Pennsylvania Record

Tuesday, April 7, 2020

Philadelphia School District fights lawsuit that says boy suffered toxic lead exposure at grade school

Federal Court

By Nicholas Malfitano | Feb 19, 2020

School District of Philadelphia

PHILADELPHIA – For reasons of failure to state a claim, the School District of Philadelphia and other defendants have motioned to dismiss a lawsuit filed by the parents of a Philadelphia child, after he allegedly suffered from toxic lead exposure at his Philadelphia elementary school.

D.P., a minor by his parents and natural guardians Cristine and David Pagan, first filed a complaint on Dec. 10 in the U.S. District Court for the Eastern District of Pennsylvania, against the School District of Philadelphia, the City of Philadelphia, Watson T. Comly School and others.

According to the complaint, D.P. was enrolled in kindergarten at Watson T. Comly Elementary in April of 2017. In the fall of 2017, his first-grade teacher noticed D.P. was eating paint chips that had fallen from the ceiling.

He was then tested on Nov. 13, 2017, and found to have 46 micrograms of lead per deciliter in his blood and was admitted to the hospital for lead toxicity.

The school, which was constructed in the 1890s, then tested positive for lead-based paint concentrations that exceeded federal government standards, the suit stated.

On Feb. 11, counsel for defendants SDP, Comly School, Principal Kate Sylvester and Environmental Director Francine Locke responded with a motion to dismiss the lawsuit, citing failure to state a claim upon which relief could be granted.

The motion argued the plaintiff failed to show his 14th Amendment rights were violated, that Sylvester and Locke lack requisite personal involvement and specific conduct to be held individually liable for federal constitutional violations and are shielded from federal claims due to qualified immunity, along with pendent state claims being dismissed for lack of jurisdiction.

“The instant lawsuit is an ordinary personal injury matter masquerading as a constitutional deprivation. Counts I and II of plaintiff’s complaint do not allege facts which rise to the level required to assert federal constitutional deprivations of rights and should be dismissed,” the dismissal motion read, in part.

The motion went on to state that the plaintiff’s attempt to invoke the “special relationship theory” under the 14th Amendment (the state’s affirmative act of restraining an individual’s freedom to act on their own behalf), failed because courts have repeatedly ruled that no special relationship exists between schoolchildren and the state, and likewise, the plaintiff failed to prove evidence of a “state-created danger” on the part of the respondent defendants.

Moreover, the motion says the Sylvester and Locke defendants are immune from suit.

“There is no allegation that Locke and Sylvester were personally involved, that the harm was foreseeable, that they acted in willful disregard for the safety of the plaintiff or their actions were such that they ‘shocked the conscience.’ There is no allegation that any specific conduct by defendants Locke and Sylvester created a danger to the plaintiff or rendered them more vulnerable to danger than had they not acted at all,” the motion stated.

“In the case at hand, the individual defendants are protected by qualified immunity because there are no cases within this circuit that have found a constitutional deprivation based on facts similar to those alleged in plaintiff’s complaint.”

For counts of 14th Amendment violations and negligence/recklessness, the plaintiffs seek compensatory, punitive and exemplary damages, a trial by jury, interest and all other equitable relief.

The plaintiffs are represented by D. Alexander Latanision of Levy Konigsberg in New York, plus Adam Green and Stephen Specht of Green & Schafle, in Philadelphia.

The defendants are represented by Susanna Randazzo of Kolber Freiman & Randazzo, also in Philadelphia.

U.S. District Court for the Eastern District of Pennsylvania case 2:19-cv-05799

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at

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Organizations in this Story

School District of PhiladelphiaLevy Konigsberg Llp