Id. at 588. The test is whether the state "creates plaintiffs' peril, increases their risk of harm, or acts to render them more vulnerable to the . . . defendants' assaults." D.R., 972 F.2d at 1374.
Cases interpreting the state-created danger exception have repeatedly held that a state is not liable for a state-created danger if the victim is not known and identified, but simply a member of the greater public. Martinez v. California, 444 U.S. 277, 285, 62 L. Ed. 2d 481, 100 S. Ct. 553 (1980); Commonwealth Bank & Trust v. Russell, 825 F.2d 12, 15 (3d Cir. 1987) (people living in area surrounding prison part of public at large, not special community); Bowers v. DeVito, 686 F.2d 616 (7th Cir. 1982) (member of general public has "no constitutional right to be protected by the state against being murdered by criminals or madmen").
Cornelius v. Town of Highland Lake, 880 F.2d 348 (11th Cir. 1989), cert. denied, 494 U.S. 1066, 110 S. Ct. 1784, 108 L. Ed. 2d 785 (1990), is perhaps the case most similar to the case at bar. There, the town used prison labor around the town, including in its town hall. Evidence indicated that although only non-violent offenders were supposed to be on the work crews, in fact, several violent criminals also participated. Moreover, workers were given access to tools such as axes, machetes, knives and saws, and were supervised only by an unarmed, untrained person. Id. at 350. Two of the workers kidnapped a town employee who worked in the town hall and held her for three days. The Eleventh Circuit held that the town had created a danger to plaintiff because: she was a foreseeable victim of any crimes due to the fact that the town required her to work in the town hall alongside the prison work crews; because the inmates were at all times within the custody of the town; and because the town affirmatively requested the work crews from the prison, accepted those two inmates, gave them access to weapons and failed to adequately supervise them. Id. at 357.
It could be argued here that Baby Doe, a music student in the Pennsylvania School District, was a foreseeable plaintiff because the Methacton Defendants knew that DiFonzo had applied to work at the Philadelphia School District as a music teacher, yet did not warn the School District, and because the Methacton Defendants knew that young girls were in the population of students within the Philadelphia School District's music program. However, none of the other factors the Court relied on in Cornelius are present, such as control or custody of the wrongdoer, temporal proximity, or affirmative placement of the wrongdoer in the position to do the wrong. Cornelius, then, is not strong support for Baby Doe's claim that the Methacton Defendants created the danger to her.
We find that there are no allegations in the Amended Complaint to indicate that the Methacton Defendants were aware that they had created a danger specifically to Baby Doe, as opposed to any other girl in the Philadelphia School District. Plaintiffs, therefore, cannot make out a state-created danger claim. Because of this finding, we need not address the Methacton Defendants' additional arguments, such as whether the Methacton Defendants took any affirmative steps that caused the danger and whether the span of fourteen years makes the danger too remote.
Accordingly, we GRANT the Methacton Defendants' Motion to Dismiss Count Two against them for failure to state a claim for which relief can be granted.
4. COUNT FOUR -- NEGLIGENCE
Count Four of Plaintiffs' Amended Complaint alleges that the individual Methacton Defendants were negligent in that they had a duty to exercise reasonable care in the performance of their duties/responsibilities as state employees and breached those duties, causing harm to Baby Doe.
The individual Methacton Defendants assert that they are entitled to immunity from Plaintiffs' negligence claim under the Pennsylvania Subdivision Tort Claims Act, 42 Pa. Cons. Stat. Ann. §§ 8541-64 (1982) (the Act). The Act provides that "no local agency shall be 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." Id. at § 8541. It also provides that "an employee of a local agency is liable for civil damages . . . only to the same extent as his employing agency." Id. at § 8545.
Plaintiffs argue that the claims against the individual Methacton Defendants in Count Four are brought against them in their individual capacities, not their official capacities. They argue that the Act only protects against suits against defendants in their official capacities. In support of this argument, Plaintiffs cite Wendy H. v. Philadelphia, 849 F. Supp. 367 (E.D. Pa. 1994) and Kentucky v. Graham, 473 U.S. 159, 87 L. Ed. 2d 114, 105 S. Ct. 3099 (1985).
Defendants cite several cases to support their argument that they are immune due to the Act.
However, none of the cited cases specifically addresses the issue of individual immunity as opposed to official immunity under the Act. See e.g., Scott v. Willis, 116 Pa. Commw. 327, 543 A.2d 165 (1988) (school officials immune because case against them in official capacity); Gilbert v. School Dist., 98 Pa. Commw. 282, 511 A.2d 258 (1986) (only school district and city were defendants); Houston v. Central Bucks School Auth., 119 Pa. Commw. 48, 546 A.2d 1286 (1988) (case against school and employee dismissed; unclear whether employee sued in individual or official capacity), app. denied, 522 Pa. 598, 562 A.2d 322 (1989); Henley v. Octorara Area Sch. Dist., 701 F. Supp. 545, 552 (E.D. Pa. 1988) (because claims against officials are "in their official capacities, the claims are barred by the [Act]"); Boyer v. Pottstown Borough, 1994 U.S. Dist. LEXIS 10624, No. 94-1716 (E.D. Pa. July 19, 1994) (claim against individual officer can proceed, but not claim against borough).
From our reading of both the cited cases and cases from our own research, it appears that the Act only grants immunity to government officials being sued in their official capacities. Henley, 701 F. Supp. at 552; Lynch v. Johnston, 76 Pa. Commw. 8, 14, 463 A.2d 87, 90 (1983); Lynch v. Pierotti, 76 Pa. Commw. 15, 17, 463 A.2d 92, 93 (1983). Here, Plaintiffs sue the individual Methacton Defendants in both their individual and official capacities. For this reason, we find that the Act does not bar this action against the individual Methacton Defendants in their individual capacities, and DENY the individual Methacton Defendants' motion to dismiss Count IV on the basis of immunity.
5. QUALIFIED IMMUNITY
The individual Methacton Defendants assert that they are entitled to qualified immunity for all constitutional claims against them. The burden to show immunity is on the defendant. Stoneking, 882 F.2d at 726. The test for whether qualified immunity should be applied is whether:
(1) government officials
(2) performed discretionary functions