Schweiter v. Twp. of Radnor, 16-5258

LOGAN SCHWEITER, a minor, by MELISSA SCHWEITERand MARTIN SCHWEITER, parents and natural guardians, Plaintiffs, v. TOWNSHIP OF RADNOR, Defendant.

NO. 16-5258

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

January 12, 2018

MEMORANDUM OPINION

MARILYN HEFFLEY, U.S.M.J.

Before this Court is the Motion to Dismiss Plaintiffs' Second Amended Complaint (Doc. No. 36) of Defendant the Township of Radnor ("Defendant" or "Radnor") for failure to state a claim. For the reasons that follow, Defendant's Motion to Dismiss will be granted.

I. BACKGROUND

Plaintiffs Logan Schweiter ("Logan") and his parents (collectively, "Plaintiffs") bring this action pursuant to 42 U.S.C. § 1983 against Radnor seeking to recover for alleged violations of Logan's constitutional rights that led to serious, permanent injuries in a near-drowning.¹ Thefacts, as alleged in the Second Amended Complaint [hereinafter "SAC"], are as follows. On July 25, 2011, 12-year-old Logan was visiting a friend's home on St. David's Road in Radnor Township, Pennsylvania. SAC ¶ 77. The backyard of the home abutted an open portion of a brick culvert built in the early twentieth century that serves as part of Radnor Township's stormwater system ("the Culvert"). Id. ¶¶ 26, 29, 77. The portion of the Culvert abutting the backyard of the home was known as "the Aberdeen Culvert." Id. ¶¶ 32-34. The underground portion of the Culvert is not visible from the portion of the Aberdeen Culvert that abuts the backyards of the homes on St. David's Road. Id. ¶ 34. Saint Katharine of Siena School, where Logan was a student, is also across the street from the Aberdeen Culvert and the mouth of the underground portion of the Culvert. Id. ¶¶ 41-43.

A rainstorm that day had led to water overflowing the walls of the Aberdeen Culvert, creating a pond in the backyard of Logan's friend's house. Id. ¶ 79. Logan and his friends took foam rafts and began to play in this pond. Id. ¶ 80. The current sucked Logan into the mouth of the underground portion of the Aberdeen Culvert, where he traveled about a half-mile while submerged in water. Id. ¶¶ 81-82. Logan was unconscious when he was found and was transported to the Children's Hospital in Philadelphia. Id. ¶¶ 82-83. He survived, but suffered serious injuries, including "cardiac arrest, pulmonary edema, aspiration pneumonia, seizures, and profound brain damage." Id. ¶ 84. Logan's permanent physical and mental injuries, including severe hypoxic encephalopathy, have left him "in a near-vegetative state" and he requires around-the-clock care. Id. ¶ 85.

Radnor was aware of flooding problems associated with the Culvert, as the problems have been the subject of stormwater studies dating back to the 1970s. See, e.g., id. ¶¶ 32, 35, 65, 94. The Culvert is not large enough to handle the flow of water during large storms, making it "prone to consistent and sometimes life-threatening flooding events." Id. ¶ 35; see also id. ¶¶ 18-19. Radnor also knew of children playing in and around the Aberdeen Culvert's flooded waters for over 40 years, and knew there was a chance of children being drawn into the underground portion of the Culvert. Id. ¶¶ 38-39. The frequency and intensity of this flooding has worsened as a result of the construction of a new middle school in Radnor Township between 2006 and 2007² on top of the Culvert, and upstream from the Aberdeen Culvert, which increased water flow through the Culvert. Id. ¶¶ 62, 71. Radnor did not, however, implement recommended stormwater improvements or install a safety grate over the Culvert's mouth when the middle school was constructed. Id. ¶¶ 62, 66-71.

II. STANDARD OF REVIEW

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "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. The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are 'merelyconsistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (citations omitted) (quoting Twombly, 550 U.S. at 556-57). "In light of Twombly, 'it is no longer sufficient to allege mere elements of a cause of action; instead a complaint must allege facts suggestive of [the proscribed] conduct.'" Great W. Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 177 (3d Cir. 2010) (quoting Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)). "'[S]tating . . . a claim requires a complaint with enough factual matter (taken as true) to suggest' the required element . . . ." Phillips, 515 F.3d at 234 (quoting Twombly, 550 U.S. at 556). It requires "'enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element.'" Great W. Mining & Mineral Co., 615 F.3d at 177 (quoting Twombly, 550 U.S. at 556). In determining the adequacy of a complaint, the Court must "'accept all factual allegations as true [and] construe the complaint in the light most favorable to plaintiff.'" Warren Gen. Hosp. v. Amgen, Inc., 643 F.3d 77, 84 (3d Cir. 2011) (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)).

III. ANALYSIS

Plaintiffs bring this action against Defendant under 42 U.S.C. § 1983 for violating Logan's right to freedom from state-created dangers. The Due Process Clause of the Fourteenth Amendment forbids a state from depriving a person of life, liberty or property without due process of law. It does not impose an affirmative obligation on the state to protect citizens from private conduct, but under the state-created danger doctrine, "liability may attach where the state acts to create or enhance a danger that deprives the plaintiff of his or her Fourteenth Amendment right to substantive due process." Morrow v. Balaski, 719 F.3d 160, 177 (3d Cir. 2013) (emphasis in original) (citing Kneipp v. Tedder, 95 F.3d 1199, 1205 (3d Cir. 1996)). A plaintiffmay recover under this right pursuant to 42 U.S.C. § 1983. See Henry v. City of Erie, 728 F.3d 275, 282 (3d Cir. 2013). But this right is carefully limited; "the Due Process Clause of the Fourteenth Amendment . . . does not transform every tort committed by a state actor into a constitutional violation." DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189, 202 (1989). To establish a state-created danger claim, a plaintiff must plead four elements: (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 rendered the citizen more vulnerable to danger than had the state not acted at all. Henry, 728 F.3d at 282.

A. Plaintiffs Fail to Sufficiently Plead That Logan's Harm Was "Fairly Direct" to Radnor's Conduct

To satisfy the first prong of a state-created danger claim, a plaintiff must sufficiently allege that the harm ultimately caused was both foreseeable and fairly direct. Id. Harm is foreseeable when there is "an awareness on the part of the state actors that rises to the level of actual knowledge or an awareness of risk that is sufficiently concrete to put the actors on notice of the harm." Phillips, 515 F.3d at 238; see also K.S.S. v. Montgomery Cnty. Bd. of Comm'rs, 871 F. Supp. 2d 389, 400 (E.D. Pa. 2012) ("'[H]arm is foreseeable when a state actor has actual awareness, based on concrete information, of a risk of harm to an individual . . . such that the actor is on notice that his or her act or failure to act significantly enhances the risk of harm.'" (quoting Gremo v. Karlin, 363 F. Supp. 2d 771, 784 (E.D. Pa. 2005))). "An official's actions are the 'fairly direct' cause of the harm if the actions 'precipitated' or were the 'catalyst' for theharm that occurred." Van Orden v. Borough of Woodstown N.J., 703 F. App'x 153, 157 (3d Cir. 2017) (quoting Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 910 (3d Cir. 1997)). To determine if the harm is fairly direct, the Court considers "whether the alleged misconduct and the harm caused were 'too attenuated' to justifiably hold the defendant liable." D.N. ex rel. Nelson v. Snyder, 608 F. Supp. 2d 615, 625 (M.D. Pa. 2009) (quoting Phillips, 515 F.3d at 238). "The actions must be close in time and progression to the ultimate harm, and it is insufficient if the causation is so attenuated that the officials actions merely 'took place somewhere along the causal chain that ultimately led to the [victim's] harm.'" Van Orden, 703 F. App'x at 157 (quoting Henry, 728 F.3d at 285).

Here, Plaintiffs sufficiently allege that Logan's injuries were foreseeable. In particular, they aver that Radnor was aware that the Culvert was prone to flooding, that the Radnor Township police prevented children from playing in the Culvert after rainstorms, that playing in the Culvert could lead to drowning, and that neighbors surrounding the Culvert questioned Radnor about the installation of safety grates over the Culvert's mouth. SAC ¶¶ 32, 35, 38-39, 50, 65.

Plaintiffs, however, fail to sufficiently allege that Logan's injuries were a fairly direct consequence of Radnor's conduct. To the extent Plaintiffs contend that Logan's injuries resulted from Radnor's...