PHILADELPHIA – A federal judge has ruled that state-created danger and negligence claims from the parents of a local child who allegedly suffered from toxic lead exposure at his Philadelphia elementary school are proceeding against the school district, though individual defendants have been dismissed from the case.
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.
Counsel for defendants SDP, Comly School, Principal Kate Sylvester and Environmental Director Francine Locke responded with a motion to dismiss the lawsuit on Feb. 11, 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.
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.
On March 18, the City of Philadelphia motioned that it should be dismissed from the litigation, for reasons of:
• The plaintiff “not making sufficient factual allegations regarding a municipal policy or custom that was the moving force behind the constitutional violations alleged”;
• The plaintiff “failing to allege that the City defendants caused the harm alleged to plaintiff”;
• Deputy Commissioner Caroline Johnson being entitled to qualified immunity in this case; and
• The Tort Claims Act barring plaintiff’s remaining state law claims against the City defendants.
“The only conduct that plaintiff arguably alleges that is attributable to the City defendants occurred well after minor plaintiff ingested lead paint chips and tested positive for leading poisoning. Plaintiff claims that, after being apprised of the situation and plaintiff’s positive test result, Deputy Commissioner Johnson told Ms. Locke she did not recommend notifying the community yet,” the motion read, in part.
UPDATE
U.S. District Court for the Eastern District of Pennsylvania Judge Petrese B. Tucker ruled on Oct. 28 that only certain claims from the plaintiffs would proceed.
Tucker decided the plaintiffs had shown (1) The harm ultimately caused to the plaintiff was foreseeable and fairly direct; (2) The state-actor acted in willful disregard for the plaintiff's safety; (3) There was some relationship between the state and the plaintiff; and (4) The state-actor used his authority to create an opportunity for danger that otherwise would not have existed.
“Assuming the truth of plaintiffs’ claims in the complaint that the School District knowingly placed minor plaintiff into a situation which would increase his danger, the Court concludes that plaintiffs have adequately pled a state-created danger claim against the School District defendants,” Tucker said.
However, Locke and Sylvester were dismissed from the case due to qualified immunity.
“Plaintiffs fail to provide specific factual allegations that defendants Locke and Sylvester individually acted in ‘willful disregard’ of minor plaintiff’s safety. Plaintiffs do not allege that either defendant Locke or Sylvester had knowledge of minor plaintiff’s habits of placing non-foods into his mouth or took part in placing minor plaintiff under chipping paint,” Tucker said.
“Plaintiffs’ complaint also fails to adequately allege that defendants Locke and Sylvester acted in a way in which government officials would have known violated minor plaintiff’s constitutional rights. Further, plaintiffs have not presented analogous case law as precedent to support that defendants Locke and Sylvester would have been aware of their wrongdoing, thus failing to allege a clearly established right under the second prong of the qualified immunity analysis.”
Tucker also threw out claims against Gruman.
“Plaintiffs’ suggestion that causation of minor plaintiff’s lead poisoning may be inferred simply by minor plaintiff testing positive for lead poisoning while residing at defendant’s property with chipped paint is unreasonable, particularly when minor plaintiff has already been exposed to lead paint elsewhere on a regular basis,” Tucker said.
For these reasons, Tucker explained the School District defendants’ motion to dismiss is granted in part and denied in part, while defendant Gruman’s motion to dismiss is granted.
Therefore, the plaintiffs are now able to proceed with state-created danger claims against the School District of Philadelphia and Comly Elementary School, and negligence/recklessness against the School District defendants.
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 David Alexander Latanision of Levy Konigsberg in New York, plus Stephen M. Specht of Green & Schafle, in Philadelphia.
The defendants are represented by Susanna Randazzo of Kolber Freiman & Randazzo, Thomas Bruno II of Abramson & Denenberg and Shannon G. Zabel of the City of Philadelphia’s Law Department, all 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