VAN ORDEN v. BOROUGH OF WOODSTOWN, NJ et al
Filing
44
OPINION. Signed by Chief Judge Jerome B. Simandle on 3/11/2014. (tf, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
KATHRYN M. VAN ORDEN,
individually and as
administratrix ad prosequendum
of the Estate of Celena J.
Sylvestri,
HONORABLE JEROME B. SIMANDLE
Civil Action
No. 13-5002 (JBS/AMD)
Plaintiff,
OPINION
v.
BOROUGH OF WOODSTOWN, et al.,
Defendants.
APPEARANCES:
Thomas W. Sheridan, Esq.
Christopher D. Hinderliter, Esq.
SHERIDAN & MURRAY, LLC
403 South White Horse Pike
Audubon, NJ 08106
Attorneys for Plaintiff
A. Michael Barker, Esq.
Vanessa Elaine James, Esq.
BARKER SCOTT & GELFAND, PC
210 New Road
Linwood Greene, Suite 12
Linwood, NJ 08221
Attorneys for Defendants Borough of Woodstown, Woodstown
Police Department and Pilesgrove Township
SIMANDLE, Chief Judge:
I.
INTRODUCTION
Plaintiff Kathryn M. Van Orden is the mother of Celena J.
Sylvestri, who drowned in her car on August 28, 2011, after
officials opened floodgates to the Veterans Memorial Lake Dam in
anticipation of the arrival of Hurricane Irene without closing
the affected road.
Before the Court is a motion for judgment on the pleadings,
pursuant to Fed. R. Civ. P. 12(c), by Defendants Borough of
Woodstown, the Woodstown Police Department, and Pilesgrove
Township. [Docket Item 27.] For the reasons explained below, the
Court will grant the motion as it pertains to the state-law tort
claims, which is unopposed, because Plaintiff failed to comply
with the notice requirements of the New Jersey Tort Claims Act.
However, the Court will deny the motion as to the state-created
danger claim, which Plaintiff sufficiently pleads.
II.
BACKGROUND
The Court accepts as true the facts asserted in the
Complaint for the purposes of this motion. On August 28, 2011,
at approximately 1 a.m., Celena Sylvestri was driving on Route
40 in Salem County, New Jersey, when her car was “swept away by
fast-moving water.” (Compl. ¶¶ 1, 8.) The water flowed from a
floodgate at the Veterans Memorial Lake Dam (“the Dam”) in
Woodstown, New Jersey, which Defendants had opened “to relieve
pressure and control flood waters” as Hurricane Irene
approached. (Id. ¶¶ 2-3.)
At approximately 9:51 p.m. the previous evening, Defendants
had announced their intention to open the floodgates and to
2
close Route 40 “within the next few hours due to flooding caused
by the intentional release of water from the Veterans Memorial
Lake Dam,” but Defendants never blocked the road nor took any
steps to prevent drivers from entering the path of the
floodwater. (Id. ¶¶ 5-6.) Ms. Sylvestri, who had lost power at
her apartment, was attempting to evacuate on Route 40 when her
car was overtaken by “raging flood water.” (Id. ¶¶ 6, 8.)
Plaintiff, individually and as administratrix of her
daughter’s estate, filed this lawsuit against eight named
defendants, alleging various state-law tort claims and a statecreated danger claim under 42 U.S.C. § 1983 for a violation of
the Due Process Clause of the Fifth and Fourteenth Amendments.
The Court granted an unopposed motion to dismiss all claims
and counterclaims by and against Defendants State of New Jersey,
New Jersey State Police, and the New Jersey Department of
Environmental Protection Bureau of Dam Safety and Flood Control
[Docket Item 33], on the Eleventh Amendment immunity grounds.
See Van Orden v. Borough of Woodstown, No. 13-5002, 2013 WL
6447163, at *1-*2 (D.N.J. Dec. 9, 2013).
Defendants Borough of Woodstown, Woodstown Police
Department and Pilesgrove Township brought the present motion
for judgment on the pleadings.
3
III. STANDARD OF REVIEW
A motion for judgment on the pleadings based on the theory
that plaintiff fails to state a claim is reviewed under the same
standards that apply to a motion to dismiss under Fed. R. Civ.
P. 12(b)(6). Caprio v. Healthcare Recovery Grp., LLC, 709 F.3d
142, 146-47 (3d Cir. 2013). To survive a motion to dismiss, a
“complaint must contain sufficient factual matter, which if
accepted as true, states a facially plausible claim for relief.”
Id. at 147 (citing Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir.
2012)). 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.” Iqbal v. Ashcroft, 556 U.S. 662, 678
(2009). The court must construe the complaint in the light most
favorable to the plaintiff. Fleisher v. Standard Ins. Co., 679
F.3d 116, 120 (3d Cir. 2012).
IV.
DISCUSSION
A. New Jersey Tort Claims Act (Counts I, II, IV, V & VI)
Defendants move to dismiss Counts I (“Negligence”), II
(“Vicarious Liability”), IV (“Strict Liability”), V (“Wrongful
Death Action”), and VI (“Survival Action”) of the Complaint
because Plaintiff did not comply with the notice requirements of
the New Jersey Tort Claims Act (“TCA”), N.J.S.A. §§ 59:8-8,
59:8-9. (Def. Mot. [Docket Item 27] at 5-10.) Plaintiff does not
4
oppose dismissal. She states: “While the Plaintiff initially
included negligence theories of liability against Defendants . .
. at this time the Plaintiffs are only pursuing the State
Created Danger Theory, under 42 U.S.C. § 1983, against the
Moving Defendants . . . .” (Pl. Opp’n [Docket Item 39-1] at 1.)
Because the Complaint does not contain assertions of compliance
with the notice requirements of the TCA, because the record does
not contain evidence of compliance, and because Plaintiff no
longer seeks to pursue these claims, the Court will grant
Defendants’ motion for judgment on the pleadings as to Counts I,
II, IV, V, and VI.
B. State-created danger under 42 U.S.C. § 1983 (Count III)
To state a claim under 42 U.S.C. § 1983, a plaintiff must
plead that a person acting under the color of state law deprived
the plaintiff of a constitutional right. Phillips v. Cnty. of
Allegheny, 515 F.3d 224, 235 (3d Cir. 2008). Here, Plaintiff
alleges a deprivation of her Fifth and Fourteenth Amendment
rights. (Compl. ¶ 75.)
“Individuals have a constitutional liberty interest in
personal bodily integrity that is protected by the Due Process
Clause of the Fourteenth Amendment.” Phillips, 515 F.3d at 235.
The Due Process Clause does not impose an affirmative obligation
on the state to protect its citizens, id. (citing DeShaney v.
Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 195-96
5
(1989)), but courts “have recognized that a state actor may be
held liable under the ‘state-created danger’ doctrine” when the
following four conditions are met:
(1) the harm ultimately
fairly direct;
caused
was
foreseeable
and
(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
authority in
citizen or
vulnerable to
all.
actor affirmatively used his or her
a way that created a danger to the
that had rendered the citizen more
danger than had the state not acted at
Henry v. City of Erie, 728 F.3d 275, 281-82 (3d Cir. 2013)
(citing Morrow v. Balaski, 719 F.3d 160, 177 (3d Cir. 2013)).
Defendants request judgment on the pleadings for the statecreated danger claim because “the Complaint fails to allege any
facts to suggest the level of culpability necessary,” and
because alleged inaction, such as failing to close Route 40,
cannot form the basis of a claim. (Def. Mot. Br. at 10-11.)
Specifically, Defendants argue that the Complaint fails to
describe conduct that shocks the conscience (id. at 13), that no
special relationship existed between Ms. Sylvestri and
Defendants (id.), and that inaction is not legally cognizable
under the state-created danger doctrine (id. at 16). Plaintiff
6
opposes the motion. The Court will consider each of the elements
of the state-created danger claim in turn.
1. Affirmative use of state authority to create a
danger
Because Defendants argue that the conduct alleged cannot
form the basis for a state-created danger claim, the Court will
begin with the fourth factor articulated in Henry, 728 F.3d at
282: whether Defendants affirmatively used their state authority
in a way that created a danger to Plaintiff.
The Third Circuit has held repeatedly that it “is the
misuse of state authority, rather than a failure to use it, that
can violate the Due Process Clause.” Phillips, 515 F.3d at 235
(quoting Bright v. Westmoreland Cnty., 443 F.3d 276, 282 (3d
Cir. 2006)) (emphasis in Phillips). The Third Circuit has
refused to find affirmative use of state power when the police
“‘failed to more expeditiously seek someone’s detention,’” or
failed “to arrest someone who poses a threat.” Walter v. Pike
Cnty., 544 F.3d 182, 194 (3d Cir. 2008) (quoting Bright, 443
F.3d at 284, and citing Burella v. City of Phila., 501 F.3d 134,
147 (3d Cir. 2007)). Likewise, the state’s “mere failure to warn
of a threat” by a private actor “cannot itself predicate
liability” under the state-created danger doctrine. Walter, 544
F.3d at 194-95.
7
On the other hand, the Third Circuit has found affirmative
use of state authority when, for example, two 911 Call Center
employees provided a suspended colleague with information that
assisted him in locating a man he later shot and killed,
Phillips, 515 F.3d at 236, and when police officers detained an
intoxicated woman walking home from a tavern, letting her sober
husband continue home, and eventually releasing the wife to walk
home unescorted in cold weather, which caused her to suffer
hypothermia and permanent brain damage, Kneipp v. Tedder, 95
F.3d 1199, 1209 (3d Cir. 1996).
Defendants liken the present case to Goss v. Alloway Twp.
Sch., 790 F. Supp. 2d 221, 227 (D.N.J. 2011), in which the
district court held that failure to add padding to a school
playground or the failure to provide additional playground
monitors was inaction, and therefore not legally cognizable
under a state-created danger theory. In Goss, a first-grade
student fell on the playground, which had a “cement-like
surface,” and suffered a displaced wrist fracture. Id. at 224.
The plaintiff argued that the case “is about constitutional
violations that resulted from Defendants’ cost-cutting
policies,” but the district court dismissed the state-created
claim because the school’s failure to add padding or its
allocation of resources were not affirmative acts for purposes
of a state-created danger claim. Id. at 227.
8
Here, the affirmative act alleged is the opening of the
Dam’s floodgates in a reckless or deliberately unsafe manner.
(See Compl. ¶¶ 4, 6; see also Pl. Opp’n [Docket Item 39-1] at 11
(“Defendants’ affirmative act was to intentionally open the
floodgates which caused Route 40 to become entirely inundated
with raging flood waters”).) While Ms. Sylvestri’s death might
have been avoided if Route 40 had been closed or blocked off,
and, in that sense, the failure to close the road was a “direct”
cause of her drowning, Plaintiff does not allege that the mere
failure to close the road is the predicate conduct for her
claim. (See Pl. Opp’n at 12 (“They opened the floodgates and
this directly led to the inundation of Route 40 and the harm and
death suffered by Celena.”)) “‘If the state puts a man in a
position of danger . . . 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.’” Morrow, 719 F.3d at 177 (quoting D.L. ex rel. L.R. v.
Middle Bucks Area Vocational Tech. Sch., 972 F.2d 1364, 1374 (3d
Cir. 1992), and Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir.
1982)). Plaintiff alleges that Defendants’ affirmative opening
of the floodgates created a dangerous condition that would not
have existed had state authority not been exercised, and then
failed to protect her. The affirmative use of state authority
has been satisfied.
9
Goss does not resemble the situation here. Providing a
playground, even one which is not designed in a reasonably safe
manner, is not the creation of a danger through misuse of state
authority. Goss would be more analogous to this case if the
school board had affirmatively removed existing protective
padding from the playground while children climbed on the
equipment, or removed essential screws or bolts or beams from
playground structures to use them elsewhere and still permitted
children to play in the unsafe environment. The present case is
not about failing to take extra precautions to ensure safety of
citizens from existing dangers; this is a case is about actions
Defendants allegedly took that created a substantially more
dangerous environment, a state-directed change of the roadway
through flooding due to opening the floodgates. The Complaint is
not deficient for failing to allege an affirmative use of state
authority.
2. Foreseeable and fairly direct harm
It is not sufficient for state actors to act affirmatively;
the harm created must be a “foreseeable and fairly direct”
result of that action. Henry, 728 F.3d at 282.
“‘To adequately plead foreseeability . . . , we require a
plaintiff to allege . . . an awareness of risk that is
sufficiently concrete to put the [state] actors on notice of the
harm.’” Id. at 282-83 (quoting Phillips, 515 F.3d at 238). Here,
10
the harm that befell Ms. Sylvestri was a foreseeable result of
opening the floodgates without closing Route 40. Plaintiff
pleads that Defendants announced at approximately 10 p.m. that
“they would be closing the Road within the next few hours due to
flooding caused by the intentional release of water from the
Veterans Memorial Lake Dam.” (Compl. ¶ 5.) This announcement
evinces Defendants’ concrete awareness of the risk of harm that
eventually occurred, which is the essence of foreseeability.
Drowning is among the harms that realistically could result from
opening floodgates without blocking affected roads. Ms.
Sylvestri’s injury was foreseeable.
In addition, the link between the affirmative act and the
harm must be “fairly direct.” To satisfy this requirement, “the
plaintiff must plausibly allege that state officials’ actions
‘precipitated or w[ere] the catalyst for’ the harm for which the
plaintiff brings suit.” Henry, 728 F.3d at 285 (quoting Morse v.
Lower Merion Sch. Dist., 132 F.3d 902, 910 (3d Cir. 1997)). It
is “insufficient to plead that state officials’ actions took
place somewhere along the causal chain that ultimately led to
the plaintiff’s harm.” Id. Here, Plaintiff alleges that Ms.
Sylvestri drowned in a flood that Defendants created by opening
a floodgate. It is difficult to imagine a more direct link
between action and harm than the facts alleged here. Plaintiff
11
satisfies the “foreseeable and fairly direct” requirements of
the state-created danger doctrine.
C. Culpability that shocks the conscience
The level of culpability required to sustain a statecreated danger claim depends on the particular circumstances of
the case. Walter, 544 F.3d at 192 (quoting Miller v. City of
Phila., 174 F.3d 368, 375 (3d Cir. 1999)). Where state officials
are asked to make split-second decisions in “‘a hyperpressurized
environment,’ an intent to cause harm is usually required . . .
.’” Id. (quoting Sanford v. Stiles, 456 F.3d 298, 306 (3d Cir.
2006)). By contrast, “where officials are afforded the luxury of
a greater degree of deliberation and have time to make
‘unhurried judgments,’ deliberate indifference is sufficient to
support an allegation of culpability.” Phillips, 515 F.3d at
240-41 (emphasis in original). The Third Circuit has recognized
a middle-ground standard in other circumstances:
[W]here the circumstances require a state actor to
make something less exigent than a “split-second”
decision but more urgent than an “unhurried judgment,”
i.e., a state actor is required to act “in a matter of
hours or minutes,” a court must consider whether a
defendant disregarded a “great risk of serious harm
rather than a substantial risk.”
Id. at 241 (quoting Sanford, 456 F.3d at 306). The Third Circuit
has described this middle-ground standard as: “gross negligence
and arbitrariness -- the state actor must ‘consciously
12
disregard[] a great risk of serious harm.’” Walter, 544 F.3d at
193.
Defendants argue that the highest level of culpability -intent -- applies to this case. (Def. Mot. Br. at 11-13; Reply
at 5.) They assert that “an ever-changing emergency situation”
constituted a “hyper-pressurized” situation. (Reply at 5.)
Defendants argue that the Complaint pleads a plausible case of
negligence against Defendants but cannot support a state-created
danger claim because “‘[n]egligence is not enough to shock the
conscience under any circumstances . . . .’” (Def. Mot. Br. at
12-13) (quoting Schieber v. City of Phila., 320 F.3d 409, 419
(3d Cir. 2003)).
Plaintiff urges the Court to apply the lowest standard,
deliberate indifference. (Pl. Opp’n at 8-9.) According to
Plaintiff, Defendants were “aware for at least several days that
a Hurricane was proceeding toward the Northeastern United
States.” (Id. at 9.) Plaintiff objects to comparing the time
horizon for decisions in this case to those of “a high speed
chase or prison riot.” (Id.)
According to the Complaint, Defendants had at least several
hours “to prepare and/or implement a plan for dealing with the
storm’s potential effects,” before opening the floodgates later
13
“[t]hat evening.”1 (Compl. ¶¶ 2-3.) Accepting this
characterization as true, and drawing all reasonable inferences
in favor of Plaintiff, the Court concludes that the standard of
intent to cause harm does not apply here. The Third Circuit’s
middle-ground standard applies when the state actors have “a
matter of hours or minutes” to act. Phillips, 515 F.3d at 241.
At most, the middle-ground standard applies to this case as
pleaded.
The Complaint adequately pleads that Defendants
“disregarded a great risk of serious harm,” id., when they
decided to open the Dam’s floodgates without closing Route 40.
Defendants’ conscious disregard of the risk may be inferred from
the fact that they issued a statement of their intent to close
the road due to flooding.2 (Compl. ¶ 5.) It also may be
reasonably inferred that causing “millions of gallons of water”
1
Plaintiff attaches to her opposition a press release from
August 26, 2011, describing the planning efforts of Salem County
officials. (Pl. Opp’n Ex. B.) While this may support the
allegation in the Complaint that Defendants did not make a
split-second decision to open the floodgates, the Court does not
rely on this Exhibit in reaching its holding.
2
Defendants argue that merely giving assurances that they would
be closing the Route 40 cannot ground liability, “because
assurances of future action cannot form the basis of a state
created danger claim.” (Reply at 6 n.4 (citing Bright, 443 F.3d
at 284)). However, as explained above, Plaintiff does not allege
that a duty to protect arose from such assurances; Plaintiff
argues that the duty to protect arose from opening floodgates in
an unsafe manner, which resulted in abnormally dangerous
conditions on Route 40.
14
to rush “into the Salem River and consume bridges and roadways
downstream including Route 40” involves a great risk of serious
harm to anyone who may be in the path of the sudden rush of the
released water. (Compl. ¶ 43.) Plaintiff specifically asserts
that Defendants “knew that their actions could result in great
harm to drivers travelling on Route 40,” but did not close the
road. (Id. ¶ 47.) Releasing “raging flood water” capable of
enveloping roads and bridges and causing serious bodily injury
or death, without taking safety measures to protect citizens,
certainly could be considered conduct that shocks the
conscience. (Id. ¶¶ 43, 46.) Plaintiff has alleged that
Defendants acted in deliberate disregard of a great risk of
serious harm.3
D. Foreseeable victim and discrete class of plaintiffs
The final element of a state-created danger claim, which
requires some relationship to exist between the state and the
plaintiff, presents the most difficult question in this case.
The plaintiff must plead that
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
3
Evidence yet to emerge may shed additional light on the time
constraints and amount of pressure under which Defendants acted.
Accordingly, the degree of culpability to be proven ultimately
may be different from the middle-ground standard that applies to
the Complaint as pleaded.
15
harm brought about by the state’s actions, as opposed
to a member of the public in general.
Henry, 728 F.3d at 282. The Third Circuit described the pleading
requirements succinctly in Phillips:
a plaintiff need not plead facts that show the same
‘special
relationship’
basis
for
constitutional
liability. Morse, 132 F.3d at 912. Instead, the
relationship
requirement
of
the
third
element
‘contemplates some contact such that the plaintiff was
a foreseeable victim of the defendant’s acts in a tort
sense.’ Morse, 132 F.3d at 912. The relationship that
must be established between the state and the
plaintiff can be ‘merely’ that the plaintiff was a
foreseeable victim, individually or as a member of a
distinct class. See Rivas[v. City of Passaic, 365 F.3d
191, 202 (3d Cir. 2004)]. Such a relationship may
exist where the plaintiff was a member of a discrete
class of persons subjected to the potential harm
brought about by the state’s actions. Morse, 132 F.3d
at 913; Rivas, 365 F.3d at 197.
Phillips, 515 F.3d at 242. The doctrine does not require
“knowledge that a specific individual has been placed in harm’s
way. . . . The ultimate test is one of foreseeability.” Morse,
132 F.3d at 914. The relationship must be “sufficiently close to
exclude ‘those instances where the state actor creates only a
threat to the general population,’ but not so restrictive as to
limit ‘the scope of § 1983 to those instances where a specific
individual is placed in danger.’” Rivas, 365 F.3d at 197.
Defendants move for judgment on the pleadings on the
grounds that the failure to close Route 40 is an alleged danger
directed to the public in general, not a discrete class. (Def.
Mot. Br. at 14.) In their reply brief, Defendants focus on
16
Morse, in which contractors working on construction projects at
a public high school left the back entrance to the school ajar,
permitting a local resident to gain access to the building and
shoot a teacher. Morse, 132 F.3d at 904. The Third Circuit
affirmed the district court’s dismissal of the complaint,
holding that the “deadly attack was not a foreseeable and fairly
direct result of defendants’ behavior.” Id. at 915-16. In its
discussion, the court declined to reach the issue of whether the
teacher and the students in the 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.” Id. at
914.
Defendants argue that if Morse posed a difficult “discrete
class” question, “it stands to reason that a potential plaintiff
class which amounts to, at best, every New Jersey citizen who
could operate a vehicle within driving distance of Route 40 at
the time of the hurricane, is even less likely to constitute a
‘discrete class.’” (Reply at 10.)
Defendant compares the present case to Mark v. Borough of
Hatboro, 51 F.3d 1137 (3d Cir. 1995). (Def. Mot. Br. at 14;
Reply at 8.) In Mark, a member of a volunteer fire department,
while acting as a private citizen, set fire to the plaintiff’s
auto repair business. Mark, 51 F.3d at 1138, 1150. The plaintiff
17
alleged that the state actors’ “failure to follow adequate
policies to ensure that applicants to the fire department were
screened sufficiently for tendencies towards arson caused the
damage to his property.” Id. at 1140. The Third Circuit affirmed
the grant of summary judgment. Id. at 1153. The court stated:
“When the alleged unlawful act is a policy directed at the
public at large . . . there can be no specific knowledge by the
defendant of the particular plaintiff’s condition, and there is
no relationship between the defendant and the plaintiff.” Id.
Defendant asserts that the danger here is to the general public,
as in Mark. (Reply at 8.)
As Plaintiff points out, the Third Circuit distinguished
Mark and embraced a wider concept of the discrete, foreseeable
plaintiff in Morse. The court observed that
Mark involved a claim in which the alleged “act” was a
policy directed at the public at large . . . . 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.
Morse, 132 F.3d at 913 n.12 (emphasis added). This passage
counsels against reading too much into the Third Circuit’s
decision not to pronounce on the discrete-plaintiff requirement
18
in Morse. The Third Circuit appears to have accepted that the
“limited group of potential plaintiffs” was sufficiently
discrete in Morse, and the issue would turn on “whether the
plaintiff or plaintiffs were ‘foreseeable’ victims.” Id. Because
the Third Circuit found the harm not foreseeable and not fairly
direct, Morse does not support Defendants’ position that the
alleged state-created danger here was directed at the general
public, as opposed to a discrete class of potential plaintiffs.
One analogous case from the Seventh Circuit provides
further clarification of the discrete-plaintiff requirement in
the context of drivers on public roads. In Reed v. Gardner, 986
F.2d 1122, 1123 (7th Cir. 1993), which was cited favorably in
the Third Circuit’s discussion of the relationship element in
Morse,4 police arrested the driver of a vehicle, leaving an
intoxicated passenger to drive the car. Two hours later, the
drunk passenger-turned-driver caused a head-on collision. Id.
The district court dismissed the plaintiffs’ claims, holding
4
The discrete-plaintiff standard in this Circuit “was based in
large part on the Seventh Circuit’s decision in Reed . . . .”
Crockett v. Se. Pa. Transp. Ass’n, No. 12-4230, 2013 WL 2983117,
at *6 n.11 (E.D. Pa. June 14, 2013) (citing Morse, 132 F.3d at
913). The Crockett court found “the Seventh Circuit’s subsequent
interpretation of Reed to be particularly helpful in
understanding the contours of the discrete class requirement.”
Id. (citing Buchanan-Moore v. Cnty. of Milwaukee, 570 F.3d 824,
828 (7th Cir. 2009), for the proposition that the discrete class
in Reed was permissible because the plaintiffs “were within a
small, defined group of potential victims” traveling on a single
highway “only for a matter of hours”).
19
that the police did not create a dangerous situation in this
case because the first driver, who was arrested, herself was
driving while intoxicated. Id. at 1124. The Seventh Circuit
reversed in part and remanded because whether the original
driver had been sober or drunk was not pleaded in the complaint,
and the district court impermissibly reached outside of the
pleadings to rule on the motion to dismiss. Id. In ruling that
the plaintiffs could state a claim if the original driver had
been sober, the Seventh Circuit considered the class of
potential plaintiffs that the state had endangered: “While [the
defendants] did not create the danger by buying [the drunk
passenger] drinks and providing him with a car, they did take
action under color of state law which rendered [the victims] and
other motorists on Route 130 vulnerable to a dangerous driver.”
Id. at 1127. The court indicated that the claim would be valid,
distinguishing cases that affected the general public, because
“the immediate threat of harm has a limited range and duration,”
and individuals within that range at that time would be a
limited, discrete class of potential plaintiffs. Id. The Seventh
Circuit indicated that “defendants’ lack of direct contact with
the appellants does not necessarily preclude this action against
them.” Id. at 1126-27.
One district court in this Circuit, following Reed, found
that drivers in a bounded area could constitute a discrete
20
class. Estate of Pendelton ex rel. Pendelton v. Davis, No. 061945, 2007 WL 1300743, at *6 (M.D. Pa. May 3, 2007). In
Pendelton, an inmate at a prison work release facility was
permitted to drive his car, even though his license had been
suspended following a DUI conviction. Id. at *1. On the day in
question, he was operating his vehicle under the influence of
alcohol and caused a head-on collision. Id. at *2. The district
court held that the plaintiff failed to plead three of the
state-created danger elements, but found that “motorists and
passengers traveling in the vicinity of the instant Work Release
Center,” near where the accident occurred, was a “sufficiently
discrete class of persons to satisfy the relationship element of
the state-created danger claim at the motion to dismiss stage.”
Id. at *6 (emphasis in original).
Other courts in this Circuit have declined to find that
drivers and passengers on public roads constitute discrete
classes of plaintiffs for purposes of the state-created danger
doctrine. However, many of these cases present different factual
and legal claims than those alleged here. In Solum v. Yerusalim,
No. 98-4056, 1999 WL 395720 (E.D. Pa. June 17, 1999), aff’d, 211
F.3d 1262, at *1 (3d Cir. 2000), the plaintiffs sued employees
of the Pennsylvania Department of Transportation alleging that a
poorly designed road was unsafe. The district court ruled that a
class of plaintiffs composed of “drivers on the stretch of Route
21
1 where the fatal accident occurred” was “an unquantifiable and
virtually unidentifiable mass of potential plaintiffs.” Id. at
*5. Because “Route 1 is a major traffic artery traveled by
thousands daily,” the proposed class was indistinguishable from
the public in general. Id. Likewise, in Stover v. Camp, 181 F.
App’x 305, 308 (3d Cir. 2006), a non-precedential opinion, the
Third Circuit held that the plaintiffs could not sustain a
state-created danger claim by alleging that a township “fail[ed]
to improve the roads,” because a “group of persons who regularly
traveled on Atlas-Cherry Valley Road” did not constitute a
“discrete class of persons.” In Burnette v. City of Phila., No.
13-0288, 2013 WL 1389753, at *4-*6, (E.D. Pa. Apr. 5, 2013), the
district court held that the plaintiff, who was “an every-day
user of Roosevelt Boulevard,” was not a member of a discrete
class, when suing under the theory that the placement of bus
stops and the dangerous habits of bus drivers constituted a
state-created danger. The plaintiffs in Solum, Stover, and
Burnette all sought to challenge existing conditions of
roadways, and thus the claims were unbounded by time, let alone
directly connected to a discrete, affirmative act by state
actors that had foreseeable victims. In these three cases, there
was no meaningful way to distinguish the plaintiffs from any
member of the public who drove on those roads at any time, on
22
any day, and who experienced the same allegedly dangerous
conditions.
Finally, in Watson v. Methacton Sch. Dist., 513 F. Supp. 2d
360, 364 (E.D. Pa. 2007), the defendant school district hosted
an after-prom, all-night party, permitting students to depart by
driving their own cars at 6 a.m. One student left the party,
stopped for breakfast for 45 minutes or an hour, and then made
two other stops, before falling asleep at the wheel and causing
an accident. Id. at 364-65. He had driven close to 20 miles in
the time span of two hours. Id. at 374. The district court
granted summary judgment on the state-created danger claim,
holding that the harm was not foreseeable and was not fairly
direct, the state conduct did not shock the conscience, the
allegedly objectionable conduct was an omission rather than an
affirmative act, and the plaintiff was not a member of a
discrete class. Id. at 374-78. In discussing the discrete class,
the court stated that
this case suffers from the same problems of breadth as
the class that was rejected in Solum. The class
proposed by Plaintiff would encompass all travelers
within the “vicinity” of Methacton High School after
the Party ended. Based on the uncontested facts, such
a class would need to include drivers within a 19.3
mile radius of the high school during a period of time
no less than two hours following the end of the Party.
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Id. at 377. The court concluded that finding a discrete class on
those facts would “extend the state-created danger doctrine
beyond its useful intended limits.” Id.
Here, Plaintiff was a foreseeable victim, in the tort
sense, of Defendants’ alleged action. She was driving on a
public road, within the path of raging floodwater allegedly
unleashed by Defendants, shortly after the floodgates opened, at
a time (1:00 a.m.) when, it may be reasonably inferred, few
vehicles use this road. Morse instructs district courts to
consider foreseeability as the “ultimate test” in the discrete
class analysis. Morse, 132 F.3d at 914. The purpose of this
element is to circumscribe the number of potential plaintiffs
stemming from any particular exercise of state authority and
shield state actors from liability for any act for which any
member of the general public could sue. See id. at 913 n.12;
Phillips, 515 F.3d at 242. Thus, this case is distinguishable
from Watson because there the plaintiff was not a foreseeable
victim. Watson, 513 F. Supp. 2d at 374.
Another distinguishing fact is that, here, Defendants
contemplated closing the Route 40, which could have prevented
the harm to Ms. Sylvestri, but did not. Defendants thus were
aware of the danger posed by their actions specifically to
drivers on Route 40. By contrast, the defendants in Watson could
not have prevented the danger of tired drivers by blocking one
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road; the potential area or risk contemplated in Watson exceeded
1,100 square miles. The potential class of plaintiffs in Watson,
therefore, was much broader than the potential class of
plaintiffs here: those driving on a particular section of Route
40 on August 28, 2011, in the middle of the night, shortly after
the release of flood water. While it is no doubt true that any
licensed member of the public could have been driving on that
road at that moment, it may be inferred from the Complaint that
the number of drivers on that road at that particular time was
indeed “only a limited group of potential plaintiffs.” Morse,
132 F.3d at 913 n.12. Opening of the floodgates did not create
an ongoing threat to the general public here in the way the
alleged dangers did in Solum, Stover, and Burnette, and the area
of risk contemplated here is far smaller than that in Watson.
Unlike Solum and Burnette, in which the conditions complained of
had existed for months or even years, Ms. Sylvestri was
endangered by a new condition of raging floodwaters created that
same night.
Taking Defendants’ position to its logical extreme, a
police officer could escape state-created danger liability for
discharging his or her firearm in a crowded town hall building
simply because any member of the public could have been in the
building at that moment. Such a result would be unnecessarily
restrictive, in light of Third Circuit precedent emphasizing (1)
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foreseeability, (2) the need for only a limited group of
potential plaintiffs, and (3) no requirement that the state have
actual knowledge that a specific individual was placed in harm’s
way. See Morse, 132 F.3d at 913-14; Phillips, 515 F.3d 242.
Like the defendants in Reed, who created a dangerous
condition on a particular road at a particular time by placing
an intoxicated passenger behind the wheel, Defendants here
allegedly created a dangerous condition on a particular road at
a particular time by releasing flood water from the Dam which
followed its course along the Salem River and across the
roadway. There is a discrete class of potential plaintiffs who
were exposed to those dangerous conditions. Therefore, the
pleadings satisfy this element of the state-created danger
doctrine.
V.
CONCLUSION
Plaintiffs have pleaded all four elements of a state-
created danger claim. Defendants’ arguments to dismiss the claim
are unpersuasive. Therefore, Defendants’ motion for judgment on
the pleadings for Count III is denied. The Court will enter
judgment for Defendants on all other counts, because Plaintiff
no longer seeks to pursue them and because Plaintiff did not
26
comply with the notice requirements of the New Jersey Tort
Claims Act. An accompanying Order will be entered.
March 11, 2014
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
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