The Third U.S. Circuit Court of Appeals has affirmed a lower court’s ruling that dismissed the claim of a high school softball pitcher, who sued her former coach and the school district, after she was struck by a ball that was batted by her coach during a practice.
By way of background, plaintiff Paige E. Lesher was a high school pitcher on the girls’ varsity softball team at the Hamburg Area High School. On April 24, 2016, while at softball practice at the high school, Lesher was warming up on the pitcher’s mound when the team’s coach, Clark Zimmerman, approached the batter’s box and instructed Lesher to pitch to him. Zimmerman did not have Lesher stand behind a pitcher’s screen, nor had he distributed mouth guards. Zimmerman, who had never batted in this situation before, did not warn Lesher that he intended to hit at full-swing, and hit a line drive directly at her, according to the complaint. Lesher was unable to react in time, and the ball struck her in the face causing severe injuries, including a fractured jaw and the loss of four teeth, that required at least eight surgical procedures and three root canals.
Lesher sued the defendants, pursuant to 42 U.S.C. § 1983, alleging state-created danger claims arising from injuries she suffered. The complaint also contained allegations about Zimmerman’s over-aggressiveness and four previous incidents involving student-athletes, none of which garnered a response from the school district. Lesher claimed that Zimmerman, by hitting at full swing knowing Lesher was not protected by a pitching screen, failed to protect her. She claimed that the school district also failed to protect her because it did not have an adequate policy, practice, or custom in place to train and/or supervise coaches on the proper use of safety equipment. Finally, Lesher asserted that the defendants were deliberately indifferent to her safety.
After the original complaint was dismissed, she filed an amended complaint in which she alleged a couple other elements, such as:
Zimmerman and the other coaches used a pitching screen whenever they pitched, or whenever they were feeding the pitching machine to pitch batting practice to live batters in the batter’s box.
The School District’s handbook prohibits male participation on girls’ teams because “the physical size, speed and power of male athletes would create a hazard to the health and safety of female participants.”
There has been a “trend in recent years for many softball pitchers and even infielders to wear face protective masks when in the field.”
These additional elements did little to sway the judge, which found the amended complaint “fails to sufficiently plead foreseeability, which is the first required element of a state-created danger claim. In the absence of a foreseeable risk, the amended complaint necessarily fails to plead deliberate indifference, which is the second required element of a state-created danger claim. See Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 910 (3d Cir. 1997). Moreover, even if the harm was foreseeable, the amended complaint fails to sufficiently allege that Zimmerman was deliberately indifferent.”
Lesher raised two arguments on appeal. First, that because the District Court failed to give her the benefit of reasonable inferences from her alleged facts, it erred by holding that Lesher did not adequately establish two elements of her state-created danger claim: foreseeability and deliberate indifference. Second, that the District Court erred in holding that the Monell claim against the school district was inadequately pled.
The appeals court was unmoved.
“Lesher has failed to plead facts sufficient to find the first two elements of a state-created danger claim,” it wrote. “Foreseeability requires the plaintiff to ‘allege an awareness on the part of the state actors that rises to [the] level of actual knowledge or an awareness of risk that is sufficiently concrete to put the actors on notice of the harm.’
“… (F)or many of the reasons explained by the District Court, these allegations are insufficient to establish foreseeability. Specifically, Lesher does not allege any prior incidents in which coaches or players were injured while pitching, nor facts indicating that pitching screens actually prevented any softball related injuries. Moreover, players and coaches have different roles, and the use of a pitching screen by a coach does not show foreseeability of harm to a player. Similarly, the School District’s handbook regulates participation of male athletes on female sports teams, and is silent on participation of male coaches during practice. Finally, the recent trend for some softball pitchers to wear protective masks does not show the harm or risk of Lesher’s injury was ‘foreseeable and fairly direct.’ As stated, Lesher does not allege any other instances of injury caused by Zimmerman while batting, nor any prior incidents with similar circumstances. As such, even in the light most favorable to Lesher, we cannot conclude that she has pled sufficient facts to show that Zimmerman was on notice of the harm.
“As to the second element of a state-created danger claim, whether the state actor acted with a degree of culpability that shocks the conscience, the inquiry is case specific. Here, the District Court correctly determined that Lesher need only demonstrate deliberate indifference because Zimmerman had the opportunity to deliberate, rather than being forced into a ‘split-second’ decision. Accordingly, we evaluate whether Zimmerman’s behavior shocks the conscience by demonstrating a deliberate indifference to the risk of harm.
“In the absence of a foreseeable risk, Lesher has necessarily failed to plead deliberate indifference. Even if the harm was foreseeable, Lesher has failed to sufficiently allege that Zimmerman was deliberately indifferent. Considering the typical risks associated with playing softball, as unfortunate as Lesher’s injuries are, they are the type that can be reasonably contemplated when participating in such sporting activities. As such, Zimmerman’s conduct cannot be considered so deliberately indifferent so as to shock the conscience, and Lesher has insufficiently pled her state-created danger claim.”
Turning to the Monell argument, the court ruled for the municipality, noting that Lesher’s allegations that “the School District had knowledge of prior incidents involving Zimmerman are largely legal conclusions that are not entitled to a presumption of truth. Moreover, the prior incidents that Lesher references in her Amended Complaint either involved different sports with different coaches, or complaints against Zimmerman that are unrelated to the misuse of safety equipment, and are otherwise dissimilar to the incident in question here. None of these prior incidents show that a School District custom or policy led to Lesher’s injuries.”
The appeals seemed to wish that it could rule otherwise: “Lesher’s injuries are certainly regrettable. However, our decision cannot be guided by sympathy, rather, it must be rooted in the law. As such, we will affirm the judgment.”
Paige E. Lesher, v. Clark Zimmerman, In his individual capacity, Hamburg Area School District; 3rd Cir.; 2020 U.S. App. LEXIS 25200, No. 19-1663; 8/10/20
Attorneys of Record: (for plaintiff — appellant) Daniel E. P. Bausher, Esq., Stevens & Lee, Reading, PA; Donald E. Wieand, Jr., Esq., Stevens & Lee, Allentown, PA. (for defendants — appellees) Charles E. Haddick, Jr., Esq., Dickie, McCamey & Chilcote, Harrisburg, PA; Christine L. Line, Esq., Dickie McCamey & Chilcote, Camp Hill, PA.; Michael A. Boomsma, Esq., Post & Schell, Lancaster, PA; Karyn Dobroskey Rienzi, Esq., Post & Schell, Philadelphia, PA.
