OPINION
This case arises out of injuries sustained at a local high school football training camp in 2009. The Plaintiff, then an incoming high school freshman,
Using 42 U.S.C. § 1983, he has sued the South Fayette School District and at least some of its football coaches, alleging federal (and. state) constitutional claims. He has also sued the involved upperclassman and his parents for several state law torts. After removing the case to this Court from state court, all Defendants moved to dismiss the Complaint for failure to state a claim. For the reasons that follow, Plaintiffs federal claims will be dismissed in their entirety, but with leave to amend certain of them. Some of the state law claims .will also be dismissed. Should Plaintiff decline to amend his Complaint on the federal claims or they otherwise subsequently fail, the remaining state law claims will be remanded to the Court of Common Pleas of Allegheny County for disposition. 28 U.S.C. § 1367(c).
1. BACKGROUND
The events underlying this ease occurred during a high school football training camp conducted by the South Fayette High School football team in May, 2009, for the students playing on the team that upcoming fall ECF No. 1-1, at ¶ 14.
Plaintiff alleges that Mr. McElhinny’s conduct was not only lauded by the other players and the coaches, id. at ¶25, but that the School District Defendants in fact “set up the drill in such a way that much smaller, ' inexperienced underclassmen would be pitted against larger, stronger, more experienced upperclassmen.” Id. at ¶ 17. Mr. Dorley claims that larger upperclassmen “would frequently exceed the scope of the drill” and that the School District Defendants “created an atmosphere that encouraged violence” by instructing upperclassmen to “exhibit their dominance, strength and aggression on the underclassmen in order to ‘toughen them up.’ ” M at ¶¶ 18-19. ; Mr. Dorley also alleges “[t]he entire coaching staff ... was watching attentively as the aforementioned events occurred, and witnessed plaintiffs injuries.” Id, at ¶28. He further states that after injuring him, Mr. McElhinny and other upperclassmen “mocked plaintiff for his reaction.” Id. at ¶ 26. The Complaint also alleges that the coaches “observed and encouraged similar [aggressive] behavior during the same drill” during the days of training camp leading up to the date on which Plaintiff was injured. Id. at ¶ 32.
Mr. Dorley filed his Complaint in the Court of Common Pleas of Allegheny County, Pennsylvania. This action was removed to this Court and filed on its docket on February 17, 2015. ECF No. 1. The Complaint asserts ’eleven (11) counts: Counts I-VI are claims brought via- 42 U.S.C. § 1983 against the School District Defendants for various Fourteenth Amendment Due Process Clause violations, specifically asserted claims for Injury to Human Dignity, Injury to Bodily Integrity, and Injury as a Result of a State Created Danger/Speeial Relationship. Count VII asserts a violation of Pennsylvania’s Constitution for Injury to Bodily Integrity. Counts VIII-X contain state law claims against Mr. McElhinny for Battery, Intentional Infliction of Emotional Distress (“IIED”) and Negligence, and Count XI is a state law claim against Mr. McElhinny’s parents (“Parent Defendants”) alleging Negligence and Vicarious Liability for their son’s acts. All Defendants have filed Motions to Dismiss. ECF Nos. 5; 9. The Court has reviewed the Motions, the, parties’ briefs in support of and in opposition to- them as well as supplemental briefs on the issue of qualified immunity, and heard oral argument on the matter.
II. LEGAL STANDARD
A complaint which fails.to state a claim upon which relief may be granted is properly dismissed. Fed.R.Civ.P. 12(b)(6). Courts assessing the sufficiency of a complaint must “accept all of the complaint’s well-pleaded-facts as true, but may disregard any legal conclusions.” Fowler v. UPMC Shadyside,
III. DISCUSSION
The Court will first consider Mr. Dorley’s federal claims against the School District Defendants, and will then turn to his state law claims against the Student Defendant and Parent Defendants. All federal claims are asserted solely against the School District Defendants, while the state law tort claims are asserted only against Mr. McElhinny and his parents.
A. Fourteenth Amendment Due Process Claims (Counts I-VI) and Application of the Qualified, Immunity Doctrine
The federal claims in Plaintiffs Complaint assert several theories of liability. Any such federal claim must allege that a plaintiff was deprived of a right secured by the Constitution or laws of the United States by a person acting with the authority of state law.
The Fourteenth Amendment provides procedural and substantive protections to citizens by ensuring that states shall not “deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. At issue is whether Mr. Dorley has adequately alleged a substantive due process violation against the School District Defendants for the injuries he sustained while participating in a football training camp drill.
As an initial matter, the Court observes that our Court of Appeals has yet to expressly recognize or reject in a precedential opinion any claim which rises to the level of a substantive due process violation in regard to physical injuries caused by a fellow student in the interscholastic sports context.
Here’s why.
The Supreme Court expects lower federal courts to act as gatekeepers when it comes to defining or expanding substantive due process protections. See Collins v. City of Harker Heights, Tex.,
That said, as noted above, our Court of Appeals has not benched substantive due process claims. involving injuries arising from school sports, and there is some support for them in its non-precedential opinions. See Patrick v. Great Valley Sch. Dist.,
The Court concludes that in the absence of a precedential Circuit opinion definitively holding whether school sports injury cases can or cannot (and if so, under what circumstances may) include a substantive due process claim, unpublished Court of Appeals cases do provide some guidance regarding the reasoning our Court of Appeals would counsel applies in similar circumstances, as does that court’s observations in Spady about when such liability has been recognized. The prudent- course here is to give due regard to the analyses of those'decisions, along with those of the numerous opinions of the district courts within bur . Circuit addressing similar claims in similar settings;
As in other official conduct § 1983 cases, the Court is also obligated to bear in mind that qualified immunity shields government officials from liability for. civil damages unless the official’s conduct “violate[s] clearly established statutory or com stitutional rights of which a reasonable person would have known.” Estate of Lagano v. Bergen Cnty. Prosecutor’s Office,
The Court asked for, and received, submissions from the parties on the application of qualified, immunity here. ECF Nos. 22; 23; 24; 25. The Court concludes that application of that doctrine will be far better - measured against more precisely articulated claims after any potential amendment of the Complaint. In fact, a focus on definitional precision is directed by Spady,
That all said, the Court will now explain why the Complaint as pled fails to allége the deprivation of a federal right.
2. Human Dignity Claims
Counts I and IV allege violations of Plaintiffs “right to human dignity” under the Fourteenth Amendment. The School District Defendants contest the very existence of an actionable “right to human dignity” under the Fourteenth Amendment, at least in this context. ECF Nosi 10, at 5 n. 1; 16, at 2-3. Plaintiff does not
This thread of Fourteenth Amendment substantive jurisprudence exists, but it does so principally in coerced custodial or penal settings. While Plaintiff does cite several cases that usé the words “human dignity,” each is inapposite to the facts of this case, since each deals with conditions or actions taken -with regard to penal incarceration. See ECF No. 15, at 6-7 (citing Rochin v. California,
Plaintiff also cites to the report and recommendation in Alt v. Shirey, No. 11-468,
There it was alleged that a high school football player was involved in a “helmet to helmet” on-field collision, leaving him clearly disoriented, aimlessly walking the sideline. Id. at *2. Teammates reported his erratic behavior to the coaches. Id. He was then ordered by a coach to reenter the game, and to intentionally “blow[ ] up” an opponent, which he did, causing that player further and palpably visible serious cognitive injury, putting him into a “drunken state.” Id. It was alleged that the -defendant coaches knew all of this, and simply brushed the matter off, urging the plaintiffs mother to take him home and “put him, to bed.” Id. at *3. Against that backdrop, Chief Judge Lenihan recommended a conclusion that these allegations as pled had crossed the line from “possible” to “plausible” as sufficiently egregious so as to “shock the conscience,” and offend judicial notions of fairness. Id. at *7.
While in those circumstances, it might be said that the defendants’ knowing actions in the face of existing severe physical injuries could plausibly be said to “shock the conscience” and offend human dignity, in the Court’s estimation, the factual allegations as pled here fall short of the “intentional disregard of actual injury/specific direction to cause injury” scenario in Alt. To be sure, Plaintiffs allegations paint a picture of adults arranging a situation where there was a risk of injury, but as explained further below, the allegations here also include contrary assertions that
2. Right to Bodily Integrity and State-Created Danger Claims
Counts II and V allege violations of Plaintiffs right to bodily integrity under the Fourteenth Amendment. The Court concludes that in the context of this case, there is no analytical distinction between this type of claim and those asserted in Counts III and VI, which allege injuries resulting from a “state-created danger.” This is because the state-created danger doctrine is one theory used to assert a claim for harm to one’s bodily integrity— the deprivation of bodily integrity does not have distinct legal standing on its own. See Phillips v. Cnty. of Allegheny,
Turning to the merits of the state-created danger counts, the’ Court concludes that as pled, they do not state a cause of action. However, Mr. Dorley. will be granted leave to amend his Complaint because a curative amendment would not'necessarily be futile as a matter of law. See Phillips v. Cnty. of Allegheny,
To assert a claim under the state-created danger doctrine, plaintiffs must show that: '
(1) the harm ultimately caused was foreseeable and fairly direct; (2) a state actor acted with a degree of culpability that shocks the conscience; (3) a relationship between the state and the plaintiff existed such that the plaintiff was a foreseeable victim of the defendant’s acts ... and (4) ,a state actor affirmatively used his or her authority in a way that created a danger to the citizen or that rendered the citizen more, vulnerable to danger than had the state not acted at all.
Bright v. Westmoreland Cnty., 443, F.3d 276, 281 (3d Cir.2006) (footnotes and quotation marks omitted). The School District Defendants challenge each element except the third.
The Court concludes that taking the facts alleged in the Complaint as true and drawing all reasonable inferences in Mr. Dorley’s favor, the Complaint is deficient as it relates to the first prong.. Mr. Dorley alleges that the individual School District Defendants were varsity football coaches, ECF No. 1-1, at ¶¶ 3-5, and that during football training camp they “created an. atmosphere that encouraged violence” by instructing upperclassmen to “exhibit their dominance, strength and aggression on the underclassmen in order to ‘toughen them up,’ ” id. at ¶¶ 18-19. Mr. Dorley contends that they did so by “set[ting] up [a blocking] drill [conducted without pads] in such a way that much smaller, inexperienced underclassmen would be pitted against larger, stronger, more experienced upperclassmen,” and that upperclassmen “would frequently exceed the scope of the drill ... and use excessive and unnecessary force in doing so.” Id. at ¶¶ 17-18.
These allegations as currently pled do not clear the Rule 12(b)(6) hurdle. While the claims do sufficiently allege that there was -no inordinate amount of time between the Defendants’ alleged establishment of the drill and Mr. Dorley’s injuries, there is a question as to whether the risk of harm was foreseeable. Although Mr, Dorley alleges that the cpaches “had observed and encouraged similar behavior during the same drill, characterized by large and overly aggressive , upperclassmen pitted against much smaller underclassmen,” id. at ¶ 32, the Complaint contains no allegation that any harm resulted from the drill prior to Mr. Dorley’s injury, nor any other indicia of foreseeable likelihood of Plaintiffs injury. Indeed, as to this point, the Complaint actually directly contradicts itself, stating on one hand that the coaches devised a dangerous drill, but then on the other that the drill by design “was not supposed to be done at full speed, and was described in advance by [the- School District Defendants] as ‘non-contact,’ ” id. at ¶ 16, and that in fact the Student Defendant exceeded the scope of that drill, id.,at ¶¶23; 103, If the coaches were not on some plausible notice of the concrete risk of a sufficiently serious injury, their actions would not satisfy the first prong of the test. Henry,
Further, given this internal contradiction, there are not at this point plausible facts pled which would allow the Court to infer that the coaches had actual knowledge which would put them on notice that conducting this “non-contact by design” drill would nonetheless result in injury to students.. Cf. M. U.,
The second element of the state-created danger analysis asks whether a plaintiff has plausibly pled that a defendant’s culpability “shocks the conscience.” Bright,
The coaches in this case were seemingly not acting in a “hyperpressurized environment,” such as a high speed car chase. Instead they operated in an environment where they could make “unhurried judgments” about the types of drills conducted at the football training camp and their actions with respect to those drills. - Instead the deliberate indifference standard governs their actions here, Walter v. Pike Cnty., Pa.,
As with-the first prong, the allegations in the Complaint as pled are deficient when considering the second prong of the state-created danger test. The Court cannot say as a matter of law that the facts pled “evince a willingness to ignore a foreseeable danger or risk,” Morse,
For instance, if this was the first time any injury had resulted from the drill it may b.e difficult to say that the coaches were . deliberately indifferent such that they “consciously disregarded] a substantial risk of serious harm.” Kaucher,
Why is this so? As a general matter, it is not necessarily-negligent, let alone indicative of deliberate indifference, to run a football camp with players of differing sizes confronting one another. That a drill pits larger players against smaller ones alone is insufficient — that is often what happens in football games — and it is especially the norm when the drill is pled to have been designed to be performed without contact.
The Complaint also asserts insufficient plausible facts which might otherwise sup
In considering the claims against both the School District Defendants and the Student Defendant, the Court notes that, as a general matter, pleading inconsistent claims is permissible under the Federal Rules of Civil Procedure. See Fed.R.Civ.P. 8(d)(3) (“A party may state as many separate claims or defenses as it-has, regardless of consistency.”). However; inconsistent allegations “must still have a plausible basis grounded in fact.” Kovach v. Turner Dairy Farms, Inc.,
Measured against that standard, the Court has doubts as to whether each of two (2) separate (and arguably inconsistent) pleading “theories” advanced by the Plaintiff is plausible as now pled. The first theme pled is that the drill was designed as a low-speed, no pads, non-contact drill, ECF No. 1-1 at ¶¶ 15-16, and that the Student Defendant, Mr.'McElhinny, “exceeded thé scope” of the drill, id. at ¶ 103 (and presumably exceeded the scope of the coaches’ instructions “in advance” of the drill that it should be “non-contact,” id. at ¶ 16), by “lung[ing] full speed into plain
Although it is possible that both of these arguments could be true under a given set of facts, one’s truth may so significantly undermine the other so as to render at least one theme (if not both)-implausible. If the Student Defendant actually exceeded the scope of the drill as established by the coaches (which Plaintiff specifically pleads was described by the coaches as “no contact,” id. at ¶ 16, making it reasonable to conduct the drill without pads and helmets), then there is no obvious logical or plausible basis to conclude that the Defendant coaches acted with deliberate indifference to a foreseeable risk of harm in setting up the drill in the first place. By the same token, if the coaches specifically designed the drill to make it excessively dangerous by making it full contact/no pads (either intentionally or with a knowing wink), then it would be a very unusual situation in which a student athlete would be personally liable for following his coaches’ instructions during football practice.
Of course, these claims are not necessarily inconsistent in all conceptions. Is it possible to plead some combination of these theories of liability in such a way that they may coexist? Yes. It is possible that the coaches affirmatively designed a dangerous drill and then acted with deliberate indifference when implementing that drill at the training camp, and that the Student Defendant also went beyond the scope of the coaches’ instructions, dangerous in and of themselves.' But that is not what the Plaintiff pleads here. In the Court’s estimation, the Plaintiffs current pleading asserts theories and detailed facts so inherently in tension with one another that they lack the requisite plausibility to withstand the Motion to Dismiss as to the first and second prongs of the state-created danger test.
The fourth element of the state-created danger test requires an affirmative act on the part of a state official to place a plaintiff in danger. Bright,
In assessing the facts- as pled in the Complaint, the Court concludes that
To sum up, the Complaint falls short as to whether the drill and the manner in which the coaches implemented it actually presented a foreseeable and fairly direct risk of harm. (Prong One), and/or whether the alleged conduct amounted to deliberate indifference such that the coaches’ conduct was patently egregious (Prong Two). On a football field (practices and games), larger players will be pitted against smaller players. Because of this, reality, smaller players require (and will have) experience competing in some fashion against larger players. Such a structure is not inherently suspect, and a real world drill involving, such disparate students, but that does not have such a foreseeable risk of serious injury to which the coaches and School District were deliberately indifferent, would not trigger Fourteenth Amendment “bodily integrity/state-created dan
B. School District Liability
The claims of a Fourteenth Amendment violation alleged by Mr. Dorley are brought not against just the individual School District Defendants, but also against the School District itself. ECF No. 1-1, at Counts I — III. Mr. Dorley frames his claims in municipal liability terms under Monell v. Dep’t of Soc. Servs.,
The adopted practice, custom or policy is demonstrated by the fact that plaintiff and other smaller, weaker and younger underclassmen were frequently pitted against much larger, stronger and older upperclassmen'during “contact” drills, when none of the players were outfitted with proper protective equipment, and when the upperclassmen had previously demonstrated excessive aggression and violence in such drills against underclassmen, such as plaintiff.
Id. at ¶¶ 44, 51, 60.
The Third Circuit has held that a municipality may be “independently liable for a
Simply put, these claims may be-alleged based on formal action (a policy) or informal action (a custom) on behalf of the municipality. Establishing a municipal policy requires a decision-maker with final authority under state law to issue “an official proclamation, policy, or edict.” Id. at 155 (quoting Bielevicz v. Dubinon,
Mr. Dorley does not plausibly allege in the Complaint that any final policy-making official issued any type of official proclamation, policy, or edict whereby the
Without plausibly pled facts supporting the inference that either one or more of the football coach Defendánts was factually and' legally the final decision-maker possessing unreviewable authority in that regard, or that the final policy-makers within the School District directed, or specifically knew of and acquiesced to the challénged conduct, the Complaint cannot state a claim for 'municipal liability 'as to the School District itself.
C. Tort Claims Against Mr. McElhinny, the Student Defendant
Because the Court will dismiss the federal counts but grant leave to amend, it will also address Mr. Dorley’s state law claims. In Counts VIII-X of his Complaint, Plaintiff asserts claims against Mr. McElhinny, the Student Defendant, for battery, intentional infliction of emotional distress (“IIED”), and negligence. The Court will dismiss the IIED count with prejudice but will deny the Motion to Dismiss with regard-to the counts for battery and negligence.
As to the battery claim of Count VIII, the tort of battery requires “a harmful or offensive contact with a person, resulting from an act intended to cause the plaintiff or a third person to suffer such a contact, or apprehension that such a contact is imminent.” Herr v. Booten,
There is no question that some degree of consent was present - in this case, as Mr. Dorley voluntarily participated in a football training camp and “had played football every season since he was in first grade.” EOF No. 1-1, at ¶ 38(e); see also ECF No. 6, at 6-7. What is less evident is whether the Student Defendant’s alleged conduct was within the scope of that consent, or whether it is more analogous to “act[s] of a very different character,” such as using brass knuckles in a fistfight. Restatement (Second) of Torts § 892A cmt. on Subsection (2)(c) (1979). Mr. Dorley argues that his consent “was limited to the prescription for the drill,” and that drill was meant to be completed at less than full speed, wherein the blocker would push the player holding the blocking pad back ten (10) yards. ECF No. 11, at 7. Plaintiff contends that the Student Defendant instead drove him
The Court concludes that drawing all reasonable inferences in Mr. Dorley’s favor, the Complaint states a cause of action for battery against Mr. McElhinny. Although continuing the drill after the specific stop point and driving Plaintiff a few yards farther back than called for might only marginally exceed the scope of the drill, the specific allegations that the Student Defendant ended the drill with a “final, violent shove” after Mr. Dorley yelled for Mr. McElhinny to stop, do not permit the Court to conclude as a matter of law that discovery will not “reveal .evidence of the necessary element[s]” of battery, as would be required at the Motion to Dismiss stage. Thompson,
Next up is the negligence claim of Count X. “There are four elements to a cause of action for negligence: a duty of care, a breach of that duty, a causal connection between the defendant’s conduct and the resulting injury, and damages.” Zeidman v. Fisher,
Mr. McElhinny argues that Mr. Dorley fails ,to state a claim of negligence against him because no duty of care existed: “appellate court cases have, held that a participant assumes the reasonable risks inherent in the sporting event, discharging fellow participants [sic] duty of care.” ECF No. 6, at 9; see Johnson by Johnson v. Walker,
“Whether a duty exists is a question of law for the trial court to decide.” Brisbine v. Outside In Sch. of Experiential Educ., Inc.,
Also relevant here is the standard that would define a breach of a duty between participants of a contact sport. In Archibald v. Kemble,
The specific game involved, the ages and physical attributes of the'participants, their respective skills at the game and their'knowledge of its rules and dustoms, their status as amateurs or professionals, the type of risks which inhere in the game and those which are outside the realm of reasonable anticipation, the presence or absence of protective uniforms or equipment, the degree of zestwith which the game is being played, and doubtless others.
Id. at 520 (internal citations omitted).
The Court agrees with Mr. McElhinny that there is no duty of care on the part of other sports’ competitors when injuries result from activities that are “merely part of the game.” ECF No. 6, at 11. However, the next question — whether the facts alleged in the Complaint constitute behavior that is “merely part of the game” — is really a question of framing: while it is true that drills are part of the sport of football, drills are only “part of the game” token performed in an anticipated manner reasonably inherent to the game. Consenting to play football as a general matter involves tackling, blocking, pushing, and shoving — but it does not involve, as alleged here, an unnecessary effort either designed to seriously injure the Plaintiff, or conduct that would likely and foreseeably lead to that result. Recklessly breaking the rules that a participant knows are the rules may also open a contact sports participant up to liability. See Archibald,
The Court cannot say as a matter of law that the negligence claim cannot proceed. In a strikingly similar factual situation from several decades ago, the Pennsylvania Supreme Court reversed a grant of a compulsory nonsuit in a case where the plaintiff, a-high school football player, was injured during pre-season football training conducted without the use of protective equipment. Rutter v. Northeastern Beaver County School Dist.,
The disposition in Rutter, as well as the analyses used in Zeidman and Archibald, lead the Court to conclude that dismissal of Mr. Dorley’s negligence claim at this stage would be improvident. The facts pled in the Complaint do permit the plausible inference that Mr. McElhinny’s conduct went far beyond the risks inherent in a high school football practice, and that his conduct amounted to more than simple negligence. Therefore, his Motion to Dismiss Count X will be denied without prejudice to its reassertion at a later stage.
While the Pennsylvania Supreme Court has yet to formally recognize a cause of action for intentional infliction of emotional distress, see Taylor v. Albert Einstein Med. Ctr.,562 Pa. 176 ,754 A.2d 650 , 652 (2000), the Pennsylvania Superi- or Court has recognized the cause of action and has held that, “in order for a plaintiff to prevail on such a claim, he or she must, at the least, demonstrate intentional outrageous or extreme conduct by the defendant, which causes severe emotional' distress to the plaintiff.” Swisher v. Pitz,868 A.2d 1228 , 1230 (Pa.Super.Ct.2005) (discussing how the Pennsylvania Supreme Court has indicated that, were it to recognize a cause of action for intentional infliction of emotional distress, these would be the requirements necessary for a plaintiff to prevail on such a claim). In addition, “a plaintiff must suffer some type of resulting physical harm due to the defendant’s outrageous conduct.” Id. Liability on an intentional infliction of emotional' distress claim “has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Field v. Phila. Elec. Co., [388 Pa.Super. 400 ,565 A.2d 1170 , 1184 (Pa.Super,Ct.] 1989).
Reedy v. Evanson,
The Court does not believe that the facts asserted in the Complaint rise to the level of behavior needed to establish a claim for IÍED. The ' Complaint states that Mr. McElhinny “continued driving plaintiff backwards [during the drill], even after plaintiff yelled for him to stop,” and ultimately drove him back five to six yards beyond the prescribed distance for the drill, after which point he “gave plaintiff one final violent shove, throwing plaintiff into the air and causing him to flip over.” ECF No. 1-1, at ¶ 23. The Complaint also asserts that when Mr. Dorley was in the training room receiving medical attention for his 'injuries* “some upperclassmen, including [the Student Defendant] walked past the room and mocked plaintiff for his reaction on the field after finding out he had broken his arm.” Id. at ¶ 26.
Taking these facts as true and drawing all inferences in Mr. Dorley’s favor, the Court concludes that these facts are not comparable to those that ’Pennsylvania courts have found sufficient to allege an
Defendants also seék to strike Mr. Dorley’s claim that the Student Defendant’s conduct could warrant an award of punitive damages. “Assessment of punitive damages [is] proper when a person’s actions are of such an outrageous nature as to demonstrate intentional, willful, wanton or reckless conduct, and are awarded to punish that person for such conduct.” SHV Coal, Inc. v. Cont'l Grain Co.,
D. Claim for Negligence and Vicarious Liability Against the Parent Defendants
Generally speaking, there is no duty to control the conduct of a third party to protect another from harm. Brisbine v. Outside In School of Experiential Education, Inc.,
Mr. Dorley alleges that the Student. Defendant was, at the relevant time, in the eleventh grade and a minor. See ECF No. 1-1, at ¶¶ 12; 118. He further alleges that the Parent Defendants “owed a duty to exercise reasonable care so as to control their (then) minor child as to prevent him
The Court concludes that, the claim as stated is legally insufficient. There are no facts alleged that would, indicate the Parent Defendants had any reason to know that their son was so “reckless, aggressive and violent” that he should not be allowed to participate in a contact sport. Id. at ¶ 122(a), (c). None. The vast majority of the “claim” as pled consists of blanket legal conclusions which the, Court must disregard, ECF No, 1-1, at Iff 117-123; see Fowler,
The Complaint (drawing all inferences in favor of the Plaintiff) is muddled as to whether the Plaintiff is alleging that the individual School District Defendants instructed Mr. McElhinny to act in a certain way or whether Mr. McElhinny purposely disregarded the Defendant coaches’ instructions and violently attacked Mr. Dorley, or both. But more to the point, the purely conclusory, boilerplate allegations against the parents do nothing to tie them into the injury to, the Plaintiff and would purport to make parents absolutely liable for any tort committed by a child, a theory precisely contrary to settled Pennsylvania law., The claim for negligence or vicarious liability against, the Parent Defendants cannot proceed.
IV. CONCLUSION
The School District- Defendants’ Motion to Dismiss is granted without prejudice and with leave to amend for the reasons stated in this Opinion. The Student De
An appropriate Order will issue.
Notes
. Plaintiff filed suit after attaining the age of majority.
. At this stage, the Court must treat the.averments of fact in the Complaint as being true.
. Seemingly directly contrary to what is pled atlffl 15 and 16.
. Plaintiff also alleges a violation of the Pennsylvania Constitution against the individual School District Defendants.
. The individual School District Defendants attack the Complaint on the grounds that Mr. Dorley fails to assert claims against them in their individual, as opposed to their official, capacities. The Court rejects this argument, as there are no magic words required to show that the Defendants are being sued in their individual capacities, but where the terms of the Complaint are amenable to that interpretation and Plaintiff advocates that he in fact is asserting claims against the officials in their individual capacity, see ECF No. 15, at 18-19, the Court properly assesses the claims accordingly, Keys v. Carroll, No. 10-1570,
. Although Mr. Dorley also claims the conduct may have implicated his procedural due process rights, ECF No, 1-1, at ¶¶ 41; 48;, 55; 64; 76; 87, no party has made any argument to that effect and the Court is at a loss to see what theory Plaintiff might seek to assert in that regard since the assertion of a procedural due process claim implies that there was some "procedjire[ ] available to him [that] did not provide due process of law.” Hill v. Borough of Kutztown,
. The Third Circuit itself recognized the dearth of precedential authority in this general area in Spady v. Bethlehem Area Sch. Dist.,
. And there are many. Here is a sampling of them: M.U. v. Downingtown High Sch. E.,
. Nor did his counsel point to one during oral argument.
. The Coúrt’s conclusion in this regard is bolstered by the fact that Plaintiff labeled a section of his opposition brief "Plaintiff Has Also Sufficiently Alleged His Claims for Bodily Integrity in Counts II and V of His Complaint” and yet refrained from including in that section any analysis of how the facts as pled could establish the elements of anything other than a state-created danger claim. ECF No. 15, at 8-11. He spent multiple pages explaining why the facts adequately allege a policy, practice, or custom under Monell, but does not actually mention the term "bodily integrity” anywhere else within those pages. It is true that Plaintiff does not need to prove his case at this early stage of litigation, see ECF No. 15, at 11, but he must at least specifically allege facts that establish the ele"ments of causes of action upon which he seeks relief; and which are not redundant. Cf. M.S. ex rel. Hall v. Susquehanna Twp. Sch. Dist.,
. Thus, Counts II and V will also be dismissed as duplicative.
. The Court believes that Phillips requires that leave to amend be granted, but notes that once the involved Motions to Dismiss were filed, Plaintiff could have “amend[ed] to meet
. And here, the harm (the broken arm) was caused by a private citizen, Mr. McElhinny.
. Although Plaintiff identifies Counts III and VI as "State Created Danger/Special Relationship” claims, see ECF No. 1-1, at 13, 19, he did’ not raise the' “special relationship” exception in either his brief or in oral argument. Instead, he focused on the state-created danger theory. The Court concludes that the special relationship theory does not apply here, a conclusion our Court of Appeals has generally endorsed with regard to children attending public schools. See D.R. by L.R. v. Middle Bucks Area Vocational Technical Sch., 972 F.2d 1364, 1371-72 (3d Cir.1992) (en banc) (declining to recognize a special relationship between public school students and the state because the students and their parents maintain control over their daily needs and determine where the students attend school, unlike prisoners who are "wholly dependent upon.the state for food, shelter, clothing, and safety” and are “not free to leave”).
. Since the School District Defendants do not contest that Mr. Dorley has alleged facts establishing the third prong of the test, the
. This case is also distinguishable from other football cases in which players sustained concussions after coaches failed to take them out of games or otherwise asséss them for concussion symptoms. See Mann v. Palmerton Area Sch. Dist.,
. While the term "shocks the conscience” is used in conjunction with both a "human dignity” claim and as an element of the state-created danger theory, they are not the same thing. In the former setting, the focus is on the substance of the affirmative conduct of the state actor (e.g., police-induced stomach pumping, or beatings by prison guards), as opposed to the degree of culpability with which a state actor creates the risk of harm by a third party (e.g., "deliberate indifference.”).
. Football is a dangerous sport even when played correctly. See Timothy B. Fitzgerald, Comment, The "Inherent Risk" Doctrine, Atnateur Coaching Negligence, and the Goal of Loss Avoidance, 99 Nw. U.L.Rev. 889, 929 (2005) ("There can be little doubt that competitive sports involve an array of 'open and obvious’ dangers.... For example, football players implicitly acknowledge, understand, and accept the risk of being tackled.”). Case law differentiates claims involving "patently egregious and intentional misconduct" from those asserting harm arising from "typical risks ... associated with participation in athletic activities.” Spady,
. The type of physical interaction, and level of foreseeable risk which falls short of, or meets, the test for a deliberate indifference to a risk of serious harm may, of course, vary based on the level of the participants e.g., Pop Warner v. high' school v. college v. NFL.
. For instance, given the Complaint’s repetitive allegations that this was set up to be a ' low-speed, non-contact drill, it is not pled as a situation in which the risk of injury from participation in the drill as designed would have been patently obvious to a player and coach alike. Nor is it a case in, which it is plausibly pled that notwithstanding the stated non-contact design of the drill, the coaches and the player's had a pre-designed plan to make it into something else.
. As to this prong,, the Court finds Judge Pappert’s comparison of various school sports cases in M.U. particularly instructive. The M.U. Court compared a number of cases in which defendants "instructed,” "forced,” "required,” or “compelled]” plaintiffs to participate in dangerous conduct (and therefore met the fourth prong through their affirmative action) with cases in which defendants’ actions were more passive in that they "did not prevent” a plaintiff from playing, ”fail[ed]” to take steps to ensure the student’s safety, or "asked” plaintiff to participate (which did not amount to affirmative acts sufficient to satisfy the fourth prong).
Although some language of Mr. Dorley’s Complaint is framed in terms of passive inaction, see, e.g., ECF No. 1-1, at ¶ 89 ("The fact that defendants ,... saw [the conduct-take place]”) (emphasis added); id. at ¶ 90 (alleging that the coaches “allow[ed] the drill to proceed”) (emphasis added); id. at ¶ 92 (alleging the coaches caused harm “by way of the defendant’ action or inactions") (emphasis added), the Complaint also alleges that the School District Defendants "created an atmosphere that encouraged violence, arrogance and discrimination of the underclassmen” in which they “encouraged [upperclassmen] to exhibit their dominance, strength, and aggression on the underclassmen in order to ‘toughen them up,’ ” “encouraged those upperclassmen to overexért their force and aggression on the underclassmen in non-contact drills,” and "set up the drill in such a way that much smaller, inexperienced underclassmen would be pitted against larger, stronger, more experienced upperclassmen,” id. at ¶¶ 17; 19; 30. Taken together, and drawing all reasonable inferences in Plaintiff’s favor, the Court con-eludes that these allegations do meet the fourth prong of the state-created danger test.
. The Court will dismiss with prejudice Count VII, which is a claim against the individual School District Defendants for violations of the Pennsylvania Constitution, That claims does not exist. As another district court in this Circuit recognized:
Pennsylvania courts do not recognize a cause of action for monetary damages for alleged violations of the due process rights provided under the Pennsylvania State Constitution. Jones v. City of Philadelphia,890 A.2d 1188 , 1209 (Pa.Commw.Ct.2006) (en banc) (“To date, neither Pennsylvania statutory authority, nor appellate case law has authorized the award of money damages for a violation of the Pennsylvania Constitution.”); Pursel v. McCartney, 2006 Pa. Dist. & Cnty. Dec. LEXIS 260 (Pa. County Ct.2006) (applying Jones to find that “there is no cognizable cause of action for monetary damages for alleged violation of Article I, Section 1 [the Due Process Clause] of the Pennsylvania Constitution.”).
Bell v. Twp. of Concord, 759 F.Supp,2d 621, 630 (E.D.Pa,2011); see also Balletta v. Spadoni,
. Additional factual averments that could be construed as supporting these claims are at ECF No. 1-1, at ¶¶ 17, 19, 22, 29-30, 33, 34-36. However, most of these paragraphs assert actions undertaken and, specifically witnessed by the coaching staff without tying in any more superior School District decision-maker in any way. Indeed, many of the paragraphs merely lump the School District into an allegation in general terms without any further facts in support of it. See, e.g., id. at ¶ 17 ("Defendants SFSD [South Fayette
. Such a conclusion still requires a deprivation of a substantive constitutional right. Id.; see also Kaucher v. Cnty. of Bucks,
. Moreover, plaintiffs must prove that the alleged policy or custom proximately caused their injuries, meaning they must show "the specific violation was made reasonably probable by permitted continuation of the custom.” Id. at 156 (internal qhotation marks and citation omitted))
. As a general matter, under the Constitution and By-laws of the Pennsylvania Interscholastic Athletic Association ("PIAA”), it is the high school principal who is charged with direction of interscholastic athletics. See 2015-2016 PIAA Const. art. X, § 1 ("The Principal of each school, in all matters pertaining to the interscholastic athletic relations of the Principal’s school, is responsible to the PIAA....”).
. Such an assertion requires something more than some statement such as "the School District knew of this structuring of the drill” to be plausible. See McTernan v. City of York,
What is missing here are plausible facts that would allow the Court to conclude (1) which final decision-makers knew of and directed, or knew of and acquiesced in, the specific manner in which this drill was conducted whereby small underclassman were pitted against larger upperclassman who were encouraged to "exhibit their dominance,” ECF No. 1-1, at ¶ 19; or (2) which final decision-makers directed, knew of and acquiesced in, the general “atmosphere that encouraged violence,” id.; or (3) how the specific structure of the drill came to the attention of a final decision-maker; or (4) who exactly was/were the final decision-maker(s).
It also does not appear from the face of the Complaint that the football coaches possessed delegated authority to act with finality and that those actions were then ratified by final decision-makers in the School District. See Kelly v. Borough of Carlisle,
. The Court notes that the Supreme Court of Pennsylvania does not appear to have adopted this section of the Restatement, but that both a majority, and a concurring and dissenting opinion of that Court cited it without disagreement in a fairly recent case. See C.C.H. v. Philadelphia Phillies, Inc.,
. "While the existence of a duty is a question of law, whether there has been a neglect of , such duly is generally for the jury." Charlie v. Erie Ins. Exch.,
. The higher standard is justified partially because "[v]igorous participation in athletic competition is a public policy to be encouraged,” and because allowing suits to proceed on mere negligence theories "could lead to an overabundance of litigation.” Id. at 518.
. Other cases from various jurisdictions which analyze the standard of care owed to other participants in sports, which also vary in terms of factual similarity to this case, include Cruz v. Gloss, 57 Pa. D. & C.4th 449 (Com.Pl.2002), aff’d,
. It is not certain that the assumption of risk doctrine was actually abolished through that opinion, as the Third Circuit recognized in Vargus v. Pitman Mfg. Co.,
. The Court also concludes that addressing Mr. McElhinny’s argument that he could be immune under the Political Subdivision Tort
. It is worth noting that while the Pennsylvania Supreme Court may not have, explicitly adopted these sections of the Restatement, see K.H. v. J.R.,
. Given the purely conclusory nature of what is pled as to the parents, and the complete dearth of any connection between them and the detailed factual recitation of what happened at practice on the day of the injury, the Court will deny leave to amend as to them, concluding that allowing amendment of the pleading in this regard would run directly contrary to the "wait and see” rule of Cureton,