, not only that his

conduct creates an unreasonable risk of physical harm to another,

but also that such risk is substantially greater than that which is

necessary to make his conduct negligent.

The Restatement underscores that the test of willful indifference does not

require that the state actor "recognize [his conduct] as being extremely

dangerous . . . [but that] he knows or has reason to know of

circumstances which would bring home to the realization of the

ordinary, reasonable man the highly dangerous character of his

conduct." Id., comment c. The element of willfulness, however, is not

entirely disregarded, and thus "[c]onduct cannot be in reckless disregard

of the safety of others unless the act or omission is itself intended."

Id.,

comment b.

16

fire company, claiming their failure to properly screen

volunteer firefighters resulted in the damage to his

property. Affirming the district court's grant of summary

judgment, we rejected plaintiff's claim that "the danger of

volunteer firefighters committing arson is so grave and so

obvious that the defendants failure [to screen volunteers]

evinced willful disregard for the rights of individuals with

whom the firefighters came in contact." Mark, 51 F.3d at

1140. A similar analysis can be applied to the allegations

here. As contrasted with the risk that an intoxicated

woman left alone on the road during inclement weather

might be injured, the risk that unlocking a school entrance

would invite the actions of a deranged third person is no

more a foreseeable risk than the risk that a firefighter will

have a proclivity for arson. Consequently, defendants here

cannot have acted with the requisite culpability to be liable

under the state-created danger theory.

Also instructive is the decision of the United States Court

of Appeals for the Fifth Circuit in Johnson v. Dallas Indep.

Sch. Dist., 38 F.3d 198 (5th Cir. 1994), cert. denied, 514

U.S. 1017 (1995). In that case, a student at a Dallas high

school was killed by a stray bullet fired by a non-student

during an argument in a school hallway. The ruckus was

instigated by the non-student, who was able to enter the

school carrying a concealed weapon because the school's

metal detectors were not in use. The decedent's father filed

suit under S 1983, claiming, inter alia, that the school

district was responsible for his son's death under the state-

created danger theory. The district court granted

defendants' motion to dismiss, and the court of appeals

affirmed. According to the court,

[a]ctual knowledge of a serious risk of physical danger

to the plaintiff has been a common feature of the state-

created danger cases. From the pleadings in this case,

no legitimate inference can be drawn that the school

officials might have been actually aware of a high risk

that an armed non student invader would enter the

campus and fire a pistol randomly during school

hours.

38 F.3d at 201-202. The court of appeals found that "the

most that may be said of defendants' ultimately ineffective

17

attempts to secure the environment is that they were

negligent, but not that they were deliberately indifferent."

Id. at 202.

The same is true in the case before us. Stovall's attack on

Diane Morse was not a foreseeable risk, and there is no

allegation in the complaint that defendants knew of the

threat she posed. Defendants, by allowing construction

workers to keep the rear entrance to the school unlocked,

did not willfully or deliberately disregard a foreseeable

danger. Assuming their actions rose to the level of

negligence, merely negligent acts cannot support a claim

under the state-created danger theory of S 1983. Kneipp, 95

F.3d at 1208; Johnson, 38 F.3d at 202. Much like the

decedent in Johnson, Morse was "the tragic victim of

random criminal conduct rather than of school officials'

deliberate, callous decisions," and plaintiff's complaint

cannot be read to allege otherwise. Consequently, plaintiff

has not met his pleading burden under the second prong of

the Kneipp test.

C. Relationship Between State and Plaintiff - Foreseeable

Plaintiff.

The third element of the Kneipp test asks whether "there

existed some relationship between the state and the

plaintiff." In Mark, when we initially identified this as an

element of the state-created danger theory, we explained

that the cases which had found liability were based on facts

where the state acted in such a way as to leave "a discrete

plaintiff vulnerable to a foreseeable injury." 51 F.3d at

1153. In Kneipp we found there was "a relationship

between the state and [Ms. Kneipp] . . . during which the

state place[d] the victim in danger of a foreseeable injury."

We then distinguished this "relationship" element of the

state-created danger theory from that required under the

"special relationship" theory of DeShaney, noting that "the

relationship requirement under the state-created danger

theory contemplates some contact such that the plaintiff

was a foreseeable victim of the defendant's acts in a tort

sense." 95 F.3d at 1209 n.22.

The district court here interpreted the "foreseeable

plaintiff" element11 ofKneipp and Mark to require that "a

plaintiff must allege facts indicating that there was a

_________________________________________________________________

11. Although the district court referred to this element as the "discrete

plaintiff " requirement, we use the term "foreseeable plaintiff" to

describe

this element of the Mark test.

18

particular danger to the victim of the resulting harm."

Morse, 1996 WL 677514, at *2. The district court traced the

progression of the "foreseeable plaintiff" requirement from

its origins in Martinez v. California, 444 U.S. 277 (1980).

Martinez involved a S 1983 action brought by the parents of

a young girl who was murdered by a parolee five months

after his release from prison. Plaintiffs alleged that the

officials responsible for granting parole were liable for their

daughter's death. In rejecting plaintiffs' claims, the

Supreme Court stated that "the parole board was not aware

that appellant's decedent, as distinguished from the public

at large, faced any special danger." 444 U.S. at 285. The

district court read this language to require that the state

actor be aware that it is creating a risk of harm to a

particular plaintiff.

Our decision in Commonwealth Bank & Trust Co. v.

Russell, 825 F.2d 12 (3d Cir. 1987) also addressed the

issue of who qualifies as a "foreseeable plaintiff." In that

instance a suit was filed on behalf of a couple murdered by

an escaped inmate, alleging that breaches in the prison's

security resulted in the prisoner's escape and, ultimately,

the couple's death. We held that prison officials were not

liable on the grounds that, inter alia, they could not have

known that decedents faced any particular threat greater

than that faced by the "public at large." Id. at 16. Once

again, the district court here read this case as requiring

plaintiffs employing the state-created danger theory to

allege they faced a particular threat of harm which set them

apart from the general public.

The district court next examined our decision in Mark v.

Borough of Hatboro. As we have noted, the actor in that

case was a volunteer firefighter who set fire to and

destroyed the plaintiff's auto repair business. The plaintiff

contended the municipality was liable to him for arson

damage under the state-created danger theory. We declined

to address the viability of the theory at that time, ruling

that in any event a constitutional violation could not be

made out under the facts of the case. As we stated:

When the alleged unlawful act is a policy directed at

the public at large - namely a failure to protect the

public by failing adequately to screen applicants for

19

membership in a volunteer fire company, the rationale

behind the rule disappears - there can be no specific

knowledge of the particular plaintiff's condition, and

there is no relationship between the defendant and the

plaintiff.

51 F.3d at 1153. Focusing on this language, the district

court interpreted the third prong of the Kneipp test to

require an allegation that the state actor was aware of a

danger to a specific individual. Because the complaint did

not allege this, the district court held that plaintiff failed to

state a claim under the state-created danger theory.12

We analyze the foreseeable plaintiff prong somewhat

differently than the district court. It seems evident that the

Supreme Court's "public at large" language in Martinez, as

well as our statements in Commonwealth and Marks,

exclude from the reach of the state-created danger theory

those instances where the state actor creates only a threat

_________________________________________________________________

12. There appears to be some question whether Mark and Kneipp require

the state actor have "specific knowledge" of the plaintiff, or merely that

the plaintiff was a "foreseeable" victim. But any tension, we believe, can

be explained by a review of the facts of each case. Discussing whether

the creation of a danger to the "public at large" could lead to liability

under the state-created danger theory, the Mark court noted that "when

the alleged unlawful act is a policy directed at the public at large . . .

there can be no specific knowledge of the particular plaintiff's

condition"

and thus the third element of the Mark test is not met. 51 F.3d at 1153.

The Kneipp court, on the other hand, stated that the relationship

element of the state-created danger theory "contemplates some contact

such that the plaintiff was a foreseeable victim of a defendant's acts in

a tort sense." 95 F.3d at 1209 n.22. The distinguishing characteristic

here is the allegedly unlawful act. Mark involved a claim in which the

alleged "act" was a policy directed at the public at large, whereas the

acts of the police officer in Kneipp were directed at a particular

individual. Where the state actor has allegedly created a danger towards

the public generally, rather than an individual or group of individuals,

holding a state actor liable for the injuries of foreseeable plaintiffs

would

expand the scope of the state-created danger theory beyond its useful

and intended limits. Where, as here, the allegedly unlawful acts of the

state actor affect only a limited group of potential plaintiffs, the

potentially broad reach of the state-created danger theory is constrained

by examining whether the plaintiff or plaintiffs were "foreseeable"

victims.

20

to the general population. This is in keeping with the

Court's decision in DeShaney, and the general rule that the

state is not obligated to protect its citizens from the

random, violent acts of private persons. But it does not

appear this limitation necessarily restricts the scope of

S 1983 to those instances where a specific individual is

placed in danger. Another view of these cases would allow

a plaintiff, in certain situations, to bring a state-created

danger claim if the plaintiff was a member of a discrete

class of persons subjected to the potential harm brought

about by the state's actions. Stated differently, depending

on the facts of a particular case, a "discrete plaintiff" may

mean a specific person or a specific class of persons. The

primary focus when making this determination is

foreseeability.

Some of the cases that have applied the state-created

danger theory have held state actors liable for creating a

risk to a definable class of persons. The decision of the

United States Court of Appeals for the Seventh Circuit in

Reed v. Gardner, 986 F.2d 1122 (7th Cir. 1993), is

illustrative. In that case, police officers arrested the driver

of a vehicle, Cathy Irby, and left behind her intoxicated

passenger, Larry Rice, with the keys to the car. A few hours

later Rice, while driving Irby's car, collided head on with

plaintiff 's vehicle, killing plaintiff 's wife and pre-natal son,

and injuring the plaintiff, his two daughters and his in-

laws. The court of appeals reversed the lower court's

dismissal of plaintiff 's state-created danger claim, noting

that "it was the police action in removing Irby, combined

with their knowledge of Rice's intoxication, which creates

their liability for the subsequent accident."13 Clearly the act

of placing a drunk driver at the wheel of the car did not

create a danger to the Reed family specifically. The court of

appeals found that the act "rendered the Reeds and the

other motorists on Route 130 vulnerable to a dangerous

driver." Id. at 1127 ("When the police create a specific

_________________________________________________________________

13. The Reed court assumed, based on its reading of the complaint, that

Irby was sober at the time of the arrest. It noted, however, that if she

had in fact been intoxicated, the state could not be liable "for

exchanging

one drunk driver for another" because even "without state intervention,

the same danger would exist." 986 F.2d at 1125.

21

danger, they need not know who in particular will be hurt.

Some dangers are so evident, while their victims are so

random, that state actors can be held accountable by any

injured party.").

It is evident that the case law in this area is not uniform

on the necessity to allege a specific plaintiff as opposed to

a specific class of plaintiffs. What is clear is that a member

of the general public may not qualify. Of course, DeShaney

involved a discrete, individual plaintiff, and as the source of

the state-created danger theory, can be read to restrict who

may sue under this theory. But in other situations,

requiring the plaintiff to be part of an identifiable and

discrete class of persons subject to the harm the state

allegedly has created also fits within the purposes of the

state-created danger theory.

For this reason, it would not appear that the state-

created danger theory of liability under S 1983 always

requires knowledge that a specific individual has been

placed in harm's way. Although it is appropriate to draw

lines here, there would appear to be no principled

distinction between a discrete plaintiff and a discrete class

of plaintiffs. The ultimate test is one of foreseeability.

The issue here is whether Diane Morse, and all those

present in Lower Merion High School, were a sufficiently

discrete group of persons who could have been foreseeable

victims of an armed and dangerous intruder. This is by no

means an easy question, for the reasons we have

expressed. But we need not decide this issue here because

we hold that plaintiff cannot satisfy the other three prongs

of the Kniepp test.

D. Creating the Opportunity for Harm

The final element of the Kneipp test is whether the state

actor used its authority to create an opportunity which

otherwise would not have existed for the specific harm to

occur. The district court read this requirement to

contemplate that a state actor must affirmatively act to

create the risk which results in harm to the plaintiff. Under

the allegations presented here, the district court concluded

that the only affirmative act attributable to the defendants

was the assertion they unlocked the door to facilitate the

22

work of the various contractors at the high school. The

district court declined to address whether the act of

unlocking the door rose "to the level required to impose

liability under the state-created danger theory," Morse,

1996 WL 677514, at *6 (quoting Kneipp, 95 F.3d at 1207),

relying instead on plaintiff's failure to satisfy the

"foreseeable plaintiff " requirement under Kneipp.

The case law addressing the question whether an

affirmative act is required under the state-created danger

theory, and if so what constitutes an affirmative act for

purposes of liability, is less than clear. Conduct that has

been held to be an affirmative act under one set of facts has

not met that standard in a similar setting. For example, we

held in Kneipp that the police officer's act of "interven[ing]

to cut off Samantha's private source of protection by giving

Joseph permission to go home alone" constituted an

affirmative act for purposes of S 1983 liability.14 95 F.3d at

1210; see also Wood v. Ostrander, 879 F.2d 583 (9th Cir.

1989), cert. denied, 498 U.S. 938 (1990) (trooper liable for

arresting driver of vehicle and leaving female passenger

alone in a high crime area); White v. Rochford, 592 F.2d

381 (7th Cir. 1979) (arresting driver and leaving minor

passengers behind in vehicle on side of highway gave rise

to constitutional claim).

By comparison, the opinion in Gregory v. City of Rogers,

974 F.2d 1006 (8th Cir. 1992), draws a different conclusion

from a similar act. In that instance, the police removed the

designated driver of a vehicle because of an outstanding

arrest warrant, and left behind two intoxicated persons who

subsequently drove off and were involved in an accident.

The United States Court of Appeals for the Eighth Circuit

held the police officer could not be held to have

affirmatively placed the intoxicated passengers in danger.

Courts that have addressed this issue have pointed out

that the line between an affirmative act and an omission is

difficult to draw. As the United States Court of Appeals for

the Seventh Circuit said:

_________________________________________________________________

14. Whether the officers's actions in Kneipp constituted an affirmative

act

or an act of omission is a close question.

23

We do not want to pretend that the line between action

and inaction, between inflicting and failing to prevent

the infliction of harm, is clearer than it is. If the state

puts a man in a position of danger from private

persons and then fails to protect him, it will not be

heard to say that its role was merely passive; it is as

much an active tortfeasor as if it had thrown him into

a snake pit.

Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir. 1982) The

district court here noted this difficulty when it said that

"[s]tate-created danger law does not address the question of

when an act crosses the line and becomes an affirmative

act warranting Section 1983 liability." Morse at *6 n.11.

Whether an affirmative act rather than an act of omission

is required under the state-created danger theory appears

to have been answered by Mark. As the Mark court noted,

one of the common factors in cases addressing the state-

created danger is that the state actors "used their authority

to create an opportunity that otherwise would not have

existed for the third party's crime to occur." Mark, 51 F.3d

at 1152. Thus, the dispositive factor appears to be whether

the state has in some way placed the plaintiff in a

dangerous position that was foreseeable, and not whether

the act was more appropriately characterized as an

affirmative act or an omission.

The following cases are illustrative of this principle. In

Mitchell v. Duval County Sch. Bd., 107 F.3d 837 (11th Cir.

1997), the court of appeals rejected a state-created danger

claim under facts analogous to the case before us. The

decedent, Richard Mitchell, was a fourteen year-old student

who was shot and killed one evening while waiting for a

ride home from a school function. Mitchell had attempted

to telephone his father from inside the school

administration office, but was denied entry. Instead he

used an outside pay phone, and, while waiting for his

father on a driveway adjacent to the school, was shot and

killed during a robbery attempt. The court of appeals

rejected plaintiff's state-created danger theory on the

grounds that he failed to "show that the state affirmatively

placed decedent in a position of danger." Id. at 839.

According to the court, nothing the school did "required

24

[decedent] to wait where he did." Indeed, the boy could have

waited inside the administration building or immediately

outside, rather than waiting "a considerable distance away

on the edge of the school's parking lot." Because the

plaintiffs could prove no set of facts which would

demonstrate that either an act or omission on the part of

the state actors placed the decedent closer to the ultimate

harm, the court of appeals affirmed the dismissal of the

complaint.

In a case before this Court, two high school students filed

a S 1983 claim alleging they were sexually molested by

fellow students in the bathroom and darkroom of their

graphic arts class room. D.R. v. Middle Bucks Area

Vocational Tech. Sch., 972 F.2d 1364 (3d Cir. 1992) (en

banc), cert. denied, 506 U.S. 1079 (1993). According to

their complaint, the high school's failure to adequately

supervise the class or investigate the misconduct created

the dangerous situation that resulted in their injuries. We

affirmed the dismissal of the complaint, holding that the

school was not liable because the plaintiffs did not

demonstrate that the state placed the plaintiffs in danger,

increased their risk of harm, or made them more vulnerable

to danger. "Plaintiffs did not suffer harm, however, from

that kind of foreseeable risk. . . . Plaintiff's harm came

about solely through the acts of private persons without the

level of intermingling of state conduct with private violence

that supported liability in Wood, Swader, and Cornelius."

972 F.2d at 1375.

In both cases, there was no direct causal connection

between the acts or omissions of the state and the harm

which befell the victim. In neither case was it the act or

omission of the state actor that directly placed the victim in

harm's way. The same can be said of the case before us.

Plaintiff does not allege, nor can he prove, that defendants

placed Diane Morse in "a dangerous environment stripped

of means to defend [herself] and cut off from sources of

aid." Johnson, 38 F.3d at 202. Nor does plaintiff allege that

defendants placed her in a "unique confrontational

encounter" with Stovall. Cornelius, 880 F.2d at 359. What

plaintiff does allege is that defendants, by unlocking the

rear entrance of the school building, "increased the risk to

25

Diane Morse . . . and left Diane Morse vulnerable to the

actions of her attacker." Complaint P 44. As we have

already noted, however, Stovall's deadly attack was not a

foreseeable and fairly direct result of defendants' behavior.

Plaintiff, therefore, can prove no set of facts that will

demonstrate that defendants placed Diane Morse in harm's

way, and consequently has not satisfied the fourth prong of

the Kneipp test.

Conclusion

Based on the foregoing, we hold that plaintiff has not met

the test set forth in Kneipp v. Tedder and has failed to state

a claim under the state-created danger theory of 42 U.S.C.

S 1983.

We will affirm the judgment of the district court.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

26