A federal judge from the Eastern District of Pennsylvania will allow a claim made against a middle school teacher, who oversaw a touch football game in which a student suffered a concussion, to continue under the “state-created danger” theory. However, it dismissed the plaintiff’s claim against the coach for battery.
The court also dismissed the claim against the school district, recognizing its immunity under to the Pennsylvania Political Subdivision Tort Claims Act, 42 Pa. C.S. § 8541, et seq.
This concussion occurred on November 29, 2011 in a game of touch football played at Springfield Township Middle School in Montgomery County, Pa.
The teacher, Jason Gattuso, orchestrated the game, in which he collided with S. F., plaintiff Karen Farrell’s 12-year old son. Though not immediately evident, S.F. suffered a serious concussion resulting in continuing injury, according to the plaintiff.
Farrell’s initial claim against Gattuso and the Springfield Township School District was made in the Court of Common Pleas of Montgomery County. She alleged two counts of negligence, and the defendants responded by asserting immunity under to the Pennsylvania Political Subdivision Tort Claims Act, 42 Pa. C.S. § 8541, et seq. When discovery revealed no defects to the football field, Farrell amended her complaint to recast her claims as federal civil rights violations for a state-created danger and a state claim for the intentional tort of battery.
In its discussion, the court noted that for the plaintiff to succeed under the “state-created danger” theory against Gattuso, she must plead that: “1) the harm was foreseeable and fairly direct; 2) the state actor acted with a degree of culpability that shocks the conscience; 3) there existed some relationship between the state and the plaintiff; and 4) the state actor used his authority to create a danger that otherwise would not have existed.”
The defendants argued that she failed to establish the second prong because Gattuso’s “conduct, playing a game of touch football, cannot be found to ‘shock the conscience.’ M.U. v. Downingtown High School East, 103 F. Supp. 3d 612, 621 (E.D. Pa. 2015).”
The court sided with the plaintiff. Gattuso is described as six feet two inches tall and weighing 220 pounds, about twice the weight of S.F. He is also a former college football player and was able to run at above average speed.
“Defendants argue that it doesn’t shock the conscience that Gattuso was playing touch football with students,” wrote the court. “I agree. What does shock the conscience is that an ex-football player would run toward a group of young boys half his size, elbows extended. That he might hit one of them is almost a foregone conclusion.
“Considering the facts in the light most favorable to the plaintiff, I find Mrs. Farrell has plead sufficient facts to raise the reasonable expectation that discovery may reveal proof of her allegation that Gattuso should have known his participation in the game and running at full speed among children might well result in injury, and these facts are sufficient to satisfy the second prong of the state created danger theory of liability at this stage of the proceedings.”
Gattuso was more fortunate when it came to the state claim of battery.
“Gattuso was playing a game of touch football with a group of students, a game that does not contemplate harmful contact,” the court wrote. “There is no assertion that he intended to cause a harmful or offensive contact with S.F., only that he intended to play a game that typically limits contact to a touch. The contact here was accidental and may support a claim of negligence but not the intentional tort of battery.”
Turning to Mrs. Farrell’s claim that the district “was deliberately indifferent to this dangerous activity by authorizing or acquiescing in Gattuso’s participation in touch football games and by its failure to properly train, supervise and instruct Gattuso,” the court was circumspect.
“When a §1983 claim is brought against a municipality, I must consider two issues: 1) whether the plaintiff’s harm was caused by a constitutional violation; and 2) if so, whether the municipality is responsible for that violation,” wrote the court, citing Collins v. City of Harker Heights, Texas, 503 U.S. 115, 120 (1992). “Because a municipality cannot be held liable under a theory of respondeat superior or vicarious liability, I must first determine ‘whether there is a direct causal link between a municipal policy or custom and the alleged constitutional deprivation.’ City of Canton v. Harris, 489 U.S. 378, 385 (1989). If there is no causal link, the municipality is not liable even if plaintiff’s constitutional rights have been violated. Collins, 503 U.S. at 122.”
The court zeroed in on the term “custom,” which “can be proven by showing that a given course of conduct, although not specifically endorsed or authorized by law, is so well-settled and permanent as virtually to constitute law. Id. at 156 (citing Andrews v. City of Phila., 895 F.2d 1469, 1480 (3d Cir. 1990)). Thus, custom may be established by proof of knowledge and acquiescence. Id. (citing Fletcher v. O’Donnell, 867 F.2d 791, 793-94 (3d Cir. 1989)). Under either theory of liability, ‘a plaintiff must show that an official who has the power to make policy is responsible for either the affirmative proclamation of a policy or acquiescence in a well-settled custom.’ Id. (quoting Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990)).
“Although Mrs. Farrell alleges knowledge that Gattuso was a participant in touch football games, she does not allege that the district knew Gattuso was running at students. As I have previously pointed out, S.F. was not injured because Gattuso was a participant in the game but because of what he did as a participant. Mrs. Farrell has failed to identify any policy or custom of the district that resulted in S.F.’s injury.”
Karen Farrell v. School District of Springfield Township and Jason Gattuso; E.D. Pa.; CIVIL ACTION NO. 15-CV-6437, 2016 U.S. Dist. LEXIS 109711; 8/17/16
Attorneys of Record: (for plaintiff) Charles W. Campbell, Lead Attorney, Norristown, Pa. (for defendants) Harry G. Mahoney, Lead Attorney, Deasey Mahoney Valentini North, Ltd, Philadelphia, Pa.
