PENNSYLVANIA RECORD

A federal judge has dismissed a civil rights complaint against a Center City hotel and the

City of Philadelphia that was initiated by a pedestrian this past spring who blamed the defendants for injuries she suffered after falling outside of the place of lodging.

Cynthia Davis brought her lawsuit against the defendants back on April 10. In it, she accused the City of Philadelphia of turning a blind eye to the common practice of delivery drivers parking on the sidewalk adjacent to the hotel, something that led to the walkway developing cracks, and, in turn, caused Davis’s knee and hip injuries during a fall in the summer of 2011.

Davis alleged that the city engaged in “illegal favoritism” by instituting a custom or policy of failing to ensure that the corporate defendants, who also included Marriott International, properly maintained their sidewalks in a condition that was safe for pedestrian travel.

The lawsuit, which the Pennsylvania Record previously reported on, contained both federal violations and state law claims.

The former included alleged violations of the plaintiff’s Fourteenth Amendment due process rights, and the latter included claims of negligence, bad faith insurance claims, and intentional infliction of emotional distress.

In her Jan. 11 memorandum and order, U.S. District Judge Gene E.K. Pratter, sitting in the Eastern District of Pennsylvania, granted the city’s motion to dismiss the plaintiff’s amended complaint.

The judge dismissed Davis’s Section 1983 civil rights claim, and wrote that because there is no diversity of citizenship, the court would decline to exercise supplemental jurisdiction over the remaining state law claims in the absence of any federal claims.

The federal claim centered on the contention that the city violated Davis’s substantive due process rights by failing to ensure that the Ritz-Carlton properly maintained its sidewalks.

The plaintiff’s opposition to the city’s motion to dismiss suggested she was advancing a state-created danger theory, Pratter wrote, in that she claimed the city affirmatively “misused municipal authority and conspired with private parties” to cause her bodily injuries.

The judge noted the Third Circuit Court of Appeals’ decision that made clear that, “[n]othing in the language of the Due Process Clause itself requires the State to protect a citizen’s life, liberty or property from private harms,” although the appeals body had set forth the two exceptions to that rule: the first being when there is a “special relationship” between the individual and the state, such that the “State by the affirmative exercise of its power so restrains an individual’s liberty that it renders him unable to care for himself,” and the second being the “state-created danger” exception, in which a plaintiff would have successfully pled that the harm ultimately caused was foreseeable and fairly direct; that a state actor acted with a degree of culpability that shocks the conscience; that a relationship between the state and the plaintiff existed such that the plaintiff was a foreseeable victim of the defendant’s acts; or that the 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.

As to the last element in the second exception, Pratter wrote that Davis’s allegations “amount to nothing more than a claim of a failure to act, not an affirmative action.”

“It is the misuse of state authority, rather than a failure to use it, that can violate the Due Process Clause,” Pratter wrote, citing the case of Bright v. Westmoreland. “For this purpose, in other words, non-action is not considered to be an action.”

Pratter wrote that in her amended complaint, Davis only alleged a failure to act, not an affirmative action undertaken by the city.

In opposing the city’s dismissal motion, Davis had argued that the city actively conspired with the Ritz-Carlton to “look the other way” in the face of the hotel’s violations of its obligations to keep its sidewalks in a safe condition, and that this conspiracy was an affirmative act.

“However, that allegation does not appear in her Amended Complaint; at most, she alleges that the City engaged in a policy and practice of ‘agreed upon and concerted illegal favoritism’ by not enforcing regulations violated by the Ritz-Carlton,” the judge wrote. “No mention is made of any agreement between the City and any third party; even if the words ‘agreed upon’ could be read to allege such an agreement between the City and any or all of the Corporate Defendants, no other allegations sufficient to support a conspiracy can be found anywhere in the Amended Complaint.”

Pratter wrote that even if the act of conspiring to fail to act could satisfy the affirmative action element, Davis has not successfully alleged any such conspiracy.

Pratter further wrote that even if Davis could meet the final element of the test, she still hasn’t met the second element, which states that only the “most egregious official conduct” can be said to “shock the conscience.”

“Nothing about a failure to properly maintain sidewalks, or to enforce the proper maintenance of sidewalks, can be said to ‘shock the conscience,’ even if there was some sort of agreement not to enforce such a requirement,” the ruling states. “The danger to the public of a crack in a sidewalk, even a large one, is not in any way outrageous or conscience-shocking such that the City’s conduct rises to the level of a constitutional violation. Ms. Davis’s use of words like ‘willfully’ and ‘maliciously’ does nothing to change that.”