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BROZUSKY EX REL. BROZUSKY v. HANOVER TP.

September 20, 2002

KYLE BROZUSKY, A MINOR IN HIS OWN RIGHT AND BY AND THROUGH HIS PARENT AND NATURAL GUARDIAN JOLENE BROZUSKY, JOLENE BROZUSKY, INDIVIDUALLY PLAINTIFFS,
V.
HANOVER TOWNSHIP, HANOVER AREA SCHOOL DISTRICT, DEFENDANTS.



The opinion of the court was delivered by: Vanaskie, Chief Judge.

MEMORANDUM

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.

I. BACKGROUND

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 school.

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' ...


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