IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MARY ELLEN DALEY, et al. : CIVIL ACTION

:

 v. :

:

THE CITY OF PHILADELPHIA, :

et al. : NO. 05-4145

MEMORANDUM

Dalzell, J. February 7, 2007

This case arises from the mysterious death of a

fourteen-year-old girl who drowned in a pool the City of

Philadelphia operated. The administratrix of the decedent's

estate and the decedent's mother sue the City of Philadelphia,

its Department of Recreation, and seven individuals. They

advance state-created danger and failure-to-train claims under 42

U.S.C. § 1983, as well as claims under Pennsylvania's negligence

law, wrongful death act, and survival act. Before us now is the

defendants' motion for summary judgment.

I. Factual Background

Because, as will be seen, the state-created danger and

training jurisprudence are intensely fact-specific, we canvass

the record in detail.

A. The Events of July 5, 2003

On July 5, 2003, fourteen-year-old Rashida Fancher

visited the Hunting Park Pool with her twelve-year-old sister

Tahirah, and her cousins, Christian and Marquan, then eight and

thirteen years old, respectively. Compl. ¶ 24-25; T. Garrett

Dep. 4:21-22, Sept. 21, 2006; Gray Dep. 3:16-17, Sept. 21, 2006;

Case 2:05-cv-04145-SD Document 43 Filed 02/07/07 Page 1 of 32
 Others testified that the pool was roped off on July 1

5, 2003 because of its size. See Wright Dep. 24:22-25:8, Oct.

25, 2006; Kerwawich Dep. 58:12-63:24. Darrin Williams did not

identify why the pool was roped off that day, but he did testify

as to several reasons why the lifeguards customarily closed half

of that pool. D. Williams Dep. 48:2-49:8, 51:9-53:5, Sept. 13,

(continued...)

2

Simmons Dep. 3:9-11, Sept. 21, 2006; A. Garrett Dep. 14:24-15:3,

Sept. 21, 2006. Rashida had taken swimming lessons at the

Hunting Park Pool and knew how to swim. T. Garrett Dep. 6:17-

8:22. 

The pool had opened a few days earlier for the summer

season, and four lifeguards were on duty: Marshall Johnson, II,

Darrin Williams, Lamont Baldwin, and Quiana Wright. Kerwawich

Dep. 93:1-9, Sept. 13, 2006; Defs.' Prelim. Resp. to Pls.'

Interr. ("Defs.' Prelim. Resp.") 11.a. Johnson, a Lifeguard II,

was responsible for supervising the three other lifeguards, each

a Lifeguard I. Johnson Dep. 41:21-42:6, Sept. 15, 2006; see also

Defs.' Prelim. Resp. 11.a.

The facility supervisor that day was John Williams,

also a lifeguard. He decided how much of the pool to make

available to swimmers. J. Williams Dep. 78:10-16, Sept. 15,

2006. The pool is fifty yards long and twenty-five yards wide. 

Id. at 109:13-15. It is three feet deep on either end and five

feet deep in the middle, with a gently graded slope from the

deepest point of five feet to the shallower areas. Id. at 70:16-

20. Because of safety considerations, John Williams decided that

only half the pool needed to be open and that half would be

cordoned off. Id. at 68:21-76:11. He based his decision on the 1

Case 2:05-cv-04145-SD Document 43 Filed 02/07/07 Page 2 of 32
(...continued) 1

2006. The primary reason was too few patrons to keep the whole

pool open, but sometimes it was because of an insufficient number

of lifeguards. Id. Also, people threw rocks and glass in the

closed-off pool area, which the lifeguards cleaned every morning

as well as they could. Id. Finally, people vandalized or stole

lifeguard chairs on the closed side of the pool. Id. On July 5,

2003, in the unused pool area, one lifeguard chair was missing

and another was lacking ladder steps. Id. at 55:7-58:9.

John Williams also testified that, during his tenure,

the lifeguards had never opened up the entire pool for the public

because there were not enough patrons and lifeguards. J.

Williams Dep. 75:5-77:12.

 The Department of Recreation assigns lifeguards to 2

pools based on the size of the pool, but at all times each City

pool must have at least two lifeguards on duty. Kerwawich Dep.

138:3-19, 139:1-2. Because of lifeguards' days off, all

lifeguards staffed to a pool are rarely on duty at the same time. 

Id. at 138:19-24. 

If the patron quota is reached, the lifeguards require

people to line up outside the pool gate and wait for someone to

leave before a new person can enter. Id. at 40:7-41:20. Thus,

pools without a full staff present operate by only allowing up to

thirty patrons per lifeguard on duty. Id. at 139:3-140:1.

3

number of patrons and their ages, the number of lifeguards, and

the weather, as well as the condition of lifeguard chairs in the

closed section. Id. Recreation Department policy allowed up to

thirty patrons per lifeguard, regardless of what portion of a

pool was open for patrons. Kerwawich Dep. 37:21-40:6. The 2

lifeguards' counter that day recorded ninety-three patrons at the

facility. Id. at 105:12-106:17.

Before letting people into the water, the lifeguards

made all the patrons sit around the pool and then told them the

rules. T. Garrett Dep. 10:20-11:22; D. Williams Dep. 75:21-

76:11; Wright Dep. 74:14-75:6. After entering the pool, Tahirah,

Christian, and Marquan played games towards the middle of the

pool while Rashida stayed closer to the end. T. Garrett Dep.

Case 2:05-cv-04145-SD Document 43 Filed 02/07/07 Page 3 of 32
4

12:25-14:19; Simmons Dep. 10:20-12:5. While playing in the pool,

Tahirah saw a female lifeguard -- Wright, the only woman on duty

-- sitting in her chair, and two other lifeguards talking by the

gate. T. Garrett Dep. 14:21-15:2, 34:7-17. 

At some point, Wright saw Rashida nearby on the pool

deck and noticed that the girl's bathing suit strap was coming

down, so she told Rashida to pick up the strap before jumping

into the pool. Wright Dep. 40:24-41:21, 46:13-20. After Rashida

jumped in, Wright resumed scanning the pool. Id. at 41:18-42:12,

46:21-24. Baldwin watched this interaction, and, after Rashida

adjusted her suit, he saw her take a couple of steps in the pool. 

Baldwin Dep. 49:12-51:10, Sept. 15, 2006. Johnson also saw

Rashida adjusting her bathing suit strap once she was in the

water, about ten feet in front of Wright. Johnson Dep. 58:12-

59:20.

When Tahirah thought the pool was becoming crowded, she

realized she had not seen Rashida for some time, so she and her

cousins began looking for her. T. Garrett Dep. 15:6-16:15. 

Tahirah spotted Rashida floating in the shallow water near

Wright. Id. at 16:13-16, 19:5-25. Before finding her, the

children had not noticed Rashida yelling, thrashing, or having

swimming problems. Id. at 26:21-27:5; Gray Dep. 21:17-23. When

the three children reached Rashida they thought she was playing

or swimming, but after Tahirah touched her, Marquan suspected

something was wrong. T. Garrett Dep. 16:17-17:6; Gray Dep. 17:2-

3, 18:3-18; Simmons Dep. 13:18-14:24. One of the boys picked up

Case 2:05-cv-04145-SD Document 43 Filed 02/07/07 Page 4 of 32
 Wright and Baldwin both testified that Baldwin helped 3

Wright with Rashida, whom Wright said was heavier than she. 

Wright Dep. 57:22-23, 59:10-21; Baldwin Dep. 56:1-61:14. Johnson

also saw Baldwin bring Rashida to the pool's edge. Johnson Dep.

62:19-22. While the lifeguards did not testify as to the

children's involvement after Wright reached Rashida, Marquan and

Tahirah testified that they also helped get Rashida out. Gray

Dep. 20:9-12; T. Garrett Dep. 20:7-11.

5

an unmoving Rashida, let her go to see what she would do, and

picked her up again. T. Garrett Dep. 17:6-11; Simmons Dep. 14:9-

14. The children did not yell for help, T. Garrett Dep. 26:5-6,

but they testified that Wright then noticed them and jumped into

the pool to help Rashida, T. Garrett Dep. 17:11-15, 20:2-7; Gray

Dep. 18:21-23. Tahirah estimates that two or three minutes

elapsed between the time the children reached Rashida in the pool

and when Wright reached them. T. Garrett Dep. 25:24-26:20. 

Wright testified that very shortly after telling

Rashida to adjust her strap she saw a young boy patting Rashida

on the head as the girl floated face-down with her body

immediately under the water's surface. Wright Dep. 52:2-54:11;

see also Wright Dep. 13:17, Ex. 1 (Wright's diagram of pool

indicating where she was and where Rashida was floating). Wright

immediately thought something was wrong, so she blew her whistle

and, with assistance from another lifeguard and/or the children,

got Rashida out of the water. Wright Dep. 54:12-55:6. 3

Immediately before this happened, Marshall Johnson was

the designated "roamer" circling the pool area, and the

lifeguards testified that the other three on duty were stationed

in their chairs. D. Williams Dep. 64:4-5, 65:23-66:23; Wright

Case 2:05-cv-04145-SD Document 43 Filed 02/07/07 Page 5 of 32
 While the lifeguards agree that Wright blew her 4

whistle, two of the children only recall a male lifeguard blowing

a whistle and telling everyone to get out of the pool. See T.

Garrett Dep. 17:16-18:2; Gray Dep. 18:24-25, 19:24-20:3. Since

all agree that at least one lifeguard promptly blew a whistle

once Wright detected a problem with Rashida, this difference is

immaterial.

 He estimated that, before he went into the pump room, 5

eighty people were in the pool. J. Williams Dep. 87:5-10.

6

Dep. 29:3-7, 40:19-23. Baldwin estimated that fifty-five to

sixty-five people were scattered throughout the pool, and twentyfive of those, mostly children, were in Rashida's general area,

but not very close to her. Baldwin Dep. 44:10-19, 48:2-49:12. 

Johnson testified he had asked a question of Baldwin, who was in

his chair, then looked across the pool and heard Wright blow her

whistle three times. Johnson Dep. 60:24-61:22. Baldwin

testified that when he heard Wright blow her whistle at about

1:15 p.m., Marshall was near his chair and they were not

interacting. Baldwin Dep. 47:4-11, 56:9-24. Darrin Williams

also heard Wright's three whistle blows. D. Williams Dep. 63:18-

64:3. 

Upon hearing Wright's whistle, Johnson blew his whistle

once, cleared the pool with Darrin Williams, and then assisted

with Rashida. Johnson Dep. 61:23-62:7. Darrin Williams also 4

called 911 as he was clearing the pool. D. Williams Dep. 79:24-

81:1. John Williams had been working in the pump house with loud

machinery for eight to twelve minutes before he heard three

whistle blows, and when he exited Rashida was already on the pool

deck. J. Williams Dep. 87:21-89:1. 

5

Case 2:05-cv-04145-SD Document 43 Filed 02/07/07 Page 6 of 32
 Tahirah thinks the ambulance got there in about five 6

minutes, T. Garrett Dep. 21:19-23, Baldwin estimates seven to ten

minutes, Baldwin Dep. 63:1-4, and Wright thinks it took twenty

minutes, Wright Dep. 63:8-11,.

 There are some differences in the lifeguards' 7

testimony about returning Rashida to the pool. Johnson testified

that John Williams put Rashida back in the pool to get some

response, but got none. Johnson Dep. 68:12-17. Johnson did not

specify whether the return to the pool was connected to the

vomiting. According to Darrin Williams, when Rashida vomited the

lifeguards turned her on her side, and John Williams wiped the

vomit off so it would not choke her. D. Williams Dep. 85:17-

86:1. He did not address whether the lifeguards returned Rashida

to the water. Wright testified that when Rashida vomited the

lifeguards got her close to the water to wash off the vomit, but

(continued...)

7

Rashida was not breathing, and the lifeguards tried to

resuscitate her until the paramedics arrived. Wright Dep. 61:21-

62:9, 62:19-63:11; Johnson Dep. 63:18-64:3, 69:1-71:21; Baldwin

Dep. 62:8-63:4; D. Williams Dep. 81:7-87:21; T. Garrett Dep.

20:12-19. Johnson checked Rashida and felt a pulse but neither 6

heard nor felt breathing, so he gave her a rescue breath. 

Johnson Dep. 66:7-68:11. John Williams then arrived, and,

because he was the senior lifeguard present and a certified EMT

paramedic, he took charge. J. Williams Dep. 95:3-9. When

Johnson began mouth-to-mouth resuscitation, Rashida vomited. Id.

at 68:18-24. To continue ventilating, John Williams testified

that he put Rashida back in the water, "rotated her head, . . .

splashed some water about the oral cavity, cleared the airway and

ventilated again," at which time he determined her airway was

unobstructed. Id. at 95:16-96:3, 98:17-19. The lifeguards then

put Rashida back on the deck and administered CPR. Id. at 98:20-

99:2.7

Case 2:05-cv-04145-SD Document 43 Filed 02/07/07 Page 7 of 32
(...continued) 7

did not put her back in the water. Wright Dep. 62:5-18. 

We also note plaintiffs' expert's opinion that any time

spent putting Rashida back in the water could only have been

harmful because it interrupted CPR. Pls.' Resp. to Defs.' Mot.

for Summ. J. ("Pls.' Resp.") Ex. G Letter of J. Modell, M.D.,

D.Sc., Nov. 29, 2006.

 Another one of plaintiffs' expert reports concluded 8

that roping off half of the pool "created an unacceptable

crowding condition that directly resulted in the lifeguards'

failure to recognize that Rashida was submerged for more than at

least 4 1/2 to 5 minutes." Pls.' Resp. Ex. P Case Report

Prepared by Francis A. Cosgrove, MA, CPT, at unnumbered p.5.

 Terri Kerwawich was the City's Aquatics Coordinator 9

for the Recreation Department, and she coordinated all aspects of

the aquatics program, including supervising the water safety

instructors who conducted the lifeguard training classes. 

Kerwawich Dep. 9:22-10:3, 16:14-19:14. She reported to Program

Director Steve Malcurry, and he reported to Deputy Commissioner

(continued...)

8

Shortly after the paramedics took Rashida to the

hospital, she died, and a doctor recorded the cause of death as

drowning. See Defs.' Mot. Ex. O Report of Office of the Medical

Examiner. According to plaintiffs' medical expert's report,

issued without benefit of an autopsy, "The facts in this case and

the outcome provide for the conclusion that the time from onset

of submersion until effective CPR was administered was at least 4

1/2 to 5 minutes." Pls.' Resp. Ex. G Report of Dr. J. Modell at

unnumbered p.4, Nov. 21, 2006.8

B. Lifeguard Training and Certification

In July of 2003, the City had seventy-eight outdoor

pools and seven indoor pools, and all City pools were open to the

public free of charge. Kerwawich Dep. 70:16-18; Kerwawich Decl.

¶ 3, Dec. 18, 2006. Each pool received two copies of the 9

Case 2:05-cv-04145-SD Document 43 Filed 02/07/07 Page 8 of 32
(...continued) 9

William Carapucci. Id. at 26:5-22.

 The City produced the 2002 and 2004 Aquatics 10

Manuals, but was unable to find the 2003 Aquatics Manual. 

However, Kerwawich's undisputed testimony is that the 2004

version is the same as the 2003 version. See Kerwawich Dep.

46:4-48:21. The Manual addressed many topics, including

Lifeguard Assignments/Rotations, Scanning Techniques, How to

Recognize a Distressed Swimmer, and Pool Emergency Action Plan. 

See Pls.' Resp. Ex. J Aquatics Manual 2004.

9

City's 2003 Aquatic's Manual -- one for the site supervisor and 10

one for the pool staff, which includes the lifeguards. Kerwawich

Dep. 19:15-23:11, 52:2-53:7. The lifeguards reviewed parts of

the manual at orientation and were encouraged to read it and use

it as a reference, but they were not required to read it. Id. at

52:18-53:7.

The City of Philadelphia hires Water Safety Instructors

(WSIs) to conduct its lifeguard training classes. The American

Red Cross certifies these WSIs as lifeguard instructors, and they

teach classes for the City according to the guidelines of the

American Red Cross. Id. at 28:11-24. In those training classes,

lifeguards learn about patron surveillance, emergency

preparation, rescue skills, first aid, and breathing and cardiac

emergencies, and each lifeguard receives the American Red Cross

Lifeguard Training Manual (the "Red Cross Manual"). Id. at

80:13-81:18; see also Pls.' Resp. Ex. I Red Cross Manual. Each

of the lifeguards on duty on July 5, 2003 testified to receiving

instruction on scanning techniques during training classes. 

Case 2:05-cv-04145-SD Document 43 Filed 02/07/07 Page 9 of 32
 Johnson also testified that he received reminders of 11

scanning techniques during pre-season orientation and that he

discussed scanning with other lifeguards at the Hunting Park Pool

in the few days before Rashida drowned. Johnson Dep. 31:6-33:23.

 Wright learned about patron surveillance techniques 12

during her 2001 training. Wright Dep. 30:11-24. She testified

that lifeguards at the Hunting Park Pool had reviewed zones of

scanning responsibility, but that the topic was not stressed

because the lifeguards there were experienced and knew which

zones they were supposed to cover. Id. at 31:5-32:21. No one

provided her with a patron surveillance diagram of the Hunting

Park Pool. Id. at 30:7-16. She also testified that on July 5,

2003 she scanned her zone of responsibility in the pool using a

technique of overlapping zones with other lifeguards. Id. at

41:22-46:12.

 Darrin Williams testified that, in addition to 13

training on zones of responsibility during the certification

classes, he also received instruction on this concept at the

Hunting Park Pool. D. Williams Dep. 37:20-41:11. He said a WSI

told them each lifeguard's zone of responsibility was

"[b]asically the triangle zone from the corner of the pool to the

edge of the pool." Id. at 40:16-41:2. 

 Baldwin testified that lifeguards knew their zones 14

of responsibility because of where they sat, and he did not

receive a pool diagram marking those zones. Baldwin Dep. 33:2-

35:22.

 The City recognizes three certifying agencies, 15

though Kerwawich estimated that 95% of lifeguards are certified

by the American Red Cross. Kerwawich Dep. 82:5-18. 

10

Johnson Dep. 31:6-15 ; Wright Dep. 15:6-24, 22:19-24 ; D. 11 12

Williams Dep. 14:5-15, 35:17-37:19 ; Baldwin Dep. 25:3-26:8 . 

13 14

The City requires its lifeguards to obtain

certifications for lifeguarding, CPR, and first aid, and all of

these certifications are part of the lifeguard training class.15

Kerwawich Dep. 95:5-20. The lifeguard and first aid

certifications are valid for three years, and the CPR

certification is valid for one year if it is from the American

Case 2:05-cv-04145-SD Document 43 Filed 02/07/07 Page 10 of 32
 With respect to in-service training and annual 16

training, the Manual states that:

In-service Training

In-service training helps you keep your

knowledge and skills sharp. The facility

manager, a head lifeguard, or someone in the

community, such as a public health official,

may conduct sessions. . . . In-service

training sessions may address issues like

these:

P Potential hazards at the facility.

P Facility rules and regulations.

P Emergency action plans.

P Surveillance and water rescue skills.

P First aid, CPR, and head, neck, or back

injury and, when appropriate, bloodborne

pathogens, oxygen administration, and

automated external defibrillator (AED) skills

training.

P Physical conditioning.

P Decision-making.

P Internal staff issues such as

communication, teamwork, and morale.

Lifeguarding Tip: As a professional

lifeguard, you need to regularly participate

in in-service training sessions.

Annual Training

You should have annual training, especially

if you work as a seasonal lifeguard. Annual

training may include CPR review courses,

lifeguard training review courses, and review

of lifeguarding knowledge and skills. Talk to

your facility manager about annual training

opportunities.

Pls.' Resp. Ex. I Red Cross Manual at 5-6.

11

Red Cross and two years if it is from the American Heart

Association. Id. at 95:20-96:15.

The Red Cross Manual also discusses in-service training

and annual training. The City's in-service training consisted 16

of the WSIs visiting the pools and conducting various types of

Case 2:05-cv-04145-SD Document 43 Filed 02/07/07 Page 11 of 32
12

drills with the lifeguards. Id. at 69:15-70:5, 73:10-74:1,

93:10-94:7. In July of 2003, the City had about twenty-one WSIs

and eighty-five pools, so the WSIs' drills were periodic, with

some pools perhaps getting one drill a summer. Id. at 70:6-

71:18. The City did not record when WSIs conducted drills, nor

did it track when lifeguards received them. Id. at 70:19-71:3,

73:2-9. The City provided pre-season orientation for the

lifeguards but did not mandate any further annual training, so a

lifeguard might not receive extra training during the three-year

period for which his or her certification was valid. Id. at

96:16-97:13; Defs.' Prelim. Resp. 11.b, d.

Some of the lifeguards on duty on July 5, 2003 had

received in-service training within a year of that date, while

others had not. Wright and Darrin Williams did not receive any

in-service training during the summers of 2002 and 2003. Wright

Dep. 21:14-22:12; D. Williams Dep. 19:12-20:17, 30:6-31:13. 

Baldwin recalled at least one emergency rescue drill in the

summer of 2002, and when he began working at the Hunting Park

Pool in 2001 he received in-service training in the form of

surprise skills tests perhaps as often as once a month. Baldwin

Dep. 20:6-22:1, 22:2-23:5. WSIs twice visited Johnson's

workplace at the City pool at 10th and Olney during the summer of

2002 and required the lifeguards to do performance drills. 

Johnson Dep. 16:15-17:3, 20:22-22:17. Also, every day that

summer Johnson had the lifeguards with whom he worked perform

practice rescue drills. Id. at 22:18-24:10. 

Case 2:05-cv-04145-SD Document 43 Filed 02/07/07 Page 12 of 32
13

C. The Lifeguards on Duty

All of the lifeguards on duty at the Hunting Park Pool

on July 5, 2003 had been trained and certified through the

American Red Cross. Kerwawich 82:19-83:1; Defs.' Prelim. Resp.

11.a. All of them had rescued patrons before and none had been

involved in a drowning at a City pool. See Baldwin Dep. 72:1-

73:8, 75:20-77:3; Johnson Dep. 83:1-85:3; D. Williams Dep.

102:18-103:14; Wright Dep. 72:17-74:13.

Marshall Johnson, II, a Lifeguard II and head lifeguard

on July 5, 2003, was also a certified WSI. Johnson Dep. 41:21-

43:4. He had worked for the City as a seasonal lifeguard for

twenty-three years and had received his most recent lifeguard

certification in April of 2002. Id. at 8:20-9:13, 10:1-11:18. 

In those twenty-three years, he performed many rescues, and none

of the people he rescued required medical treatment. Id. at

83:1-85:3. 

Quiana Wright had been a lifeguard since 1999 and was

re-certified by the American Red Cross on June 19, 2001. Wright

Dep. 5:12-6:5, 9:3-12; see also Defs.' Mot. Ex. L Lifeguard Test

Report, June 19, 2001. Lamont Baldwin became a lifeguard in

1980, and he worked for the City as a lifeguard almost every

summer from 1980 through 2005. Baldwin Dep. 8:14-17, 9:9-10:3. 

On September 3, 2002, he received lifeguard and first aid

certifications. Id. at 10:18-23. Darrin Williams received his

first lifeguard certification in 1996 and worked at the Hunting

Park Pool from 1996 through 2003. D. Williams Dep. 9:13-24,

Case 2:05-cv-04145-SD Document 43 Filed 02/07/07 Page 13 of 32
14

12:2-13:3. He was re-certified as a lifeguard on June 15, 2002. 

Id. at 10:1-12:1, 20:22-21:21. 

John Williams, the facility supervisor on July 5, 2003,

had been a lifeguard for over thirty years. J. Williams Dep.

11:11-12:3. He was first certified around 1973 as a lifeguard

instructor -- i.e., one who instructs those seeking lifeguard

certification -- and around 1983 he was certified as a lifeguard

trainer -- one who teaches instructors how to teach aspiring

lifeguards. Id. at 17:9-20:2. In 1982, the City hired him as a

WSI to provide city-wide lifeguard training, and in July of 2003

he was still a certified lifeguard trainer. Id. at 10:22-11:2,

17:9-12.

D. Other Rescues

In the five years prior to Rashida's death, one person

died from drowning in a City pool. This happened on August 22,

2001, when lifeguards found a young girl in the deep end of the

pool after her mother alerted them that the girl was missing. 

Kerwawich Dep. 126:14-13; Defs.' Prelim. Resp. ¶ 7. The

lifeguards on duty there had been drinking. Baldwin Dep. 73:9-

75:11. None of the lifeguards involved in the 2001 fatality were

working at the Hunting Park Pool on July 5, 2003. Kerwawich Dep.

127:14-20.

In that same five-year period, the City identified five

other lifeguard rescues at City pools. Id. at 128:11-137:18;

Defs.' Prelim. Resp. ¶ 8.a-b.; Pls.' Resp. Ex. V Report of

Occurrence (October 6, 1998 rescue of sixteen-year-old boy at

Case 2:05-cv-04145-SD Document 43 Filed 02/07/07 Page 14 of 32
 Defendants represent -- and plaintiffs do not 17

dispute -- that pursuant to 53 P.S. § 16257, the Department of

Recreation is not a separate legal entity against which suit can

be maintained. See Defs.' Mem. of Law in Supp. of Mot. for Summ.

J. ("Defs.' Mot.") 1 n.1. We therefore consider all claims made

against the Department of Recreation to be claims against the

City.

 The complaint incorrectly gives Darrin Williams's 18

name as Darwin Williams.

15

Marcus Foster Pool) & Incident Reports (reports for July 17, 2002

rescue of six-year-old girl at Belfield Pool; July 8, 2002 rescue

of nine-year-old boy at Feltonville Pool; July 9, 2001 rescue of

seven-year-old girl at Lincoln Pool; August 21, 2002 rescue of

six-year-old boy at Vogt Pool).

E. This Civil Action

On July 5, 2005, MaryEllen Daley, the administratrix

pendente lite of Rashida's estate, and Rashida's mother Adjoa

Garrett, on behalf of herself and her daughter's estate, filed in

the Court of Common Pleas of Philadelphia County a lawsuit

against the City of Philadelphia; the Philadelphia Department of

Recreation ; Philip R. Goldsmith, then-Managing Director of the 17

City; Victor N. Richard, III, then-Commissioner of the Department

of Recreation; Quiana Wright; Darrin Williams ; Lamont Baldwin; 18

Marshall Johnson, III; and John J. Williams. On August 3, 2005,

pursuant to 28 U.S.C. §§ 1441 and 1443, defendants removed the

case to our Court because the complaint asserted two

constitutional claims pursuant to 42 U.S.C. § 1983. See 28

U.S.C. § 1331 ("The district courts shall have original

Case 2:05-cv-04145-SD Document 43 Filed 02/07/07 Page 15 of 32
 Summary judgment is appropriate if there is no 19

genuine issue of material fact and the moving party is entitled

to judgment as a matter of law. Fed. R. Civ. P. 56(c). In

ruling on a motion for summary judgment, the Court must view the

evidence, and make all reasonable inferences from the evidence,

in the light most favorable to the nonmoving party. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). The moving party

bears the initial burden of proving that there is no genuine

issue of material fact in dispute. Matsushita Elec. Indus. Co.

Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585 n.10 (1986). Once

the moving party carries this burden, the nonmoving party must

"come forward with 'specific facts showing there is a genuine

issue for trial.'" Id. at 587 (quoting Fed. R. Civ. P. 56(e)). 

The task for the Court is to inquire "whether the evidence

presents a sufficient disagreement to require submission to the

jury or whether it is so one-sided that one party must prevail as

a matter of law." Liberty Lobby, 477 U.S. at 251-52; Tabas v.

Tabas, 47 F.3d 1280, 1287 (3d Cir. 1995) (en banc).

16

jurisdiction of all civil actions arising under the Constitution,

laws, or treaties of the United States."). 

The complaint states five claims: (1) negligence

against the City and the Department of Recreation; (2) violation

of due process rights, pursuant to 42 U.S.C. § 1983, against

Wright, Baldwin, Johnson, Darrin Williams, and John Williams (the

"Lifeguard defendants"); (3) violation of due process rights,

pursuant to 42 U.S.C. § 1983, against the City, the Department of

Recreation, Goldsmith, and Richard (the "City defendants"); (4)

wrongful death against all defendants; and (5) a survival action

against all defendants. Before us now is defendants' motion for

summary judgment, plaintiffs' response thereto, and defendants'

reply.

II. Legal Analysis19

Case 2:05-cv-04145-SD Document 43 Filed 02/07/07 Page 16 of 32
 Section 1983 states, in relevant part: 20

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. § 1983.

17

A. The Section 1983 Claims

Plaintiff brings her two federal constitutional claims

pursuant to 42 U.S.C. § 1983. Section 1983 does not itself 20

create substantive rights, but it provides a remedy for people

who have been deprived of rights conferred in the Constitution or

federal statutes. Baker v. McCollan, 443 U.S. 137, 144 n.3

(1979). To establish a Section 1983 claim, plaintiffs must show

both that defendants deprived Rashida of a right secured by the

Constitution or federal law, and that they did so while acting

under color of state law. See Morse v. Lower Merion Sch. Dist.,

132 F.3d 902, 907 (3d Cir. 1997). Plaintiffs allege that the

City and the individual defendants violated Rashida's Fourteenth

Amendment right to due process. The Due Process Clause of the

Fourteenth Amendment provides that "[n]o State shall . . .

deprive any person of life, liberty, or property, without due

process of law." 

Case 2:05-cv-04145-SD Document 43 Filed 02/07/07 Page 17 of 32
 We note the complaint states a claim for violation 21

of "substantive and procedural due process." Compl. ¶ 49. 

Plaintiffs, however, are now expressly proceeding against the

Lifeguard defendants solely on a state-created danger theory,

which, as discussed infra, arises from the substantive due

process jurisprudence. Since the parties have only identified an

alleged material dispute of fact as to a substantive due process

claim, the procedural due process claim against the lifeguards

necessarily fails.

18

We turn first to the constitutional claim against the

Lifeguard defendants and then the constitutional claim against

the City defendants. We review the Section 1983 claim against

the City defendants independently of the claim against the

Lifeguard defendants because the City defendants' liability does

not depend upon the liability of any lifeguard. See Kneipp v.

Tedder, 95 F.3d 1199, 1213 (3d Cir. 1996); Fagan v. City of

Vineland, 22 F.3d 1283, 1292-94 (3d Cir. 1994).

 1. The Lifeguard Defendants

To establish their due process claim against the

Lifeguard defendants, plaintiffs rely solely on the "statecreated danger theory." Pls.' Resp. 15 ("[T]here is a genuine

issue of material fact as to whether the individual lifeguards

violated Rashida Fancher's constitutional rights under the statecreated danger theory."). We therefore begin our analysis with 21

the source of that theory, DeShaney v. Winnebago County Dept. of

Social Services, 489 U.S. 189 (1989). 

In DeShaney, a Wisconsin family court awarded an

abusive father custody of his young son, Joshua. Id. at 191. 

Despite repeated complaints of abuse, the county's Department of

Case 2:05-cv-04145-SD Document 43 Filed 02/07/07 Page 18 of 32
19

Social Services did not attempt to revoke custody, and the father

ultimately beat Joshua so severely that he suffered permanent

brain damage. Id. at 192-93. Joshua and his mother sued the

county, department, and various employees under Section 1983 for

depriving Joshua of his liberty without due process of law, in

violation of his Fourteenth Amendment rights. 

The Supreme Court held that a state or local

governmental entity or its agents who fail to provide a person

with adequate protective services do not violate the person's

substantive due process rights. Id. at 194. The Court observed

that:

The Clause is phrased as a limitation on the

State's power to act, not as a guarantee of

certain minimal levels of safety and

security. It forbids the State itself to

deprive individuals of life, liberty, or

property without "due process of law," but

its language cannot fairly be extended to

impose an affirmative obligation on the State

to ensure that those interests do not come to

harm through other means.

Id. at 195. 

While "[a] State may, through its courts and

legislatures, impose such affirmative duties of care and

protection upon its agents as it wishes," the Fourteenth

Amendment Due Process Clause "does not transform every tort

committed by a state actor into a constitutional violation." Id.

at 202. Thus, this clause "generally confer[s] no affirmative

right to governmental aid, even where such aid may be necessary

to secure life, liberty, or property interests of which the

government itself may not deprive the individual." Id. at 196.

Case 2:05-cv-04145-SD Document 43 Filed 02/07/07 Page 19 of 32
20

After reciting this expansive language, the Court

recognized a limited exception: where a state has restrained a

person's liberty -- such as through incarceration or

institutionalization -- it may have "affirmative duties of care

and protection." Id. at 198, 200. This has come to be known as

the "special relationship" exception. See Sanford v. Stiles, 456

F.3d 298, 304 n.4 (3d Cir. 2006) (per curiam). 

More importantly for our purposes, the Court in

DeShaney commented that "[w]hile the State may have been aware of

the dangers that [the plaintiff] 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." 489 U.S. at 201. In

Kneipp v. Tedder, 95 F.3d 1199 (3d Cir. 1996), a panel of our

Court of Appeals found that this statement "left open the

possibility that a constitutional violation might have occurred

despite the absence of a special relationship," id. at 1205. It

therefore created a second exception to DeShaney's rule by

holding that a plaintiff can use a "state-created danger theory"

to establish a claim that state actors deprived her of the

Fourteenth Amendment right to substantive due process. Id. at

1205, 1211. This exception permits liability only "when the

State caused the harm or made the victim more vulnerable to an

existing harm." Brown v. Pa. Dep't of Health Emergency Med.

Servs. Training Inst., 318 F.3d 473, 478 (3d Cir. 2003) (sur

panel rehearing). Notably, as we discuss at greater length

infra, a later panel held in Brown that "there is no federal

Case 2:05-cv-04145-SD Document 43 Filed 02/07/07 Page 20 of 32
21

constitutional right to rescue services, competent or otherwise." 

Id. at 478. 

To succeed on a state-created danger claim, a plaintiff

must prove four elements:

(1) the harm ultimately caused was

foreseeable and fairly direct;

(2) a state actor acted with a degree of

culpability that shocks the conscience;

(3) a relationship between the state and the

plaintiff existed such that the plaintiff was

a foreseeable victim of the defendant's acts,

or a member of a discrete class of persons

subjected to the potential harm brought about

by the state's actions, as opposed to a

member of the public in general; and

(4) a 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.

Sanford, 456 F.3d at 304-05 (quoting Bright v. Westmoreland

County, 443 F.3d 276, 281 (3d Cir.2006)). Here, we begin by

addressing the second element -- the culpability standard -- and

because we find that plaintiffs cannot satisfy it, we need not

reach the arguments concerning the other elements.

State-created danger cases often turn on the

culpability standard because it is typically the most difficult

element for a plaintiff to prove. Sanford, 456 F.3d at 305. 

Sanford v. Stiles shed some light on our Court of Appeals's

complex jurisprudence concerning the culpability standard. The

Court "again clarif[ied] that in any state-created danger case,

the state actor's behavior must always shock the conscience." 

Id. at 310 (emphasis in original). However, "what is required to

meet the conscience-shocking level will depend upon the

Case 2:05-cv-04145-SD Document 43 Filed 02/07/07 Page 21 of 32
22

circumstances of each case, particularly the extent to which

deliberation is possible." Id. at 310. More concretely, "[t]he

level of culpability required to shock the conscience increases

as the time state actors have to deliberate decreases." Id. at

309. The court specified the type of state actor culpability a

plaintiff must prove in each of three different situations: (1)

in a "hyperpressurized environment," typically "an intent to

cause harm" is required; (2) if a state actor has time to

deliberate and make "unhurried judgments," he or she must have

acted with "deliberate indifference"; and (3) when a state actor

is not faced with a "hyperpressurized environment" but

nevertheless cannot proceed in a deliberate manner (in other

words, he or she must act "in a matter of hours or minutes"), the

actor must have "consciously disregarded a great risk of harm." 

Id. at 309-10 (citation omitted).

At issue here are the lifeguards' decisions in the few

minutes immediately before and after Wright noticed Rashida

floating in the pool. Before deciding upon the relevant standard

and applying it to the facts, we review the parties' arguments.

Defendants contend that plaintiffs cannot show the

lifeguards "consciously disregarded a great risk that serious

harm would result." Defs.' Reply Mem. in Further Supp. of Mot.

for Summ. J. ("Defs.' Reply") 7 (emphasis in original). They

point out that no one observed Rashida exhibiting any signs of

distress at any time before the children found her floating semisubmerged in the pool's shallow end. Once the lifeguards noticed

Case 2:05-cv-04145-SD Document 43 Filed 02/07/07 Page 22 of 32
 For the proposition that we must consider whether 22

the state actor "acted in willful disregard for the safety of the

plaintiff," plaintiffs rely on Kneipp v. Tedder, 95 F.3d at 1208-

09. Pls.' Resp. 15. However, in light of the Supreme Court's

decision in County of Sacramento v. Lewis, 523 U.S. 833 (1998),

our Court of Appeals refined its state-created danger test. See

Schieber v. City of Philadelphia, 320 F.3d 409, 416-21 (3d Cir.

2003) (summarizing how court had applied Lewis's substantive due

process standard). 

In Lewis, the Supreme Court addressed a Section 1983

claim and held that a high-speed police chase with no intent to

physically harm suspects or worsen their legal plight did not

give rise to liability under the Fourteenth Amendment. 523 U.S.

at 854. In doing so, the Court addressed the long-standing

"constitutional concept of conscience shocking" and reaffirmed

that its decisions "rejected the lowest common denominator of

customary tort liability as any mark of sufficiently shocking

conduct, and have held that the Constitution does not guarantee

due care on the part of state officials; liability for

negligently inflicted harm is categorically beneath the threshold

of constitutional due process." Id. at 848-49.

Post-Lewis, our Court of Appeals formulates the statecreated danger standard as articulated in Bright v. Westmoreland

County, 443 F.3d 276, 281 (3d Cir. 2006), and repeated soon after

in Sanford, 456 F.3d 298, 304-05 (3d Cir. 2006). We therefore

must consider whether the lifeguards "acted with a degree of

culpability that shocks the conscience," evaluating their conduct

based on the circumstances of this case.

23

a problem, the only evidence is that they acted immediately and

tried unsuccessfully to revive her. Also, all of the lifeguards

were certified and had made successful rescues in the past, and

none had been involved with a drowning before. 

Plaintiffs, in turn, assert there is "an abundance of

evidence to support the determination that the individual

lifeguards responsible for guarding Rashida's life acted in

willful disregard for her safety." Pls.' Resp. 16. They note 22

Tahireh's testimony that, while the children were playing in the

pool, she saw only one lifeguard in her chair and two talking by

Case 2:05-cv-04145-SD Document 43 Filed 02/07/07 Page 23 of 32
 Plaintiffs also submit as evidence an unsworn 23

statement made by a pool patron, Dennis Dyson. See Pls.' Resp.

Ex. E. Because unsworn statements fail to satisfy Fed. R. Civ.

P. 56(e)'s requirements, we shall not consider Dyson's statement. 

See Adickes v. S. H. Kress & Co., 398 U.S. 144, 158 n.17 (1970)

(unsworn statement "does not meet the requirements of Fed. Rule

Civ. Proc. 56(e)"); see also Woloszyn v. County of Lawrence, 396

F.3d 314, 323 (3d Cir. 2005) (upholding district court's refusal

to consider unsworn statement in support of summary judgment

motion); Brown v. Thomas, No. 02-1669, 172 Fed. Appx. 446, 451,

2006 WL 825777, at *4 (3d Cir. Mar. 29, 2006) ("An unsworn

statement does not constitute the kind of competent evidence

necessary to create a genuine issue of material fact at summary

judgment.").

24

the fence. Also, Wright responded only after the children 23

tried unsuccessfully to lift Rashida out of the water. Finally,

plaintiffs' medical expert opined that CPR was not administered

until at least 4 1/2 to 5 minutes from the time Rashida was

submerged.

We turn now to Sanford's tiered culpability analysis. 

Depending on how we interpret plaintiffs' arguments, we can apply

either the stringent "hyperpressurized environment" standard or

the intermediate standard that assumes the lifeguards had to act

"in a matter of hours or minutes." Either application produces

the same result.

 First, if we focus on the lifeguards' actions once

Wright noticed Rashida floating in the pool, they were

undoubtedly acting in a "hyperpressurized environment." There is

ample undisputed evidence that, once alerted to the problem, the

lifeguards acted swiftly to rescue her from the pool, clear the

pool of other patrons, call 911, and administer CPR. Even if

there is some disputed testimony as to precisely what they did

Case 2:05-cv-04145-SD Document 43 Filed 02/07/07 Page 24 of 32
 We shall never know how long it was between 24

Rashida's first distress and her discovery. Even the medical

examiner's report says nothing about time, and it is unclear how

Dr. Modell deduced "4 1/2 to 5 minutes" as the time "from onset

of submersion until effective CPR was administered." Dr.

Modell's time span notably does not measure the time from "onset

of submersion" until the first witness saw Rashida floating in

the pool.

25

during their attempt to resuscitate her (i.e., whether they

returned her to the water to clear the vomit from her airway),

there is no record evidence that they gave anything other than

their best efforts to help her. Nor did they ever impede anyone

else from providing her better care. They did everything in

their power to revive her until the paramedics arrived and took

over. In short, nothing on this record would support a finding

that the lifeguards acted with "an intent to cause harm" to

Rashida.

Next, if we liberally interpret plaintiffs' argument

about the lifeguards' culpability, we might consider a slightly

broader time frame -- the short time leading up to Rashida's 24

drowning when the lifeguards were observing patrons' behavior and

directing it as necessary. In that case, we apply the

intermediate culpability standard and consider whether the

lifeguards "consciously disregarded a great risk of harm." 

To begin, with four lifeguards on duty and ninety-three

patrons, the lifeguards were well below the maximum allowable 120

patrons. Regardless of how the facility supervisor prioritized

the factors he considered before closing half the pool, nothing

on this record qualifies or undermines his testimony that he

Case 2:05-cv-04145-SD Document 43 Filed 02/07/07 Page 25 of 32
26

acted based on the needs and safety of the patrons. Moreover, he

did not violate any policy in opening only half of the fiftyyard-long pool. Nor is there any evidence that the lifeguards

ignored earlier signs of distress from Rashida. Indeed, there is

no evidence that anyone there observed her thrashing or

struggling in the water. Wright, near whose chair Rashida was

found, was undisputedly in her chair and scanning the pool during 

the time before she saw Rashida floating. As already discussed,

Wright acted immediately when she detected a problem, as did the

other lifeguards who cleared the pool, called 911, and tried to

resuscitate Rashida. Thus, even if the lifeguards identified

Rashida's problem too late, nothing on the record suggests they

"consciously disregarded" a great risk that she might suffer

serious harm. Whether the lifeguards may have been negligent is

another question, but not a federal constitutional one: 

"liability for negligently inflicted harm is categorically

beneath the threshold of constitutional due process." County of

Sacramento v. Lewis, 523 U.S. 833, 849 (1998). Plaintiff cannot

satisfy the intermediate culpability standard.

In sum, the record fails to support a finding that the

lifeguards' behavior shocked the conscience. Because plaintiffs

cannot prevail as a matter of law on the second element of the

state-created danger test, they cannot establish that Rashida

suffered a deprivation of her constitutional right to substantive

due process. Plaintiffs' Section 1983 claim against the

lifeguards therefore must fail.

Case 2:05-cv-04145-SD Document 43 Filed 02/07/07 Page 26 of 32
 Plaintiffs submit an expert report opining that had 25

the City regularly trained lifeguards on proper surveillance

techniques, there would not have been a "deadly delay in

observing Rashida's difficulty," and the lifeguards would have

applied lifesaving procedures sooner. See Pls.' Resp. Ex. P Case

Report Prepared by Francis A. Cosgrove, MA, CPT, at p.7. 

Defendants contend that plaintiffs' improperly use their expert

report for legal conclusions. See Defs.' Reply 18-21. Because,

as discussed below, our decision turns on the issue of

constitutional harm in the context of rescue services, we need

not resolve this dispute.

27

2. The City Defendants

In Monell v. New York City Department of Social

Services, 436 U.S. 658, the Supreme Court held that "a

municipality cannot be held liable under § 1983 on a respondeat

superior theory," id. at 691, but it may be directly subject to

Section 1983 liability as a result of an official policy or

custom, id. at 694. Thus, a Section 1983 plaintiff must identify

the municipal policy or custom that allegedly caused a violation

of her constitutional rights. See Bd. of County Comm'rs v.

Brown, 520 U.S. 397, 403 (1997). 

Plaintiffs here contend that the City violated

Rashida's Fourteenth Amendment rights by being deliberately

indifferent to inadequacies in lifeguard training that resulted

in her death. Specifically, they assert that the City's failure

to sufficiently train their lifeguards resulted in the

lifeguards' inability to properly scan their zones of

responsibility. Plaintiffs focus primarily on the City's 25

failure to provide training beyond the certification classes --

except for random drills -- despite the recommendations in the

Case 2:05-cv-04145-SD Document 43 Filed 02/07/07 Page 27 of 32
28

Red Cross Manual that lifeguards should participate in annual and

in-service training. See Pls.' Resp. 18-24. 

In City of Canton v. Harris, 489 U.S. 378 (1989), the

Supreme Court held that under certain circumstances a

municipality can be liable under 42 U.S.C. § 1983 for

constitutional violations resulting from its failure to train

municipal employees, id. at 380. "Only where a municipality's

failure to train its employees in a relevant respect evidences a

'deliberate indifference' to the rights of its inhabitants can

such a shortcoming be properly thought of as a city 'policy or

custom' that is actionable under § 1983." Id. at 389; accord

Fagan v. City of Vineland, 22 F.3d 1283, 1292 (3d Cir. 1994) 

("If it can be shown that the plaintiff suffered that injury,

which amounts to deprivation of life or liberty, because the

officer was following a city policy reflecting the city

policymakers' deliberate indifference to constitutional rights,

then the City is directly liable under section 1983 for causing a

violation of the plaintiff's Fourteenth Amendment rights."). 

As with any Section 1983 action alleging municipal

liability, the first question in a failure-to-train case is

"whether there is a direct causal link between a municipal policy

or custom and the alleged constitutional deprivation." Canton,

489 U.S. at 385. In all cases of municipality liability, a

plaintiff must have suffered a violation of constitutional

rights, see Brown v. Pennsylvania Dept. of Health Emergency Med.

Servs. Training Inst., 318 F.3d 473, 482 (3d Cir. 2003), and the

Case 2:05-cv-04145-SD Document 43 Filed 02/07/07 Page 28 of 32
29

question of whether such a violation occurred is distinct from

the question of municipal responsibility, see Collins v. City of

Harker Heights, 503 U.S. 115, 122 (1992). 

In Brown, our Court of Appeals addressed whether the

Due Process Clause requires states to provide adequate or

competent rescue services when they have decided to undertake

such services. 318 F.3d at 478. There, a woman called 911 when

her nephew began choking on a grape, the 911 operator dispatched

two emergency medical technicians ("EMTs"), and the operator

assured the woman that help was coming. See id. at 475-76. It

took the EMTs just over ten minutes to reach the boy. See id. at

476. During that interval, the aunt called 911 two more times

asking for help, and both times the operator told her that help

was on its way. See id. The EMTs tried to restore the boy's

breathing during the trip to the hospital, but he died two days

later due to "asphyxia by choking." Id. 

The court rejected plaintiffs' Fourteenth Amendment due

process claim against the City, wherein they had argued that with

deliberate indifference the City enacted policies concerning EMTs

that caused harm to them and their son. See id. at 482-83. The

plaintiffs could not show "that the City's policies caused

constitutional harm" because the City had "no constitutional

obligation to provide competent rescue services." Id. at 483

(emphasis in original). The court expressly held that "states

are not constitutionally obligated to provide rescue services,

Case 2:05-cv-04145-SD Document 43 Filed 02/07/07 Page 29 of 32
30

nor are they constitutionally required to provide competent

rescue services voluntarily undertaken." Id. 

Plaintiffs contend that this case, unlike Brown, is not

a rescue services case because Rashida was at a City-operated

pool and not at home. See Pls.' Resp. 25. But nothing in Brown

supports plaintiffs' narrow reading of that case. Nowhere did

that court suggest that a municipality incurs a constitutional

obligation to provide adequate rescue services on city-owned

property where people are free to come and go as they please. 

Rashida chose to come to the pool, and she could enter and leave

the water as she wished. To be sure, the City chose to provide

rescue services through lifeguards at its pools, but Brown is

clear that such a choice does not impose upon the City a

constitutional obligation to ensure a particular level of

competency of those services. 

The City most assuredly was not "deliberately

indifferent" to providing lifeguards at its swimming pools, as

this record confirms at the Hunting Park Pool on that July day in

2003. Whether the City might have done a better job than it did

as to Rashida's mysterious death is a question that, on this

record, simply does not rise to federal constitutional dimension.

In the absence of an allegation of a constitutional

harm, there can be no municipal liability under Section 1983. 

See id. at 483. Because the City did not have a constitutional

obligation to provide always-effectual lifeguard rescue services

at its pools, plaintiffs have failed to establish a

Case 2:05-cv-04145-SD Document 43 Filed 02/07/07 Page 30 of 32
 Defendants contend that plaintiffs' negligence claim 26

against the City is barred by Pennsylvania's Political

Subdivision Tort Claims Act (the "Act"), which immunizes

municipalities and their employees from state law claims, except

in eight types of cases. See 42 Pa.C.S. §§ 8541-42. Plaintiffs

assert that the negligence claim falls under the Act's real

property exception, which allows claims arising from the "care,

custody or control of real property in the possession of the

local agency." 42 Pa.C.S. § 8542(b)(3). Plaintiffs argue that

the lifeguards were negligent in their care and control of the

pool because they closed off part of the pool -- due to lack of

lifeguards, glass and rocks in the closed area, as well as broken

chairs -- thereby creating a dangerous crowding condition that

caused Rashida's death. Neither party has identified a

Pennsylvania state court case holding whether the Act's real

property exception applies to a drowning (or any kind of

accident) at a City-controlled pool on facts similar to those

before us. Thus, any Erie-mandated prediction of Pennsylvania

law we might make would be nothing more than a guess. 

31

constitutional harm. Accordingly, their Section 1983 claim

against the City defendants fails.

B. Remanding the State Law Claims

Under the supplemental jurisdiction statute, "[t]he

district courts may decline to exercise supplemental jurisdiction

over a claim" if "the claim raises a novel or complex issue of

State law" or if "the district court has dismissed all claims

over which it has original jurisdiction." See 28 U.S.C. §

1367(c)(1), (3). Having resolved the only claims over which we

had original jurisdiction, all that remains are three state law

claims, at least one of which presents a complex issue of

Pennsylvania law. Any inconvenience the parties may incur in 26

returning to state court will be minor since they can use the

same information they have already developed during discovery

here. Rather than undertaking the perilous endeavor of

Case 2:05-cv-04145-SD Document 43 Filed 02/07/07 Page 31 of 32
32

predicting how a Pennsylvania court would interpret its statutes

on these unusual facts, we shall remand this case to allow the

Pennsylvania courts to decide the claims arising under the

Commonwealth's law. 

III. Conclusion

For the reasons discussed herein, as a matter of law

plaintiffs cannot establish that defendants violated Rashida's

Fourteenth Amendment right to due process. Having resolved the

only claims over which we have original jurisdiction, we shall

remand to state court the remaining claims based on questions of

Pennsylvania law. An appropriate Order and Judgment follow.

BY THE COURT:

/s/ Stewart Dalzell, J. 

Case 2:05-cv-04145-SD Document 43 Filed 02/07/07 Page 32 of 32