United States District Court, Middle District of Pennsylvania
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,
HANOVER TOWNSHIP, HANOVER AREA SCHOOL DISTRICT, DEFENDANTS.
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' deliberate indifference to, or
affirmative acts that increase the danger of, serious injury
from unjustified invasions of bodily integrity perpetrated by
third parties in the school setting." (Id., ¶¶ 40 and 54.)
The Complaint's third Count against each defendant purports to
assert liability for a policy practice or custom of:
a. deactivating the traffic control device.
b. sending the crossing guard home at 9:15 in the
c. of failing to have alternative safety arrangements
in place to protect those students who arrive late.
d. of denying access to the off-street parking area
in front of the Hanover Green Elementary School.
(Id, ¶¶ 56, 87.)
Finally, Count IV in the separate causes of action brought
against each defendant asserts a claim for punitive damages.
Plaintiffs aver that "the negligent, careless, reckless and
outrageous acts of the Defendant . . . evidence a total
disregard for the life, health and safety of the Plaintiff, Kyle
Brozusky, and constitute a willful and wanton misconduct on the
part of the Defendant." (Id., ¶¶ 60, 91.)
Defendants removed the state court action to this Court on
July 17, 2001, relying upon the existence of claims under
42 U.S.C. § 1983. Thereafter, each defendant moved separately to
dismiss Counts II through IV. The motions have been fully
briefed, and the matter is ripe for disposition.
A. Standard of Review
In deciding a motion to dismiss filed pursuant to Federal Rule
of Civil Procedure 12(b)(6), the Court must draw all reasonable
inferences from the facts pled in the complaint and construe
them in the light most favorable to the claimant. Unger v.
National Residents Matching Program, 928 F.2d 1392, 1400 (3d
Cir. 1991); Truhe v. Rupell 641 F. Supp. 57 (M.D.Pa. 1985). The
Court, however, "need not credit a complaint's `bald assertions'
or `legal conclusions' when deciding a motion to dismiss,"
Morse v. Lower Merion School
District, 132 F.3d 902, 905 (3d Cir. 1997) (quoting In re
Burlington Coat Factory Securities Litigation 114 F.3d 1410,
142930 (3d Cir. 1997)), and should reject "unwarranted
inferences" and "unsupported conclusions." Id. at 906, n. 8
(citing 5A Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 1357 (2d ed. 1997)). Thus, a
Rule 12(b)(6) motion does not serve to question a plaintiff's
well-pled facts, but rather tests the legal foundation of the
plaintiffs claims. United States v. Marisol, Inc., 725 F. Supp. 833,
836 (M.D.Pa. 1989). The Rule 12(b)(6) movant carries the
burden of showing the legal insufficiency of the claims
asserted. Johnsrud v. Carter, 620 F.2d 29, 33 (3d Cir. 1980).
A Rule 12(b)(6) motion will be granted only if "it appears
beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief."
Pennsylvania House, Inc. v. Barrett, 760 F. Supp. 439, 449-50
(M.D.Pa. 1991) (quoting Conley v. Gibson, 355 U.S. 41, 45-46,
78 S.Ct. 99, 2 L.Ed.2d 80 (1957)); see Brown v. Philip Morris,
Inc., 250 F.3d 789, 796 (3d Cir. 2001) ("[w]e may dismiss the
complaint only if it is clear that no relief could be granted
under any set of facts that could be proved consistent with the
B. Local Government Liability
"Section 1983 provides a remedy against `any person' who,
under color of state law, deprives another of rights protected
by the Constitution." Collins v. City of Harker Heights,
503 U.S. 115, 120, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992). Where, as
here, the plaintiff asserts a claim against a local governmental
entity, two fundamental issues are presented: "(1) whether
plaintiffs harm was caused by a constitutional violation, and
(2) if so, whether the [local government] is responsible for
that violation." The second inquiry is essential because "a
municipality cannot be held liable solely because it employs a
tortfeasor — or, in other words, a municipality cannot be held
liable under § 1983 on a respondeat superior theory." Monell
v. New York City Dept. of Social Services, 436 U.S. 658, 691,
98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (emphasis in original).
"Instead, it is when execution of a government's policy or
custom, whether made by its lawmakers or by those whose edicts
or acts may fairly be said to represent official policy,
inflicts the injury that the government as an entity is
responsible under § 1983." Id. at 694, 98 S.Ct. 2018. At the
pleadings stage, plaintiffs must allege that a practice, policy
or custom of the charged municipality "was a cause in fact of
the deprivation of rights inflicted." Leffall v. Dallas
Independent School District, 28 F.3d 521, 525 (5th Cir. 1994).
Defendants have each moved to dismiss the counts of the
complaint purporting to assert claims premised upon a
governmental "policy, practice or custom," arguing that "in
order to establish a § 1983 claim under a policy, practice or
custom theory, the underlying violative act must have been
committed by a state actor pursuant to the policy." (Hanover
Township Brief in Supp. of Motion to Dismiss (Dkt. Entry 5) at
unnumbered page 12.) In support of their position, defendants
cite the en banc Third Circuit decision in D.R. v. Middle
Bucks Area Vocational Technical School, 972 F.2d 1364, 1376 (3d
Cir. 1992), in which the court observed that liability premised
upon the establishment of a governmental "custom, practice or
policy" could not be sustained "because private actors committed
the underlying violative acts." Accord, Page ex rel. Page v.
School District of Philadelphia, 45 F. Supp.2d 457, 467 (E.D.Pa.
Significantly, plaintiffs concede that they "cannot sustain a
Cause of Action for a civil rights violation under the custom,
policy or practice theory of liability." (Brief
in Opp. to School District Motion to Dismiss (Dkt. Entry 10) at
16.) Accordingly, defendants are entitled to dismissal of the
third Counts asserted against each of them.
Plaintiffs' concession as to the lack of viability of its
"custom, policy or practice" theory of liability raises the
question of whether the justiciability of their statecreated
danger claims must be addressed. Plaintiffs' concession was
clearly not intended to cover the state-created danger claims
asserted against each of the governmental defendants. It has
been recognized that a local government may be held liable on a
"state-created danger" claim where the plaintiff shows that
policy-makers were plainly aware of the dangerous situation and
acquiesced in it. See Sciotto v. Marple Newton School
District, 81 F. Supp.2d 559, 574 (E.D.Pa. 1999). Plaintiffs
appear to be pursuing their state-created danger claims on this
premise. Accordingly, it is appropriate to determine whether the
facts alleged in the Complaint support a cause of action for
denial of due process based upon a state-created danger theory.
C. State Created Danger Claims
Plaintiffs' civil rights claims against Hanover Township and
the School District rest on the Due Process Clause of the
Fourteenth Amendment, and, in particular, its substantive
component. As expressed in DeShaney v. Winnebago County
Department of Social Services, 489 U.S. 189, 195, 109 S.Ct.
998, 103 L.Ed.2d 249 (1989), the substantive aspect of the due
process clause is "a limitation on the State's power to act, not
. . . a guarantee of certain minimal levels of safety and
security." Stated otherwise, the intent of the Due Process
Clause is "to protect the people from the State, not to ensure
that the State protects them from each other." Id. at 196, 109
S.Ct. 998. As explained in Pope v. Trotwood-Madison City School
District Board of Education, 162 F. Supp.2d 803, 808 (S.D.Ohio
2000) (internal citations omitted):
The core concept of due process is protection against
arbitrary government action. Thus, in order to state
a claim under the substantive due process component
of the Fourteenth Amendment, the Plaintiff must
allege facts sufficient to support a finding that the
Defendants engaged in conduct that is "arbitrary, or
conscience-shocking, in a constitutional sense." Only
the most egregious official conduct will satisfy this
standard. Indeed, the Supreme Court has made clear
that the substantive component of the Due Process
Clause does not "impose liability whenever someone
cloaked with state authority causes harm." More
specifically, the Court has recognized that the
Fourteenth Amendment "is not a font of tort law to be
superimposed upon whatever systems may already be
administered by the States." As a result, the Court
has rejected "customary tort liability as any mark of
sufficiently shocking conduct, and [it has] held that
the Constitution does not guarantee due care on the
part of state officials; liability for negligently
inflicted harm is categorically beneath the threshold
of constitutional due process."
Consistent with its reluctance to expand the concept of
substantive due process, the Supreme Court refused to sanction
liability against a municipal defendant on the theory that it
had a "`custom and policy of deliberate indifference toward the
safety of its employees.'" Collins, 503 U.S. at 117, 112 S.Ct.
1061. In Collins, a sanitation department employee sustained
fatal injuries after entering a manhole to unstop a sewer line.
The decedent's widow complained that the city had a custom and
policy of failing to train its employees about the dangers of
working in sewer lines, not providing adequate safety
equipment, and not providing adequate warnings, Plaintiff
alleged that the city had notice of the risks of entering sewer
lines as a result of a prior accident. The Court construed the
Complaint as presenting two theories: "that the Federal
Constitution imposes a duty on the city to provide its employees
with minimal levels of safety and security in the workplace, or
that the city's `deliberate indifference' to Collins' safety was
arbitrary government action that must `shock the conscience' of
federal judges." Id. at 126, 112 S.Ct. 1061.
Describing the first theory — that a municipality has a
constitutional obligation to afford its employees with minimal
levels of safety and security — as "unprecedented," the Court
ruled that "[n]either the text nor the history of the Due
Process Clause supports petitioner's claim that the governmental
employer's duty to provide its employees with a safe working
environment is a substantive component of the Due Process
Clause." Id. The Court also held that the alleged failure to
train or warn of known risks could not "properly be
characterized as arbitrary, or conscience-shocking, in a
constitutional sense." Id. at 128, 112 S.Ct. 1061. In support
of this conclusion, the Court explained:
Petitioner's claim is analogous to a fairly typical
state-law tort claim:
The city breached its duty of care to her husband by
failing to provide a safe work environment. Because
the Due Process Clause "does not purport to supplant
traditional tort law in laying down rules of conduct
to regulate liability for injuries that attend living
together in society," we have previously rejected
claims that the Due Process Clause should be
interpreted to impose federal duties that are
analogous to those traditionally imposed by state
Id. at 128, 112 S.Ct. 1061 (internal citations omitted).
Collins appears to control the outcome of this case. The
fact that Collins concerned a claim against a municipality as
an employer, while this action concerns the status of the
defendant as, in one case, an educator, and in the other case, a
municipality with obligations for roadway safety, does not alter
the fundamental analysis employed in Collins. Indeed, the
Supreme Court criticized the lower court's analysis that rested
on the status of the victim as an employee as opposed to an
"ordinary citizen over whom [the city] exercised governmental
power," noting that "[t]he employment relationship . . . is not
of controlling significance." Id. at 119, 112 S.Ct. 1061. The
Court went on to explain that the analysis should remain the
same regardless of the status of the injured party, stating that
"it would seem that a claim by . . . a pedestrian should be
analyzed in a similar manner as the claim by this petitioner."
Id. Thus, the Court's twin holdings on the liability theories
— (1) that there is no constitutional obligation to provide a
safe environment to persons who are not in the custody of the
state, and (2) that allegations of failure to train or warn or
guard against known risks, despite being labeled as "deliberate
indifference," cannot "be characterized as arbitrary, or
conscience-shocking, in a constitutional sense," id. at 128,
112 S.Ct. 1061 — are equally applicable here. Neither Hanover
Township nor the School District owed an obligation of
constitutional dimension to assure the safety of students coming
to the school by private vehicle. Moreover, the bald
characterizations of "deliberate indifference" and "willful
disregard" do not transform the underlying omissions to remedy
an alleged unsafe condition into arbitrary or
conscience-shocking conduct in a constitutional sense.
Buttressing this conclusion is the following rationale from
Our refusal to characterize the city's alleged
omission in this case as arbitrary
in a constitutional sense rests on the presumption
that the administration of government programs is
based on a rational decisionmaking process that takes
account of competing social, political, and economic
forces. Decisions concerning the allocation of
resources to individual programs, such as sewer
maintenance, and to particular aspects of those
programs, such as the training and compensation of
employees, involve a host of policy choices that must
be made by locally elected representatives, rather
than by federal judges interpreting the basic charter
of government for the entire country.
Id. at 128-29, 112 S.Ct. 1061.
The "presumption that the administration of governmental
programs is based on a rational decisionmaking process that
takes account of competing social, political, and economic
forces," id. at 128, 112 S.Ct. 1061, also compels the
conclusion that the actions and omissions at issue in this case
cannot be regarded as arbitrary in a constitutional sense.
Whether to provide access from a heavily-traveled roadway to a
parking area in front of a school, whether to station a crossing
guard at times other than the normal time for arriving at and
departing from school, and whether to install traffic controls,
involve allocation of resources and other considerations that
are best left to locally elected representatives as opposed to
the federal judiciary applying the fundamental guarantees of our
Constitution.*fn3 "While the measure of what is conscience
shocking is no calibrated yard stick," County of Sacramento v.
Lewis, 523 U.S. 833, 847, 118 S.Ct. 1708, 140 L.Ed.2d 1043
(1998), the Court's decision in Collins forecloses a finding
of conscience-shocking activity based upon the averments of the
Complaint in this case.
Collins, of course, did not involve a state-created danger
theory. It was, however, a substantive due process case.
Conscience-shocking conduct is a prerequisite for any
substantive due process claim. See Miller v. City of
Philadelphia, 174 F.3d 368, 374-75 (3d Cir. 1999).
As framed by our Court of Appeals, there are four elements to
a statecreated danger claim: (1) the harm ultimately caused was
foreseeable and fairly direct; (2) conduct by a state actor in
willful disregard for the safety of the plaintiff; (3) some
relationship between the state and the plaintiff; and (4) the
state actors used their authority to create an opportunity that
otherwise would not have existed for the third party's crime to
occur. Morse v. Lower Merion School District 132 F.3d 902, 908
(3d Cir. 1997). The standard of liability — willful disregard
for the safety of the plaintiff — was articulated prior to the
Supreme Court's decision in Lewis and our Court of Appeals'
ruling in Miller, which recognized that, in all substantive
due process cases, the plaintiff must show that the actor's
behavior shocks the judicial conscience. In Pahler v. City of
Wilkes-Barre, 31 Fed.Appx. 69, 2002 WL 389302 (3d Cir. 2002)
(unpublished), our Court of Appeals agreed with the ruling of
Judge Nealon of this Court that the second factor set forth
above — willful disregard for the victim's safety — "has been
modified by the `shocks the conscience' standard, and what rises
to that level will ultimately depend on the factual scenario of
the case at hand." Id. at 71, 2002 WL 389302, at *2. While the
Third Circuit ruling in Pahler is not entitled to precedential
effect, it is instructive. Moreover, other courts who have
addressed this issue have concluded that conscience-shocking
conduct is an essential element of a claim based upon the
state-created danger theory. See, e.g., Ewolski v. City of
Brunswick, 287 F.3d 492, 510 (6th Cir. 2002), S.S. v.
McMullen, 225 F.3d 960, 964 (8th Cir. 2000) (en banc.)
Other courts confronting state-created danger claims have
refused to expand the concept of substantive due process to
cover a state actor's judgement call as to the allocation of
resources on matters pertaining to safety. For example, in
Pahler, supra, the plaintiff was accidentally shot by another
law enforcement officer while conducting a drug raid. Plaintiff
claimed that the failure to utilize the city's Emergency
Services Unit, which had been specifically trained for such
operations, reflected a deliberate disregard for the safety of
the officers conducting the raid. Both Judge Nealon of this
Court and our Court of Appeals summarily concluded that the
decision not to use the Emergency Services Unit to maximize the
safety of the officers participating in the drug raid did not
reflect such deliberate indifference as to shock the judicial
In Pope, supra, the plaintiff advanced a state-created
danger theory in support of a claim arising out of a student's
accidental death during voluntary basketball tryouts. The
student had run head first into a wall located only five feet
from the end-line of a basketball court. Pertinent standards
suggested that the distance between the end-line and the wall
should have been at least ten feet. Plaintiff claimed that the
defendants were deliberately indifferent to the hazard posed by
the proximity of the wall to the end-line. Relying upon
Collins, the court ruled that even if the injury was
foreseeable and even if the defendants had created an
opportunity for harm, the Complaint's averments did not suggest
conduct that was arbitrary or conscience-shocking in a
In Leffall, supra, the plaintiffs' daughter was accidentally
and fatally shot while attending a dance held on school grounds.
Plaintiffs alleged that the School District had been warned that
students often fired handguns randomly and recklessly at such
events. The court ruled that the decision to sponsor the dance
despite knowledge of the dangers could not be said to rise to
the level of deliberate indifference sufficient to shock the
conscience. Id. at 531-32.
Consistent with the analyses in Collins and the foregoing
cases, I find, as a matter of law, that the alleged actions and
omissions of the municipal entities in this case do not shock
the conscience. Such a determination is compelled by "(1) the
need for restraint in defining the scope of substantive due
process claims; (2) the concern that § 1983 not replace state
tort law; and (3) the need for deference to local policymaking
bodies in making decisions impacting public safety." Ruiz v.
McDonnell, 299 F.3d 1173, 1184 (10th Cir. 2002).
Even if the Complaint were sufficient to allege
conscience-shocking conduct, dismissal would nonetheless be
warranted because it does not satisfy another essential element
of the state-created danger theory — "the state actors used
their authority to create an opportunity that otherwise would
not have existed for the harm to occur." Kneipp v. Tedder,
95 F.3d 1199, 1208 (3d Cir. 1996).
In D.R. supra, public high school students allegedly
molested by other students in a unisex bathroom and a darkroom
that were part of a graphic arts classroom brought an action
under the state-created danger theory. One of the plaintiffs'
claims was that the state had increased the danger to the
students by constructing a unisex bathroom and a darkroom closed
off from the main classroom. Affirming the dismissal of the
complaint, the court ruled that the defendants had not "created
or increased plaintiffs' risk of danger by
constructing and maintaining the graphic arts classroom with its
particular physical layout." 972 F.2d at 1375.
In Roberson v. City of Philadelphia, Civ. A. No. 99-3574,
2001 WL 210294, 2001 U.S.Dist. LEXIS 2163 (E.D.Pa. March 2,
2001), the court held that the decision of police officers to
leave a scene to which they had been summoned as a result of a
disturbance could not result in liability under the
state-created danger theory because "the officers' decision to
leave did not create the danger the plaintiffs faced. . . ."
Id. at * 39, 2001 WL 210294, *12. Instead, the dangerous
condition — threats from acquaintances — existed before the
In Solum v. Yerusalim, No. Civ. A. 984056, 1999 WL 395720
(E.D.Pa. June 17, 1999), plaintiffs brought an action arising
out of the death of their daughter in an automobile accident.
Plaintiffs sought to recover under the state-created danger
theory based upon an alleged failure to design and maintain a
roadway in a safe condition. Plaintiffs claimed that the
numerous accidents in the area showed deliberate indifference on
the part of the defendants. The court rejected the claim,
observing in language particularly apropos here:
Plaintiffs' complaint attempts to convert a very
unfortunate automobile accident into a constitutional
claim. While the events complained of had tragic
consequences, no defendants affirmatively created a
danger within the scope of DeShaney and subsequent
decisions. Defendants cannot be held liable for the
actions of which plaintiffs complained. The solution
to a situation like this is through the political not
the judicial process.
Id. at * 6.
In this case, the danger faced by Kyle Brozusky was being
dropped off on the far side of Main Street from the school
building. Neither defendant required that Kyle be dropped off on
that side of the street. Main Street was a two-way roadway, and
there does not appear to be any reason why Kyle's grandfather
could not have dropped him off on the side of the street nearest
the school, where he would not have had to cross any traffic. As
pointed out by Hanover Township, "even if the defendant remedied
all of the alleged hazardous conditions set forth in Plaintiffs'
Complaint, the same opportunity for harm existed as [the third
party's] negligent driving, the minor Plaintiffs negligence, and
the minor Plaintiffs grandfather's negligence would not
necessarily have been affected by a change in the roadway or the
surrounding conditions." (Hanover Township Brief in Supp. of
Motion to Dismiss (Dkt. Entry 5) at unnumbered page 10, n.
The Supreme Court has warned against expansions of liability
under 42 U.S.C. § 1983 that "would trivialize the centuries-old
principle of due process of law."
Daniels v. Williams, 474 U.S. 327, 332, 106 S.Ct. 662, 88
L.Ed.2d 662 (1986). Recognition of liability under the
circumstances presented here would have such an unsound effect.
Plaintiffs may pursue claims under state tort law, but any
shortcomings in that law cannot be remedied by converting garden
variety tortious conduct into the denial of substantive due
process.*fn5 Accordingly, defendants' motion to dismiss the
second Count of the separate causes of action asserted against
each of them will be granted.*fn6
For the reasons set forth above, the defendants' motions to
dismiss Counts II, III and IV of the separate causes of action
asserted against each will be granted. There remains, therefore,
only plaintiffs' claims of negligence under Pennsylvania law. As
discovery has been stayed pending the resolution of the motions
to dismiss, and this case thus remains in its early stages,
exercise of supplemental jurisdiction over the state law claims
will be declined. See 28 U.S.C. § 1367(c)(3) (district court
may decline to exercise supplemental jurisdiction if it has
dismissed all claims over which it has original jurisdiction);
Queen City Pizza, Inc. v. Domino's Pizza, Inc., 124 F.3d 430,
444 (3d Cir. 1997), cert. denied, 523 U.S. 1059, 118 S.Ct.
1385, 140 L.Ed.2d 645 (1998); Stehney v. Perry, 101 F.3d 925,
939 (3d Cir. 1996). Accordingly, this matter will be remanded to
the Court of Common Pleas of Luzerne County.