Recently, in the case of Swanger v. Warrior Run School District, the United States District Court for the Middle District of Pennsylvania addressed the duty of school officials to warn third parties of potential harm.
Plaintiff Bobbie Jo Swanger was a mentally challenged student in Warrior Run School District's special education and life skills program. Defendant Duane Mattison was also a student in the special education and life skills program, and under the legal and physical custody of the Tioga County, Pennsylvania Department of Human Services. Prior to being placed at Warrior Run, Defendant Mattison had a history of inappropriate sexual behavior. During his time as a student at Warrior Run, Mattison was alleged to have made an inappropriate sexual advance against another student. The allegations were unfounded, however, because Mattison was found to have had sexual contact with a chicken at his foster home, he was removed from Warrior Run, and placed in an alternative education program (“DTA”) to complete the 11th grade. Warrior Run was not notified of the specific events giving rise to his removal from school since they did not involve school students or personnel. After successfully completing the 11th grade at DTA without incident, Mattison was permitted to return to Warrior Run. Warrior Run was not provided any records from DTA.
Prior to the events leading to the subject claim, and while Mattison was a student at Warrior Run, he was again admonished for allegedly making a comment about touching a girl’s breasts, but he was not disciplined. Instead, Warrior Run noted that teachers were keeping a “watchful eye” on Mattison. Soon thereafter, Mattison, after allegedly securing Bobbie Jo’s consent, touched her private areas during class while the teacher was assisting other students. Another student observed and reported the incident and Mattison was removed from Warrior Run that day. After completing its investigation, Warrior Run determined that it would not proceed with disciplinary action since Mattison was to return to DTA.
The District Court dismissed plaintiffs’ Title IX claim for sexual discrimination because she could not establish that Warrior Run was "deliberately indifferent to sexual harassment, of which they have actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school." Davis Next Friend LaShona D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 650, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999). Moreover, the Court found that Warrior Run School District's response to the likelihood of peer harassment was not "clearly unreasonable.” In other words, the plaintiffs could not show that Warrior Run’s actions in keeping a “watchful eye” on Mattison were unreasonable. The Court held that for Plaintiffs to succeed on their Title IX claim and establish that the school was deliberately indifferent, there would have to be evidence in the record to demonstrate that a school official either knew that Mattison was a substantial danger to the other female students or knew that Mattison was sexual harassing Bobbie Jo or other students at Warrior Run, and took insufficient, or no, measures to attempt to remedy the situation.
Plaintiffs also filed a claim under Section 504 of the Rehabilitation Act, which provides: No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of his or her disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. . .29 U.S.C. § 794(a).
To establish a violation of Section 504, a plaintiff must show that "(1) [s]he is `disabled' as defined by the Act; (2) [s]he is `otherwise qualified' to participate in school activities; (3) the school or the board of education receives federal financial assistance; and (4) [s]he was excluded from participation in, denied the benefits of, or subject to discrimination at, the school." Andrew M. v. Delaware Cnty. Office of Mental Health & Mental Retardation, 490 F.3d 337, 350 (3d Cir. 2007) Here, Plaintiffs asserted that Warrior Run knew [Bobbie Jo] was a sitting duck for this sexual predator [Mattison] who was repeatedly acting out in the classroom setting and, that her disability of mental retardation rendered her most vulnerable to his predations. However, the Court determined that plaintiffs failed to point to any causal relationship between Bobbie Jo's disability and Mattison's misconduct towards her or shown that her disability affected the decisions of Warrior Run. More specifically, the Court found no record evidence that the Warrior Tun discriminated against female students in special education classes in any way, nor is there evidence that Warrior Run took any actions based on the special education students' disabilities that rendered them more vulnerable to Mattison's potential sexual misconduct. In sum, there was no evidence to suggest that Bobbie Jo was treated differently than any other student, disabled or not.
Plaintiffs also brought a claim under 42 U.S.C. § 1983, wherein the plaintiff must demonstrate a violation of a right protected by the Constitution or laws of the United States, committed by a person acting under color of state law. Nicini v. Morra, 212 F.3d 798, 806 (3d Cir. 2000) (en banc). To meet the requirements of a state-created danger claim, a plaintiff must show (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. Bright v. Westmoreland Cty., 443 F.3d 276, 281 (3d Cir. 2006)
The Court determined that the Plaintiffs failed to establish that Warrior Run’s teachers and administrators were deliberately indifferent to Bobbie Jo's needs by "consciously disregard[ing] a substantial risk of serious harm" posed by Mattison. Kaucher v. Cty. of Bucks, 455 F.3d 418, 427 (3d Cir. 2006) The Court reasoned that only one school official who arguably had any knowledge of Mattison's "propensity" for sexual misconduct did in fact take some action to remedy and address every specific situation each time he was made aware of an issue with Mattison. Furthermore, it is undisputed that this school official did not know of any inappropriate sexual contact between Mattison and any student at Warrior Run prior to the Bobbie Jo’s incident. Therefore, the Court held that none of the individual school defendants' conduct, in light of the circumstances known to them, could be reasonably found to be conscience shocking, nor do their affirmative actions, if any, bear a direct causal relationship to foreseeable and fairly direct harm suffered by Bobbie Jo, such that she was rendered more vulnerable to danger than had the Defendants not acted at all.
Finally, the Plaintiffs filed a breach of fiduciary duty claim alleging that the defendants owed Bobbie Jo a duty to use reasonable care in carrying out their duties" and that they willfully failed to provide her with an environment that is reasonably safe from the intentional harmful acts of other students. Defendants contend that they are immune from suit with respect to this claim under the Political Subdivision Tort Claims Act, 42 Pa. Cons. Stat. Ann. § 8541 et seq. ("PSTCA").
Pursuant to the Political Subdivision Tort Claims Act, 42 Pa. Cons. Stat. Ann. § 8541 et seq. ("PSTCA"), a local agency cannot be held "liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof or any other person." 42 Pa. Cons. Stat. Ann. § 8541. The Act provides for eight exceptions to this rule: (1) vehicle liability; (2) care, custody or control of personal property; (3) real property; (4) trees, traffic controls and street lighting; (5) utility services facilities; (6) streets; (7) sidewalks; and (8) care, custody or control of animals. 42 Pa. Cons. Stat. Ann. § 8542(b)
The Court found that none of the eight exceptions to the PSTCA applied, therefore, in order to proceed, the Plaintiffs must have presented evidence to create a material factual dispute as to whether the individual school defendants' conduct could amount to actual malice or willful misconduct. On that issue, the Court determined that there was insufficient evidence upon which a reasonable jury could find actual malice or willful misconduct on the part of any of the defendants.
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