The opinion of the court was delivered by: Vanaskie, Chief Judge.
The dispositive issue in this case is whether local government
entities may be held liable under 42 U.S.C. § 1983 for failing
to take action that purportedly would have minimized the risk of
a child being struck by an automobile when arriving late for
school. While there may be liability under the state law of
negligence, the alleged failure of defendants Hanover Township
and the Hanover Area School District (the "School District") to
protect the minor plaintiff from the negligence of third-party
motorists does not violate the Due Process Clause of the
Fourteenth Amendment. Accordingly, the defendants' motions to
dismiss the civil rights claims asserted against them will be
granted and, as this case had been removed to this Court because
of the assertion of those federal civil rights claims, the
action will be remanded to the Court of Common Pleas of Luzerne
County for adjudication of the remaining state law claims.
The Complaint, the averments of which are accepted as true for
purposes of deciding the pending motions to dismiss, alleges
that in April of 1999 Kyle Brozusky, who was then seven years of
age, was a student at the Hanover Green Elementary School
located along Main Street in Hanover Township,
Pennsylvania.*fn1 A paved parking lot in front of the school
building was surrounded by a fence. There was no access to the
parking area from Main Street, but there was an entry point
along a side street. A gate controlling the access to the
parking lot from the side street was locked at 8:30 a.m.*fn2
Due to the lack of
access to the paved parking area, students who were driven to
the school were dropped off on Main Street, a heavily-traveled
two way road.
The Complaint further alleges that work was done on the paved
parking area in front of the school in 1987 and 1988, but
nothing was done to provide access to the paved parking area
from Main Street. Construction work at the school was also
undertaken in 1995, but once again nothing was done to allow
access to the paved parking area from Main Street.
There was a crosswalk in front of the school across Main
Street, along with a flashing safety control device. In
addition, a crossing guard was stationed at the crosswalk during
the time of day when students arrived for and departed from
On April 28, 1999, at approximately 9:18 a.m., the minor
plaintiff, Kyle Brozusky, was brought to the school by his
grandfather following an appointment at a dentist. Kyle's
grandfather stopped his vehicle in the northbound lane of Main
Street, which is on the opposite side of the street from the
school building. Kyle exited his grandfather's vehicle, and
proceeded around its front to cross the street while his
grandfather remained in the vehicle. As Kyle proceeded to cross
the street, a pick-up truck, also proceeding in a northerly
direction, swerved around the grandfather's vehicle and struck
Kyle, causing him to suffer serious injuries.
At the time of the accident, the crossing guard was no longer
stationed at the cross walk. Furthermore, the flashing safety
control device had either been turned off before 9:18 a.m. or
was not working on the date of the accident.
Plaintiffs commenced this action by the issuance of a writ of
summons in the Court of Common Pleas of Luzerne County on
November 17, 2000. The only named defendants are Hanover
Township and the Hanover Area School District. Plaintiffs filed
their Complaint in the Luzerne County Court on June 21, 2001.
The Complaint contains two "Causes of Action," one against
each defendant, with four separate Counts being asserted against
each of the defendants. Count I against each defendant asserts a
claim for relief under common law negligence principles. That
Count is not at issue on defendants' motions to dismiss.
Count II seeks recovery under 42 U.S.C. § 1983 on the theory
that Hanover Township and the School District violated the
protection against arbitrary governmental action afforded by the
substantive component of the Due Process Clause of the
Fourteenth Amendment by creating the dangerous condition that
was directly responsible for the accident that caused Kyle
Brozusky's injuries. In support of their state-created danger
theory, the plaintiffs allege:
That the wrought iron fence that surrounded Hanover
Green Elementary School on Main Street constituted
state created dangers consisting of the following:
a. In failing to provide a driveway, gate or other
access in the wrought iron fence surrounding the
off-street parking area in front of the Hanover
Elementary school from Main Street [to] allow
ingress and egress to persons dropping children off
at the Hanover Elementary School.
b. In failing to provide an alternative off-street
parking area so that parents can drop children off
at the Hanover Green Elementary School.
c. In failing to have a safety plan in effect to
protect students who arrive late at the Hanover
Green Elementary School.
d. In failing to have the traffic control device
operating at all times during the school day so as
to protect students who arrive late at the Hanover
Green Elementary School.
e. In allowing the crossing guard to leave at 9:15
in the morning and not having an alternative safety
plan when they know that a student is arriving late
on that day.
(Complaint, ¶¶ 43, 74.) The Complaint furthers avers that both
Hanover Township and the School District failed to correct the
alleged dangerous condition caused by the fencing of the parking
area when renovations to the school were undertaken in 1987-88
and 1995. Plaintiffs claim that the failure to provide access to
cars from Main Street to the paved parking area constituted
"deliberate indifference" to Kyle's constitutionally-protected
interests. (Complaint, ¶¶ 44-45, 75-76.) In this regard,
plaintiffs assert that Kyle "had a clearly established
constitutional right . . . [t]o be free from school officials'
deliberate indifference to the danger of serious injury caused
by invasions of his right to bodily integrity perpetrated by
third parties," as well as "a liberty interest . . . to freedom
from school officials' ...