MARK R. HORNAK, District Judge.
This case arises out of injuries sustained at a local high school football training camp in 2009. The Plaintiff, then an incoming high school freshman,
Using 42 U.S.C. § 1983, he has sued the South Fayette School District and at least some of its football coaches, alleging federal (and state) constitutional claims. He has also sued the involved upperclassman and his parents for several state law torts. After removing the case to this Court from state court, all Defendants moved to dismiss the Complaint for failure to state a claim. For the reasons that follow, Plaintiff's federal claims will be dismissed in their entirety, but with leave to amend certain of them. Some of the state law claims will also be dismissed. Should Plaintiff decline to amend his Complaint on the federal claims or they otherwise subsequently fail, the remaining state law claims will be remanded to the Court of Common Pleas of Allegheny County for disposition. 28 U.S.C. § 1367(c).
The events underlying this case occurred during a high school football training camp conducted by the South Fayette High School football team in May, 2009, for the students playing on the team that upcoming fall. ECF No. 1-1, at ¶ 14.
Plaintiff alleges that Mr. McElhinny's conduct was not only lauded by the other players and the coaches, id. at ¶ 25, but that the School District Defendants in fact "set up the drill in such a way that much smaller, inexperienced underclassmen would be pitted against larger, stronger, more experienced upperclassmen." Id. at ¶ 17. Mr. Dorley claims that larger upperclassmen "would frequently exceed the scope of the drill" and that the School District Defendants "created an atmosphere that encouraged violence" by instructing upperclassmen to "exhibit their dominance, strength and aggression on the underclassmen in order to `toughen them up.'" Id. at ¶¶ 18-19. Mr. Dorley also alleges "[t]he entire coaching staff ... was watching attentively as the aforementioned events occurred, and witnessed plaintiff's injuries." Id. at ¶ 28. He further states that after injuring him, Mr. McElhinny and other upperclassmen "mocked plaintiff for his reaction." Id. at ¶ 26. The Complaint also alleges that the coaches "observed and encouraged similar [aggressive] behavior during the same drill" during the days of training camp leading up to the date on which Plaintiff was injured. Id. at ¶ 32.
Mr. Dorley filed his Complaint in the Court of Common Pleas of Allegheny County, Pennsylvania. This action was removed to this Court and filed on its docket on February 17, 2015. ECF No. 1. The Complaint asserts eleven (11) counts: Counts I-VI are claims brought via 42 U.S.C. § 1983 against the School District Defendants for various Fourteenth Amendment Due Process Clause violations, specifically asserted claims for Injury to Human Dignity, Injury to Bodily Integrity, and Injury as a Result of a State Created Danger/Special Relationship. Count VII asserts a violation of Pennsylvania's Constitution for Injury to Bodily Integrity. Counts VIII-X contain state law claims against Mr. McElhinny for Battery, Intentional Infliction of Emotional Distress ("IIED") and Negligence, and Count XI is a state law claim against Mr. McElhinny's parents ("Parent Defendants") alleging Negligence and Vicarious Liability for their son's acts. All Defendants have filed Motions to Dismiss. ECF Nos. 5; 9. The Court has reviewed the Motions, the parties' briefs in support of and in opposition to them as well as supplemental briefs on the issue of qualified immunity, and heard oral argument on the matter.
A complaint which fails to state a claim upon which relief may be granted is properly dismissed. Fed.R.Civ.P. 12(b)(6). Courts assessing the sufficiency of a complaint must "accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions." Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir.2009) (citing Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009)). Claims must be facially plausible, meaning they must contain "`factual content that allows the court to draw the reasonable inference that the defendant is
The Court will first consider Mr. Dorley's federal claims against the School District Defendants, and will then turn to his state law claims against the Student Defendant and Parent Defendants. All federal claims are asserted solely against the School District Defendants, while the state law tort claims are asserted only against Mr. McElhinny and his parents.
The federal claims in Plaintiff's Complaint assert several theories of liability. Any such federal claim must allege that a plaintiff was deprived of a right secured by the Constitution or laws of the United States by a person acting with the authority of state law.
The Fourteenth Amendment provides procedural and substantive protections to citizens by ensuring that states shall not "deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1. At issue is whether Mr. Dorley has adequately alleged a substantive due process violation against the School District Defendants for the injuries he sustained while participating in a football training camp drill.
As an initial matter, the Court observes that our Court of Appeals has yet to expressly recognize or reject in a precedential opinion any claim which rises to the level of a substantive due process violation in regard to physical injuries caused by a fellow student in the interscholastic sports context.
Here's why.
The Supreme Court expects lower federal courts to act as gatekeepers when it comes to defining or expanding substantive due process protections. See Collins v. City of Harker Heights, Tex., 503 U.S. 115, 125, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992) ("[T]he Court has always been reluctant to expand the concept of substantive due process because guideposts for responsible decision-making in this unchartered area are scarce and open-ended. The doctrine of judicial self-restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field." (internal citation omitted)). Substantive due process violations are reserved for "conduct that shock[s] the conscience and [i]s so brutal and offensive that it d[oes] not comport with traditional ideas of fair play and decency." County of Sacramento v. Lewis, 523 U.S. 833, 847, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). Courts are to "preserve the constitutional proportions of constitutional claims, lest the Constitution be demoted to ... a font of tort law." Id. at 847 n. 8, 118 S.Ct. 1708; see also Brown v. Commonwealth of Pennsylvania, Dep't of Health Emergency Med. Servs. Training Inst., 318 F.3d 473, 477-78 (3d Cir.2003) ("The Supreme Court has repeatedly stated that the Due Process Clause of the Fourteenth Amendment ... does not transform every tort committed by a state actor into a constitutional violation.'" (quoting DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189, 202, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989))). The
That said, as noted above, our Court of Appeals has not benched substantive due process claims involving injuries arising from school sports, and there is some support for them in its non-precedential opinions. See Patrick v. Great Valley Sch. Dist., 296 Fed.Appx. 258, 262 (3d Cir.2008) (reversing and remanding in part a grant of summary judgment on the grounds that a genuine issue of material fact existed as to whether a coach was deliberately indifferent under the state-created danger theory of liability for a substantive due process violation); Hinterberger v. Iroquois Sch. Dist., 548 Fed.Appx. 50, 54 & n. 2 (3d Cir.2013) (holding qualified immunity protected coach from liability because the law was not clearly established without commenting on the propriety (or impropriety) of the substantive due process action asserted through the state-created danger theory) ("We note that cases decided in this circuit after Hinterberger's accident have not been models of clarity as to whether a state-created danger claim can be successfully maintained in the context of school sports."). To be sure, the Third Circuit has generally discouraged district courts from relying on its non-precedential decisions, see Ethypharm S.A. France v. Abbott Labs., 707 F.3d 223, 234 n. 18 (3d Cir.2013) (declining to address a case on which one party heavily relied because it was non-precedential); Third Circuit Internal Operating Procedure 5.7 (instructing that non-precedential "opinions are not regarded as precedents that bind the [Third Circuit] because they do not circulate to the full court before filing") but here, they, and persuasive district court decisions, are what this Court has to go on.
The Court concludes that in the absence of a precedential Circuit opinion definitively holding whether school sports injury cases can or cannot (and if so, under what circumstances may) include a substantive due process claim, unpublished Court of Appeals cases do provide some guidance regarding the reasoning our Court of Appeals would counsel applies in similar circumstances, as does that court's observations in Spady about when such liability has been recognized. The prudent course here is to give due regard to the analyses of those decisions, along with those of the numerous opinions of the district courts within our Circuit addressing similar claims in similar settings.
As in other official conduct § 1983 cases, the Court is also obligated to bear in mind that qualified immunity shields government officials from liability for civil damages unless the official's conduct "violate[s] clearly established statutory or constitutional rights of which a reasonable person would have known." Estate of Lagano v. Bergen Cnty. Prosecutor's Office, 769 F.3d 850, 858 (3d Cir.2014) (quoting Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)). The two-step test for assessing whether qualified immunity applies in a given case is whether (1) the complaint alleges "sufficient facts to establish the violation of a constitutional right," and whether (2) that "right was `clearly established' at the time of the defendant's actions." Id. (quoting Pearson, 555 U.S. at 231, 129 S.Ct. 808). In an effort to address the potential applicability of the doctrine of qualified immunity "at the earliest possible stage of a litigation," Anderson v. Creighton, 483 U.S. 635, 646 n. 6, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987), this Court ordered supplemental briefing on that issue in this case, ECF No. 21; see also Doe v. Delie, 257 F.3d 309, 312, 322 n. 13 (3d Cir.2001) (affirming order dismissing claims against a defendant after qualified immunity was raised sua sponte).
The Court asked for, and received, submissions from the parties on the application of qualified immunity here. ECF Nos. 22; 23; 24; 25. The Court concludes that application of that doctrine will be far better measured against more precisely articulated claims after any potential amendment of the Complaint. In fact, a focus on definitional precision is directed by Spady, 800 F.3d at 638, 2015 WL 5103553, at *4. As explained in greater detail below, the Plaintiff does not sufficiently allege a federal claim at this point. Without a less muddled, clearer description of the challenged conduct (and the motive and intent behind it) which Plaintiff asserts establishes a federal constitutional violation and the definition of that right, the Court cannot assess (1) whether that conduct allegedly violated a constitutional right at all and (2) whether that right was clearly established at the time of the alleged violation. Resolution of the parties' arguments as to qualified immunity will therefore be considered if and when they are reasserted.
That all said, the Court will now explain why the Complaint as pled fails to allege the deprivation of a federal right.
Counts I and IV allege violations of Plaintiff's "right to human dignity" under the Fourteenth Amendment. The School District Defendants contest the very existence of an actionable "right to human dignity" under the Fourteenth Amendment, at least in this context. ECF Nos. 10, at 5 n. 1; 16, at 2-3. Plaintiff does not
This thread of Fourteenth Amendment substantive jurisprudence exists, but it does so principally in coerced custodial or penal settings. While Plaintiff does cite several cases that use the words "human dignity," each is inapposite to the facts of this case, since each deals with conditions or actions taken with regard to penal incarceration. See ECF No. 15, at 6-7 (citing Rochin v. California, 342 U.S. 165, 174, 72 S.Ct. 205, 96 L.Ed. 183 (1952) (finding due process violation when drug capsules obtained from forcibly pumping an inmate's stomach were admitted to convict the defendant)); Yoder v. Cumberland Cnty., 278 A.2d 379, 389 (Me.1971) (incarceration without due process affronts human dignity); Lamb v. Hutto, 467 F.Supp. 562, 567 (E.D.Va.1979) (recognizing that "conduct that can be classified as offensive to human dignity can constitute a deprivation of liberty" and concluding a prisoner's allegations that he was continuously beaten, kicked, and dragged throughout the building were offensive). Mr. Dorley does cite E.N. v. Susquehanna Twp. Sch. Dist., No. 09-1727, 2010 WL 4853700, at *6 (M.D.Pa. Nov. 23, 2010), which does not mention "human dignity" but instead only states that "[t]he Fourteenth Amendment protects individuals from arbitrary government interference with certain protected liberty interests. An individual's interest in bodily integrity — to be free from physical abuse or unwanted medical treatment by government officials — is among the fundamental liberty interests protected by the Fourteenth Amendment."
Plaintiff also cites to the report and recommendation in Alt v. Shirey, No. 11-468, 2012 WL 726579, at *4 (W.D.Pa. Feb. 7, 2012) report and recommendation adopted, No. 11-468, 2012 WL 726593 (W.D.Pa. Mar. 1, 2012), which addressed a complaint alleging substantive due process violations including one for injury to human dignity. However, the facts in Alt presented a very different picture.
There it was alleged that a high school football player was involved in a "helmet to helmet" on-field collision, leaving him clearly disoriented, aimlessly walking the sideline. Id. at *2. Teammates reported his erratic behavior to the coaches. Id. He was then ordered by a coach to re-enter the game, and to intentionally "blow[] up" an opponent, which he did, causing that player further and palpably visible serious cognitive injury, putting him into a "drunken state." Id. It was alleged that the defendant coaches knew all of this, and simply brushed the matter off, urging the plaintiff's mother to take him home and "put him to bed." Id. at *3. Against that backdrop, Chief Judge Lenihan recommended a conclusion that these allegations as pled had crossed the line from "possible" to "plausible" as sufficiently egregious so as to "shock the conscience," and offend judicial notions of fairness. Id. at *7.
While in those circumstances, it might be said that the defendants' knowing actions in the face of existing severe physical injuries could plausibly be said to "shock the conscience" and offend human dignity, in the Court's estimation, the factual allegations as pled here fall short of the "intentional disregard of actual injury/specific direction to cause injury" scenario in Alt. To be sure, Plaintiff's allegations paint a picture of adults arranging a situation where there was a risk of injury, but as explained further below, the allegations here also include contrary assertions that
Counts II and V allege violations of Plaintiff's right to bodily integrity under the Fourteenth Amendment. The Court concludes that in the context of this case, there is no analytical distinction between this type of claim and those asserted in Counts III and VI, which allege injuries resulting from a "state-created danger." This is because the state-created danger doctrine is one theory used to assert a claim for harm to one's bodily integrity — the deprivation of bodily integrity does not have distinct legal standing on its own. See Phillips v. Cnty. of Allegheny, 515 F.3d 224, 235 (3d Cir.2008) (recognizing that "[i]ndividuals have a constitutional liberty interest in personal bodily integrity that is protected by the Due Process Clause of the Fourteenth Amendment," but explaining that the State lacks an affirmative obligation to protect its citizens from harm to that interest unless an exception to that principle, such as the state-created danger doctrine, applies); Bennett ex rel. Irvine v. City of Phila., 499 F.3d 281, 286 (3d Cir.2007) (describing the cause of action at issue as "a claim under 42 U.S.C. § 1983 for violation of [plaintiffs'] due process right to bodily integrity from harm inflicted by private parties under the state-created danger doctrine" and assessing the claim solely under the state-created danger theory).
Turning to the merits of the state-created danger counts, the Court concludes that as pled, they do not state a cause of action. However, Mr. Dorley will be granted leave to amend his Complaint because a curative amendment would not necessarily be futile as a matter of law. See Phillips v. Cnty. of Allegheny, 515 F.3d 224, 236 (3d Cir. 2008) ("We have instructed that if a complaint is vulnerable to 12(b)(6) dismissal, a district court must permit a curative amendment, unless an amendment would be inequitable or futile.").
To assert a claim under the state-created danger doctrine, plaintiffs must show that:
Bright v. Westmoreland Cnty., 443 F.3d 276, 281 (3d Cir.2006) (footnotes and quotation marks omitted). The School District Defendants challenge each element except the third.
The Court concludes that taking the facts alleged in the Complaint as true and drawing all reasonable inferences in Mr. Dorley's favor, the Complaint is deficient as it relates to the first prong. Mr. Dorley alleges that the individual School District Defendants were varsity football coaches, ECF No. 1-1, at ¶¶ 3-5, and that during football training camp they "created an atmosphere that encouraged violence" by instructing upperclassmen to "exhibit their dominance, strength and aggression on the underclassmen in order to `toughen them up,'" id. at ¶¶ 18-19. Mr. Dorley contends that they did so by "set[ting] up [a blocking] drill [conducted without pads] in such a way that much smaller, inexperienced underclassmen would be pitted against larger, stronger, more experienced upperclassmen," and that upperclassmen "would frequently exceed the scope of the drill ... and use excessive and unnecessary force in doing so." Id. at ¶¶ 17-18.
These allegations as currently pled do not clear the Rule 12(b)(6) hurdle. While the claims do sufficiently allege that there was no inordinate amount of time between the Defendants' alleged establishment of the drill and Mr. Dorley's injuries, there is a question as to whether the risk of harm was foreseeable. Although Mr. Dorley alleges that the coaches "had observed and encouraged similar behavior during the same drill, characterized by large and overly aggressive upperclassmen pitted against much smaller underclassmen," id. at ¶ 32, the Complaint contains no allegation that any harm resulted from the drill prior to Mr. Dorley's injury, nor any other indicia of foreseeable likelihood of Plaintiff's injury. Indeed, as to this point, the Complaint actually directly contradicts itself, stating on one hand that the coaches devised a dangerous drill, but then on the other that the drill by design "was not supposed to be done at full speed, and was described in advance by [the School District Defendants] as `non-contact,'" id. at ¶ 16, and that in fact the Student Defendant exceeded the scope of that drill, id. at ¶¶ 23; 103. If the coaches were not on some plausible notice of the concrete risk of a sufficiently serious injury, their actions would not satisfy the first prong of the test. Henry, 728 F.3d at 282.
Further, given this internal contradiction, there are not at this point plausible facts pled which would allow the Court to infer that the coaches had actual knowledge which would put them on notice that conducting this "non-contact by design" drill would nonetheless result in injury to students. Cf. M.U., 103 F.Supp.3d at 623, 2015 WL 1893264, at *9 (concluding that the first prong of the state-created danger test was met when a soccer coach returned a player to a game after a blow to the head because the coach would know the player's risk of harm was elevated in a full contact
The second element of the state-created danger analysis asks whether a plaintiff has plausibly pled that a defendant's culpability "shocks the conscience." Bright, 443 F.3d at 281. "[N]egligence is not enough to shock the conscience under any circumstances." Schieber v. City of Phila., 320 F.3d 409, 419 (3d Cir.2003). To shock the conscience in the context of this theory of liability requires facts suggesting that officials acted with "deliberate indifference" or, in some more limited circumstances, with "intent to cause harm." See Sanford v. Stiles, 456 F.3d 298, 309 (3d Cir.2006) (per curiam) (explaining that in situations requiring officials to make decisions without time to deliberate, the standard is heightened and plaintiffs must show intent to harm instead of simply deliberate indifference).
The coaches in this case were seemingly not acting in a "hyperpressurized environment," such as a high speed car chase. Instead they operated in an environment where they could make "unhurried judgments" about the types of drills conducted at the football training camp and their actions with respect to those drills. Instead the deliberate indifference standard governs their actions here, Walter v. Pike Cnty., Pa., 544 F.3d 182, 192 (3d Cir.2008) (internal citation and quotation marks omitted); a state official acts with deliberate indifference when he "`consciously disregard[s] a substantial risk of serious harm.'" Kaucher v. Cnty. of Bucks, 455 F.3d 418, 427 (3d Cir.2006) (quoting Ziccardi v. City of Phila., 288 F.3d 57, 65 (3d Cir.2002)) (internal quotation marks omitted). The Third Circuit has not yet decided whether this standard is met when officials "should have known about a risk but did not, as opposed to
As with the first prong, the allegations in the Complaint as pled are deficient when considering the second prong of the state-created danger test. The Court cannot say as a matter of law that the facts pled "evince a willingness to ignore a foreseeable danger or risk," Morse, 132 F.3d at 910, when those facts do not plausibly set out such a foreseeable risk. Especially since the Complaint is internally contradictory on the manner in which the drill was structured and the coaches' actions, intent, and motive with respect to conducting it, the Court cannot conclude that conduct by the School District Defendants as pled amounted to more than negligence.
For instance, if this was the first time any injury had resulted from the drill it may be difficult to say that the coaches were deliberately indifferent such that they "consciously disregard[ed] a substantial risk of serious harm." Kaucher, 455 F.3d at 427 (internal quotation marks and citations omitted); cf. Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249, 257 (3d Cir.2010) (discussing playing tackle football without equipment in the Eighth Amendment context, stating that "[t]he mere possibility that an injury may result from an activity does not mean that there is a `substantial risk' of that injury occurring"). By the same token, given the inherently contradictory assertions of the Complaint, it also cannot be plausibly said that the coaches were otherwise on notice that this specific drill, at this football camp, was so inherently dangerous that they were deliberately indifferent to a risk of serious harm, previous injury or not.
Why is this so? As a general matter, it is not necessarily negligent, let alone indicative of deliberate indifference, to run a football camp with players of differing sizes confronting one another. That a drill pits larger players against smaller ones alone is insufficient — that is often what happens in football games — and it is especially the norm when the drill is pled to have been designed to be performed without contact.
The Complaint also asserts insufficient plausible facts which might otherwise support
In considering the claims against both the School District Defendants and the Student Defendant, the Court notes that as a general matter, pleading inconsistent claims is permissible under the Federal Rules of Civil Procedure. See Fed.R.Civ.P. 8(d)(3) ("A party may state as many separate claims or defenses as it has, regardless of consistency."). However, inconsistent allegations "must still have a plausible basis grounded in fact." Kovach v. Turner Dairy Farms, Inc., 929 F.Supp.2d 477, 500 (W.D.Pa.2013) (citing Iqbal, 556 U.S. at 663, 129 S.Ct. 1937). The ability to plead alternatively is not limitless. For instance, such alternative pleading has been permitted where the allegations of a complaint are that a defendant's actions were either pretextual, or if true, unlawful. Independent Enterprises, Inc. v. PWSA, 103 F.3d 1165, 1175-76 (3d Cir.1997). But where one factual assertion negates an essential element of a contrary assertion, that conflict cannot stand, absent sufficient explanation. Cleveland v. Policy Mgt. Sys. Corp., 526 U.S. 795, 805-07, 119 S.Ct. 1597, 143 L.Ed.2d 966 (1999). Finally, legal conclusions, or conclusory facts, may not contradict the detailed factual allegations of the Complaint. Chicago Police Sgts. Ass'n v. City of Chicago, No. 08-4214, 2011 WL 2637203 at *6-7 (N.D.Ill. July 6, 2011).
Measured against that standard, the Court has doubts as to whether each of two (2) separate (and arguably inconsistent) pleading "theories" advanced by the Plaintiff is plausible as now pled. The first theme pled is that the drill was designed as a low-speed, no pads, non-contact drill, ECF No. 1-1 at ¶¶ 15-16, and that the Student Defendant, Mr. McElhinny, "exceeded the scope" of the drill, id. at ¶ 103 (and presumably exceeded the scope of the coaches' instructions "in advance" of the drill that it should be "non-contact," id. at ¶ 16), by "lung[ing] full speed into plaintiff,
Although it is possible that both of these arguments could be true under a given set of facts, one's truth may so significantly undermine the other so as to render at least one theme (if not both) implausible. If the Student Defendant actually exceeded the scope of the drill as established by the coaches (which Plaintiff specifically pleads was described by the coaches as "no contact," id. at ¶ 16, making it reasonable to conduct the drill without pads and helmets), then there is no obvious logical or plausible basis to conclude that the Defendant coaches acted with deliberate indifference to a foreseeable risk of harm in setting up the drill in the first place. By the same token, if the coaches specifically designed the drill to make it excessively dangerous by making it full contact/no pads (either intentionally or with a knowing wink), then it would be a very unusual situation in which a student athlete would be personally liable for following his coaches' instructions during football practice.
Of course, these claims are not necessarily inconsistent in all conceptions. Is it possible to plead some combination of these theories of liability in such a way that they may coexist? Yes. It is possible that the coaches affirmatively designed a dangerous drill and then acted with deliberate indifference when implementing that drill at the training camp, and that the Student Defendant also went beyond the scope of the coaches' instructions, dangerous in and of themselves. But that is not what the Plaintiff pleads here. In the Court's estimation, the Plaintiff's current pleading asserts theories and detailed facts so inherently in tension with one another that they lack the requisite plausibility to withstand the Motion to Dismiss as to the first and second prongs of the state-created danger test.
The fourth element of the state-created danger test requires an affirmative act on the part of a state official to place a plaintiff in danger. Bright, 443 F.3d at 281. If allegations in a complaint are "at their core, [] omissions, not commissions — inactions rather than actions," the fourth prong cannot be met. Phillips, 515 F.3d at 236. Our Court of Appeals has cautioned that while "the line between action and inaction is not always easily drawn," courts should be wary of claims which attempt to transform "[a]ny and all failures to act ... into an affirmative exercise of authority." Morrow, 719 F.3d at 178. Courts must assess at this prong whether state officials "created or increased the risk" themselves, or whether they simply "might have done more" to protect individuals from harm. Morrow, 719 F.3d at 179.
In assessing the facts as pled in the Complaint, the Court concludes that
To sum up, the Complaint falls short as to whether the drill and the manner in which the coaches implemented it actually presented a foreseeable and fairly direct risk of harm (Prong One), and/or whether the alleged conduct amounted to deliberate indifference such that the coaches' conduct was patently egregious (Prong Two). On a football field (practices and games), larger players will be pitted against smaller players. Because of this reality, smaller players require (and will have) experience competing in some fashion against larger players. Such a structure is not inherently suspect, and a real world drill involving such disparate students, but that does not have such a foreseeable risk of serious injury to which the coaches and School District were deliberately indifferent, would not trigger Fourteenth Amendment "bodily integrity/state-created danger"
The claims of a Fourteenth Amendment violation alleged by Mr. Dorley are brought not against just the individual School District Defendants, but also against the School District itself. ECF No. 1-1, at Counts I-III. Mr. Dorley frames his claims in municipal liability terms under Monell v. Dep't of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), alleging in all three such claims that "Defendant [South Fayette School District]'s actions and/or inactions demonstrated an adopted practice, custom or policy of deliberate indifference to plaintiff's overall health, safety and welfare." ECF No. 1-1, at ¶¶ 43, 50, 59. Using exactly the same conclusory and boilerplate phrasing in all three such Counts, Mr. Dorley asserts:
Id. at ¶¶ 44, 51, 60.
The Third Circuit has held that a municipality may be "independently liable for a
Simply put, these claims may be alleged based on formal action (a policy) or informal action (a custom) on behalf of the municipality. Establishing a municipal policy requires a decision-maker with final authority under state law to issue "an official proclamation, policy, or edict." Id. at 155 (quoting Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir.1990)). A custom requires such a decision-maker's "knowledge of, and acquiescence to, a practice," or a course of conduct that is "so well-settled and permanent as virtually to constitute law." Id. at 155-56 (internal quotation marks and citations omitted). Monell liability does not attach under either theory unless a policy-making official with "`unreviewable discretion,'" id. at 156 (quoting Andrews v. City of Philadelphia, 895 F.2d 1469, 1481 (3d Cir.1990)), "is responsible for either the affirmative proclamation of a policy or acquiescence in a well-settled custom," id. at 156-157 (quoting Bielevicz, 915 F.2d at 850).
Mr. Dorley does not plausibly allege in the Complaint that any final policy-making official issued any type of official proclamation, policy, or edict whereby the
Without plausibly pled facts supporting the inference that either one or more of the football coach Defendants was factually and legally the final decision-maker possessing unreviewable authority in that regard, or that the final policy-makers within the School District directed, or specifically knew of and acquiesced to the challenged conduct, the Complaint cannot state a claim for municipal liability as to the School District itself.
Because the Court will dismiss the federal counts but grant leave to amend, it will also address Mr. Dorley's state law claims. In Counts VIII-X of his Complaint, Plaintiff asserts claims against Mr. McElhinny, the Student Defendant, for battery, intentional infliction of emotional distress ("IIED"), and negligence. The Court will dismiss the IIED count with prejudice but will deny the Motion to Dismiss with regard to the counts for battery and negligence.
As to the battery claim of Count VIII, the tort of battery requires "a harmful or offensive contact with a person, resulting from an act intended to cause the plaintiff or a third person to suffer such a contact, or apprehension that such a contact is imminent." Herr v. Booten, 398 Pa.Super. 166, 580 A.2d 1115, 1117 (1990) (internal quotation marks omitted). For a battery to occur, the offensive contact must not be consented to by a plaintiff — the presence of consent negates the wrongfulness element and prevents a battery from taking place. Levenson v. Souser, 384 Pa.Super. 132, 557 A.2d 1081, 1088 & n. 3 (1989); Barnes v. Am. Tobacco Co., 161 F.3d 127, 147 (3d Cir.1998) ("Plaintiffs must prove as a constituent element they did not consent to the tortious conduct."); see also Restatement (Second) of Torts § 892A(1) (1979) ("One who effectively consents to conduct of another intended to invade his interests cannot recover in an action of tort for the conduct or for harm resulting from it.").
There is no question that some degree of consent was present in this case, as Mr. Dorley voluntarily participated in a football training camp and "had played football every season since he was in first grade." ECF No. 1-1, at ¶ 38(e); see also ECF No. 6, at 6-7. What is less evident is whether the Student Defendant's alleged conduct was within the scope of that consent, or whether it is more analogous to "act[s] of a very different character," such as using brass knuckles in a fistfight. Restatement (Second) of Torts § 892A cmt. on Subsection (2)(c) (1979). Mr. Dorley argues that his consent "was limited to the prescription for the drill," and that drill was meant to be completed at less than full speed, wherein the blocker would push the player holding the blocking pad back ten (10) yards. ECF No. 11, at 7. Plaintiff contends that the Student Defendant instead drove him
The Court concludes that drawing all reasonable inferences in Mr. Dorley's favor, the Complaint states a cause of action for battery against Mr. McElhinny. Although continuing the drill after the specific stop point and driving Plaintiff a few yards farther back than called for might only marginally exceed the scope of the drill, the specific allegations that the Student Defendant ended the drill with a "final, violent shove" after Mr. Dorley yelled for Mr. McElhinny to stop, do not permit the Court to conclude as a matter of law that discovery will not "reveal evidence of the necessary element[s]" of battery, as would be required at the Motion to Dismiss stage. Thompson, 748 F.3d at 147; see also Sciotto, 81 F.Supp.2d at 577 (denying summary judgment on battery claims and concluding that genuine issues of material fact existed regarding intent when the defendant was a high school wrestling alumnus who live-wrestled a much smaller high school student during a practice when the smaller student suffered permanent paralysis).
Next up is the negligence claim of Count X. "There are four elements to a cause of action for negligence: a duty of care, a breach of that duty, a causal connection between the defendant's conduct and the resulting injury, and damages." Zeidman v. Fisher, 980 A.2d 637, 639 (Pa.Super.Ct.2009).
Mr. McElhinny argues that Mr. Dorley fails to state a claim of negligence against him because no duty of care existed: "appellate court cases have held that a participant assumes the reasonable risks inherent in the sporting event, discharging fellow participants [sic] duty of care." ECF No. 6, at 9; see Johnson by Johnson v. Walker, 376 Pa.Super. 302, 545 A.2d 947 (1988); Bowser v. Hershey Baseball Assoc., 357 Pa.Super. 435, 516 A.2d 61 (1986). The Court has also found other cases recognizing and discussing this general "no-duty" rule in the sports context. See, e.g., Jones v. Three Rivers Management Corp., 483 Pa. 75, 394 A.2d 546 (1978); Craig v. Amateur Softball Ass'n of Am., 951 A.2d 372, 375-76 (Pa.Super.Ct.2008); Oliver v. Chartiers-Houston Athletic Ass'n, 28 Pa. D. & C. 4th 484, 489 (Com.Pl.1995). Mr. McElhinny contends that football drills "are an essential part of the sport of football," and that thus the Student Defendant "was relieved of his responsibility, or duty of care, to Plaintiff during the football drill in which he was injured." ECF No. 6, at 10. Plaintiff, in response, criticizes the case law cited by the Student Defendant (without attempting to provide any of his own). Mr. Dorley's primary point is that "[j]ust because plaintiff and defendant were engaged in a football drill (albeit, non-contact), in which there [are] some inherent risks, does not mean that defendant could act as violent or aggressive as he wanted with impunity." ECF No. 11, at 10-11.
"Whether a duty exists is a question of law for the trial court to decide." Brisbine v. Outside In Sch. of Experiential Educ., Inc., 799 A.2d 89, 95
Also relevant here is the standard that would define a breach of a duty between participants of a contact sport. In Archibald v. Kemble, 971 A.2d 513 (Pa.Super.Ct.2009), the Superior Court of Pennsylvania held "that a hockey player must have engaged in reckless conduct to be subject to liability for injuries received by another player in a no-check league," id. at 517. This meant that the traditional negligence standard was inappropriate there.
Id. at 520 (internal citations omitted).
The Court agrees with Mr. McElhinny that there is no duty of care on the part of other sports' competitors when injuries result from activities that are "merely part of the game." ECF No. 6, at 11. However, the next question — whether the facts alleged in the Complaint constitute behavior that is "merely part of the game" — is really a question of framing: while it is true that drills are part of the sport of football, drills are only "part of the game" when performed in an anticipated manner reasonably inherent to the game. Consenting to play football as a general matter involves tackling, blocking, pushing, and shoving — but it does not involve, as alleged here, an unnecessary effort either designed to seriously injure the Plaintiff, or conduct that would likely and foreseeably lead to that result. Recklessly breaking the rules that a participant knows are the rules may also open a contact sports participant up to liability. See Archibald, 971 A.2d at 520-21 (reversing a grant of summary judgment for the defendant, holding that evidence existed to allow the claim to proceed to a jury). Here, for instance, if as pled the Student Defendant knew or should have known that the drill was to be performed as a non-contact drill at half speed, and discovery shows that he recklessly disregarded that rule, he could be liable under the Archibald standard.
The Court cannot say as a matter of law that the negligence claim cannot proceed. In a strikingly similar factual situation from several decades ago, the Pennsylvania Supreme Court reversed a grant of a compulsory nonsuit in a case where the plaintiff, a high school football player, was injured during pre-season football training conducted without the use of protective equipment. Rutter v. Northeastern, Beaver County School Dist., 496 Pa. 590, 437 A.2d 1198, 1200 (1981) (plurality opinion). The plaintiff there was struck in the eye by a teammate (one of the defendants) on the opposing side during a game of "jungle football," a drill conducted without pads that nonetheless consisted of tackling and body blocks. Id. at 1201. In addition to purportedly abolishing the assumption of risk doctrine (except in certain narrow circumstances),
The disposition in Rutter, as well as the analyses used in Zeidman and Archibald, lead the Court to conclude that dismissal of Mr. Dorley's negligence claim at this stage would be improvident. The facts pled in the Complaint do permit the plausible inference that Mr. McElhinny's conduct went far beyond the risks inherent in a high school football practice, and that his conduct amounted to more than simple negligence. Therefore, his Motion to Dismiss Count X will be denied without prejudice to its reassertion at a later stage.
Reedy v. Evanson, 615 F.3d 197, 231-32 (3d Cir.2010). Sufficiently egregious conduct, as characterized by the Pennsylvania Supreme Court, includes (a) a defendant hitting a plaintiff's son with a car and killing him, then burying his body in a field where the body was not discovered for two months, (b) a defendant framing a plaintiff for homicide by fabricating records, and (c) a defendant reporting to the press that a plaintiff suffered from a fatal disease when the defendant, a team physician, knew the information was false. Kasper v. Cnty. of Bucks, 514 Fed.Appx. 210, 217 (3d Cir. 2013) (citing Hoy v. Angelone, 554 Pa. 134, 720 A.2d 745, 754 (1998) (internal citations omitted)).
The Court does not believe that the facts asserted in the Complaint rise to the level of behavior needed to establish a claim for IIED. The Complaint states that Mr. McElhinny "continued driving plaintiff backwards [during the drill], even after plaintiff yelled for him to stop," and ultimately drove him back five to six yards beyond the prescribed distance for the drill, after which point he "gave plaintiff one final violent shove, throwing plaintiff into the air and causing him to flip over." ECF No. 1-1, at ¶ 23. The Complaint also asserts that when Mr. Dorley was in the training room receiving medical attention for his injuries, "some upperclassmen, including [the Student Defendant] walked past the room and mocked plaintiff for his reaction on the field after finding out he had broken his arm." Id. at ¶ 26.
Taking these facts as true and drawing all inferences in Mr. Dorley's favor, the Court concludes that these facts are not comparable to those that Pennsylvania courts have found sufficient to allege an
Defendants also seek to strike Mr. Dorley's claim that the Student Defendant's conduct could warrant an award of punitive damages. "Assessment of punitive damages [is] proper when a person's actions are of such an outrageous nature as to demonstrate intentional, willful, wanton or reckless conduct, and are awarded to punish that person for such conduct." SHV Coal, Inc. v. Cont'l Grain Co., 526 Pa. 489, 587 A.2d 702, 704 (1991) (internal citations omitted). Having concluded that the Complaint sufficiently alleges a claim for battery, the Court believes it is too soon to say, as a matter of law, that discovery will or will not show that the Student Defendant's actions were "willful, wanton or reckless." The Court will therefore deny the Motion to Dismiss as to claims for punitive damages against Mr. McElhinny without prejudice to its reassertion on a more fully developed factual record.
Generally speaking, there is no duty to control the conduct of a third party to protect another from harm. Brisbine v. Outside In School of Experiential Education, Inc., 799 A.2d 89, 93 (Pa.Super.Ct.2002). However, an exception to this rule arises when a defendant has a "special relationship" with the person whose conduct is to be controlled. Id. The special relationships recognized under Pennsylvania law are those listed in Sections 316-319 of the Restatement (Second) of Torts, id., and include the special relationship of a parent and child, Restatement (Second) of Torts § 316.
Mr. Dorley alleges that the Student Defendant was, at the relevant time, in the eleventh grade and a minor. See ECF No. 1-1, at ¶¶ 12; 118. He further alleges that the Parent Defendants "owed a duty to exercise reasonable care so as to control their (then) minor child as to prevent him
The Court concludes that the claim as stated is legally insufficient. There are no facts alleged that would indicate the Parent Defendants had any reason to know that their son was so "reckless, aggressive and violent" that he should not be allowed to participate in a contact sport. Id. at ¶ 122(a), (c). None. The vast majority of the "claim" as pled consists of blanket legal conclusions which the Court must disregard, ECF No. 1-1, at ¶¶ 117-123; see Fowler, 578 F.3d at 210-11 (citing Iqbal, 129 S.Ct. at 1949), and the Parent Defendants are mentioned nowhere else in the Complaint's entire factual recitation. There is nothing in Mr. Dorley's Complaint from which the Court could plausibly infer that the Parent Defendants knew their son was overly aggressive in football drills and that he could not be trusted, in the context of a contact sport, to not exceed the scope of another student's consent to play the sport, or the coaches' express direction in such regards. There is no allegation that Mr. McElhinny had harmed the Plaintiff or others in the past and the parents knew about that, and certainly nothing from which to infer that the Parent Defendants knew or reasonably should have known that their child was impermissibly violent (at least in this setting). Moreover, there is nothing pled to indicate that the Parent Defendants had the "ability and opportunity to control" their child when he was under the supervision of his coaches at practice. K.H., 826 A.2d at 875 (holding that shared custody of a child was insufficient to establish liability for a father who knew his son had a BB gun and allowed the son to bring the gun to his mother's house because there was otherwise no evidence showing the father's ability to control his son's behavior at the mother's house).
The Complaint (drawing all inferences in favor of the Plaintiff) is muddled as to whether the Plaintiff is alleging that the individual School District Defendants instructed Mr. McElhinny to act in a certain way or whether Mr. McElhinny purposely disregarded the Defendant coaches' instructions and violently attacked Mr. Dorley, or both. But more to the point, the purely conclusory, boilerplate allegations against the parents do nothing to tie them into the injury to the Plaintiff and would purport to make parents absolutely liable for any tort committed by a child, a theory precisely contrary to settled Pennsylvania law. The claim for negligence or vicarious liability against the Parent Defendants cannot proceed.
The School District Defendants' Motion to Dismiss is granted without prejudice and with leave to amend for the reasons stated in this Opinion. The Student Defendant
An appropriate Order will issue.
Although some language of Mr. Dorley's Complaint is framed in terms of passive inaction, see, e.g., ECF No. 1-1, at ¶ 89 ("The fact that defendants ... saw [the conduct take place]") (emphasis added); id. at ¶ 90 (alleging that the coaches "allow[ed] the drill to proceed") (emphasis added); id. at ¶ 92 (alleging the coaches caused harm "by way of the defendant' action or inactions") (emphasis added), the Complaint also alleges that the School District Defendants "created an atmosphere that encouraged violence, arrogance and discrimination of the underclassmen" in which they "encouraged [upperclassmen] to exhibit their dominance, strength, and aggression on the underclassmen in order to `toughen them up,'" "encouraged those upperclassmen to overexert their force and aggression on the underclassmen in non-contact drills," and "set up the drill in such a way that much smaller, inexperienced underclassmen would be pitted against larger, stronger, more experienced upperclassmen," id. at ¶¶ 17; 19; 30. Taken together, and drawing all reasonable inferences in Plaintiff's favor, the Court concludes that these allegations do meet the fourth prong of the state-created danger test.
Bell v. Twp. of Concord, 759 F.Supp.2d 621, 630 (E.D.Pa.2011); see also Balletta v. Spadoni, 47 A.3d 183, 193 (Pa.Commw.Ct.2012) ("In short, there is no Pennsylvania state case law that permits an action for monetary damages based on a claimed violation of the state constitution.").
What is missing here are plausible facts that would allow the Court to conclude (1) which final decision-makers knew of and directed, or knew of and acquiesced in, the specific manner in which this drill was conducted whereby small underclassman were pitted against larger upperclassman who were encouraged to "exhibit their dominance," ECF No. 1-1, at ¶ 19; or (2) which final decision-makers directed, knew of and acquiesced in, the general "atmosphere that encouraged violence," id.; or (3) how the specific structure of the drill came to the attention of a final decision-maker; or (4) who exactly was/were the final decision-maker(s).
It also does not appear from the face of the Complaint that the football coaches possessed delegated authority to act with finality and that those actions were then ratified by final decision-makers in the School District. See Kelly v. Borough of Carlisle, 622 F.3d 248, 264 (3d Cir.2010) ("[R]atification occurs only `when a subordinate's decision is subject to review by the municipality's authorized policymakers because they have retained the authority to measure the official's conduct for conformance with their policies.' `Simply going along with discretionary decisions made by one's subordinates, however, is not a delegation to them of the authority to make policy.'" (quoting City of St. Louis v. Praprotnik, 485 U.S. 112, 127, 130, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988) (plurality opinion)) (internal alteration and citation omitted)).
All in, Plaintiff's amorphous assertions that "the School District knew" simply don't cut it in this context.
