                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-23-1997

Morse v. Lower Merion Sch
Precedential or Non-Precedential:

Docket 96-2134




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Filed December 23, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 96-2134

JEROME P. MORSE, Individually and as Executor of the
Estate of Diane M. Morse, Deceased, and as Parent and
Natural Guardian of JUREE N. MORSE, a Minor,
       Appellant

v.

LOWER MERION SCHOOL DISTRICT; DAYCARE
ASSOCIATION OF MONTGOMERY COUNTY, INC., d/b/a
ARDMORE CHILD CARE CENTER; JAMISON
CONTRACTORS, INC.; BUTTONWOOD COMPANY, INC.;
UNITED STATES ROOFING CORPORATION

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 96-cv-04576)

Argued July 24, 1997

Before: SCIRICA and NYGAARD, Circuit Judges
and DEBEVOISE, District Judge*

(Filed December 23, 1997)



_________________________________________________________________

*The Honorable Dickinson R. Debevoise, United States District Judge for
the District of New Jersey, sitting by designation.
       PAUL J. DRUCKER, ESQUIRE
        (ARGUED)
       Jablon, Epstein, Wolf & Drucker
       The Bellevue, Ninth Floor
       Broad Street at Walnut
       Philadelphia, Pennsylvania 19102

       WILLIAM F. JOSEPH, ESQUIRE
       1831 Chestnut Street, Suite 1001
       Philadelphia, Pennsylvania 19103

        Attorneys for Appellant

       DIANE C. BERNOFF, ESQUIRE
        (ARGUED)
       JAY B. HARRIS, ESQUIRE
       Fineman & Bach
       1608 Walnut Street, 19th Floor
       Philadelphia, Pennsylvania 19103

        Attorneys for Appellees,
        Lower Merion School District;
        Daycare Association of
        Montgomery County, Inc., d/b/a
        Ardmore Child Care Center

       JAMES J. GILLESPIE, JR.,
        ESQUIRE
       Stolarski, Gillespie & Hendrzak
       2005 Market Street, Suite 2030
       Philadelphia, Pennsylvania 19103

        Attorney for Appellee,
        Jamison Contractors, Inc.

OPINION OF THE COURT

SCIRICA, Circuit Judge.

This civil rights action raises the question of what a
plaintiff must plead in order to state a viable claim under
the state-created danger theory of 42 U.S.C.A. S 1983 (West
1994 & Supp. 1997). The district court granted defendants'
motion to dismiss under Fed. R. Civ. P. 12(b)(6), finding

                                  2
plaintiff failed to plead one of the elements of the test set
forth by this court in Kneipp v. Tedder, 95 F.3d 1199 (3d
Cir. 1996) and thereby failed to state a claim upon which
relief could be granted. Although we analyze the applicable
law somewhat differently from the district court, we will
affirm.1

I

Background and Procedural History

On July 28, 1994, Diane Morse, a teacher at the Ardmore
Child Care Center, was shot and killed in front of a
classroom of children by Arcelia Truman ("Trudy") Stovall,
a local resident with a history of mental illness. The
Ardmore Child Care Center, which is owned and operated
by the Daycare Association of Montgomery County, has
operated out of a wing of Lower Merion High School for
several years, under a lease between the Daycare
Association and the Lower Merion School District. Stovall,
who was subsequently convicted of the murder of Diane
Morse and incarcerated in a psychiatric hospital, was able
to enter the building through an unlocked rear entrance.

In the weeks preceding the shooting, several contractors
were working on construction projects at the high school, in
the vicinity of the Ardmore Child Care Center location.
Jamison Contractors, Inc. was engaged in construction and
repair activities in and around the school building.
Buttonwood Company, Inc. was painting a swimming pool
within the building, and United States Roofing Corporation
was repairing the roof in the area adjacent to the swimming
pool. To accommodate their construction projects, the
contractors made use of the back entrance to the building.
Jamison employees would prop open the door to facilitate
the movement of materials in and out of the building. As
_________________________________________________________________

1. We may affirm the lower court's ruling on different grounds, provided
the issue which forms the basis of our decision was before the lower
court. See Mark v. Borough of Hatboro, 51 F.3d 1137, 1139 n.1 (3d Cir.
1995), cert. denied, 116 S. Ct. 165 (1995); Neely v. Zimmerman, 858 F.2d
144, 149 (3d Cir. 1988).

                                3
part of its work on the swimming pool, Buttonwood set up
a compressor outside of the building, which was connected
to air-driven tools in the pool area by a series of two inch
cables. In order to reach the tools in the pool area,
Buttonwood ran these cables through the back entrance to
the school. For their part, the employees of U.S. Roofing
used the open door as a means of access to the restrooms
located within the building.

This action was brought under 42 U.S.C. S 1983 by
Diane Morse's husband on his own behalf, as executor of
her estate, and in a representative capacity on behalf of
their daughter. The complaint alleges, inter alia, that the
Lower Merion School District and the Daycare Association
deprived Diane Morse of her right to be free from physical
harm, and deprived plaintiff and his daughter of their
fundamental right of association with the decedent. 2 In
particular, plaintiff claims the School District had a written
policy which provided that all side and back entrances to
the school were to be kept locked at all times. The
complaint alleges that, although aware of the unsecured
back entrance, the School District and the Daycare
Association made no effort to correct the condition, and in
fact facilitated the workers' access by unlocking the back
entrance each day to assist the various contractors. In
addition, the complaint alleges the School District and the
Daycare Association were aware of other security breaches
prior to July 1994 that had allowed unauthorized persons
to gain access to the building. These previous incidents had
resulted in theft, vandalism, and, in at least one instance,
assault. As a result, plaintiff asserts, the "environment
created by [defendants] was dangerous, was known by
them to be dangerous and created the opportunity for
Trudy Stovall's attack on the decedent that would not
otherwise have existed."

Defendants filed a motion to dismiss under Rule 12(b)(6)
_________________________________________________________________

2. The complaint also raised various state law claims against Jamison,
Buttonwood and U.S. Roofing. The district court dismissed the state law
claims for lack of supplemental jurisdiction. In order to protect these
claims, plaintiff subsequently filed an action in state court against the
private defendants.

                               4
on two grounds. First, defendants contended that neither
the School District nor the Daycare Association was acting
under color of state law, as required by Section 1983.3
Second, defendants argued that Mr. Morse's complaint
failed to meet the requirements for a state-created danger
claim. The district court declined to address defendants'
color of state law arguments, ruling only on the sufficiency
of the state-created danger claim.4

The district court read plaintiff 's complaint to allege
three distinct theories.5 The first theory of liability was that
defendants breached their duty to maintain a safe working
environment by leaving the back entrance unsecured. The
second theory premised liability on defendants' alleged
policy of refusing to institute and maintain safety
procedures, thus demonstrating a deliberate indifference to
Ms. Morse's constitutional rights. The final theory alleged
that the School District and the Daycare Association were
liable under the state-created danger theory ofS 1983.
Although the district court analyzed each theory and found
that plaintiff failed to state a claim under any of them, the
only theory raised on appeal, and the only one reviewed
here, is plaintiff's state-created danger theory.

The district court began its analysis of plaintiff's claim by
examining our recent decision in Kneipp v. Tedder, in which
we adopted the state-created danger theory of liability
under S 1983. 95 F.3d 1199, 1211 (1996). In particular, the
district court looked to whether "liability based on the
_________________________________________________________________

3. With respect to this ground, defendants submitted the lease
agreement between the Daycare Association and the School District, as
well as the affidavit of the Daycare Association's Executive Director, in
support of their 12(b)(6) motion. The district court noted that it could
have, at its discretion, converted the motion into a motion for summary
judgment. It declined to do so, however, finding these documents
inconclusive on the color of state law issue. Morse v. Lower Merion Sch.
Dist., 1996 WL 677514, *2 (E.D. Pa. Nov. 20, 1996).

4. Because we, too, find that plaintiff has failed to state a claim under
the state-created danger theory, we need not address the question
whether the School District or the Daycare Association were acting
under color of state law at the time of Diane Morse's death.

5. In his briefs on appeal, plaintiff denies this, and states that his
complaint relied solely on the state-created danger theory of liability.

                               5
state-created danger theory must be predicated on
affirmative acts by a state actor." Morse v. Lower Merion
Sch. Dist., 1996 WL 677514, at *5 (E.D. Pa. Nov. 20, 1996).6
The court noted that, unlike the facts in Kneipp, which
involved affirmative acts by the police that created an
inherently dangerous situation for the plaintiff, the
complaint here attempted to establish liability based
primarily on defendants' failure to act. Because such
failures to act "have consistently been held non-actionable
under Section 1983,"7 the district court concluded that
plaintiff could not support his S 1983 claim by relying on
allegations that defendants failed to prevent the contractors
from propping open the back door (Complaint PP 26, 28,
30), failed to detain Ms. Stovall prior to the day of the
murder (Complaint P 31), and refused to institute and
maintain security (Complaint P 42). The district court held
the only allegation in the complaint which could support
plaintiff 's state-created danger theory was that defendants
themselves unlocked the back entrance to the school to
facilitate the work of the various contractors. But the
district court declined to examine whether this constituted
an affirmative act, and instead based its decision on a
different element of the Kneipp analysis.

The district court premised its decision on Kneipp's
holding that a state actor can only be held liable if "a
relationship [existed] between the state and the person
injured . . . during which the state places the victim in
danger of a foreseeable injury." Kneipp, 95 F.3d at 1209
(citations omitted). Because there was no dispute whether
this relationship existed between the police and the plaintiff
_________________________________________________________________

6. The district court acknowledged that "the line between action and
omission is not always clear." The affirmative act requirement is
discussed in greater detail, infra.

7. Morse, 1996 WL 677514, at *6 (citing DeShaney v. Winnebago County
Dept. of Social Serv., 489 U.S. 189 (1989); D.R. v. Middle Bucks Area
Vocational Tech. Sch., 972 F.2d 1364 (3d Cir. 1992) (en banc), cert.
denied, 506 U.S. 1079 (1993); Searles v. Southeastern Pennsylvania
Transp. Auth., 990 F.2d 789 (3d Cir. 1993); Brown v. Grabowski, 922
F.2d 1097 (3d Cir. 1990), cert. denied, 501 U.S. 1218 (1991); Huston v.
Montgomery County, No. Civ. A. 95-4209, 1995 WL 766308 (E.D. Pa.
Dec. 28, 1995)).

                               6
in Kneipp, the district court looked to pre-Kneipp decisions
to analyze the parameters of this requirement. The district
court examined Doe v. Methacton Sch. Dist., 880 F. Supp.
380, 386 (E.D. Pa. 1995), aff'd, 124 F.3d 185 (3d Cir.
1997), which held that the state-created danger theory
would only affix liability if the victim of the resulting harm
is "known and identified," and not "simply a member of the
greater public," and Mark v. Borough of Hatboro, 51 F.3d
1137, 1153 (3d Cir. 1995), cert. denied, 116 S. Ct. 165
(1995), where we held that "cases where the state-created
danger theory was applied were based on discrete, grossly
reckless acts committed by the state or state actors. . .
leaving a discrete plaintiff vulnerable to foreseeable injury."
Based on its reading of these two cases, as well as Martinez
v. California, 444 U.S. 277 (1980) and Commonwealth Bank
& Trust Co., N.A. v. Russell, 825 F.2d 12 (3d Cir. 1987), the
district court concluded that, "to make out a state-created
danger claim, a plaintiff must allege facts indicating that
there was a particular danger to the victim of the resulting
harm." Morse, 1996 WL 677514, at *8. Because plaintiff
failed to allege that "Diane Morse faced a particular danger
distinct from that faced by the population of persons inside
the school" as a result of the back entrance being left
unlocked, the district court granted defendants' motion to
dismiss. Id.

II

We have jurisdiction under 28 U.S.C. S 1291, and our
review of the grant of a motion to dismiss is plenary. Jordan
v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250 (3d Cir.
1994). When considering a Rule 12(b)(6) motion, we are
required to accept as true all of the allegations in the
complaint and all reasonable inferences that can be drawn
therefrom, and view them in the light most favorable to the
plaintiff. Rocks v. City of Philadelphia, 868 F.2d 644, 645
(3d Cir. 1989); D.P. Enter. Inc. v. Bucks County Community
College, 725 F.2d 943, 944 (3d Cir. 1984). A Rule 12(b)(6)
motion should be granted "if it appears to a certainty that
no relief could be granted under any set of facts which
could be proved." D.P. Enter. Inc., 725 F.2d at 944;
Richardson v. Pennsylvania Dep't of Health, 561 F.2d 489,

                               7
492 (3d Cir. 1977). But a court need not credit a
complaint's "bald assertions" or "legal conclusions" when
deciding a motion to dismiss. In re Burlington Coat Factory
Securities Litigation, 114 F.3d 1410, 1429-30 (3d Cir.
1997)(quoting Glassman v. Computervision Corp., 90 F.3d
617, 628(1st Cir. 1996)).8 Mitchell v. Duvall County Sch. Bd.,
107 F.3d 837, 839-40 (11th Cir. 1997)(affirming dismissal
of state-created danger claim where it was "beyond doubt
that appellant cannot prove a set of facts" which support
his claim); Johnson v. Dallas Indep. Sch. Dist., 38 F.3d 198
(5th Cir. 1994), cert. denied, 514 U.S. 1017 (1995)(same).

III

Discussion

Plaintiff brought this civil rights action under 42 U.S.C.
S 1983.9 By itself, Section 1983 does not create any rights,
but provides a remedy for violations of those rights created
by the Constitution or federal law. Baker v. McCollan, 443
_________________________________________________________________

8. See also Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure S 1357 (2d ed. 1997) (noting that courts, when examining
12(b)(6) motions, have rejected "legal conclusions," "unsupported
conclusions," "unwarranted inferences," "unwarranted deductions,"
"footless conclusions of law," or "sweeping legal conclusions cast in the
form of factual allegations"); Leeds v. Meltz, 85 F.3d 51, 53 (2d Cir.
1996)(affirming dismissal of S 1983 action and noting that "[w]hile the
pleading standard is a liberal one, bald assertions and conclusions of
law will not suffice."); Fernandez-Montes v. Allied Pilots Ass'n, 987 F.2d
278, 284 (5th Cir. 1993) ("[C]onclusory allegations or legal conclusions
masquerading as factual conclusions will not suffice to prevent a motion
to dismiss.").

9. Section 1983 provides:

       Every person who, under color of any statute, ordinance,
regulation,
       custom, or usage, of any State or Territory or the District of
       Columbia, subjects, or causes to be subjected, any citizen of the
       United States or other person within the jurisdiction thereof to
the
       deprivation of any rights, privileges, or immunities secured by the
       Constitution and laws, shall be liable to the party injured in an
       action at law, suit in equity, or other proper proceeding for
redress.

42 U.S.C.A. S 1983.

                               8
U.S. 137, 144 n.3 (1979); Kneipp, 95 F.3d at 1204. In order
to state a claim, plaintiff must show that defendants, acting
under color of state law, deprived him of a right secured by
the Constitution or the laws of the United States. See
Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on
other grounds, Daniels v. Williams, 474 U.S. 327 (1986).

As noted, plaintiff alleged defendants subjected Diane
Morse to a dangerous and ultimately fatal situation, in
violation of her Fourteenth Amendment right to substantive
due process, by allowing a mentally deranged and
homicidal third party to have access to the day care center
where Diane Morse worked. Although the general rule is
that the state has no affirmative obligation to protect its
citizens from the violent acts of private individuals, courts
have recognized two exceptions to this rule. See, e.g., D.R.
v. Middle Bucks Area Vocational Tech. Sch., 972 F.2d 1364,
1369-73 (3d Cir. 1992) (en banc), cert. denied, 506 U.S.
1079 (1993); Uhlrig v. Harder, 64 F.3d 567, 572 (10th Cir.
1995), cert. denied, ___ U.S. #6D6D 6D#, 116 S. Ct. 924 (1996). The
first of these is commonly known as the "special
relationship" exception, and allows a plaintiff to recover
"when the state enters into a special relationship with a
particular citizen . . . [and] fails, under sufficiently culpable
circumstances, to protect the health and safety of the
citizen to whom it owes an affirmative duty." D.R., 972 F.2d
at 1369; see also Black v. Indiana Area Sch. Dist., 985 F.2d
707, 713 (3d Cir. 1993). The second exception is the"state-
created danger" theory of liability.

The state-created danger theory had it origins in the
Supreme Court's decision in DeShaney v. Winnebago
County Dep't of Social Serv., 489 U.S. 189 (1989). The
petitioner in that case was a young boy who was
chronically abused by his father. The county department of
social services, after receiving many complaints about the
boy's mistreatment, took several steps to ensure his safety.
But despite these efforts, the boy remained in his father's
custody, and was eventually beaten so savagely that he
suffered severe brain damage. The boy and his mother sued
the department of social services under the "special
relationship" theory of 42 U.S.C. S 1983 for their failure to
protect the boy from his father. Although the Court

                               9
ultimately rejected plaintiff's claim, 489 U.S. at 195-96, it
went on to explain that, "[w]hile the State may have been
aware of the dangers that Joshua faced in the free world,
it played no part in their creation, nor did it do anything to
render him any more vulnerable to them." 495 U.S. at 201.
Based on that language, several courts of appeals have
allowed claims under Section 1983 on the "state-created
danger" theory. See, e.g., Dwares v. City of New York, 985
F.2d 94, 99 (2d Cir. 1993); Reed v. Gardner, 986 F.2d
1122, 1125 (7th Cir. 1993), cert. denied, 510 U.S. 947
(1993); Freeman v. Ferguson, 911 F.2d 52, 55 (8th Cir.
1990); Cornelius v. Town of Highland Lake, 880 F.2d 348
(11th Cir. 1989), cert. denied, 494 U.S. 1066 (1990); Wood
v. Ostrander, 879 F.2d 583 (9th Cir. 1989), cert. denied,
498 U.S. 938 (1990).

We adopted the "state-created danger" theory in Kneipp v.
Tedder. The plaintiffs there were the parents and legal
guardians of Samantha Kneipp. Samantha and her
husband, Joseph, were stopped by police while returning
home on foot on a cold night in January. The police
stopped the Kneipps a short distance from their home for
allegedly causing a disturbance. According to the police,
Samantha was visibly intoxicated - she had difficulty
walking, and smelled of alcohol and urine. During the
course of their discussion Joseph Kniepp expressed the
need to relieve the Kneipps' babysitter, and asked the police
if he could return home. Joseph testified that the police
informed him he could leave, and he left assuming that
they would either take Samantha to a hospital or the police
station. But the police sent Samantha home alone shortly
thereafter. Approximately two hours later, Samantha was
found lying at the bottom of an embankment across the
street from the Kneipps' home. As a result of her exposure
to the cold, Samantha suffered permanent brain damage.
Plaintiffs brought suit, alleging the police officers' actions
deprived Samantha of her right to substantive due process
and her liberty interest in personal security. The district
court granted summary judgment in favor of the
defendants. We reversed, holding that the "state-created
danger theory is a viable mechanism for establishing a
constitutional claim under 42 U.S.C. S 1983," and that

                               10
plaintiffs had raised a triable issue of fact under that
theory. Kneipp, 95 F.3d at 1211.

In reaching this conclusion, we applied the four-part test
articulated in Mark v. Hatboro, which holds a state actor
liable if:

       (1) the harm ultimately caused was foreseeable and
       fairly direct; (2) the state actor acted in willful
       disregard for the safety of the plaintiff; (3) there existed
       some relationship between the state and the plaintiff;
       (4) the state actors used their authority to create an
       opportunity that otherwise would not have existed for
       the third party's crime to occur.

Kneipp, 95 F.3d at 1208 (quoting Mark, 51 F.3d at 1152).
We also noted that "[t]hose courts which have recognized
the state-created danger theory have employed a deliberate
indifference standard." Id. at 1208 (citations omitted). When
this test is applied to the facts of this case, it becomes clear
that plaintiff has not set forth a claim under S 1983 upon
which relief can be granted.

A. Foreseeable and Fairly Direct Harm

The first element of the Kneipp test requires that the
harm ultimately caused was a foreseeable and a fairly
direct result of the state's actions. Although the plaintiff
asserted this conclusion in his complaint, this is not
necessarily sufficient to overcome defendants motion to
dismiss. As we have noted, we need not accept "bald
assertions" or "legal conclusions" contained in the
complaint. In re Burlington Coat Factory Securities
Litigation, 114 F.3d 1410, 1429-30 (3d Cir. 1997)(quoting
Glassman v. Computervision Corp., 90 F.3d 617, 628 (1st
Cir. 1996)). We hold that defendants, as a matter of law,
could not have foreseen that allowing construction workers
to use an unlocked back entrance for access to the school
building would result in the murderous act of a mentally
unstable third party, and that the tragic harm which
ultimately befell Diane Morse was too attenuated from
defendants' actions to support liability.

First, the complaint did not allege that defendants were
aware of Stovall's violent propensities. There are no

                                11
allegations that Stovall had made threats against Diane
Morse or any other persons at the Lower Merion High
School, or even that she had a history of violent behavior.
The only allegation in the complaint that addresses whether
defendants should have foreseen the danger posed by
Stovall that day was that, during the week preceding the
murder, she had been seen "loitering in the school and the
school area." (Complaint P 31). Assuming that defendants
were aware of this fact, as we must when reviewing the
grant of a motion to dismiss, this is insufficient as a matter
of law to put defendants on notice that Stovall would return
in a few days with a .38 revolver and a homicidal intent.

Second, there is no allegation that defendants were aware
of anyone posing a credible threat of violence to persons
inside the school building. Although the complaint alleges
that defendants were aware of previous "security breaches"
by unnamed persons, it does not allege that Stovall, or any
other mentally deranged person, had entered the school
building previously. In addition, the complaint contains no
allegation, and plaintiff cannot prove any set of facts, that
would demonstrate that defendants were aware of the
likelihood that a mentally deranged person would enter the
school in search of a victim.

Third, Stovall's attack was not a "fairly direct" result of
defendants' actions. We recognize that plaintiff has alleged
that the harm which befell Ms. Morse was "a direct result
of defendants' acts." But we are not bound to accept a
conclusory statement, and as a matter of law this cannot
be true. Plaintiff's allegation that, as a result of defendants'
decision to allow construction workers to have access to the
school through an unlocked rear entrance, Stovall was able
to enter the building and murder Diane Morse is
insufficient to support liability. While we must accept the
allegation that Stovall gained access to the building
through the unlocked rear entrance, this does not mean the
attack on Diane Morse occurred as a direct result of
defendants allowing the construction crews to prop open
the door. The causation, if any, is too attenuated. Plaintiff
can prove no set of facts which will provide the direct
causal connection between Stovall's deadly attack and any
of defendants' allegedly improper acts.

                               12
The cases which have found liability under the state-
created danger theory do not stretch the concepts of
foreseeability and causation this far. Kneipp itself involved
a visibly inebriated and incapacitated woman who was left
alone on the road by police. Consequently we concluded
that "a reasonable jury could find that the harm likely to
befall Samantha if separated from [her husband] while in a
highly intoxicated state in cold weather was indeed
foreseeable" and could have led directly to her injuries. 95
F.3d at 1208.

Similarly, the decisions to hold the state actors liable
under the state-created danger theory in Wood v.
Ostrander, 879 F.2d 583 (9th Cir. 1989), and Cornelius v.
Town of Highland Lake, 880 F.2d 348 (11th Cir. 1989),
were premised on facts in which the harm visited on the
plaintiffs was more foreseeable than the random attack
perpetrated by Stovall here. The plaintiff in Wood was the
female passenger of a drunk driver who was pulled over late
one evening by police. The driver was arrested and the car
impounded, leaving Ms. Wood stranded on the road in a
notoriously high crime area. After beginning thefive mile
walk to her home, Ms. Wood accepted a ride from an
unknown man who subsequently took her to a secluded
area and raped her. Addressing the issue of foreseeable
harm, the court noted that the "inherent danger facing a
woman left alone at night in an unsafe area is a matter of
common sense." 879 F.2d at 590 (citations omitted).

In Cornelius, the United States Court of Appeals for the
Eleventh Circuit found that prison and town officials could
be liable to the plaintiff, who was abducted and held
hostage for several days by prison inmates assigned to a
community work program in the town hall where she was
employed. Reversing the lower court's grant of summary
judgment, the court of appeals found that genuine issues of
fact existed which related to the "special danger" created by
the work squad's presence in the town hall. The court
noted that the defendants in Cornelius knew of the
dangerous propensities of the prison inmates assigned to
the work program, as well as the lack of supervision over
those inmates, and thus "were aware of the danger present
from the community work squad inmates." 880 F.2d at

                               13
358. The ultimate manifestation of that danger was
therefore foreseeable. By contrast, there is no allegation in
the complaint here that defendants knew that Stovall posed
a threat to anyone at Lower Merion High School, let alone
Diane Morse.

In this respect the case before us is more analogous to
the facts in Gregory v. City of Rogers, 974 F.2d 1006 (8th
Cir. 1992), cert. denied, 507 U.S. 913 (1993). In Gregory,
three friends were returning home from an evening of
drinking, with one of them, Stanley Turner, serving as
designated driver. The police stopped their vehicle for
running a red light, and in the process of making a routine
warrant check, discovered an outstanding warrant for
Turner's arrest. At his request, the police allowed Turner to
drive to the station in order to clear up the matter. After
arriving at the station, Turner parked and went inside,
leaving behind his two intoxicated passengers, and leaving
the keys in the ignition. After waiting for thirty minutes, the
passengers drove off, and were involved in a single car
accident which killed the driver and injured the other
passenger. Plaintiffs - the surviving passenger and the wife,
son and estate of the decedent - brought a claim against
the police under the state-created danger theory. The
district court granted the defendants' motion for summary
judgment, and the United States Court of Appeals for the
Eighth Circuit, sitting en banc, affirmed. The court
concluded that even if the police were aware that both
passengers were intoxicated, a reasonable trier of fact could
not find that the police placed them in a dangerous
situation by merely leaving them alone in the car. Id. at
1011 (contrasting the facts there with the facts in Wood).
"Simply put, it was not unsafe for the intoxicated
[passengers] to wait for Turner inside the car where it was
parked until Turner inexplicably left the keys with them."
Id. at 1012. The court ruled that because Turner's
unforeseeable act was the catalyst for the injury which
plaintiffs suffered, the police could not be held liable. Id.

The same can be said in the case before us. Here, it was
not defendants' decision to allow the rear entrance to the
school to remain open that precipitated or was the catalyst
for the attack on Ms. Morse. Furthermore, we believe that

                               14
the harm allegedly created by the defendants in Gregory
was more foreseeable than the harm allegedly created here.
Unlike the situation in Gregory, where the defendants were
aware that intoxicated passengers were left behind in the
car, the defendants here were unaware that any mentally
deranged person, let alone Stovall, was waiting outside the
building for an opportunity to cause harm. Based on a
review of the complaint, we find that plaintiff can prove no
set of facts which will entitle him to relief. Defendants could
not have foreseen the danger to Diane Morse, nor, as a
matter of law, can their actions be said to have directly
caused the attack. Consequently, plaintiff has failed to
plead adequately the foreseeable injury element of the
Kneipp test.

B. Willful Disregard for Plaintiff's Safety

The second prong of the Kneipp test asks whether the
state actor acted with willful disregard for or deliberate
indifference to plaintiff's safety. Kneipp , 95 F.3d at 1208 &
n.21. "[T]he environment created by the state actors must
be dangerous; they must know it to be dangerous; and . . .
[they] must have been at least deliberately indifferent."
Johnson v. Dallas Indep. Sch. Dist., 38 F.3d 198, 201 (5th
Cir. 1994), cert. denied, 514 U.S. 1017 (1995). See also
Leffal v. Dallas Indep. Sch. Dist., 28 F.3d 521, 531 (5th Cir.
1994) ("[I]t is not enough to show that the state increased
the danger of harm from third persons; the [S] 1983
plaintiff must also show that the state acted with the
requisite degree of culpability in failing to protect the
plaintiff."). In other words, the state's actions must evince
a willingness to ignore a foreseeable danger or risk. Of
course, the notion of deliberate indifference contemplates a
danger that must at least be foreseeable. In Kneipp, we
focused on the police officers' decision to send Samantha
Kneipp home alone, despite their awareness of her
intoxicated and incapacitated state, as evidence of their
deliberate indifference. In Cornelius, the court held the
defendants could be liable based on their knowledge of the
risk created by the presence of the community work squad
inmates. 880 F.2d at 358. These factors are not present
here. Defendants could not have been aware of the danger
posed by Stovall, nor could they have foreseen it. As a

                               15
matter of law they cannot have acted with willful disregard
for Diane Morse's safety.10

Our decision in Mark v. Borough of Hatboro is instructive.
The plaintiff owned an auto repair business that was
destroyed in a fire set by a volunteer firefighter. The
plaintiff filed a S 1983 action against the borough and the
_________________________________________________________________

10. The Kneipp court noted that "we have declined to distinguish such
terms as "deliberate indifference," "reckless indifference," "gross
negligence," or "reckless disregard" in the context of a violation of
substantive due process under the Fourteenth Amendment." 95 F.3d at
1208 n.21 (citing Williams v. Borough of West Chester, 891 F.2d 458,
464 n. 10 (3d Cir. 1989)). The concept of "willful disregard" fits within
this same ill-defined category of mens rea. "Willful disregard" and
"reckless indifference" appear to fall somewhere between intent, which
"includes proceeding with knowledge that the harm is substantially
certain to occur" and negligence, which involves"the mere unreasonable
risk of harm to another." W. Page Keeton et al, Prosser & Keeton on
Torts S 34 at 212 (5th ed. 1984). Thus the term "willful" indifference is
somewhat misleading, requiring not an intent to harm, but a failure to
act appropriately in light of a known or obvious risk. Id. at 213-14 ("The
`willful' requirement, therefore, breaks down and receives at best lip
service, where it is clear from the facts that the defendant, whatever his
state of mind, has proceeded in disregard of a high and excessive degree
of danger, either known to him or apparent to a reasonable person in his
position.").

The Restatement (Second) on Torts S 500 reiterates this standard:

       The actor's conduct is in reckless disregard of the safety of
another
       if he does an act or intentionally fails to do an act which it is
his
       duty to the other to do, knowing or having reason to know of facts
       which would lead a reasonable man to realize, not only that his
       conduct creates an unreasonable risk of physical harm to another,
       but also that such risk is substantially greater than that which is
       necessary to make his conduct negligent.

The Restatement underscores that the test of willful indifference does not
require that the state actor "recognize [his conduct] as being extremely
dangerous . . . [but that] he knows or has reason to know of
circumstances which would bring home to the realization of the
ordinary, reasonable man the highly dangerous character of his
conduct." Id., comment c. The element of willfulness, however, is not
entirely disregarded, and thus "[c]onduct cannot be in reckless disregard
of the safety of others unless the act or omission is itself intended."
Id.,
comment b.
16
fire company, claiming their failure to properly screen
volunteer firefighters resulted in the damage to his
property. Affirming the district court's grant of summary
judgment, we rejected plaintiff's claim that "the danger of
volunteer firefighters committing arson is so grave and so
obvious that the defendants failure [to screen volunteers]
evinced willful disregard for the rights of individuals with
whom the firefighters came in contact." Mark, 51 F.3d at
1140. A similar analysis can be applied to the allegations
here. As contrasted with the risk that an intoxicated
woman left alone on the road during inclement weather
might be injured, the risk that unlocking a school entrance
would invite the actions of a deranged third person is no
more a foreseeable risk than the risk that a firefighter will
have a proclivity for arson. Consequently, defendants here
cannot have acted with the requisite culpability to be liable
under the state-created danger theory.

Also instructive is the decision of the United States Court
of Appeals for the Fifth Circuit in Johnson v. Dallas Indep.
Sch. Dist., 38 F.3d 198 (5th Cir. 1994), cert. denied, 514
U.S. 1017 (1995). In that case, a student at a Dallas high
school was killed by a stray bullet fired by a non-student
during an argument in a school hallway. The ruckus was
instigated by the non-student, who was able to enter the
school carrying a concealed weapon because the school's
metal detectors were not in use. The decedent's father filed
suit under S 1983, claiming, inter alia, that the school
district was responsible for his son's death under the state-
created danger theory. The district court granted
defendants' motion to dismiss, and the court of appeals
affirmed. According to the court,

       [a]ctual knowledge of a serious risk of physical danger
       to the plaintiff has been a common feature of the state-
       created danger cases. From the pleadings in this case,
       no legitimate inference can be drawn that the school
       officials might have been actually aware of a high risk
       that an armed non student invader would enter the
       campus and fire a pistol randomly during school
       hours.

38 F.3d at 201-202. The court of appeals found that "the
most that may be said of defendants' ultimately ineffective

                               17
attempts to secure the environment is that they were
negligent, but not that they were deliberately indifferent."
Id. at 202.

The same is true in the case before us. Stovall's attack on
Diane Morse was not a foreseeable risk, and there is no
allegation in the complaint that defendants knew of the
threat she posed. Defendants, by allowing construction
workers to keep the rear entrance to the school unlocked,
did not willfully or deliberately disregard a foreseeable
danger. Assuming their actions rose to the level of
negligence, merely negligent acts cannot support a claim
under the state-created danger theory of S 1983. Kneipp, 95
F.3d at 1208; Johnson, 38 F.3d at 202. Much like the
decedent in Johnson, Morse was "the tragic victim of
random criminal conduct rather than of school officials'
deliberate, callous decisions," and plaintiff's complaint
cannot be read to allege otherwise. Consequently, plaintiff
has not met his pleading burden under the second prong of
the Kneipp test.

C. Relationship Between State and Plaintiff - Foreseeable
       Plaintiff.

The third element of the Kneipp test asks whether "there
existed some relationship between the state and the
plaintiff." In Mark, when we initially identified this as an
element of the state-created danger theory, we explained
that the cases which had found liability were based on facts
where the state acted in such a way as to leave "a discrete
plaintiff vulnerable to a foreseeable injury." 51 F.3d at
1153. In Kneipp we found there was "a relationship
between the state and [Ms. Kneipp] . . . during which the
state place[d] the victim in danger of a foreseeable injury."
We then distinguished this "relationship" element of the
state-created danger theory from that required under the
"special relationship" theory of DeShaney, noting that "the
relationship requirement under the state-created danger
theory contemplates some contact such that the plaintiff
was a foreseeable victim of the defendant's acts in a tort
sense." 95 F.3d at 1209 n.22.

The district court here interpreted the "foreseeable
plaintiff" element11 ofKneipp and Mark to require that "a
plaintiff must allege facts indicating that there was a
_________________________________________________________________

11. Although the district court referred to this element as the "discrete
plaintiff " requirement, we use the term "foreseeable plaintiff" to
describe
this element of the Mark test.
18
particular danger to the victim of the resulting harm."
Morse, 1996 WL 677514, at *2. The district court traced the
progression of the "foreseeable plaintiff" requirement from
its origins in Martinez v. California, 444 U.S. 277 (1980).
Martinez involved a S 1983 action brought by the parents of
a young girl who was murdered by a parolee five months
after his release from prison. Plaintiffs alleged that the
officials responsible for granting parole were liable for their
daughter's death. In rejecting plaintiffs' claims, the
Supreme Court stated that "the parole board was not aware
that appellant's decedent, as distinguished from the public
at large, faced any special danger." 444 U.S. at 285. The
district court read this language to require that the state
actor be aware that it is creating a risk of harm to a
particular plaintiff.

Our decision in Commonwealth Bank & Trust Co. v.
Russell, 825 F.2d 12 (3d Cir. 1987) also addressed the
issue of who qualifies as a "foreseeable plaintiff." In that
instance a suit was filed on behalf of a couple murdered by
an escaped inmate, alleging that breaches in the prison's
security resulted in the prisoner's escape and, ultimately,
the couple's death. We held that prison officials were not
liable on the grounds that, inter alia, they could not have
known that decedents faced any particular threat greater
than that faced by the "public at large." Id. at 16. Once
again, the district court here read this case as requiring
plaintiffs employing the state-created danger theory to
allege they faced a particular threat of harm which set them
apart from the general public.

The district court next examined our decision in Mark v.
Borough of Hatboro. As we have noted, the actor in that
case was a volunteer firefighter who set fire to and
destroyed the plaintiff's auto repair business. The plaintiff
contended the municipality was liable to him for arson
damage under the state-created danger theory. We declined
to address the viability of the theory at that time, ruling
that in any event a constitutional violation could not be
made out under the facts of the case. As we stated:

       When the alleged unlawful act is a policy directed at
       the public at large - namely a failure to protect the
       public by failing adequately to screen applicants for

                               19
       membership in a volunteer fire company, the rationale
       behind the rule disappears - there can be no specific
       knowledge of the particular plaintiff's condition, and
       there is no relationship between the defendant and the
       plaintiff.

51 F.3d at 1153. Focusing on this language, the district
court interpreted the third prong of the Kneipp test to
require an allegation that the state actor was aware of a
danger to a specific individual. Because the complaint did
not allege this, the district court held that plaintiff failed to
state a claim under the state-created danger theory.12

We analyze the foreseeable plaintiff prong somewhat
differently than the district court. It seems evident that the
Supreme Court's "public at large" language in Martinez, as
well as our statements in Commonwealth and Marks,
exclude from the reach of the state-created danger theory
those instances where the state actor creates only a threat
_________________________________________________________________

12. There appears to be some question whether Mark and Kneipp require
the state actor have "specific knowledge" of the plaintiff, or merely that
the plaintiff was a "foreseeable" victim. But any tension, we believe, can
be explained by a review of the facts of each case. Discussing whether
the creation of a danger to the "public at large" could lead to liability
under the state-created danger theory, the Mark court noted that "when
the alleged unlawful act is a policy directed at the public at large . . .
there can be no specific knowledge of the particular plaintiff's
condition"
and thus the third element of the Mark test is not met. 51 F.3d at 1153.
The Kneipp court, on the other hand, stated that the relationship
element of the state-created danger theory "contemplates some contact
such that the plaintiff was a foreseeable victim of a defendant's acts in
a tort sense." 95 F.3d at 1209 n.22. The distinguishing characteristic
here is the allegedly unlawful act. Mark involved a claim in which the
alleged "act" was a policy directed at the public at large, whereas the
acts of the police officer in Kneipp were directed at a particular
individual. Where the state actor has allegedly created a danger towards
the public generally, rather than an individual or group of individuals,
holding a state actor liable for the injuries of foreseeable plaintiffs
would
expand the scope of the state-created danger theory beyond its useful
and intended limits. Where, as here, the allegedly unlawful acts of the
state actor affect only a limited group of potential plaintiffs, the
potentially broad reach of the state-created danger theory is constrained
by examining whether the plaintiff or plaintiffs were "foreseeable"
victims.

                               20
to the general population. This is in keeping with the
Court's decision in DeShaney, and the general rule that the
state is not obligated to protect its citizens from the
random, violent acts of private persons. But it does not
appear this limitation necessarily restricts the scope of
S 1983 to those instances where a specific individual is
placed in danger. Another view of these cases would allow
a plaintiff, in certain situations, to bring a state-created
danger claim if the plaintiff was a member of a discrete
class of persons subjected to the potential harm brought
about by the state's actions. Stated differently, depending
on the facts of a particular case, a "discrete plaintiff" may
mean a specific person or a specific class of persons. The
primary focus when making this determination is
foreseeability.

Some of the cases that have applied the state-created
danger theory have held state actors liable for creating a
risk to a definable class of persons. The decision of the
United States Court of Appeals for the Seventh Circuit in
Reed v. Gardner, 986 F.2d 1122 (7th Cir. 1993), is
illustrative. In that case, police officers arrested the driver
of a vehicle, Cathy Irby, and left behind her intoxicated
passenger, Larry Rice, with the keys to the car. A few hours
later Rice, while driving Irby's car, collided head on with
plaintiff 's vehicle, killing plaintiff 's wife and pre-natal son,
and injuring the plaintiff, his two daughters and his in-
laws. The court of appeals reversed the lower court's
dismissal of plaintiff 's state-created danger claim, noting
that "it was the police action in removing Irby, combined
with their knowledge of Rice's intoxication, which creates
their liability for the subsequent accident."13 Clearly the act
of placing a drunk driver at the wheel of the car did not
create a danger to the Reed family specifically. The court of
appeals found that the act "rendered the Reeds and the
other motorists on Route 130 vulnerable to a dangerous
driver." Id. at 1127 ("When the police create a specific
_________________________________________________________________

13. The Reed court assumed, based on its reading of the complaint, that
Irby was sober at the time of the arrest. It noted, however, that if she
had in fact been intoxicated, the state could not be liable "for
exchanging
one drunk driver for another" because even "without state intervention,
the same danger would exist." 986 F.2d at 1125.

                               21
danger, they need not know who in particular will be hurt.
Some dangers are so evident, while their victims are so
random, that state actors can be held accountable by any
injured party.").

It is evident that the case law in this area is not uniform
on the necessity to allege a specific plaintiff as opposed to
a specific class of plaintiffs. What is clear is that a member
of the general public may not qualify. Of course, DeShaney
involved a discrete, individual plaintiff, and as the source of
the state-created danger theory, can be read to restrict who
may sue under this theory. But in other situations,
requiring the plaintiff to be part of an identifiable and
discrete class of persons subject to the harm the state
allegedly has created also fits within the purposes of the
state-created danger theory.

For this reason, it would not appear that the state-
created danger theory of liability under S 1983 always
requires knowledge that a specific individual has been
placed in harm's way. Although it is appropriate to draw
lines here, there would appear to be no principled
distinction between a discrete plaintiff and a discrete class
of plaintiffs. The ultimate test is one of foreseeability.

The issue here is whether Diane Morse, and all those
present in Lower Merion High School, were a sufficiently
discrete group of persons who could have been foreseeable
victims of an armed and dangerous intruder. This is by no
means an easy question, for the reasons we have
expressed. But we need not decide this issue here because
we hold that plaintiff cannot satisfy the other three prongs
of the Kniepp test.

D. Creating the Opportunity for Harm

The final element of the Kneipp test is whether the state
actor used its authority to create an opportunity which
otherwise would not have existed for the specific harm to
occur. The district court read this requirement to
contemplate that a state actor must affirmatively act to
create the risk which results in harm to the plaintiff. Under
the allegations presented here, the district court concluded
that the only affirmative act attributable to the defendants
was the assertion they unlocked the door to facilitate the

                                22
work of the various contractors at the high school. The
district court declined to address whether the act of
unlocking the door rose "to the level required to impose
liability under the state-created danger theory," Morse,
1996 WL 677514, at *6 (quoting Kneipp, 95 F.3d at 1207),
relying instead on plaintiff's failure to satisfy the
"foreseeable plaintiff " requirement under Kneipp.

The case law addressing the question whether an
affirmative act is required under the state-created danger
theory, and if so what constitutes an affirmative act for
purposes of liability, is less than clear. Conduct that has
been held to be an affirmative act under one set of facts has
not met that standard in a similar setting. For example, we
held in Kneipp that the police officer's act of "interven[ing]
to cut off Samantha's private source of protection by giving
Joseph permission to go home alone" constituted an
affirmative act for purposes of S 1983 liability.14 95 F.3d at
1210; see also Wood v. Ostrander, 879 F.2d 583 (9th Cir.
1989), cert. denied, 498 U.S. 938 (1990) (trooper liable for
arresting driver of vehicle and leaving female passenger
alone in a high crime area); White v. Rochford, 592 F.2d
381 (7th Cir. 1979) (arresting driver and leaving minor
passengers behind in vehicle on side of highway gave rise
to constitutional claim).

By comparison, the opinion in Gregory v. City of Rogers,
974 F.2d 1006 (8th Cir. 1992), draws a different conclusion
from a similar act. In that instance, the police removed the
designated driver of a vehicle because of an outstanding
arrest warrant, and left behind two intoxicated persons who
subsequently drove off and were involved in an accident.
The United States Court of Appeals for the Eighth Circuit
held the police officer could not be held to have
affirmatively placed the intoxicated passengers in danger.

Courts that have addressed this issue have pointed out
that the line between an affirmative act and an omission is
difficult to draw. As the United States Court of Appeals for
the Seventh Circuit said:
_________________________________________________________________

14. Whether the officers's actions in Kneipp constituted an affirmative
act
or an act of omission is a close question.

                               23
       We do not want to pretend that the line between action
       and inaction, between inflicting and failing to prevent
       the infliction of harm, is clearer than it is. If the state
       puts a man in a position of danger from private
       persons and then fails to protect him, it will not be
       heard to say that its role was merely passive; it is as
       much an active tortfeasor as if it had thrown him into
       a snake pit.

Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir. 1982) The
district court here noted this difficulty when it said that
"[s]tate-created danger law does not address the question of
when an act crosses the line and becomes an affirmative
act warranting Section 1983 liability." Morse at *6 n.11.

Whether an affirmative act rather than an act of omission
is required under the state-created danger theory appears
to have been answered by Mark. As the Mark court noted,
one of the common factors in cases addressing the state-
created danger is that the state actors "used their authority
to create an opportunity that otherwise would not have
existed for the third party's crime to occur." Mark, 51 F.3d
at 1152. Thus, the dispositive factor appears to be whether
the state has in some way placed the plaintiff in a
dangerous position that was foreseeable, and not whether
the act was more appropriately characterized as an
affirmative act or an omission.

The following cases are illustrative of this principle. In
Mitchell v. Duval County Sch. Bd., 107 F.3d 837 (11th Cir.
1997), the court of appeals rejected a state-created danger
claim under facts analogous to the case before us. The
decedent, Richard Mitchell, was a fourteen year-old student
who was shot and killed one evening while waiting for a
ride home from a school function. Mitchell had attempted
to telephone his father from inside the school
administration office, but was denied entry. Instead he
used an outside pay phone, and, while waiting for his
father on a driveway adjacent to the school, was shot and
killed during a robbery attempt. The court of appeals
rejected plaintiff's state-created danger theory on the
grounds that he failed to "show that the state affirmatively
placed decedent in a position of danger." Id. at 839.
According to the court, nothing the school did "required

                               24
[decedent] to wait where he did." Indeed, the boy could have
waited inside the administration building or immediately
outside, rather than waiting "a considerable distance away
on the edge of the school's parking lot." Because the
plaintiffs could prove no set of facts which would
demonstrate that either an act or omission on the part of
the state actors placed the decedent closer to the ultimate
harm, the court of appeals affirmed the dismissal of the
complaint.

In a case before this Court, two high school students filed
a S 1983 claim alleging they were sexually molested by
fellow students in the bathroom and darkroom of their
graphic arts class room. D.R. v. Middle Bucks Area
Vocational Tech. Sch., 972 F.2d 1364 (3d Cir. 1992) (en
banc), cert. denied, 506 U.S. 1079 (1993). According to
their complaint, the high school's failure to adequately
supervise the class or investigate the misconduct created
the dangerous situation that resulted in their injuries. We
affirmed the dismissal of the complaint, holding that the
school was not liable because the plaintiffs did not
demonstrate that the state placed the plaintiffs in danger,
increased their risk of harm, or made them more vulnerable
to danger. "Plaintiffs did not suffer harm, however, from
that kind of foreseeable risk. . . . Plaintiff's harm came
about solely through the acts of private persons without the
level of intermingling of state conduct with private violence
that supported liability in Wood, Swader, and Cornelius."
972 F.2d at 1375.

In both cases, there was no direct causal connection
between the acts or omissions of the state and the harm
which befell the victim. In neither case was it the act or
omission of the state actor that directly placed the victim in
harm's way. The same can be said of the case before us.
Plaintiff does not allege, nor can he prove, that defendants
placed Diane Morse in "a dangerous environment stripped
of means to defend [herself] and cut off from sources of
aid." Johnson, 38 F.3d at 202. Nor does plaintiff allege that
defendants placed her in a "unique confrontational
encounter" with Stovall. Cornelius, 880 F.2d at 359. What
plaintiff does allege is that defendants, by unlocking the
rear entrance of the school building, "increased the risk to

                               25
Diane Morse . . . and left Diane Morse vulnerable to the
actions of her attacker." Complaint P 44. As we have
already noted, however, Stovall's deadly attack was not a
foreseeable and fairly direct result of defendants' behavior.
Plaintiff, therefore, can prove no set of facts that will
demonstrate that defendants placed Diane Morse in harm's
way, and consequently has not satisfied the fourth prong of
the Kneipp test.

Conclusion

Based on the foregoing, we hold that plaintiff has not met
the test set forth in Kneipp v. Tedder and has failed to state
a claim under the state-created danger theory of 42 U.S.C.
S 1983.

We will affirm the judgment of the district court.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               26
