361 F. Supp. 3d 577
E.D. Va.2019Background
- Plaintiff, a Polish national and non-swimmer employed as a pool attendant by American Pool Inc., suffered a psychotic episode at work and repeatedly submerged himself in the deep end of the apartment complex pool on May 30, 2016.
- Lifeguard Brooks (coworker) and multiple police officers responded; officers cleared and locked the fenced pool area, leaving only plaintiff, Brooks, and officers inside.
- Brooks, a trained lifeguard, twice recovered plaintiff from the deep end; after a later submersion Brooks requested to enter the pool to rescue plaintiff but was initially ordered not to by police; police later permitted Brooks to dive in after about 2½–2¾ minutes, by which time plaintiff had been submerged and suffered cardiopulmonary arrest.
- EMTs revived plaintiff; he was hospitalized, diagnosed with bipolar disorder and psychosis, then returned to Poland.
- Plaintiff sued police defendants under 42 U.S.C. § 1983 (Fourteenth and Fourth Amendment claims) and for gross negligence, and sued Brooks and American Pool (pool defendants) in negligence. Defendants moved to dismiss.
- District court resolved motions on the pleadings: granted qualified immunity to police on due process/state-created-danger claim, rejected custody/seizure theories, dismissed gross negligence claim, and held Virginia Workers' Compensation Act (VWCA) provided exclusive remedy for negligence claims against pool defendants.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether police are entitled to qualified immunity on § 1983 substantive due process claim under state-created-danger | Police affirmatively increased risk by ordering Brooks not to rescue, so they violated clearly established due process rights | Police actions were not clearly unlawful; even if mistaken, officers had discretion and acted on safety concerns | Qualified immunity granted — plaintiff's asserted due-process right not "clearly established" under controlling precedent |
| Whether police violated substantive due process by failing to prevent plaintiff from entering pool (state must protect those in custody) | Police had duty to protect once they confined pool area; failure to prevent drowning violates due process | Plaintiff was not in state custody; DeShaney bars affirmative-duty claim absent custody | Claim fails — plaintiff was not in state custody, so no due-process right to protection arose |
| Whether police violated Fourth Amendment by "seizing" plaintiff by locking fence and directing patrons to leave | The confinement/authority constituted a seizure that allowed officers to detain and should have prevented harm | Plaintiff did not submit to a show of authority; no physical force or yielding = no seizure | Claim fails — no seizure occurred because plaintiff did not yield to police authority |
| Whether pool defendants' negligence claims are barred by VWCA exclusive remedy | Brooks' failure to timely rescue is tortious personal negligence, so civil claim lies | Injuries (near-drowning, cardiopulmonary arrest) arose out of and in course of employment, so VWCA is exclusive remedy | Counts dismissed for lack of jurisdiction — VWCA exclusive remedy applies (injury was accidental, arose out of and in course of employment) |
Key Cases Cited
- DeShaney v. Winnebago Cty. Dep't of Soc. Servs., 489 U.S. 189 (State generally has no affirmative duty to protect individuals absent custody)
- Pinder v. Johnson, 54 F.3d 1169 (4th Cir. 1995) (state-created-danger doctrine and limits where state merely fails to protect)
- Doe v. Rosa, 795 F.3d 429 (4th Cir. 2015) (state-created-danger doctrine is narrow; plaintiff must show state created or substantially enhanced danger through affirmative acts)
- Robinson v. Lioi, [citation="536 F. App'x 340"] (4th Cir. 2013) (recognition of a viable state-created-danger claim where officer’s affirmative acts enabled third-party murder)
- Ross v. United States, 910 F.2d 1422 (7th Cir. 1990) (denial of private rescue and active obstruction can defeat qualified immunity when no rational safety basis exists)
- Pearson v. Callahan, 555 U.S. 223 (district courts may decide qualified immunity before constitutional merits)
- Ashcroft v. al-Kidd, 563 U.S. 731 (clearly established rights require controlling precedent placing question beyond debate)