PHILADELPHIA – The parents of a local child who allegedly suffered from toxic lead exposure at his Philadelphia elementary argue that the School District of Philadelphia’s motion to dismiss their lawsuit should be denied, as the district allegedly caused the child to be in “state-created danger.”
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 suit said.
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 said 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.
However, on March 6, the plaintiffs responded to the dismissal motion, charging their suit should not be thrown out due to the school’s district responsibility in causing their child to be exposed to a “state-created danger."
The Pagans argued that given the age of the school building (over 120 years), the district should have known that it contained lead and that such a condition is dangerous, particularly involving a child who had a known history of putting non-edible objects into his mouth, like the minor plaintiff – with that latter information being disclosed on a report card from his first-grade teacher the previous year.
“Minor plaintiff was lead poisoned when his schoolteachers placed him at a desk beneath an area of ceiling from which toxic, lead-based paint chips were raining down upon him…the School District had control over the instrumentality that caused the harm and were in a position to prevent it,” the plaintiffs’ response stated.
“Minor plaintiff was only a six year-old boy in the first grade, making him wholly incapable of appreciating the danger posed by toxic lead paint. Finally, school defendants were on notice that minor plaintiff had a tendency to place objects into his mouth. A note to this effect appears on minor plaintiff’s teacher’s report provided the previous year.”
Additionally, plaintiff counsel argued that conduct such as failing to notice deteriorating, falling ceiling paint which contains toxic lead and placing a child with a history of placing objects into his mouth represented conduct that shocks the conscience and satisfies that tenet of the state-created danger theory.
Thereby, the plaintiffs’ request that the defendants’ motion be thrown out or in the alternative, they be permitted to amend the original complaint to cure any technical deficiencies or be allowed to pursue their negligence claim in a Philadelphia state court as opposed to federal court (should it not meet federal pleading standards).
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 nick.malfitano@therecordinc.com