1

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the 

convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the 

interest of brevity, portions of any opinion may not have been summarized.)

Lorraine Gormley v. LaTanya Wood-El (A-101/106-11) (069717)

Argued November 4, 2013 -- Decided June 30, 2014

ALBIN, J., writing for a majority of the Court.

In this appeal, the Court considers whether injuries suffered by an attorney while interviewing a client at a 

state psychiatric hospital resulted from a state-created danger that violated her substantive-due-process rights under 

the Fourteenth Amendment of the United States Constitution and whether defendants are entitled to qualified 

immunity.

Plaintiff Lorraine Gormley was an attorney employed by the Department of the Public Advocate, Division 

of Mental Health Advocacy, providing legal representation to clients involuntarily committed in state psychiatric 

facilities, including Ancora Psychiatric Hospital (Ancora). Each ward at Ancora contained a day room in which up 

to forty patients, including those who were involuntarily committed and classified as a danger to themselves or 

others, could congregate. Visiting attorneys and psychiatrists also were required to use the day rooms for 

professional interviews. Although frequent violence occurred in the day rooms, no security guards or cameras were 

posted there. From October 2003 through December 2005, Ancora reported almost 4,000 assaults, including 810 

assaults against staff members and visitors, 200 of which resulted in injuries. 

In September 2005, Gormley arrived at Ancora to interview clients. She sat in a day room with her back 

against the wall to prevent attacks from behind. One of her clients was B.R., who was suffering from a psychotic 

disorder with hallucinations and who had been assigned Continuous Visual Observation (CVO) status because she 

posed a safety risk to herself and others. Gormley, who was not informed that B.R. was on CVO status, sat near her 

in order to hear over the noise in the day room. As Gormley turned her head, B.R. hit her several times. Gormley 

tried to flee, but B.R. grabbed her by the hair, causing her to fall and strike her head on the concrete floor. When 

Gormley regained consciousness, B.R. was still attacking her. Gormley was out of work for about four months due 

to her physical and mental injuries. 

Gormley filed a civil action against Ancora’s CEO, LaTanya Wood-El, and other government officials, in 

their individual capacities, under both the Federal Civil Rights Act, 42 U.S.C.A. § 1983, and the New Jersey Civil 

Rights Act, N.J.S.A. 10:6-2(c), alleging that her constitutional right to be free from state-created danger was 

violated. On defendants’ motions for summary judgment, the trial court concluded that Gormley had presented 

sufficient evidence to proceed on the civil-rights claims under the state-created-danger doctrine. The court deferred 

deciding whether she was entitled to injunctive relief.

The Appellate Division concluded that the trial court erred in failing to dismiss the federal civil-rights 

claims on qualified-immunity grounds. Gormley v. Wood-El, 422 N.J. Super. 426 (App. Div. 2011). Although the 

panel determined that defendants violated Gormley’s Fourteenth Amendment substantive-due-process rights under 

the state-created-danger theory, it found that defendants had qualified immunity because these rights were not 

clearly established at the time she was attacked. The panel did not address Gormley’s claim for relief under the New 

Jersey Civil Rights Act or her claim for injunctive relief. Gormley moved for leave to appeal the dismissal of her 

claims based on qualified immunity, and defendants moved for leave to appeal the upholding of the civil-rights 

claims under the state-created-danger theory. The Court granted the motions filed by Gormley, 210 N.J. 25 (2012), 

and defendants, 216 N.J. 337 (2012).

HELD: Under the facts of this case, a lawyer assigned to represent a client civilly committed to a state psychiatric 

hospital had a substantive-due-process right to be free from state-created dangers. Because that right was clearly 

established at the time the lawyer was attacked, the state official defendants are not entitled to qualified immunity.
2

1. Viewing the evidence in the light most favorable to Gormley, the Court first considers whether a jury could find 

that defendants violated Gormley’s federal substantive-due-process right to be free from state-created danger. The 

analysis of this right is the same under both the Federal and New Jersey Civil Rights Acts. Although the Due 

Process Clause of the Fourteenth Amendment protects against the government’s arbitrary deprivation of a liberty 

interest, it does not generally confer an affirmative right to governmental aid to secure a liberty interest or confer 

governmental protection to individuals from violence by private actors. Rather, the constitutional threshold is only 

met if the State either creates the danger that proximately causes the injury or renders the victim more vulnerable to 

danger. (pp. 22-29)

2. In Bright v. Westmoreland County, 443 F.3d 276 (3d Cir. 2006), cert. denied, 549 U.S. 1264 (2007), the United 

States Court of Appeals for the Third Circuit developed a standard for application of the state-created-danger 

doctrine, requiring a plaintiff to satisfy a four-prong test: (1) the ultimate harm must be foreseeable and direct; (2) 

the conduct of the state actor must shock the conscience; (3) the plaintiff must be a specifically foreseeable victim or 

part of a discrete class of foreseeable victims; and (4) the state actor must affirmatively use his authority either to 

create a danger or render a person substantially more vulnerable to injury. Conscience-shocking conduct occurs if 

the state actor intentionally causes unjustifiable harm, but not if the harm arises from negligence. For scenarios 

between these two extremes, courts must conduct a fact-sensitive analysis since deliberate indifference that shocks 

the conscience in one environment may not in another. Status as a state employee is not dispositive of the right to 

pursue a Section 1983 claim. (pp. 29-37)

3. Adopting and applying the Bright state-created danger test, the Court concludes that Gormley was a member of a 

discrete class of victims subject to the foreseeable harms set in motion by defendants. Defendants controlled the 

movements of residents and visitors within Ancora, where assaults in day rooms were common and fairly 

foreseeable. Defendants affirmatively used their authority to create the danger that rendered Gormley vulnerable to 

the assault by establishing the regulations and environment to which Gormley had to submit while at Ancora. 

Sufficient evidence exists to support Gormley’s claim that defendants acted with deliberate indifference to the 

foreseeable dangers threatening attorneys assigned to represent committed patients. Thus, a rational jury could find 

that all four Bright factors are met and that defendants violated Gormley’s substantive-due-process right to be free 

from state-created dangers under the Fourteenth Amendment of the United States Constitution. Responding to the 

dissent, the Court explains that it looked to the totality of the circumstances, rather than individual factors, to discern 

the conscience-shocking conduct because no single brushstroke reveals the whole picture. In light of the unique 

level of violence at Ancora, its conclusion will not open a floodgate of litigation against public entities. (pp. 37-47)

4. The application of qualified immunity is a matter of law for a court to decide. Under this doctrine, government 

officials are shielded from a suit for civil damages when their conduct does not violate clearly established statutory 

or constitutional rights of which a reasonable person would have known. This balances the need to hold public 

officials accountable when their conduct is irresponsible against the need to shield them when they perform their 

duties reasonably. In order for a right to be clearly established, its contours must be sufficiently clear so that a 

reasonable official would know that his conduct is violating that right. In the present case, the Court concludes that 

Gormley’s right to be free from state-created danger was clearly established at the time of the assault. In light of the 

history of violence at Ancora and the requirement that attorneys meet with clients in the chaotic day rooms, 

reasonable hospital administrators knew or should have known that the conditions they created breached the 

substantive-due-process guarantee of the United States Constitution. Thus, the Court reverses the Appellate 

Division’s dismissal of the federal civil rights claim on qualified-immunity grounds. Finally, even if qualified 

immunity were granted to defendants, Gormley would still have the right to pursue injunctive relief. (pp. 47-52) 

The judgment of the Appellate Division is AFFIRMED IN PART and REVERSED IN PART and the 

matter is REMANDED to the trial court for further proceedings in accordance with the Court’s opinion.

JUSTICE LaVECCHIA, DISSENTING, joined by JUSTICE PATTERSON, expresses the view that a 

substantive state-created-danger claim was not presented in this matter, and the majority’s holding to the contrary 

will impact numerous governmental operations in settings such as schools and prisons, while the totality-of-thecircumstances approach leaves government officials uncertain as to their risk of personal liability. Moreover, even 

if a claim were presented, it was not clearly established at the time Gormley suffered her injuries, thereby rendering 
3

defendants qualifiedly immune from suit.

CHIEF JUSTICE RABNER and JUDGE RODRÍGUEZ (temporarily assigned) join in JUSTICE 

ALBIN’s opinion. JUSTICE LaVECCHIA filed a separate dissenting opinion, in which JUSTICE 

PATTERSON joins. JUDGE CUFF (temporarily assigned) did not participate.
1

SUPREME COURT OF NEW JERSEY

A-101/106 September Term 2011

069717

LORRAINE GORMLEY,

Plaintiff-Appellate 

and Cross-Respondent,

v.

LATANYA WOOD-EL, Chief 

Executive Officer, Ancora 

Psychiatric Hospital;

JENNIFER VELEZ, Current 

Commissioner and WILLIAM 

WALDMAN, Former Commissioner, 

New Jersey Department of 

Human Services; KEVIN 

MARTONE, Current Assistant 

Commissioner; and ALAN G. 

KAUFMAN, Former Director, 

Division of Mental Health 

Services, Department of Human 

Services,

Defendants-Respondents

and Cross-Appellants.

Argued November 4, 2013 – Decided June 30, 2014

On appeal from the Superior Court, Appellate 

Division, whose opinion is reported at 422 

N.J. Super. 426 (2011).

Justin T. Loughry argued the cause for 

appellant and cross-respondent (Loughry and 

Lindsay, attorneys; Mr. Loughry and Lawrence 

W. Lindsay, on the briefs).

Michael C. Walters, Assistant Attorney 

General, argued the cause for respondents

and cross-appellants (John H. Hoffman, 

Acting Attorney General of New Jersey, 

attorney; Lewis A. Scheindlin, Assistant 
2

Attorney General, of counsel; Mr. Walters

and Randall B. Weaver, Deputy Attorney 

General, on the briefs).

JUSTICE ALBIN delivered the opinion of the Court.

Lorraine Gormley was assigned to provide legal 

representation to an involuntarily committed patient at a staterun psychiatric hospital. To prepare for an upcoming commitment 

hearing, at the direction of hospital officials, Gormley met 

with her client in the hospital’s unsupervised day room, a place 

where psychotic patients milled about and where violence 

frequently erupted. During the meeting, Gormley’s mentally 

disturbed client suddenly and brutally attacked her, inflicting 

serious bodily injuries.

Gormley filed a civil action against the chief executive 

officer of the hospital and officials at the Department of Human 

Services under both the Federal Civil Rights Act, 42 U.S.C.A. § 

1983, and the New Jersey Civil Rights Act, N.J.S.A. 10:6-2(c),

and under the state common law. She alleged that these

officials violated her constitutional right to be free from 

state-created danger, a right protected by the substantive-dueprocess guarantee of the United States Constitution.

The trial court denied summary judgment to the defendant 

state officials on both Gormley’s federal and state civil-rights 

claims but dismissed her common-law claim. The Appellate 

Division determined that Gormley presented sufficient evidence 
3

to establish a violation of her federal constitutional rights.

It held, however, that those rights were not clearly established 

at the time of the assault on Gormley and therefore dismissed 

the claims against the officials on the ground of qualified 

immunity.

1 Gormley v. Wood-El, 422 N.J. Super. 426, 444 (App. 

Div. 2011). 

We now reverse. We hold that, in this case, the lawyer 

assigned to represent a client civilly committed in a state

psychiatric hospital had a substantive-due-process right, 

guaranteed by the Fourteenth Amendment of the United States 

Constitution, to be free from state-created dangers. We also 

hold that the right was clearly established at the time Gormley

was viciously attacked by her client in the confines of the 

hospital. We therefore conclude that the Appellate Division 

erred in granting the state officials qualified immunity. This 

matter is remanded to the trial court for further proceedings

consistent with this opinion.

I.

A.

In September 2005, Lorraine Gormley was an attorney 

employed by the Department of the Public Advocate, Division of 

 

1 The Appellate Division did not address Gormley’s state 

constitutional claim.
4

Mental Health Advocacy.2 Gormley was assigned to provide legal 

representation to clients involuntarily committed in state 

psychiatric facilities, such as Ancora Psychiatric Hospital 

(Ancora), a facility staffed and managed by the New Jersey

Department of Human Services, Division of Mental Health 

Services. Patients involuntarily committed have a right to 

counsel at their commitment hearings, and those who are indigent 

have a right to appointed counsel. See In re S.L., 94 N.J. 128, 

142 (1983). On September 22, 2005, while at Ancora, Gormley met

for the first time with her client B.R., a 21-year-old woman 

committed sixteen days earlier for a “psychotic disorder” that 

induced hallucinations. At the start of the interview in the 

hospital’s crowded and chaotic day room, B.R. violently attacked 

Gormley in the presence of hospital staff. 

Two years later, Gormley filed a two-count complaint, 

naming as defendants various officials employed by the 

Department of Human Services: LaTanya Wood-El, Chief Executive 

Officer of Ancora; Jennifer Velez, the current Human Services 

Commissioner; William Waldman, its former Commissioner; Kevin 

Martone, Assistant Commissioner in the Division of Mental Health

Services; Alan Kaufman, former Director of the Division of 

Mental Health Services; and John and Jane Doe employees and 

 

2 The Division of Mental Health Advocacy was transferred to the 

Office of the Public Defender in 2010. L. 2010, c. 34, § 30 

(codified at N.J.S.A. 52:27EE-37).
5

supervisors at Ancora. In the complaint, Gormley asserts causes

of action under the Federal Civil Rights Act, 42 U.S.C.A. § 

1983, and the New Jersey Civil Rights Act, N.J.S.A. 10:6-2(c). 

She alleges that defendants violated her substantive-due-process

rights guaranteed by the New Jersey and Federal Constitutions. 

She asserts that these officials acted with deliberate 

indifference to her physical safety in the face of known dangers 

within their control. She maintains that they failed to take 

reasonable steps to safeguard her from a violent assault and 

failed to train or supervise the hospital staff on how to 

promptly prevent or stop such an assault. Gormley also brought 

a common-law tort claim, asserting that defendants failed to 

maintain the hospital in a safe condition for persons, such as 

her, who are required to be on the premises for business or 

professionally related matters. She seeks compensatory and 

punitive damages, attorney’s fees and costs, and injunctive 

relief. Although the complaint does not specify whether 

defendants were sued in their individual or official capacities, 

or both, Gormley made clear at the summary-judgment hearing that 

defendants were sued only in their individual capacities.3

 

3 “Personal-capacity suits . . . seek to impose individual 

liability upon a government officer for actions taken under 

color of state law.” Hafer v. Melo, 502 U.S. 21, 25, 112 S. Ct.

358, 362, 116 L. Ed. 2d 301, 309 (1991). When an official is 

sued in his individual capacity, he is personally liable for any 
6

B.

At the conclusion of discovery, defendants moved for 

summary judgment on all claims. The trial court dismissed the 

common-law claims but not the federal and state civil-rights 

claims. After granting defendants’ motion for leave to appeal, 

the Appellate Division agreed with the trial court that there 

was a triable issue of whether defendants violated Gormley’s 

federal right to substantive due process. The Appellate 

Division, nevertheless, concluded that that right was not 

clearly established at the time of the assault on Gormley and 

therefore granted defendants qualified immunity and dismissed 

the federal civil-rights claim. The Appellate Division did not 

address the state civil-rights claim. The parties, however, 

have proceeded as though the Appellate Division dismissed the 

state civil-rights claim on qualified-immunity grounds as well. 

 

judgment resulting from his violation of another’s federal 

rights. Ibid.

In contrast, an official-capacity suit “is not a suit against 

the official [personally] but rather is a suit against the 

official’s office.” Will v. Mich. Dep’t of State Police, 491 

U.S. 58, 71, 109 S. Ct. 2304, 2312, 105 L. Ed. 2d 45, 58 

(1989). “[A]n award of damages against an official in his 

personal capacity can be executed only against the official’s 

personal assets,” whereas an award against him in his official 

capacity can be executed against the government entity itself, 

which is the real party in interest. Kentucky v. Graham, 473 

U.S. 159, 166, 105 S. Ct. 3099, 3105, 87 L. Ed. 2d 114, 121 

(1985).
7

Gormley appeals from the Appellate Division’s dismissal of 

her civil-rights claims on the basis of qualified immunity. 

Defendants appeal from the Appellate Division’s holding that 

they violated Gormley’s right to substantive due process. In

both appeals, we must determine whether defendants were entitled 

to summary judgment. 

A court should grant summary judgment only when the record 

reveals “no genuine issue as to any material fact” and “the 

moving party is entitled to a judgment or order as a matter of 

law.” R. 4:46-2(c). In deciding whether summary judgment was 

either properly granted or denied, “we apply the same standard 

governing the trial court -- we view the evidence in the light 

most favorable to the non-moving party.” Murray v. Plainfield 

Rescue Squad, 210 N.J. 581, 584 (2012). In this appeal, we must

therefore view the summary-judgment record through the prism of

Gormley’s best case, giving Gormley -- the non-moving party --

the benefit of the most favorable evidence and most favorable

inferences drawn from that evidence. See id. at 584-85.

4 

The parties dispute how we should construe the substantivedue-process guarantee of the Federal Constitution and the 

federal and state civil-rights statutes. Our standard of review 

in construing the meaning of a constitutional provision or a 

 

4 It bears mentioning that, for the most part, the facts are not 

in dispute.
8

statute is de novo; we do not defer to the interpretative 

conclusions of the trial court or Appellate Division. See

Nicholas v. Mynster, 213 N.J. 463, 478 (2013); Manalapan Realty, 

L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

With these principles of law in mind, we turn first to the 

summary-judgment record.

II.

A.

In September 2005, Ancora was comprised of five secure 

patient buildings, including the Cedar Building. That building

predominantly housed involuntarily committed patients suffering 

mental illnesses who were classified as a danger to themselves, 

others, or property. Cf. N.J.S.A. 30:4-27.2(m) (defining “in 

need of involuntary commitment”). The Cedar Building was 

divided into four locked wards. Each ward had a roughly thirtyfoot by thirty-foot day room that included a television, tables, 

and chairs.

According to one source, “bedlam” reigned in these day 

rooms. At times, an entire ward of thirty-five to forty 

patients would be in attendance in a day room where 

professionals, such as attorneys or psychiatrists, might be 

present. No security guards were posted to provide protection

in the day rooms or anywhere at Ancora other than the 
9

entranceway to the hospital. The day rooms were the scene of

frequent fights and violence. Often, attorneys and 

psychiatrists were the victims of assaults by patients. 

Although Ancora had a policy that provided for family 

members to meet with patients in quiet, private rooms, 

supervised by a staff member, lawyers were relegated to the 

noisy, violent, and combustible day rooms to conduct client 

interviews.

Ted Novak, an attorney in the Office of the Public Advocate 

and Gormley’s supervisor, testified that he had been assaulted 

three times by patients at Ancora before the attack on Gormley. 

He noted that similar facilities had security guards but none 

were present at Ancora. He explained that when interviewing a 

client in the day room there would be “a lot of noise from 

psychotic patients who [were] going off” and “screaming.” He 

would constantly look over his shoulder to make certain he was 

safe.

Three staff psychiatrists gave deposition testimony that

patients assaulted them on various occasions at Ancora, with 

some of those assaults occurring in the day rooms of the Cedar 

Building. One of those psychiatrists had to undergo nasal 

surgery after a patient assault. The same psychiatrist

described an incident in which a resident ran across a day room 

to attack her while she interviewed a patient. The 
10

psychiatrist’s patient -- not a staff member at Ancora --

intervened to prevent the assault. Then the psychiatrist had to 

intercede to stop her patient from pummeling her assailant.

Ancora’s CEO, LaTanya Wood-El, knew about this incident yet, 

when deposed, could not remember if she took any steps to 

prevent a recurrence. Two staff psychiatrists testified that, 

unlike Ancora, other psychiatric hospitals where they had worked 

provided security guards and private rooms for patient 

interviews.

From October 2003 through December 2005, Ancora recorded 

3846 assaults committed by patients on its grounds, including 

810 assaults committed against staff members and visitors. Of 

those 810 assaults, injuries were suffered in 200 cases.

Gormley filed an expert report from Robert Sadoff, a 

psychiatrist with forty-five years of experience examining 

patients committed to state hospitals. Dr. Sadoff stated that 

he knew “of no other hospital or facility with similar numbers 

of assaults” or lack of protective safeguards for professionals 

conducting interviews or examinations. In his more than four 

decades of practice in psychiatric hospitals, he conducted 

patient interviews in a private room with a security guard 

available if needed. He had never been attacked while examining 

a patient at a hospital. In his view, an “attorney requires not 

only privacy to examine and interview her client, but also needs 
11

the security of a security guard, as exists in most other 

psychiatric hospitals.” He concluded that Ancora should have 

had in place protocols and standards for the protection of 

visiting professionals.

Gormley’s other expert, Mark Rappaport, a Quality Care 

Facility Review Specialist employed by the State of New York,

came to the same basic conclusion in a report he submitted: 

“[T]he day room is [a] . . . potentially dangerous place for 

often confidential, sensitive, and personal interviews between 

patients and visitors (including attorneys) to take place.”

B.

On September 22, 2005, Gormley arrived at Ancora to meet

with clients whom she had been appointed to represent at

commitment hearings that week. One of those clients was B.R., a 

21-year-old woman involuntarily committed sixteen days earlier. 

B.R. was suffering from a “psychotic disorder due to medical 

condition with hallucinations.” B.R. was confined to a ward in 

the Cedar Building and assigned Continuous Visual Observation 

(CVO) status. CVO status is conferred on “patients who 

demonstrate a safety risk to self, others, and property.” In 

accordance with Ancora’s protocols, B.R.’s CVO status required

an assigned staff member to keep her under “continual visual 

observation” at all times.
12

Gormley entered the ward’s day room and sat at a small 

table awaiting her client. As a precaution, she placed her back

against the wall so that no one could attack her from behind. 

Ancora offered no option of a separate interview room, did not 

post security guards, did not use an electronic camera to 

monitor the day room, and did not provide Gormley with access to 

an emergency call device. In the day room, patients -- many in 

psychotic states, a majority posing a danger to themselves and 

others -- were freely milling about.

A staff member located and brought B.R. to the day room. 

But no one informed Gormley that B.R. was on CVO status based on 

a safety-risk assessment. B.R. sat at the table where she was 

to be interviewed. Gormley positioned herself catty-corner to 

B.R. because the noise in the day room made it impossible to 

hear B.R. from across the table while conducting a confidential 

interview. With the two in close physical proximity to each 

other, the interview began. As Gormley turned her head to write 

some notes, B.R., suddenly and without warning, struck Gormley 

about the head and face several times. As Gormley attempted to 

flee, B.R. grabbed her by the hair and pulled her backward, 

causing her to fall and strike her head against the concrete 

floor. Gormley lost consciousness. She awakened to find B.R. 

continuing to attack her. No one intervened to stop the 

assault. As Gormley tried to protect herself by kicking B.R., 
13

she heard an encouraging voice say, “That’s it. Kick her off of 

you.” Gormley freed herself without anyone coming to her aid.

5 

Staff then escorted B.R. out of the day room.

Gormley “was dazed and in pain and was unable to walk or 

drive anywhere.” One of her colleagues from the Division of 

Mental Health Advocacy transported her to the infirmary on the 

grounds of Ancora, and from there she went to the emergency room 

at Virtua Hospital. In all, Gormley was out of work three to 

four months due to her injuries. In addition to the physical 

head injury, she suffered memory loss, cognitive and visual 

impairment, sleep disturbances, extreme fatigue, and posttraumatic stress disorder. In 2009, she was on a four-day work 

schedule and receiving “treatment from a neurologist, 

psychologist, cognitive therapist, and neuro-therapist.”

When deposed, CEO Wood-El was asked whether, after the 

assault on Gormley, she instituted “any changes with respect to 

how attorney/patient visits were handled.” She responded, “No. 

I wouldn’t be required to.”

III.

A.

 

5 One staff member stated otherwise but, as noted earlier, at 

this procedural posture the evidence must be viewed in the light 

most favorable to plaintiff.
14

Defendants moved for summary judgment on all of Gormley’s 

claims. The trial court dismissed Gormley’s state common-law 

claim, finding that the Workers’ Compensation Act provided the 

exclusive remedy for that claim.

6 On the other hand, the trial 

court denied defendants’ summary-judgment motion to dismiss the 

federal and state civil-rights claims on substantive-due-process

and qualified-immunity grounds. The court concluded that 

Gormley had presented sufficient evidence to proceed under the 

state-created-danger doctrine, leaving for the jury the ultimate 

decision whether defendants violated Gormley’s rights and 

leaving for the court’s later consideration whether those rights 

were clearly established at the time of the day-room assault. 

The court also deferred resolving whether Gormley was entitled 

to injunctive relief.

B.

The Appellate Division granted leave to appeal and 

concluded that the trial court erred in failing to dismiss the 

federal civil-rights claims on qualified-immunity grounds. 

Although the Appellate Division “[r]eversed and remanded for the 

entry of an order granting summary judgment dismissing 

plaintiff’s Section 1983 claims,” Gormley, supra, 422 N.J. 

 

6 It is noteworthy that, at the summary-judgment hearing, the 

Deputy Attorney General representing defendants expressed that 

he did not believe that Gormley’s status as “a state employee 

impacts on her federal rights.”
15

Super. at 444, it did not address two remaining issues --

Gormley’s claim for relief under the New Jersey Civil Rights Act 

and her claim for injunctive relief.

On the Section 1983 claim, the Appellate Division first 

determined that the facts, viewed in the light most favorable to 

Gormley, demonstrated that defendants violated Gormley’s

Fourteenth Amendment substantive-due-process rights under the 

state-created-danger theory. Id. at 440. In support of that 

theory of constitutional liability, the panel cited a number of

federal courts of appeals, including the Third Circuit Court of 

Appeals. Id. at 436-37 (citing Kneipp v. Tedder, 95 F.3d 1199, 

1205 (3d Cir. 1996)). In particular, the panel looked to the

Third Circuit’s four-factor test for satisfying the statecreated-danger doctrine:

(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; [and]

(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, supra, 95 F.3d at 1208 (line breaks 

added) (quoting Mark v. Borough of Hatboro, 

51 F.3d 1137, 1152 (3d Cir.), cert. denied, 

516 U.S. 858, 116 S. Ct. 165, 133 L. Ed. 2d 
16

107 (1995)), quoted in Gormley, supra, 422 

N.J. Super. at 437.]

The panel focused on the fourth factor, which “is 

predicated upon the states’ affirmative acts which work” to 

render a citizen more vulnerable to danger. Gormley, supra, 422 

N.J. Super. at 437-38 (internal quotation marks omitted) 

(quoting Bright v. Westmoreland Cnty., 443 F.3d 276, 282 (3d

Cir. 2006), cert. denied, 549 U.S. 1264, 127 S. Ct. 1483, 167 L. 

Ed. 2d 228 (2007)). The panel found that the evidence supported 

that fourth factor: Gormley’s “liberty was restrained, albeit 

in a temporary sense, as soon as she entered Ancora to provide 

the constitutionally-mandated services”; Gormley had no choice 

but to meet with her client at Ancora; Gormley “had no ability 

to dictate the conditions under which she met with her client, 

including the location of the consultation session”; the Ancora 

staff knew that B.R. posed a risk of harm to others; Gormley was 

not told of B.R.’s CVO status; defendants were “acutely aware of 

the history of assaultive behavior by its patients against” 

other patients, staff, and visitors; and, last, “defendants 

failed to take appropriate measures to safeguard individuals 

such as [Gormley] from physical attack.” Id. at 439. Given

these facts, the panel held that defendant state actors rendered 

Gormley “vulnerable to foreseeable injury by their deliberate 
17

indifference to her safety needs.” Id. at 440 (citation and 

internal quotation marks omitted).7

However, the panel also held that Gormley’s substantivedue-process right to be free from state-created dangers was not 

clearly established at the time B.R. attacked her “and 

continue[s] to remain unclear, not having been addressed by the 

[United States] Supreme Court or [the New Jersey Supreme]

Court.” Id. at 444. Accordingly, the panel granted defendants 

qualified immunity on the basis that “defendants did not engage 

in any affirmative acts to create the dangerous condition,” even 

if they were deliberately indifferent to “the foreseeable risk 

of harm” to Gormley. Id. at 443.

C.

Gormley moved for reconsideration, arguing that her right 

to injunctive relief was not extinguished by the grant of

qualified immunity to the individual named defendants. The 

Appellate Division denied that motion without comment. 

Gormley then moved for leave to appeal the Appellate 

Division’s dismissal of her claims based on qualified immunity, 

and defendants moved for leave to appeal the Appellate 

Division’s upholding of the civil-rights claims under the state-

 

7 The Appellate Division rejected defendants’ contention that 

plaintiff was barred from suit as their employee. See id. at 

438 (“[P]laintiff was not an Ancora employee . . . . Nor was 

she an employee of the Department of Human Services or any of 

its divisions.”).
18

created-danger theory. We granted the motions filed by Gormley,

210 N.J. 25 (2012), and defendants, 216 N.J. 337 (2012).

IV.

A.

Defendants assert that the “Fourteenth Amendment does not 

impose a duty on State officials to protect fellow State 

employees (or the public generally)” from violence by private 

individuals unless the State either has a “special relationship” 

to the plaintiff or “affirmatively acts to create a danger to 

the plaintiff she would not face absent the [S]tate’s 

affirmative action.” Defendants argue that the Appellate 

Division erred in finding a state-created-danger cause of action 

even though defendants “did not affirmatively act to create a 

danger to [Gormley] that was not inherent in her freely chosen 

work.” Defendants emphasize that Gormley entered Ancora 

voluntarily and that her liberty was not restrained inside, even 

temporarily. Defendants distinguish their substantive-dueprocess obligation to protect involuntarily committed patients 

from those who freely enter the institution. Defendants take 

the position that the substantive-due-process guarantee of the 

Federal Constitution does not require Ancora to provide security 

for a visitor, even if the hospital officials have knowledge 

about the violent tendencies of an individual patient and direct 
19

and control where the visitor must meet the patient. Defendants

do concede that if the Ancora officials affirmatively mislead a

visitor about the dangers presented by a patient then the statecreated-danger theory might apply.

Defendants also argue that a constitutional violation 

cannot arise from defendants’ failure to provide Gormley a safe 

workplace, citing Collins v. City of Harker Heights, 503 U.S.

115, 112 S. Ct. 1061, 117 L. Ed. 2d 261 (1992). They submit 

that the Workers’ Compensation Act is the exclusive remedy for 

Gormley because she and defendants are all State employees.

In contrast, Gormley argues that the Appellate Division

properly found that she had presented sufficient evidence to 

establish a violation of her substantive-due-process rights. 

She highlights that she was a court-appointed attorney rendering 

constitutionally required representation to an involuntarily 

committed patient at Ancora -- “a locked facility” -- in a ward 

controlled by defendants and that she was not “injured in the 

free world by some private actor” over whom defendants had no 

control. In Gormley’s view, to establish state-created-danger 

liability in the circumstances of this case, it is enough to 

show that defendants took no measures to protect her after they 

brought her into close proximity with someone they knew to be 

violent and then abandoned her to that violence. According to 

Gormley, the United States Constitution protects her from the 
20

exercise of state authority that “create[s] an opportunity that 

otherwise would not have existed for the third party’s crime to 

occur.” 

Gormley, moreover, rejects the notion that she had an 

employee-employer relationship with defendants who “operated 

Ancora and created the dangerous visiting environment for 

outside professionals.” Last, she maintains that because 

defendants restrained her ability to act for herself inside the 

facility, they had a “special relationship” to her -- an 

affirmative duty to take steps necessary to ensure her safety.8

 

8 Despite the allegations in her complaint, Gormley did not 

advance or develop her claim that defendants violated the 

substantive-due-process guarantee of the New Jersey Constitution 

-- not in her argument before the trial court, not in her brief 

to the Appellate Division, and not in her brief to or oral 

argument before this Court. On none of those occasions did she 

mention Article I, Paragraph 1 of our State Constitution as a 

substantive-due process source for a state-created-danger 

doctrine. The failure to squarely address this potential claim 

may be one reason why the Appellate Division is entirely silent 

on the issue in its opinion. Only after this Court forwarded a 

letter to counsel inquiring about the status of the state 

constitutional claim did Gormley explain that she “reads the 

Appellate Division’s silence on the state statutory and state 

constitutional claims as not significant. We believe that the 

Appellate Division would apply its [federal civil 

rights/constitutional] analysis to the state civil rights 

statutory/constitutional claims.” In other words, Gormley 

perceives no distinction between the federal and state 

constitutional analysis.

We decline to address for the first time a potentially new 

doctrine under our state constitution in light of Gormley’s 

failure to argue or brief the issue, or develop the type of 

record that would assist the Court in resolving so important a 

matter. We consider the state-constitutional claim to have 
21

B.

Gormley argues that the right to be free from state-created 

danger, enforceable through Section 1983, was clearly 

established both in federal courts, including the Third Circuit,

and in the Appellate Division at the time Gormley was attacked,

and therefore the panel erred in granting qualified immunity to 

defendants. She maintains that reasonable hospital 

administrators would have understood that “putting an individual 

in danger, increasing his or her risk of harm, or rendering him 

or her more vulnerable to danger would have violated that 

individual’s Fourteenth Amendment substantive due process 

rights,” citing DiJoseph v. City of Philadelphia, 953 F. Supp.

602, 610 (E.D. Pa. 1997), aff’d, 156 F.3d 1224 (3d Cir. 1998).

Finally, Gormley submits that qualified immunity conferred 

on individual defendants does not deprive her of the right to 

injunctive relief to remedy an ongoing constitutional violation. 

Gormley continues to represent involuntarily committed clients, 

except at Ancora on doctor’s orders. Gormley contends she had 

no obligation to raise her claim for injunctive relief before 

the Appellate Division because she succeeded on that issue 

before the trial court. She asks for this Court to reinstate 

that claim erroneously dismissed by the panel.

 

lapsed, and we will resolve only the federal constitutional 

claim, which has been fully briefed and argued. 
22

On the other hand, defendants ask us to affirm the panel’s 

dismissal of the constitutional claims based on qualified 

immunity. They contend that case law did not place them on 

notice that the Due Process Clause imposed a duty “to provide 

[Gormley] with a safe working environment” in a psychiatric 

hospital. They insist that they could not have known that their 

conduct was unlawful.

Additionally, they submit that the Appellate Division 

correctly denied Gormley injunctive relief. Defendants state 

that Gormley had the obligation to argue that injunctive relief 

would survive a finding of qualified immunity and that her 

failure to do so constitutes waiver of the issue before the 

Appellate Division. They also contend that the issue of 

injunctive relief is moot because Gormley’s doctor has 

restricted her from counseling clients at Ancora.

V.

Viewing the evidence and evidential inferences in the light 

most favorable to the non-moving party -- Gormley -- we must 

decide (1) whether a jury could find that defendants violated 

Gormley’s federal substantive-due-process right to be free from 

state-created danger; if so, (2) whether the right was clearly 

established when Gormley suffered her injuries, thus determining 

the applicability of qualified immunity; and (3) whether 
23

injunctive relief is available to Gormley. We begin our 

analysis with Gormley’s substantive-due-process claim.

A.

Gormley asserts a cause of action under a provision of the 

Federal Civil Rights Act of 1871, c. 22, § 1, 17 Stat. 13, 13

(codified as amended at 42 U.S.C.A. § 1983). That statute

provides that any official who, under color of state law,

deprives a person 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. § 1983. Section 

1983 is a means of vindicating rights guaranteed in the United 

States Constitution and federal statutes. Baker v. McCollan, 

443 U.S. 137, 144 n.3, 99 S. Ct. 2689, 2694 n.3, 61 L. Ed. 2d 

433, 442 n.3 (1979). 

In addition to her federal civil-rights claim, Gormley

asserts a claim under the analogous New Jersey Civil Rights Act, 

N.J.S.A. 10:6-1 to -2. Section 1983 applies only to 

deprivations of federal rights, whereas N.J.S.A. 10:6-1 to -2 

applies not only to federal rights but also to substantive 

rights guaranteed by New Jersey’s Constitution and laws. The 

New Jersey Civil Rights Act provides, in relevant part, that: 

Any person who has been deprived of any 

substantive due process or equal protection 

rights, privileges or immunities secured by 
24

the Constitution or laws of the United 

States, or any substantive rights, 

privileges or immunities secured by the 

Constitution or laws of this State, or whose 

exercise or enjoyment of those substantive 

rights, privileges or immunities has been 

interfered with or attempted to be 

interfered with, by threats, intimidation or 

coercion by a person acting under color of 

law, may bring a civil action for damages 

and for injunctive or other appropriate 

relief.

[N.J.S.A. 10:6-2(c) (emphasis added).]

Like Section 1983, N.J.S.A. 10:6-2(c) is a means of vindicating 

substantive rights and is not a source of rights itself. 

Through both Section 1983 and the New Jersey Civil Rights 

Act, Gormley seeks to vindicate her right to liberty protected 

by the Fourteenth Amendment. The Fourteenth Amendment analysis 

under both statutes is the same. That Amendment provides, among 

other things, that “no State shall . . . deprive any person of 

life, liberty, or property, without due process of law.” U.S. 

Const. amend. XIV, § 1. “The Due Process Clause guarantees more 

than fair process”; it “provides heightened protection against 

government interference with certain fundamental rights and 

liberty interests.” Washington v. Glucksberg, 521 U.S. 702, 

719-20, 117 S. Ct. 2258, 2267, 138 L. Ed. 2d 772, 787 (1997). 

Substantive due process protects many now-familiar

fundamental rights, such as the right to marital privacy, 

Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed.
25

2d 510 (1965); the right to have children, Skinner v. Oklahoma 

ex rel. Williamson, 316 U.S. 535, 62 S. Ct. 1110, 86 L. Ed. 1655

(1942); and the right to bodily integrity, Rochin v. California, 

342 U.S. 165, 72 S. Ct. 205, 96 L. Ed. 183 (1952). 

Additionally, the Fourteenth Amendment’s Due Process Clause

protects the liberty interest of patients involuntarily 

committed to state psychiatric hospitals and requires that the 

State provide safe conditions for confinement. Youngberg v. 

Romeo, 457 U.S. 307, 315-16, 102 S. Ct. 2452, 2458, 73 L. Ed. 2d 

28, 37 (1982). Indeed, the Supreme Court has pronounced that 

the State also has an “unquestioned duty to provide reasonable 

safety for all . . . personnel within the [psychiatric]

institution.” Id. at 324, 102 S. Ct. at 2462, 73 L. Ed. 2d at 

42.

The substantive-due-process right that Gormley asserts here 

is the right to be free from state-created danger, mentioned in 

DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 

201, 109 S. Ct. 998, 1006, 103 L. Ed. 2d 249, 263 (1989). In 

that case, the mother of Joshua DeShaney sued a county, its 

Department of Social Services (Social Services), and related 

officials for depriving her son of his Fourteenth Amendment 

substantive-due-process right to liberty. Id. at 193, 109 S. 

Ct. at 1002, 103 L. Ed. 2d at 257. While young Joshua was in 

the custody of his father, Social Services reviewed complaints 
26

and evidence that Joshua was subject to repeated physical abuse 

by the father. Id. at 192-93, 109 S. Ct. at 1001, 103 L. Ed. 2d 

at 257. Despite substantial evidence of such abuse -- evidence

that led the agency to secure temporary protective custody of 

Joshua -- Social Services dutifully recorded Joshua’s injuries 

but took no action to remove the child from his home. Ibid. 

By age four, Joshua was beaten so severely by his father that he 

lapsed into a coma and suffered serious brain damage. Id. at 

193, 109 S. Ct. at 1001-02, 103 L. Ed. 2d at 257.

On these facts, the United States Supreme Court held that 

the “liberty” protected by the Fourteenth Amendment’s Due 

Process Clause did not guarantee Joshua protection from violence 

from a private person, such as his father. Id. at 201, 109 S. 

Ct. at 1006, 103 L. Ed. 2d at 263. The Court held that the Due 

Process Clause is “a limitation on the State’s power to act, not 

. . . a guarantee of certain minimal levels of safety and 

security.” Id. at 195, 109 S. Ct. at 1003, 103 L. Ed. 2d at 

258-59. Thus, although the Due Process Clause protects against 

the government’s arbitrary deprivation of a liberty interest, it 

does not generally confer an “affirmative right to governmental 

aid” to secure a liberty interest or generally confer protection 

to individuals from violence by “private actors.” Id. at 195-

96, 109 S. Ct. at 1003, 103 L. Ed. at 258-59.
27

The Court in DeShaney distinguished other cases in which 

the State actually took custody of an individual, noting that 

when the State holds a person against his will, “the 

Constitution imposes upon it a corresponding duty to assume some 

responsibility for his safety and general well-being.” Id. at 

199-200, 109 S. Ct. at 1005, 103 L. Ed. at 261. Thus, under the 

Eighth Amendment’s prohibition against cruel and unusual 

punishment, the State is required “to provide adequate medical 

care to incarcerated prisoners” because, having deprived an 

inmate of his “liberty [to] care for himself, it is only ‘just’ 

that the State be required to care for him.” Id. at 198-99, 109 

S. Ct. at 1005, 103 L. Ed. at 260-61 (alteration in original) 

(internal quotation marks omitted) (quoting Estelle v. Gamble, 

429 U.S. 97, 103-04, 97 S. Ct. 285, 291, 50 L. Ed. 2d 251, 259-

60 (1976)); see also Farmer v. Brennan, 511 U.S. 825, 833, 114 

S. Ct. 1970, 1976-77, 128 L. Ed. 2d 811, 822-23 (1994) 

(“[P]rison officials have a duty to protect prisoners from 

violence at the hands of other prisoners. . . . [H]aving 

stripped them of virtually every means of self-protection and 

foreclosed their access to outside aid, the government and its 

officials are not free to let the state of nature take its 

course.” (alteration, footnote, citations, and internal 

quotation marks omitted)). In line with that reasoning, the 

Court maintained that, under the Due Process Clause, it is 
28

unconstitutional “to confine the involuntarily committed . . . 

in unsafe conditions.” DeShaney, supra, 489 U.S. at 199, 109 S. 

Ct. at 1005, 103 L. Ed. at 261 (citing Youngberg, supra, 457 

U.S. at 315-16, 102 S. Ct. at 2458, 73 L. Ed. 2d at 37). In

these custodial cases, “[t]he affirmative duty to protect arises 

. . . from the limitation which [the State] has imposed on [the 

individual’s] freedom to act on his own behalf.” Id. at 200, 

109 S. Ct. at 1005-06, 103 L. Ed. 2d at 262.

According to the Court, “[i]n the substantive due process 

analysis, it is the State’s affirmative act of restraining the 

individual’s freedom to act on his own behalf -- through 

incarceration, institutionalization, or other similar restraint 

of personal liberty” -- that triggers a duty to protect under 

the Constitution. Id. at 200, 109 S. Ct. at 1006, 103 L. Ed. 2d 

at 262 (emphasis added). The critical point in DeShaney is that 

the state actors, albeit bystanders to the cruelties inflicted 

on Joshua, did not create the danger that led to his tragic 

condition. Id. at 201, 109 S. Ct. at 1006, 103 L. Ed. 2d at 

262. The Court reasoned in DeShaney 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.” Ibid.

(emphasis added).
29

In that language, the Court suggested that when the State 

either creates dangers that proximately cause injury or renders

the victim more vulnerable to those dangers, the constitutional 

threshold has been met. From that language, the state-createddanger doctrine was chiseled. Most federal circuit courts now 

recognize the state-created-danger doctrine as a basis for a 

substantive-due-process violation.9 See Sanford v. Stiles, 456 

F.3d 298, 304 (3d Cir. 2006).

The United States Court of Appeals for the Third Circuit

has developed a standard for the application of the statecreated danger doctrine that is faithful to the language of 

DeShaney and to the high bar set for proving a substantive-dueprocess claim. In a Section 1983 state-created-danger cause of 

action, a plaintiff must present evidence to satisfy the 

following four-prong test:

 

9 See, e.g., Pena v. DePrisco, 432 F.3d 98, 107–10 (2d Cir.

2005); Robinson v. Lioi, 536 Fed. Appx. 340, 342 (4th Cir. 

2013); Jasinski v. Tyler, 729 F.3d 531, 538 (6th Cir. 2013); 

Reed v. Gardner, 986 F.2d 1122, 1126 (7th Cir. 1993); Forrester 

v. Bass, 397 F.3d 1047, 1058 (8th Cir. 2005); Kennedy v. City of 

Ridgefield, 439 F.3d 1055, 1061 (9th Cir. 2006); Uhlrig v. 

Harder, 64 F.3d 567, 572 (10th Cir. 1995); Butera v. District of 

Columbia, 235 F.3d 637, 652 (D.C. Cir. 2001). But see LockhartBembery v. Sauro, 498 F.3d 69, 77 (1st Cir. 2007) (“[W]hile this 

court and the Supreme Court have discussed the state-created 

danger theory, neither has ever found the theory actionable on 

the facts given.”); Estate of C.A. v. Castro, 547 Fed. Appx.

621, 626 (5th Cir. 2013) (“‘[T]his Court has consistently 

refused to adopt the state-created danger theory.’” (citations 

omitted)).
30

(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.

[Bright, supra, 443 F.3d at 281 (citations 

and footnotes omitted) (elaborating on 

earlier test in Kneipp, supra, 95 F.3d at 

1208).]

Factors one and three under the Bright test overlap to some 

degree. Under factor one, the ultimate harm to the plaintiff

must be “foreseeable” and “direct.” Compare Kneipp, supra, 95 

F.3d at 1208 (holding that highly intoxicated woman’s fall down 

embankment was foreseeable injury after police separated her 

from companion and then abandoned her in freezing weather), and

Wood v. Ostrander, 879 F.2d 583, 590 (9th Cir. 1989) (holding 

that intoxicated woman was foreseeable victim of sexual assault 

after police removed her from car driven by drunken driver and 

left her alone in high-crime area), cert. denied, 498 U.S. 938, 

111 S. Ct. 341, 112 L. Ed. 2d 305 (1990), with Henry v. City of 
31

Erie, 728 F.3d 275, 282 (3d Cir. 2013) (holding that death in 

house fire not direct consequence of housing inspector’s 

approval of property), and Morse v. Lower Merion Sch. Dist., 132 

F.3d 902, 908 (3d Cir. 1997) (holding that teacher’s murder was 

not foreseeable consequence of school officials allowing 

construction workers to use unlocked back door).

Under factor three, for foreseeability purposes, the 

plaintiff must be more than an undifferentiated member of the 

general public. Rather, the plaintiff must be a specifically

foreseeable victim or part of a discrete class of foreseeable 

victims. Compare Kennedy, supra, 439 F.3d at 1063 (holding 

evidence sufficient to find police officer liable in shooting of 

victim by neighbor where officer falsely assured victim that her 

allegations of sexual abuse against neighbor would not be 

disclosed without first warning her), and Kneipp, supra, 95 F.3d 

at 1209, with Martinez v. California, 444 U.S. 277, 285, 100 S. 

Ct. 553, 559, 62 L. Ed. 2d 481, 489 (1980) (holding that 

parolee’s murder of member of general public “too remote a 

consequence of the parole officers’ action”), and Mark, supra,

51 F.3d at 1153 (holding that failure to screen volunteer 

firefighter who burned home of non-specified member of public 

not actionable).

Factor two requires that the conduct of the state actor 

must “shock the conscience.” Although intentionally causing an 
32

unjustifiable injury or harm will satisfy this standard, 

negligently doing so will not. County of Sacramento v. Lewis, 

523 U.S. 833, 849, 118 S. Ct. 1708, 1718, 140 L. Ed. 2d 1043, 

1059 (1998). In many scenarios falling between these two 

extremes, whether conduct is conscience-shocking is a factsensitive analysis and will depend on whether the officials’

conduct is egregious in light of the particular circumstances.

Id. at 850, 118 S. Ct. at 1718, 140 L. Ed. 2d at 1060. Thus, 

“[d]eliberate indifference that shocks in one environment may 

not be so patently egregious in another.” Ibid. When 

institutional officials have “time to make unhurried judgments, 

upon the chance for repeated reflection, largely uncomplicated 

by the pulls of competing obligations,” deliberate indifference 

will suffice for substantive-due-process liability. Id. at 853, 

118 S. Ct. at 1720, 140 L. Ed. 2d at 1062. Thus, when “extended 

opportunities to do better are teamed with protracted failure 

even to care, indifference is truly shocking.” Ibid.

On the other hand, when a police officer confronts 

unforeseen circumstances that demand instant judgment, such as 

the decision whether to engage in a high-speed car chase, then a 

claim of indifference will not likely be shocking given the lack 

of opportunity for considered deliberation. Ibid. That is, 

“more culpability is required to shock the conscience to the 

extent that state actors are required to act promptly and under 
33

pressure.” Schieber v. City of Philadelphia, 320 F.3d 409, 419 

(3d Cir. 2003).

Factor four requires that a state official affirmatively 

use his authority either to create the danger or to render a 

person “substantially more vulnerable to injury” than he 

otherwise would have been absent state action. Id. at 416. For 

liability to attach there must be “affirmative state action” and

not just a failure to protect a person from violence by another. 

Bright, supra, 443 F.3d at 284. Accordingly, liability may

attach when an official exercises his authority and creates a 

dangerous situation for a citizen or makes the citizen more 

vulnerable to danger than had he not intervened. Estate of 

Smith v. Marasco, 318 F.3d 497, 507-10 (3d Cir. 2003) (holding 

evidence sufficient to support liability where police drove

mentally disturbed man to flee his house into woods, where he 

died from exposure); Kneipp, supra, 95 F.3d at 1209, cited in

Bright, supra, 443 F.3d at 282-83; Freeman v. Ferguson, 911 F.2d 

52, 54 (8th Cir. 1990) (holding evidence sufficient to support 

liability against police chief for directing officers to ignore 

pleas for help by estranged wife of chief’s friend, who 

afterwards murdered wife); Wood, supra, 879 F.2d at 588.

A state actor will not escape liability by characterizing 

his conduct as “inaction” when he has exposed a person to a 

danger he created through the exercise of his authority. As 
34

Judge Posner aptly stated, “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).

B.

The State draws our attention to Collins, supra, 503 U.S.

115, 112 S. Ct. 1061, 117 L. Ed. 2d 261, arguing that there can 

be no liability in the present case because the State has no 

constitutional duty to ensure that a workplace is free from 

danger. But Collins is very different from the case before us.

In Collins, the Supreme Court held that the “liberty” 

protected in the substantive component of the Fourteenth 

Amendment’s Due Process Clause does not require a municipality

“to provide its employees with certain minimal levels of 

safety.” Id. at 127, 112 S. Ct. at 1069, 117 L. Ed. 2d at 274. 

In that case, a sanitation worker was asphyxiated after entering 

a manhole to clear a sewer line. Id. at 117, 112 S. Ct. at 

1064, 117 L. Ed. 2d at 268. In a Section 1983 action, his widow 

asserted that the city violated his “‘constitutional right to be 

free from unreasonable risks of harm’” by not warning him of or 

training or equipping him for “the dangers of working in sewer 

lines and manholes.” Ibid.
35

Significantly, the Court noted that the worker’s widow did 

not “allege that his supervisor instructed him to go into the 

sewer when the supervisor knew or should have known that there 

was a significant risk that he would be injured” but instead 

generally alleged “that the city deprived him of life and 

liberty by failing to provide a reasonably safe work 

environment.” Id. at 125-26, 112 S. Ct. at 1069, 117 L. Ed. 2d 

at 273. The Court was “not persuaded that the city’s alleged 

failure to train its employees, or to warn them about known 

risks of harm, was . . . arbitrary, or conscience shocking, in a 

constitutional sense.” Id. at 128, 112 S. Ct. at 1070, 117 L. 

Ed. 2d at 275 (emphasis added). Rather the Court characterized 

the widow’s claim as “analogous to a fairly typical state-law 

tort claim” involving breach of duty of care. Ibid.

In deciding Collins, the Court stressed that “[t]he 

employment relationship . . . is not of controlling 

significance,” and that neither the worker’s status as a 

government employee nor the Court of Appeals’s suggestion that 

deliberate indifference did not equate to “‘abuse of 

governmental power’” was a sufficient reason for the dismissal 

of the Section 1983 claim. Id. at 119-20, 112 S. Ct. at 1065-

66, 117 L. Ed. 2d at 269-70. Ultimately, the Supreme Court 

concluded that the worker’s widow did not allege or establish an 
36

arbitrary deprivation of liberty. Id. at 129-30, 112 S. Ct. at 

1071, 117 L. Ed. 2d at 276.

Collins clearly demonstrates that Gormley’s status as a 

state employee is not dispositive of her right to pursue a 

Section 1983 claim.10 Moreover, Gormley has arguably presented 

evidence of not merely unreasonable but conscience-shocking 

dangerous conditions in the Ancora day room where Gormley was 

compelled to interview her client. However, our analysis does 

not end there because Gormley must establish that the summaryjudgment record meets the Bright factors for the state-created 

danger doctrine.

 

10 At the summary-judgment hearing, defendants did not argue that 

the Workers’ Compensation Act barred Gormley’s federal and state 

civil-rights claims. Because “issues not raised below will 

ordinarily not be considered on appeal,” N.J. Div. of Youth & 

Fam. Servs. v. M.C. III, 201 N.J. 328, 339 (2010), we therefore 

do not address this issue. It is worth noting, however, that it 

is questionable whether the workers’ compensation bar -– a state 

statutory immunity -– can overcome a federal civil-rights 

claim. See Martinez, supra, 444 U.S. at 284 n.8, 100 S. Ct. at 

558 n.8, 62 L. Ed. 2d at 488 n.8 (“Conduct by persons acting 

under color of state law which is wrongful under 42 U.S.C. § 

1983 . . . cannot be immunized by state law.” (citation and 

internal quotation marks omitted)).

Moreover, we do not have the benefit of a record or argument 

on which to determine whether the alleged federal and state 

civil-rights violations constitute an “intentional wrong” 

sufficient to overcome the workers’ compensation bar. See

Laidlow v. Hariton Mach. Co., 170 N.J. 602, 617 (2002) (barring 

third-party suit against employer unless plaintiff can show 

“intentional wrong,” which “encompass[es] acts that the employer 

knows are substantially certain to produce injury even though, 

strictly speaking, the employer does not will that result”).
37

A review of a case comparable to the present one will help 

inform our analysis of the state-created-danger doctrine. In 

L.W. v. Grubbs, the United States Court of Appeals for the Ninth 

Circuit reinstated a Section 1983 cause of action by a prison 

nurse who claimed that her defendant prison supervisors, after 

leading her to believe that she would not be left alone with 

violent sexual offenders, then placed her “in unguarded 

proximity with an inmate whose record they knew included attacks 

upon women.” 974 F.2d 119, 120-21 (9th Cir. 1992), cert. 

denied, 508 U.S. 951, 113 S. Ct. 2442, 124 L. Ed. 2d 660 (1993). 

The nurse was “raped and terrorized” by the inmate. Ibid. The 

Ninth Circuit rejected defendants’ arguments that the Section 

1983 claim was infirm because the nurse “was not in custody” or 

because of her “status as an employee.” Id. at 120-21. The 

court also distinguished Collins, noting that the nurse in L.W.

alleged not just a general right to a reasonably safe workplace

but that “the [d]efendants took affirmative steps to place her 

at significant risk, and that they knew of the risks.” Id. at 

122.

VI.

A.

We now apply the Bright state-created-danger test to the 

summary-judgment record before us. First, we conclude that 
38

Gormley was a member of a discrete class of victims subject to 

the foreseeable harms set in motion by defendants. Cf. Bright, 

supra, 443 F.3d at 281. Ancora was a state psychiatric facility 

controlled and supervised by defendants, particularly Ancora’s 

Chief Executive Officer, defendant Wood-El. Many of the 

residents of Ancora were involuntarily committed because of 

mental illnesses that rendered them a danger to themselves or 

others. Within the confines of Ancora -- a locked facility --

hospital officials controlled and restrained the movements of 

residents and visitors. Cf. DeShaney, supra, 489 U.S. at 200, 

109 S. Ct. at 1006, 103 L. Ed. 2d at 262 (holding that 

substantive due process is implicated when the State acts 

affirmatively to “restrain[] the individual’s freedom to act on 

his own behalf -- through incarceration, institutionalization, 

or other similar restraint of personal liberty” (emphasis 

added)). Despite the control defendants exercised over Ancora, 

between October 2003 and December 2005, patients committed 3846 

assaults. Of that number, 810 of the assault victims were 

visitors and staff, resulting in 200 injuries. Professionals, 

such as lawyers and psychiatrists, were required to meet with

their clients and patients in the ward’s day room, where thirtyfive to forty psychiatric residents would mill about. Some of 

those residents were psychotic, “going off” and “screaming” in a 

scene described as “bedlam.” Fights frequently broke out in the 
39

day room, and attorneys and psychiatrists often became the 

victims of assaults committed by patients. Three staff 

psychiatrists testified that they had been the victims of 

patient assaults. Gormley’s supervisor at the Office of the 

Public Advocate was attacked by patients three times at Ancora 

before the assault on Gormley. The potential for violence was

so palpable that Gormley positioned her chair with her back to 

the wall to see from what direction an attack might come.

What is striking is not that the brutal assault on Gormley 

in the ever-noisy and tumultuous day room was an extraordinary 

event but that it was rather quite ordinary. Assaults in the 

day room were not unexpected but fairly foreseeable. Gormley 

was a member of a discrete class of foreseeable victims --

professionals required to meet in the volatile day room with 

patients.

As made clear in Collins and L.W., Gormley’s status as a 

state employee does not render her powerless to seek vindication 

of her constitutional rights. See Collins, supra, 503 U.S. at 

119, 112 S. Ct. at 1065, 117 L. Ed. 2d at 269 (“The employment 

relationship . . . is not of controlling significance.”).

We also conclude, viewing the evidence in the light most 

favorable to Gormley, that defendants, particularly Wood-El, 

affirmatively used their authority to create the danger that 

made Gormley more vulnerable to the assault. Gormley was not 
40

acting in the “free world” but rather in a locked institutional 

environment over which defendants exercised total control, 

including control over where Gormley met with her client, B.R. 

Cf. DeShaney, supra, 489 U.S. at 201, 109 S. Ct. at 1006, 103 L. 

Ed. 2d at 262. B.R. had a constitutional right to assigned 

counsel, S.L., supra, 94 N.J. at 142, and Gormley was designated 

by the Office of the Public Advocate to be her counsel. Gormley 

could not meet with B.R. off-site in her own office. She had to 

see B.R. at Ancora and submit to its regulations. Meetings 

between family members and patients were conducted in quiet,

private rooms supervised by staff. Attorneys interviewing their 

clients for constitutionally required commitment hearings, 

however, were relegated to the explosive day rooms, where no 

security guards were posted.

Defendants not only controlled and restrained Gormley’s 

physical movements, but they also possessed knowledge of the 

special dangers that B.R. might pose to the unsuspecting 

attorney, who was meeting her client for the first time. The 

institution assigned B.R. Continuous Visual Observation status 

because of the particular safety risk the patient posed to 

herself and others. A staff member, who presumably knew of 

B.R.’s CVO status, brought her to the day room -- brought her in 

contact with Gormley. But no one told Gormley of the

heightened-risk assessment. When Gormley sat catty-corner to 
41

B.R. because the din in the day room made a confidential, 

lawyer-client conversation impossible -- that was the 

environment defendants had created, an environment conducive to 

the many assaults that frequently occurred in the day room. 

Having brought the dangerous patient together with the attorney 

in an unsecured setting, Gormley literally was left to fend for 

herself when she was viciously attacked. Cf. Bowers, supra, 686 

F.2d at 618 (“If the state puts a man in a position of danger 

from private persons . . . it is as much an active tortfeasor as 

if it had thrown him into a snake pit.”). Gormley’s injuries 

were not a result of defendants’ inaction, but the result of 

their protocols, the affirmative steps that created an

institutional environment in which patients could freely attack 

their attorneys and psychiatrists.

Last, under Bright’s shock-the-conscience standard, Gormley 

has presented sufficient evidence to go forward on her claim

that defendants acted with deliberate indifference to the 

foreseeable dangers threatening the physical safety of attorneys 

constitutionally assigned to represent committed patients. The 

expert testimony presented suggested that the level of violence 

at Ancora was unique to that institution. In the two years 

before B.R.’s assaultive conduct, defendants kept records of 

thousands of assaults committed by patients at Ancora, including 

hundreds of assaults committed against staff and visitors, such 
42

as Gormley. No one can argue that defendants did not have time 

to deliberate over those dismal statistics. Defendants are not 

called to answer because of a split-second decision made in the 

heat of some immediate crisis. Giving Gormley the benefit of 

the most favorable evidence and inferences, defendants executed 

a policy, over a course of years, in complete disregard of the 

known danger that mentally disturbed patients were attacking 

professionals, such as Gormley, in the ward’s day room. The 

Constitution required that Gormley or some other attorney 

represent B.R. at her upcoming commitment hearing. Gormley was 

totally dependent on Ancora to provide for her safety while she 

was in the facility. Cf. Youngberg, supra, 457 U.S. at 324, 102 

S. Ct. at 2462, 73 L. Ed. 2d at 42 (noting that State had 

“unquestioned duty to provide reasonable safety for all . . .

personnel within the [psychiatric] institution”). Even after 

the assault on Gormley, defendant Wood-El stated that she was 

not required to make any changes in the manner in which 

“attorney/patient visits were handled.” That expression of 

complacency with the ongoing violence committed against 

attorneys at Ancora might be viewed by a jury as shocking by

itself.

When the evidence is viewed in the light most favorable to 

Gormley, as it must be at this stage, we conclude that a 

rational jury could find that all four factors in the Bright
43

test have been met and that defendants therefore violated 

Gormley’s substantive-due-process right to be free from statecreated dangers under the Fourteenth Amendment of the United 

States Constitution.

11

B.

A brief response to the dissent is in order, keeping in 

mind that the facts must be viewed in the light most favorable 

to Gormley. What makes the egregious -- and hopefully rare --

facts in this case conscience-shocking is the totality of the 

circumstances -- a standard commonly used in our constitutional 

jurisprudence. See, e.g., State v. Yohnnson, 204 N.J. 43, 64 

(2010) (using totality of circumstances to determine whether 

defendant’s confession involved knowing, voluntary, and 

intelligent waiver of Fifth Amendment right against selfincrimination); State v. Pineiro, 181 N.J. 13, 22 (2004) (using 

 

11 We do not address Gormley’s argument that her “specialrelationship” with Ancora is a separate basis for liability

because, in the context of the facts before us, that 

relationship is subsumed within state-created-danger liability. 

Indeed, some courts have questioned whether there is a 

distinction between special-relationship and state-createddanger liability. See Paine v. Cason, 678 F.3d 500, 510 (7th 

Cir. 2012); Ketchum v. County of Alameda, 811 F.2d 1243, 1247 

(9th Cir. 1987); Estate of Gilmore v. Buckley, 787 F.2d 714, 722 

(1st Cir.), cert. denied, 479 U.S. 882, 107 S. Ct. 270, 93 L. 

Ed. 2d 247 (1986). But see Kneipp, 95 F.3d at 1209 n.22 

(viewing “special relationship” and state-created danger as 

distinct). At least for our purposes here, we do not have to 

decide whether those doctrines are different.
44

totality of circumstances to determine whether seizure 

reasonable under Fourth Amendment).

We cannot look at individual factors in isolation, as does 

the dissent. No singular brushstroke reveals the whole picture. 

This is a case not just about statistical evidence of a 

staggering number of assaults that occurred in a psychiatric 

hospital, although those statistics certainly suggested that 

violence was a predictable and accepted fact of life at Ancora. 

Cf. Brown v. Plata, 563 U.S. ___, ___ n.4, 131 S. Ct. 1910, 1926

n.4, 179 L. Ed. 2d 969, 984 n.4 (2011) (discussing statistical 

evidence used to find that overcrowded prison conditions 

violated constitutional rights). This is a case with detailed 

eyewitness testimony from psychiatrists and lawyers who were 

physically attacked and injured while carrying out their 

professional duties. The violence occurred in a hospital where 

defendants controlled every aspect of life, including the 

physical movements of both patients and professionals, and where 

and how they met. Gormley had no right to move freely at 

Ancora; she was not an agent in the free world. Officials at 

Ancora were not just passive observers but -- giving Gormley the 

benefit of all reasonable inferences -- the architects of an 

environment in which anarchy reigned in the day rooms of Ancora. 

All of these factors are part of the tableau suggesting that 
45

defendants acted with deliberate indifference to the violence 

that threatened lawyers, such as Gormley.

Based on the factual record here, our finding that the 

conduct has crossed a constitutional threshold will not open a 

floodgate of litigation against public entities. The level of 

violence at Ancora was unique among psychiatric hospitals, and 

the dissent has cited to no comparable case involving other 

public facilities. No one has intimated, for example, that it 

is commonplace in schools for students and teachers to be 

physically attacked daily while their administrators stand about 

and look on indifferently to their physical safety.

Additionally, Congress passed the Federal Civil Rights Act

to provide remedies not available under state law. See Haywood 

v. Drown, 556 U.S. 729, 741-42, 129 S. Ct. 2108, 2118, 173 L. 

Ed. 2d 920, 932 (2009) (holding that § 1983 actions may be 

brought in state courts against correctional officers for 

constitutional violations, notwithstanding state’s explicit 

statutory bar on such actions). It makes no difference that a 

Section 1983 action may provide a different standard of proof or 

relief than in an action brought under the New Jersey Tort 

Claims Act, N.J.S.A. 59:1-1 to 59:12-3. State courts are 

compelled by the Supremacy Clause, U.S. Const. art VI, cl. 2, to 

apply federal law. See Felder v. Casey, 487 U.S. 131, 138, 108 

S. Ct. 2302, 2307, 101 L. Ed. 2d 123, 137-38 (1988); Greenway 
46

Dev. Co. v. Borough of Paramus, 163 N.J. 546, 558 (2000) (“A 

public entity may not use a state statute, such as the [Tort 

Claims Act], to abrogate a claimant’s constitutional rights.”).

We adopt the Bright test for conscience-shocking behavior,

including its deliberate-indifference component. The dissent 

accepts this standard as well. Post at ___ (slip op. at 6-7). 

The test is a high bar to vault, and one common in substantivedue-process jurisprudence. See, e.g., Lewis, supra, 523 U.S. at

850, 118 S. Ct. at 1718, 140 L. Ed. 2d at 1060; Collins, supra, 

503 U.S. at 128, 112 S. Ct. at 1070, 117 L. Ed. 2d at 275; 

United States v. Salerno, 481 U.S. 739, 746, 107 S. Ct. 2095, 

2101, 95 L. Ed. 2d 697, 708 (1987) (“So-called ‘substantive due 

process’ prevents the government from engaging in conduct that 

‘shocks the conscience’ . . . .” (citations omitted)). That 

standard, moreover, is higher than the negligence, or even gross 

negligence, standard under which public officials and employees 

may be found liable in Tort Claims Act cases. See L.W. v. 

Grubbs (II), 92 F.3d 894, 900 (9th Cir. 1996) (dismissing 

plaintiff’s claims where, after remand for trial, jury found 

only gross negligence, rather than requisite deliberate 

indifference). Application of the Federal and State Civil 

Rights Acts -- and through them the substantive-due-process 

guarantee of the Fourteenth Amendment -- is not subversive of 

the Tort Claims Act, as the dissent suggests. The drafters of 
47

the Tort Claims Act undoubtedly intended it to co-exist with 

federal law.

For these reasons we part ways with the dissent.

VII.

A.

We next consider whether the Appellate Division properly 

dismissed the civil-rights claims against defendants on the 

ground of qualified immunity. 

Qualified immunity is a doctrine that shields government 

officials from a suit for civil damages when “their conduct does 

not violate clearly established statutory or constitutional 

rights of which a reasonable person would have known.” Harlow 

v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. 

Ed. 2d 396, 410 (1982). Qualified immunity “is an immunity from 

suit,” the right to avoid the rigors and costs of trial. 

Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S. Ct. 2806, 2815, 

86 L. Ed. 2d 411, 425 (1985) (emphasis omitted). Whether an 

official is covered by qualified immunity is a matter of law to 

be decided by a court, “preferably on a properly supported 

motion for summary judgment or dismissal.” Wildoner v. Borough 

of Ramsey, 162 N.J. 375, 387 (2000); see also Pearson v. 

Callahan, 555 U.S. 223, 232, 129 S. Ct. 808, 815, 172 L. Ed. 2d 

565, 573 (2009). “Qualified immunity balances two important 
48

interests -- the need to hold public officials accountable when 

they exercise power irresponsibly and the need to shield 

officials from harassment, distraction, and liability when they 

perform their duties reasonably.” Pearson, supra, 555 U.S. at

231, 129 S. Ct. at 815, 172 L. Ed. 2d at 573. 

For a right to be clearly established, “[t]he contours of 

the right must be sufficiently clear that a reasonable official 

would understand that what he is doing violates that right.” 

Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 3039, 

97 L. Ed. 2d 523, 531 (1987). The Third Circuit has “‘adopted a 

broad view of what constitutes an established right of which a 

reasonable person would have known.’” Stoneking v. Bradford 

Area Sch. Dist., 882 F.2d 720, 726 (3d Cir. 1989) (quoting 

Sourbeer v. Robinson, 791 F.2d 1094, 1103 (3d Cir. 1986), cert. 

denied, 483 U.S. 1032, 107 S. Ct. 3276, 97 L. Ed. 2d 779 

(1987)). Officials are expected to “‘apply general, welldeveloped legal principles,’” in “analogous factual situations.” 

Ibid. (citations omitted). The Third Circuit “does not require 

‘relatively strict factual identity’ between applicable 

precedent and the case at issue.” Ibid. (citation omitted); see 

also Ryan v. Burlington Cnty., 860 F.2d 1199, 1208-09 (3d Cir. 

1988) (“‘Although officials need not predic[t] the future course 

of constitutional law, they are required to relate established 

law to analogous factual settings.’” (alteration in original) 
49

(internal quotation marks omitted) (quoting People of Three Mile 

Island v. Nuclear Regulatory Comm’rs, 747 F.2d 139, 144 (3d Cir. 

1984))), cert. denied, 490 U.S. 1020, 109 S. Ct. 1745, 104 L. 

Ed. 2d 182 (1989).

B.

We conclude that the right to be free from state-created 

dangers was clearly established at the time of the assault on 

Gormley in 2005. Since DeShaney, most federal circuit courts of 

appeals have adopted the state-created danger doctrine, 

including the Third Circuit in Kneipp in 1996. Significantly,

in 1992, the Ninth Circuit applied the doctrine to an 

institutional setting analogous to Ancora. L.W., supra, 974 

F.2d at 120 (female nurse assigned to work alone with prison 

inmate with known history of violence against women). Although 

this Court has yet to speak to the issue, in 2003 the Appellate 

Division in Gonzales, supra, adopted Kneipp’s formulation of the 

state-created-danger doctrine, 357 N.J. Super. at 347, and, in 

2004, reaffirmed state-created danger as a theory of liability, 

Estate of Strumph v. Ventura, 369 N.J. Super. 516, 525-26 (App. 

Div.), certif. denied, 181 N.J. 546 (2004). The decisional law 

of the Appellate Division is not only binding on our trial 

courts, but is an expression of the law of our State unless the 

New Jersey Supreme Court says otherwise. See Brundage v. Estate 

of Carambio, 195 N.J. 575, 593 (2008); see also Pressler &
50

Verniero, Current N.J. Court Rules, comment 3.1 on R. 1:36-3 

(2014).

The contours of the state-created-danger doctrine were 

clearly established at the time of the attack on Lorraine 

Gormley in Ancora’s day room. We hold that, given the history 

of violence at Ancora and the requirement that attorneys meet 

with their clients in crowded and chaotic day rooms populated by 

patients who were mentally ill and dangerous, reasonable 

hospital administrators knew or should have known that the 

conditions they created -- fraught with violence -- breached the 

substantive-due-process guarantee of the United States 

Constitution. This is not a case in which officials acting in 

good faith had to engage in perilous predictions about the 

application of the law or the foreseeable harm that might flow

from their conduct. 

We therefore reverse the Appellate Division, which 

dismissed the federal civil-rights claim on qualified-immunity 

grounds.

VIII.

Last, we add that the Appellate Division erred to the 

extent that it barred Gormley’s claim for injunctive relief 

based on qualified immunity. First, we disagree with 

defendants’ argument that Gormley waived her injunctive-relief 
51

claim by not asserting it before the Appellate Division. 

Gormley succeeded before the trial court, and her injunctive 

relief claim was a live claim. She had no reason to bring the 

matter before the Appellate Division. Therefore, the doctrine 

of waiver has no applicability here. 

More importantly, qualified immunity does not bar actions 

for injunctive relief. See, e.g., Wood v. Strickland, 420 U.S.

308, 314 n.6, 95 S. Ct. 992, 997 n.6, 43 L. Ed. 2d 214, 221 n.6 

(1975) (“[I]mmunity from damages does not ordinarily bar 

equitable relief as well.”), abrogated in part on other grounds 

by Harlow, supra, 457 U.S. at 817-18, 102 S. Ct. at 2738, 73 L. 

Ed. 2d at 410; Hill v. Borough of Kutztown, 455 F.3d 225, 244 

(3d Cir. 2006) (“[T]he defense of qualified immunity is 

available only for damages claims -- not for claims requesting 

prospective injunctive relief.”); Presbyterian Church (U.S.A.) 

v. United States, 870 F.2d 518, 527 (9th Cir. 1989) (“Qualified 

immunity is an affirmative defense to damage liability; it does 

not bar actions for declaratory or injunctive relief.”). As 

such, Gormley would have had the right to pursue injunctive 

relief even had qualified immunity been granted to defendants.

IX.

We reverse the judgment of the Appellate Division granting 

qualified immunity to defendants and dismissing Gormley’s 
52

federal civil-rights claims. We affirm the judgment of the 

Appellate Division based on the summary-judgment record, finding 

that the danger created by defendants that resulted in 

foreseeable injuries to Gormley violated the substantive-dueprocess guarantee of the United States Constitution. We 

determine here only that, viewing the evidence in the light most 

favorable to Gormley, the trial court properly denied 

defendants’ motion for summary judgment.12 We do not express any 

opinion on the merits of her claims, which ultimately a jury 

will resolve. We remand to the Law Division for further 

proceedings consistent with this opinion.

CHIEF JUSTICE RABNER and JUDGE RODRÍGUEZ (temporarily 

assigned) join in JUSTICE ALBIN’s opinion. JUSTICE LaVECCHIA 

filed a separate, dissenting opinion, in which JUSTICE PATTERSON 

joins. JUDGE CUFF (temporarily assigned) did not participate.

 

12 On the record before us, defendants moved collectively for 

relief and did not differentiate the strength of Gormley’s 

evidence against each individual defendant.
1

SUPREME COURT OF NEW JERSEY

A-101/106 September Term 2011

069717

LORRAINE GORMLEY,

Plaintiff-Appellate 

and Cross-Respondent,

v.

LATANYA WOOD-EL, Chief 

Executive Officer, Ancora 

Psychiatric Hospital; 

JENNIFER VELEZ, Current 

Commissioner and WILLIAM 

WALDMAN, Former Commissioner, 

New Jersey Department of 

Human Services; KEVIN 

MARTONE, Current Assistant 

Commissioner; and ALAN G. 

KAUFMAN, Former Director, 

Division of Mental Health 

Services, Department of Human 

Services,

Defendants-Respondents

and Cross-Appellants.

JUSTICE LaVECCHIA, dissenting.

Plaintiff, Lorraine Gormley, a Public Defender lawyer for 

involuntarily committed psychiatric patients, was attacked by a

client, B.R., in a community “day room” in Ancora Psychiatric 

Hospital while meeting the newly committed woman for the first 

time. The unprovoked attack caused plaintiff serious injuries. 

Although plaintiff sought relief on a number of theories, in 

this appeal we consider her claim against State Department of 

Human Services officials and Ancora’s past and present 
2

administrators based on the theory that those defendants 

violated her substantive due process right to be free from 

state-created danger. Through that alleged due process 

violation, plaintiff seeks civil damages under 42 U.S.C.A.

§ 1983 (Section 1983). Although prior to argument before this 

Court plaintiff focused on her Section 1983 claim, she invokes 

the same reasoning to support her parallel claim for civil 

damages under the New Jersey Civil Rights Act (CRA), N.J.S.A.

10:6-1 to -2. Plaintiff also seeks injunctive relief under both 

statutes.

As the majority acknowledges, neither Section 1983 nor the 

CRA confers affirmative rights upon plaintiff. Therefore, 

plaintiff must establish a colorable substantive due process 

constitutional deprivation. I cannot agree with the majority’s 

conclusion that a substantive due process state-created-danger 

claim has been presented in this matter. Moreover, even if I 

were to agree with the majority that a debatable claim has been 

set forth, I cannot conclude that such a claim was clearly 

established at the time plaintiff suffered her injuries. Thus, 

I would affirm the Appellate Division’s judgment that found 

applicable the doctrine of qualified immunity, which shields the 

individual defendants from personal civil damages. I agree with 

the majority that claims for injunctive relief are not barred by 

the doctrine of qualified immunity. Nonetheless, for the 
3

reasons that follow, I respectfully dissent from the judgment of 

the Court.

I.

It is important at the outset to recognize that plaintiff 

was injured by a private actor, not a state actor. Generally, a 

state does not violate the Due Process Clause of the Fourteenth 

Amendment if it fails to protect its citizen from private 

violence. DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 

U.S. 189, 195-96, 109 S. Ct. 998, 1003, 103 L. Ed. 2d 249, 258-

59 (1989). In DeShaney, a case that involved violence by a 

private actor,1 the United States Supreme Court stated that “the 

Due Process Clauses generally confer 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, 109 S. Ct.

at 1003, 103 L. Ed. 2d at 259. Having no obligation to provide 

such services, a state cannot be held liable for injuries that 

would have been avoided if such protection had been afforded. 

Id. at 196-97, 109 S. Ct. at 1003-04, 103 L. Ed. 2d at 259. 

 

1 In DeShaney, supra, a young boy was severely beaten by his 

father, resulting in permanent and substantial brain damage. 

489 U.S. at 192-93, 109 S. Ct. at 1001-02, 103 L. Ed. 2d at 256-

57. Prior to the incident that caused the brain damage, the 

county department of social services had failed to remove the 

boy from his father’s custody for two years, despite the boy’s 

repeated hospitalizations and department case workers’ recorded 

suspicions of child abuse. Ibid.
4

However, an exception for persons in a “special relationship” 

with the state was noted. 

The Supreme Court allowed for the viability of a Section 

1983 claim based on a violation of substantive due process when 

a special relationship arises that imposes on the state 

affirmative duties of care and protection, such as when the 

state takes a person into custody against his will. By way of 

example, the Supreme Court discussed a duty to provide medical 

services to involuntarily committed mental patients, to provide 

medical services to people injured in the process of being 

arrested, and perhaps to avoid moving a child in state custody 

into an abusive foster home. Id. at 199-201 & n.9, 109 S. Ct.

at 1005-06 & n.9, 103 L. Ed. 2d at 261-63 & n.9. That “special 

relationship” exception has spawned numerous cases in which 

plaintiffs have sought to impose Section 1983 liability on the 

basis of alleged violations of substantive due process. See, 

e.g., Henry A. v. Willden, 678 F.3d 991, 998-1001 (9th Cir. 

2012); Nicini v. Morra, 212 F.3d 798, 808 (3d Cir. 2000) (en 

banc); Ying Jing Gan v. City of New York, 996 F.2d 522, 534 (2d 

Cir. 1993). It provides the basis for one of plaintiff’s claims 

in this case.

A comment by the Supreme Court provides the genesis for a 

second theory of Section 1983 liability on the basis of an 

alleged substantive due process violation. This “state-created 
5

danger” exception arises from the DeShaney Court’s statement 

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 [the plaintiff] 

more vulnerable to them.” 489 U.S. at 201, 109 S. Ct. at 1006, 

103 L. Ed. 2d at 262. That observation has been the basis on 

which a state-created-danger theory of liability has been 

accepted by several Circuit Courts of Appeals. See, e.g., 

Bright v. Westmoreland Cnty., 443 F.3d 276, 281 (3d Cir. 2006), 

cert. denied, 549 U.S. 1264, 127 S. Ct. 1483, 167 L. Ed. 2d 228

(2007); Kneipp v. Tedder, 95 F.3d 1199, 1205 (3d Cir. 1996); 

Reed v. Gardner, 986 F.2d 1122, 1125 (7th Cir.), cert. denied, 

510 U.S. 947, 114 S. Ct. 389, 126 L. Ed. 2d 337 (1993); Dwares 

v. City of New York, 985 F.2d 94, 98-99 (2d Cir. 1993); Freeman 

v. Ferguson, 911 F.2d 52, 55 (8th Cir. 1990). Although the 

state-created-danger theory has not been adopted affirmatively 

by the United States Supreme Court, that Court’s comment in 

DeShaney has been regarded as suggesting, by inference, the 

possibility of such cause of action, as the majority notes. See

ante at ___ n.9 (slip op. at 28-29). 

The Court of Appeals for the Third Circuit endorsed a 

state-created danger cause of action in Kneipp, and refined the 

elements for such an action in Bright. As established in 

Bright, supra, a state-created-danger cause of action arises 
6

when:

(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.

[443 F.3d at 281 (internal quotation marks 

and footnotes omitted).]

Like my colleagues in the majority, I accept that a Section 

1983 claim may be advanced based on an alleged violation of 

substantive due process on state-created-danger and special 

relationship theories of liability, notwithstanding that the 

United States Supreme Court has yet to uphold the state-createddanger theory in any setting. Indeed, decisions of our 

Appellate Division already have signaled a willingness to employ 

the state-created-danger theory when and if an appropriate set 

of circumstances is presented, although no Appellate Division 

panel so far has found such a set of facts to exist. See Estate 

of Strumph v. Ventura, 369 N.J. Super. 516, 525-26 (App. Div.), 
7

certif. denied, 181 N.J. 546 (2004); Gonzales v. City of Camden, 

357 N.J. Super. 339, 347 (App. Div. 2003). I would be prepared 

to do the same for state-created danger, provided that the 

governing analysis conforms to the Bright test. 

The Bright formulation employed by the Court of Appeals for 

the Third Circuit has much to commend it. It requires an 

affirmative act or acts by the state that created the danger or 

rendered the plaintiff more vulnerable. Bright, supra, 443 F.3d 

at 282-84. It is consonant with the Supreme Court’s decision in 

DeShaney to find that the Constitution forbids state actors from 

affirmatively acting with willful disregard for a specific risk 

to an individual’s safety in a way that creates a foreseeable, 

direct risk of harm to the plaintiff. Importantly, it requires 

that overall the government’s action or inaction must shock the 

conscience. Id. at 281 (citing Cnty. of Sacramento v. Lewis, 

523 U.S. 833, 118 S. Ct. 1708, 140 L. Ed. 2d 1043 (1998)). The 

fact that state defendants simply “stood by,” or that they could 

have “done more” in a particular set of circumstances, is 

insufficient without more to meet Bright’s “shocks the 

conscience” requirement for culpability. The Bright standard 

calls for affirmative acts. Id. at 282-84. Acts of omission 

must be particularly scrutinized for egregiousness, which must 

include a showing of deliberate indifference and disregard for 

constitutional rights. See Henderson v. Gunther, 931 P.2d 1150, 
8

1161 (Colo. 1997).

II.

In this appeal, plaintiff argues two theories of liability 

under Section 1983: special relationship and state-created 

danger.

Despite plaintiff’s recognition that those theories of 

liability involve different standards, the majority melds the 

two theories into a single -- and novel -- cause of action. See

ante at ___ n.11 (slip op. at 43). I cannot adopt that 

analytical framework. The two theories are distinct and should 

be considered separately.

A.

In respect of special relationship, I disagree that, as a 

visitor to Ancora, a state psychiatric hospital, plaintiff held 

a status equivalent to that of the institutionalized persons 

residing in that hospital. Persons committed to hospitalization 

are committed to the State’s care. Although plaintiff is a 

lawyer whose professional obligation necessitated a consultative 

visit with her client, she shares the status of any family 

member, friend, or privately retained attorney or medical 

professional who enters the facility to visit a committed 

patient. As such, she is far from the equivalent of a patient 

committed to the custody of the psychiatric institution against 

her will. See DeShaney, supra, 489 U.S. at 199, 109 S. Ct. at 
9

1005, 103 L. Ed. 2d at 261. No case cited by any party or the 

majority -- from any court -- supports the notion that plaintiff 

is somehow equivalent to a committed patient to whom the State 

owes a special relationship.

Special relationship cases hinge on custody or a similar 

deprivation of liberty. See, e.g., Henderson, supra, 931 P.2d

at 1157-58 (citing cases refusing to extend special relationship 

to circumstances beyond incapacitation or institutionalization). 

Even if plaintiff’s presence in a state psychiatric hospital 

effected a minimal restraint of liberty, I would not find it 

sufficient to create a special relationship. As the Third 

Circuit has emphasized, DeShaney uses a test for “physical 

custody” when determining whether a plaintiff has a special 

relationship with the state. See Ye v. United States, 484 F.3d 

634, 635, 639 (3d Cir. 2007), cert. denied, 552 U.S. 1099, 128 

S. Ct. 905, 169 L. Ed. 2d 729 (2008). The closest plaintiff can 

come to citing an analogous case is the district court decision 

in Glaspy v. Malicoat, 134 F. Supp. 2d 890 (W.D. Mich. 2001), 

but that case is inapposite. In Glaspy, a prison visitor case, 

prison officials took direct, affirmative acts toward the 

plaintiff (a visiting father), refusing his repeated requests to 

access a restroom to urinate. Id. at 892-93. As a result, the 

plaintiff suffered pain while waiting to use the restroom, and 

ultimately suffered the humiliation of urinating in his pants. 
10

Ibid.

That district court case is distinguishable from this case 

because no direct affirmative act was taken toward plaintiff by 

state officials. The fact that Ancora’s general visitation 

policy provided for plaintiff and certain other visitors to meet 

with patients anywhere on the ward generally, or in the 

community day room where patients congregated, does not, in my 

view, meet the level of control over plaintiff’s personal 

behavior generally that gives rise to a special relationship. 

State actors exerted no direct control over plaintiff’s 

movement, seating, or actions within the day room in which this 

attack took place. Nothing in this case comes close to 

resembling the direct assertion of control over the prison 

visitor that was central to the court’s decision in Glaspy. See

id. at 895. In sum, because plaintiff was never under custodial 

control in any sense that fits the DeShaney Court’s test for 

physical custody, I find it impossible to conclude that, on 

these facts, plaintiff presents a case of special relationship 

liability.

B.

The analysis for state-created danger requires a different 

examination, specifically one that entails use of the four 

Bright factors:

(1) the harm ultimately caused was 
11

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.

[Bright, supra, 443 F.3d at 281 (internal 

quotation marks omitted).]

In Ye, supra, the Third Circuit explained that the fourth factor 

can be broken down further, as follows:

(1) a state actor exercised his or her 

authority,

(2) the state actor took an affirmative 

action, and

(3) this act created a danger to the citizen 

or rendered the citizen more vulnerable to 

danger than if the state had not acted at 

all.

[484 F.3d at 638-39.]

That is the test that I would apply to plaintiff’s claim. It is 

a rigorous test and, for me, it is far from clear that plaintiff 

has advanced a cause of action that is even debatable.

That plaintiff was subjected to serious injuries in the 
12

course of performing her professional obligation is deplorable. 

But the sympathy to which she is entitled does not help fashion 

a constitutional rule of law in this matter that promotes 

desirable public policy and predictability in application. 

Indeed, I believe that, by letting plaintiff’s claim go to the 

jury, the majority effectively embraces extensive Section 1983 

state liability on the basis of state-created danger to persons 

visiting inpatients in state psychiatric hospitals.2 The 

parameters of the liability created by the majority’s holding 

are unclear. Nevertheless, that holding will impact numerous 

state, county, and municipal operational settings, such as 

schools, facilities for the developmentally disabled, and 

prisons, where persons are in the care and custody of 

governmental actors for all or substantial portions of most 

days.

 

2 The majority also fashions on these facts a new CRA claim based 

on state-created danger. Circuit Courts reflect no consensus on 

the precise elements of a federal state-created-danger claim 

because the United States Supreme Court has not yet recognized 

the action. See generally Jeremy Daniel Kernodle, Note, 

Policing the Police: Clarifying the Test for Holding the 

Government Liable under 42 U.S.C. § 1983 and the State-Created 

Danger Theory, 54 Vand. L. Rev. 165 (2001). However, our Court 

has locked onto this case as a basis for establishing this new 

state-created-danger claim that will have the capacity to 

greatly expand tort-like liability for governmental actors. See

Lewis, supra, 523 U.S. at 848, 118 S. Ct. at 1718, 140 L. Ed. 2d 

at 1059 (“[T]he Fourteenth Amendment is not a ‘font of tort law 

to be superimposed upon whatever systems may already be 

administered by the States . . . .’” (quoting Paul v. Davis, 424 

U.S. 693, 701, 96 S. Ct. 1155, 1160, 47 L. Ed. 2d 405, 413 

(1976))). 
13

Respectfully, I disagree with the majority as to whether 

any of the state officials’ actions in this case were 

affirmative acts sufficient to “shock the conscience” under the 

Bright test. The majority gives great weight to the State’s 

failure to specifically inform plaintiff about B.R.’s watch 

status.3 However, the failure to inform plaintiff of the 

supervised watch status on which her client was placed is vastly 

different from the broken affirmative promises to the nurse in 

L.W. v. Grubbs, 974 F.2d 119 (9th Cir. 1992), cert. denied, 508 

U.S. 951, 113 S. Ct. 2442, 124 L. Ed. 2d 660 (1993),4 or the 

affirmative denial of the father’s requests in Glaspy. Rather, 

B.R. was permitted to be among people in the day room and the 

State owed all the other patients in that room protection due to 

their special relationship to the State -- because they were 

committed to a psychiatric hospital. Nevertheless, B.R. and 

other patients were permitted to mingle, in the day room 

community, with themselves and in the company of others. That 

is where plaintiff met with her new client. It is far from 

 

3 B.R. was on “close visual observation” status, meaning an 

Ancora employee was required to maintain visual observation of 

her; there is no proximity requirement with this status. Aides 

were present in the day room when the attack took place.

4 It bears noting that, on remand, the jury in L.W. determined 

that the defendant had acted with gross negligence, but not 

recklessness or deliberate indifference. L.W. v. Grubbs, 92 

F.3d 894, 895 (9th Cir. 1996). Without a finding of deliberate 

indifference, the Court of Appeals for the Ninth Circuit threw 

out the jury verdict in plaintiff’s favor. Id. at 900.
14

clear that the watch status for B.R. was unusual or that other 

patients in the room did not have a similar status. I cannot 

conclude that the state officials’ failure to warn plaintiff of 

that status rises to a conscience-shocking level of culpability.

5

Moreover, the majority places great reliance on statistics 

about past incidents of patient outbursts or assaults that 

occurred in the day room in the years preceding this incident. 

Overreliance on those statistics, in my view, skews this Court’s 

analysis and requires comment. The fact that there had been 

numerous attacks in the day room in years preceding this 

incident does not predict that any particular patient would act 

out or attack another person in the room. There is no direct 

correlation between the past violence and the actual act of 

violence by B.R. toward plaintiff. A history of patient 

violence might affect staffing levels -- a resource-driven 

determination that is rightfully assessed under state tort 

law -- but it should not give rise to a constitutional violation 

 

5 Indeed, the majority’s analysis fails to provide the slightest

guidance on whether giving notice of such watch status would 

have been enough to avoid a substantive due process claim. 

Instead, my colleagues cite to a totality-of-the-circumstances 

approach that will leave government officials constantly 

uncertain as to whether they are at risk of personal liability. 

That is not the basis for sound governmental operation. Indeed, 

the Supreme Court has noted its reluctance to expand 

substantive-due-process liability “because guideposts for 

responsible decisionmaking in this unchartered area are scarce 

and open-ended.” Collins v. City of Harker Heights, 503 U.S.

115, 125, 112 S. Ct. 1061, 1068, 117 L. Ed. 2d 261, 273 (1992).
15

on the facts of this case. 

Foreseeability, a necessary element under the Bright test, 

is not advanced by this statistical history of incidents 

involving past patients and conditions that may not bear any 

resemblance to conditions in the day room on the day in which 

plaintiff suffered her injuries. Bright’s test requires that 

the danger must have been foreseeable and fairly direct. For 

me, information about other patients’ behavior in the past does 

not make the harm visited on plaintiff foreseeable and fairly 

direct.

In sum, in my view plaintiff does not present a set of 

facts that debatably rise to a substantive due process 

violation. The Bright standard of conduct that shocks the 

conscience is not satisfied and therefore this claim should not 

advance past summary judgment. 

III.

Even if I were to agree with the majority’s indulgent view 

of these facts, I would nonetheless conclude that plaintiff’s 

case should only be allowed to go to the jury in limited 

fashion. I would not allow her novel claim for civil damages 

against the state governmental actors to proceed. In my view, 

there was no clearly established right to proceed on the basis 

of state-created danger on facts such as these that would have 

alerted government officials that they were violating any 
16

clearly established constitutional right.

The doctrine of qualified immunity shields government 

officials from personal liability under Section 1983 “insofar as 

their [discretionary] conduct does not violate clearly 

established statutory or constitutional rights of which a 

reasonable person would have known.” Harlow v. Fitzgerald, 457 

U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396, 410 

(1982). Unless a government officer violates a right so clearly 

established that a reasonable official would have understood 

that his or her actions violated that right, governmental actors 

are free to perform their duties without being hobbled by the 

constant threat of individual liability under Section 1983. 

Anderson v. Creighton, 483 U.S. 635, 640-41, 107 S. Ct. 3034, 

3039, 97 L. Ed. 2d 523, 531 (1987). The standard is 

intentionally set high before personal liability will attach. 

In my view, the doctrine of qualified immunity applies in this 

instance because prior cases do not clearly establish that a 

claim on the basis of state-created danger would apply under 

facts such as these.

Respectfully, I believe the majority overstates any 

similarity between this case and L.W., supra, in which a nurse, 

who was sexually assaulted by the prison inmate with whom she 

was assigned to work, had been affirmatively and falsely told 

that she would be under the protective supervision of guards 
17

throughout her assigned task. 974 F.2d at 120. Unlike in L.W., 

no affirmative promises or false statements were given to 

plaintiff in this case. Similarly, the state officials in 

Glaspy, supra, exercised a degree of direct control over the 

father’s actions that goes well beyond identifying places for 

visitors to meet with patients, as defendants did in this case. 

134 F. Supp. 2d at 892-93. Neither the majority nor the parties 

cite any other cases that more persuasively establish the 

applicability of a state-created-danger cause of action in 

circumstances similar those of this case. Indeed, in a 

persuasive decision on similar facts, the Supreme Court of 

Colorado refused to find a triable claim of state-created danger 

based on an inmate’s attack on a prison employee. See

Henderson, supra, 931 P.2d at 1160-62 (rejecting claim based on 

failure to provide safe working environment).

In sum, if a cause of action were cognizable on these 

facts, I would find that the doctrine of qualified immunity 

applies in this instance. The doctrine should shield the 

defendant governmental officials from this action seeking to 

impose personal liability on them in their capacity as State 

Department of Human Services officials or administrators of 

Ancora Psychiatric Hospital. I do not believe that a statecreated-danger theory for a cause of action like the one that 

plaintiff advances in this matter was clearly established under 
18

law when the events underlying this action took place. 

Certainly, in my view, no case had been decided that found an 

actionable state-created-danger claim that resembled this one. 

Moreover, I am concerned that this new theory of 

constitutional violation for state-created danger will supplant 

the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3, and its 

careful delineation of public entity and individual liability. 

Under the Tort Claims Act, willful and wanton action will render 

a governmental employee bereft of state indemnification and 

therefore personally responsible for civil damages. See

N.J.S.A. 59:10-1 (providing for indemnification of public 

employee when defended by Attorney General); N.J.S.A. 59:10A-2 

(allowing Attorney General to refuse to defend public employee 

for act or omission not in scope of employment or fraud, willful 

misconduct, or actual malice). The majority’s analysis, as 

applied in this case, suggests that a lesser showing will permit 

recovery against individual governmental officials under this 

new constitutional violation.

Thus, I would apply the doctrine of qualified immunity to 

bar plaintiff’s money damages claims. As the majority notes, 

plaintiff also sought injunctive relief. Because qualified 

immunity does not act as a bar to equitable relief, Hill v. 

Borough of Kutztown, 455 F.3d 225, 244 (3d Cir. 2006), 

plaintiff’s claim for injunctive relief would not be barred by 
19

qualified immunity. To that extent I do not disagree with the 

majority.

For the foregoing reasons, I respectfully dissent from the 

judgment of the Court.

JUSTICE PATTERSON joins in this opinion.
1

 SUPREME COURT OF NEW JERSEY

NO. A-101/106 SEPTEMBER TERM 2011

ON APPEAL FROM Appellate Division, Superior Court

LORRAINE GORMLEY,

Plaintiff-Appellant

and Cross-Respondent,

v.

LATANYA WOOD-EL, Chief

Executive Officer, Ancora

Psychiatric Hospital;

JENNIFER VELEZ, Current

Commissioner and WILLIAM

WALDMAN, Former Commissioner,

New Jersey Department of 

Human Services; KEVIN

MARTONE, Current Assistant

Commissioner; and ALAN G.

KAUFMAN, Former Director,

Division of Mental Health

Services, Department of Human

Services,

Defendants-Respondents

and Cross-Appellants.

DECIDED June 30, 2014

Chief Justice Rabner PRESIDING

OPINION BY Justice Albin

CONCURRING/DISSENTING OPINION BY 

DISSENTING OPINION BY Justice LaVecchia

CHECKLIST

AFFIRM IN PART/

REVERSE IN 

PART/REMAND

DISSENT

CHIEF JUSTICE RABNER X

JUSTICE LaVECCHIA X

JUSTICE ALBIN X

JUSTICE PATTERSON X

JUDGE RODRÍGUEZ (t/a) X

JUDGE CUFF (t/a) ---------------------- --------------------

3 2