1997 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-23-1997

Morse v. Lower Merion Sch

Precedential or Non-Precedential:

Docket 96-2134

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Recommended Citation

"Morse v. Lower Merion Sch" (1997). 1997 Decisions. Paper 281.

http://digitalcommons.law.villanova.edu/thirdcircuit_1997/281
Filed December 23, 1997 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 96-2134 

JEROME P. MORSE, Individually and as Executor of the 

Estate of Diane M. Morse, Deceased, and as Parent and 

Natural Guardian of JUREE N. MORSE, a Minor, 

 Appellant 

v. 

LOWER MERION SCHOOL DISTRICT; DAYCARE 

ASSOCIATION OF MONTGOMERY COUNTY, INC., d/b/a 

ARDMORE CHILD CARE CENTER; JAMISON 

CONTRACTORS, INC.; BUTTONWOOD COMPANY, INC.; 

UNITED STATES ROOFING CORPORATION 

On Appeal from the United States District Court 

for the Eastern District of Pennsylvania 

(D.C. Civil Action No. 96-cv-04576) 

Argued July 24, 1997 

Before: SCIRICA and NYGAARD, Circuit Judges 

and DEBEVOISE, District Judge* 

(Filed December 23, 1997) 

_________________________________________________________________ 

*The Honorable Dickinson R. Debevoise, United States District Judge for 

the District of New Jersey, sitting by designation.
 PAUL J. DRUCKER, ESQUIRE 

 (ARGUED) 

 Jablon, Epstein, Wolf & Drucker 

 The Bellevue, Ninth Floor 

 Broad Street at Walnut 

 Philadelphia, Pennsylvania 19102 

 WILLIAM F. JOSEPH, ESQUIRE 

 1831 Chestnut Street, Suite 1001 

 Philadelphia, Pennsylvania 19103 

 Attorneys for Appellant 

 DIANE C. BERNOFF, ESQUIRE 

 (ARGUED) 

 JAY B. HARRIS, ESQUIRE 

 Fineman & Bach 

 1608 Walnut Street, 19th Floor 

 Philadelphia, Pennsylvania 19103 

 Attorneys for Appellees, 

 Lower Merion School District; 

 Daycare Association of 

 Montgomery County, Inc., d/b/a 

 Ardmore Child Care Center 

 JAMES J. GILLESPIE, JR., 

 ESQUIRE 

 Stolarski, Gillespie & Hendrzak 

 2005 Market Street, Suite 2030 

 Philadelphia, Pennsylvania 19103 

 Attorney for Appellee, 

 Jamison Contractors, Inc. 

OPINION OF THE COURT 

SCIRICA, Circuit Judge. 

This civil rights action raises the question of what a 

plaintiff must plead in order to state a viable claim under 

the state-created danger theory of 42 U.S.C.A. S 1983 (West 

1994 & Supp. 1997). The district court granted defendants' 

motion to dismiss under Fed. R. Civ. P. 12(b)(6), finding 

 2 
plaintiff failed to plead one of the elements of the test set 

forth by this court in Kneipp v. Tedder, 95 F.3d 1199 (3d 

Cir. 1996) and thereby failed to state a claim upon which 

relief could be granted. Although we analyze the applicable 

law somewhat differently from the district court, we will 

affirm.1 

I 

Background and Procedural History 

On July 28, 1994, Diane Morse, a teacher at the Ardmore 

Child Care Center, was shot and killed in front of a 

classroom of children by Arcelia Truman ("Trudy") Stovall, 

a local resident with a history of mental illness. The 

Ardmore Child Care Center, which is owned and operated 

by the Daycare Association of Montgomery County, has 

operated out of a wing of Lower Merion High School for 

several years, under a lease between the Daycare 

Association and the Lower Merion School District. Stovall, 

who was subsequently convicted of the murder of Diane 

Morse and incarcerated in a psychiatric hospital, was able 

to enter the building through an unlocked rear entrance. 

In the weeks preceding the shooting, several contractors 

were working on construction projects at the high school, in 

the vicinity of the Ardmore Child Care Center location. 

Jamison Contractors, Inc. was engaged in construction and 

repair activities in and around the school building. 

Buttonwood Company, Inc. was painting a swimming pool 

within the building, and United States Roofing Corporation 

was repairing the roof in the area adjacent to the swimming 

pool. To accommodate their construction projects, the 

contractors made use of the back entrance to the building. 

Jamison employees would prop open the door to facilitate 

the movement of materials in and out of the building. As 

_________________________________________________________________ 

1. We may affirm the lower court's ruling on different grounds, provided 

the issue which forms the basis of our decision was before the lower 

court. See Mark v. Borough of Hatboro, 51 F.3d 1137, 1139 n.1 (3d Cir. 

1995), cert. denied, 116 S. Ct. 165 (1995); Neely v. Zimmerman, 858 F.2d 

144, 149 (3d Cir. 1988). 

 3 
part of its work on the swimming pool, Buttonwood set up 

a compressor outside of the building, which was connected 

to air-driven tools in the pool area by a series of two inch 

cables. In order to reach the tools in the pool area, 

Buttonwood ran these cables through the back entrance to 

the school. For their part, the employees of U.S. Roofing 

used the open door as a means of access to the restrooms 

located within the building. 

This action was brought under 42 U.S.C. S 1983 by 

Diane Morse's husband on his own behalf, as executor of 

her estate, and in a representative capacity on behalf of 

their daughter. The complaint alleges, inter alia, that the 

Lower Merion School District and the Daycare Association 

deprived Diane Morse of her right to be free from physical 

harm, and deprived plaintiff and his daughter of their 

fundamental right of association with the decedent. 2 In 

particular, plaintiff claims the School District had a written 

policy which provided that all side and back entrances to 

the school were to be kept locked at all times. The

complaint alleges that, although aware of the unsecured 

back entrance, the School District and the Daycare 

Association made no effort to correct the condition, and in 

fact facilitated the workers' access by unlocking the back 

entrance each day to assist the various contractors. In 

addition, the complaint alleges the School District and the 

Daycare Association were aware of other security breaches 

prior to July 1994 that had allowed unauthorized persons 

to gain access to the building. These previous incidents had 

resulted in theft, vandalism, and, in at least one instance, 

assault. As a result, plaintiff asserts, the "environment 

created by [defendants] was dangerous, was known by

them to be dangerous and created the opportunity for 

Trudy Stovall's attack on the decedent that would not 

otherwise have existed." 

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

_________________________________________________________________ 

2. The complaint also raised various state law claims against Jamison, 

Buttonwood and U.S. Roofing. The district court dismissed the state law 

claims for lack of supplemental jurisdiction. In order to protect these 

claims, plaintiff subsequently filed an action in state court against the 

private defendants. 

 4 
on two grounds. First, defendants contended that neither 

the School District nor the Daycare Association was acting 

under color of state law, as required by Section 1983.3 

Second, defendants argued that Mr. Morse's complaint 

failed to meet the requirements for a state-created danger 

claim. The district court declined to address defendants' 

color of state law arguments, ruling only on the sufficiency 

of the state-created danger claim.4 

The district court read plaintiff 's complaint to allege 

three distinct theories.5 The first theory of liability was that 

defendants breached their duty to maintain a safe working 

environment by leaving the back entrance unsecured. The 

second theory premised liability on defendants' alleged 

policy of refusing to institute and maintain safety

procedures, thus demonstrating a deliberate indifference to 

Ms. Morse's constitutional rights. The final theory alleged 

that the School District and the Daycare Association were 

liable under the state-created danger theory ofS 1983. 

Although the district court analyzed each theory and found 

that plaintiff failed to state a claim under any of them, the 

only theory raised on appeal, and the only one reviewed 

here, is plaintiff's state-created danger theory. 

The district court began its analysis of plaintiff's claim by 

examining our recent decision in Kneipp v. Tedder, in which 

we adopted the state-created danger theory of liability 

under S 1983. 95 F.3d 1199, 1211 (1996). In particular, the 

district court looked to whether "liability based on the 

_________________________________________________________________ 

3. With respect to this ground, defendants submitted the lease 

agreement between the Daycare Association and the School District, as 

well as the affidavit of the Daycare Association's Executive Director, in 

support of their 12(b)(6) motion. The district court noted that it could 

have, at its discretion, converted the motion into a motion for summary 

judgment. It declined to do so, however, finding these documents 

inconclusive on the color of state law issue. Morse v. Lower Merion Sch. 

Dist., 1996 WL 677514, *2 (E.D. Pa. Nov. 20, 1996).

4. Because we, too, find that plaintiff has failed to state a claim under 

the state-created danger theory, we need not address the question 

whether the School District or the Daycare Association were acting 

under color of state law at the time of Diane Morse's death. 

5. In his briefs on appeal, plaintiff denies this, and states that his 

complaint relied solely on the state-created danger theory of liability. 

 5 
state-created danger theory must be predicated on 

affirmative acts by a state actor." Morse v. Lower Merion 

Sch. Dist., 1996 WL 677514, at *5 (E.D. Pa. Nov. 20, 1996).6 

The court noted that, unlike the facts in Kneipp, which 

involved affirmative acts by the police that created an 

inherently dangerous situation for the plaintiff, the 

complaint here attempted to establish liability based 

primarily on defendants' failure to act. Because such 

failures to act "have consistently been held non-actionable 

under Section 1983,"7 the district court concluded that 

plaintiff could not support his S 1983 claim by relying on 

allegations that defendants failed to prevent the contractors 

from propping open the back door (Complaint PP 26, 28, 

30), failed to detain Ms. Stovall prior to the day of the 

murder (Complaint P 31), and refused to institute and 

maintain security (Complaint P 42). The district court held 

the only allegation in the complaint which could support 

plaintiff 's state-created danger theory was that defendants 

themselves unlocked the back entrance to the school to 

facilitate the work of the various contractors. But the 

district court declined to examine whether this constituted 

an affirmative act, and instead based its decision on a 

different element of the Kneipp analysis. 

The district court premised its decision on Kneipp's 

holding that a state actor can only be held liable if "a 

relationship [existed] between the state and the person 

injured . . . during which the state places the victim in 

danger of a foreseeable injury." Kneipp, 95 F.3d at 1209 

(citations omitted). Because there was no dispute whether 

this relationship existed between the police and the plaintiff 

_________________________________________________________________ 

6. The district court acknowledged that "the line between action and 

omission is not always clear." The affirmative act requirement is 

discussed in greater detail, infra. 

7. Morse, 1996 WL 677514, at *6 (citing DeShaney v. Winnebago County 

Dept. of Social Serv., 489 U.S. 189 (1989); D.R. v. Middle Bucks Area 

Vocational Tech. Sch., 972 F.2d 1364 (3d Cir. 1992) (en banc), cert. 

denied, 506 U.S. 1079 (1993); Searles v. Southeastern Pennsylvania 

Transp. Auth., 990 F.2d 789 (3d Cir. 1993); Brown v. Grabowski, 922 

F.2d 1097 (3d Cir. 1990), cert. denied, 501 U.S. 1218 (1991); Huston v. 

Montgomery County, No. Civ. A. 95-4209, 1995 WL 766308 (E.D. Pa. 

Dec. 28, 1995)). 

 6 
in Kneipp, the district court looked to pre-Kneipp decisions 

to analyze the parameters of this requirement. The district 

court examined Doe v. Methacton Sch. Dist., 880 F. Supp. 

380, 386 (E.D. Pa. 1995), aff'd, 124 F.3d 185 (3d Cir. 

1997), which held that the state-created danger theory 

would only affix liability if the victim of the resulting harm 

is "known and identified," and not "simply a member of the 

greater public," and Mark v. Borough of Hatboro, 51 F.3d 

1137, 1153 (3d Cir. 1995), cert. denied, 116 S. Ct. 165 

(1995), where we held that "cases where the state-created 

danger theory was applied were based on discrete, grossly 

reckless acts committed by the state or state actors. . . 

leaving a discrete plaintiff vulnerable to foreseeable injury." 

Based on its reading of these two cases, as well as Martinez 

v. California, 444 U.S. 277 (1980) and Commonwealth Bank 

& Trust Co., N.A. v. Russell, 825 F.2d 12 (3d Cir. 1987), the 

district court concluded that, "to make out a state-created 

danger claim, a plaintiff must allege facts indicating that 

there was a particular danger to the victim of the resulting 

harm." Morse, 1996 WL 677514, at *8. Because plaintiff 

failed to allege that "Diane Morse faced a particular danger 

distinct from that faced by the population of persons inside 

the school" as a result of the back entrance being left 

unlocked, the district court granted defendants' motion to 

dismiss. Id. 

II 

We have jurisdiction under 28 U.S.C. S 1291, and our 

review of the grant of a motion to dismiss is plenary. Jordan 

v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250 (3d Cir. 

1994). When considering a Rule 12(b)(6) motion, we are 

required to accept as true all of the allegations in the 

complaint and all reasonable inferences that can be drawn 

therefrom, and view them in the light most favorable to the 

plaintiff. Rocks v. City of Philadelphia, 868 F.2d 644, 645 

(3d Cir. 1989); D.P. Enter. Inc. v. Bucks County Community 

College, 725 F.2d 943, 944 (3d Cir. 1984). A Rule 12(b)(6) 

motion should be granted "if it appears to a certainty that 

no relief could be granted under any set of facts which 

could be proved." D.P. Enter. Inc., 725 F.2d at 944; 

Richardson v. Pennsylvania Dep't of Health, 561 F.2d 489, 

 7 
492 (3d Cir. 1977). But a court need not credit a 

complaint's "bald assertions" or "legal conclusions" when 

deciding a motion to dismiss. In re Burlington Coat Factory 

Securities Litigation, 114 F.3d 1410, 1429-30 (3d Cir. 

1997)(quoting Glassman v. Computervision Corp., 90 F.3d 

617, 628(1st Cir. 1996)).8 Mitchell v. Duvall County Sch. Bd., 

107 F.3d 837, 839-40 (11th Cir. 1997)(affirming dismissal 

of state-created danger claim where it was "beyond doubt 

that appellant cannot prove a set of facts" which support 

his claim); Johnson v. Dallas Indep. Sch. Dist., 38 F.3d 198 

(5th Cir. 1994), cert. denied, 514 U.S. 1017 (1995)(same). 

III 

Discussion 

Plaintiff brought this civil rights action under 42 U.S.C. 

S 1983.9 By itself, Section 1983 does not create any rights, 

but provides a remedy for violations of those rights created 

by the Constitution or federal law. Baker v. McCollan, 443 

_________________________________________________________________ 

8. See also Charles Alan Wright & Arthur R. Miller, Federal Practice and 

Procedure S 1357 (2d ed. 1997) (noting that courts, when examining 

12(b)(6) motions, have rejected "legal conclusions," "unsupported 

conclusions," "unwarranted inferences," "unwarranted deductions," 

"footless conclusions of law," or "sweeping legal conclusions cast in the 

form of factual allegations"); Leeds v. Meltz, 85 F.3d 51, 53 (2d Cir. 

1996)(affirming dismissal of S 1983 action and noting that "[w]hile the 

pleading standard is a liberal one, bald assertions and conclusions of 

law will not suffice."); Fernandez-Montes v. Allied Pilots Ass'n, 987 F.2d 

278, 284 (5th Cir. 1993) ("[C]onclusory allegations or legal conclusions 

masquerading as factual conclusions will not suffice to prevent a motion 

to dismiss."). 

9. Section 1983 provides: 

 Every person who, under color of any statute, ordinance, 

regulation, 

 custom, or usage, of any State or Territory or the District of 

 Columbia, subjects, or causes to be subjected, any citizen of the 

 United States or other person within the jurisdiction thereof to 

the 

 deprivation of any rights, privileges, or immunities secured by the 

 Constitution and laws, shall be liable to the party injured in an 

 action at law, suit in equity, or other proper proceeding for 

redress. 

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

 8 
U.S. 137, 144 n.3 (1979); Kneipp, 95 F.3d at 1204. In order 

to state a claim, plaintiff must show that defendants, acting 

under color of state law, deprived him of a right secured by 

the Constitution or the laws of the United States. See 

Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on 

other grounds, Daniels v. Williams, 474 U.S. 327 (1986). 

As noted, plaintiff alleged defendants subjected Diane 

Morse to a dangerous and ultimately fatal situation, in 

violation of her Fourteenth Amendment right to substantive 

due process, by allowing a mentally deranged and 

homicidal third party to have access to the day care center 

where Diane Morse worked. Although the general rule is 

that the state has no affirmative obligation to protect its 

citizens from the violent acts of private individuals, courts 

have recognized two exceptions to this rule. See, e.g., D.R. 

v. Middle Bucks Area Vocational Tech. Sch., 972 F.2d 1364, 

1369-73 (3d Cir. 1992) (en banc), cert. denied, 506 U.S. 

1079 (1993); Uhlrig v. Harder, 64 F.3d 567, 572 (10th Cir. 

1995), cert. denied, ___ U.S. #6D6D 6D#, 116 S. Ct. 924 (1996). The 

first of these is commonly known as the "special 

relationship" exception, and allows a plaintiff to recover 

"when the state enters into a special relationship with a 

particular citizen . . . [and] fails, under sufficiently culpable 

circumstances, to protect the health and safety of the 

citizen to whom it owes an affirmative duty." D.R., 972 F.2d 

at 1369; see also Black v. Indiana Area Sch. Dist., 985 F.2d 

707, 713 (3d Cir. 1993). The second exception is the"statecreated danger" theory of liability. 

The state-created danger theory had it origins in the 

Supreme Court's decision in DeShaney v. Winnebago 

County Dep't of Social Serv., 489 U.S. 189 (1989). The 

petitioner in that case was a young boy who was 

chronically abused by his father. The county department of 

social services, after receiving many complaints about the 

boy's mistreatment, took several steps to ensure his safety. 

But despite these efforts, the boy remained in his father's 

custody, and was eventually beaten so savagely that he 

suffered severe brain damage. The boy and his mother sued 

the department of social services under the "special 

relationship" theory of 42 U.S.C. S 1983 for their failure to 

protect the boy from his father. Although the Court

 9 
ultimately rejected plaintiff's claim, 489 U.S. at 195-96, it 

went on to explain that, "[w]hile the State may have been 

aware of the dangers that Joshua faced in the free world, 

it played no part in their creation, nor did it do anything to 

render him any more vulnerable to them." 495 U.S. at 201. 

Based on that language, several courts of appeals have 

allowed claims under Section 1983 on the "state-created 

danger" theory. See, e.g., Dwares v. City of New York, 985 

F.2d 94, 99 (2d Cir. 1993); Reed v. Gardner, 986 F.2d 

1122, 1125 (7th Cir. 1993), cert. denied, 510 U.S. 947 

(1993); Freeman v. Ferguson, 911 F.2d 52, 55 (8th Cir. 

1990); Cornelius v. Town of Highland Lake, 880 F.2d 348 

(11th Cir. 1989), cert. denied, 494 U.S. 1066 (1990); Wood 

v. Ostrander, 879 F.2d 583 (9th Cir. 1989), cert. denied, 

498 U.S. 938 (1990). 

We adopted the "state-created danger" theory in Kneipp v. 

Tedder. The plaintiffs there were the parents and legal 

guardians of Samantha Kneipp. Samantha and her 

husband, Joseph, were stopped by police while returning 

home on foot on a cold night in January. The police

stopped the Kneipps a short distance from their home for 

allegedly causing a disturbance. According to the police, 

Samantha was visibly intoxicated - she had difficulty 

walking, and smelled of alcohol and urine. During the 

course of their discussion Joseph Kniepp expressed the 

need to relieve the Kneipps' babysitter, and asked the police 

if he could return home. Joseph testified that the police 

informed him he could leave, and he left assuming that 

they would either take Samantha to a hospital or the police 

station. But the police sent Samantha home alone shortly 

thereafter. Approximately two hours later, Samantha was 

found lying at the bottom of an embankment across the 

street from the Kneipps' home. As a result of her exposure 

to the cold, Samantha suffered permanent brain damage. 

Plaintiffs brought suit, alleging the police officers' actions 

deprived Samantha of her right to substantive due process 

and her liberty interest in personal security. The district 

court granted summary judgment in favor of the 

defendants. We reversed, holding that the "state-created 

danger theory is a viable mechanism for establishing a 

constitutional claim under 42 U.S.C. S 1983," and that 

 10 
plaintiffs had raised a triable issue of fact under that 

theory. Kneipp, 95 F.3d at 1211. 

In reaching this conclusion, we applied the four-part test 

articulated in Mark v. Hatboro, which holds a state actor 

liable if: 

 (1) the harm ultimately caused was foreseeable and 

 fairly direct; (2) the state actor acted in willful 

 disregard for the safety of the plaintiff; (3) there existed 

 some relationship between the state and the plaintiff; 

 (4) the state actors used their authority to create an 

 opportunity that otherwise would not have existed for 

 the third party's crime to occur. 

Kneipp, 95 F.3d at 1208 (quoting Mark, 51 F.3d at 1152). 

We also noted that "[t]hose courts which have recognized 

the state-created danger theory have employed a deliberate 

indifference standard." Id. at 1208 (citations omitted). When 

this test is applied to the facts of this case, it becomes clear 

that plaintiff has not set forth a claim under S 1983 upon 

which relief can be granted. 

A. Foreseeable and Fairly Direct Harm 

The first element of the Kneipp test requires that the 

harm ultimately caused was a foreseeable and a fairly 

direct result of the state's actions. Although the plaintiff 

asserted this conclusion in his complaint, this is not 

necessarily sufficient to overcome defendants motion to 

dismiss. As we have noted, we need not accept "bald

assertions" or "legal conclusions" contained in the

complaint. In re Burlington Coat Factory Securities

Litigation, 114 F.3d 1410, 1429-30 (3d Cir. 1997)(quoting 

Glassman v. Computervision Corp., 90 F.3d 617, 628 (1st 

Cir. 1996)). We hold that defendants, as a matter of law, 

could not have foreseen that allowing construction workers 

to use an unlocked back entrance for access to the school 

building would result in the murderous act of a mentally 

unstable third party, and that the tragic harm which 

ultimately befell Diane Morse was too attenuated from 

defendants' actions to support liability. 

First, the complaint did not allege that defendants were 

aware of Stovall's violent propensities. There are no 

 11 
allegations that Stovall had made threats against Diane 

Morse or any other persons at the Lower Merion High

School, or even that she had a history of violent behavior. 

The only allegation in the complaint that addresses whether 

defendants should have foreseen the danger posed by

Stovall that day was that, during the week preceding the 

murder, she had been seen "loitering in the school and the 

school area." (Complaint P 31). Assuming that defendants 

were aware of this fact, as we must when reviewing the 

grant of a motion to dismiss, this is insufficient as a matter 

of law to put defendants on notice that Stovall would return 

in a few days with a .38 revolver and a homicidal intent. 

Second, there is no allegation that defendants were aware 

of anyone posing a credible threat of violence to persons 

inside the school building. Although the complaint alleges 

that defendants were aware of previous "security breaches" 

by unnamed persons, it does not allege that Stovall, or any 

other mentally deranged person, had entered the school 

building previously. In addition, the complaint contains no 

allegation, and plaintiff cannot prove any set of facts, that 

would demonstrate that defendants were aware of the

likelihood that a mentally deranged person would enter the 

school in search of a victim. 

Third, Stovall's attack was not a "fairly direct" result of 

defendants' actions. We recognize that plaintiff has alleged 

that the harm which befell Ms. Morse was "a direct result 

of defendants' acts." But we are not bound to accept a 

conclusory statement, and as a matter of law this cannot 

be true. Plaintiff's allegation that, as a result of defendants' 

decision to allow construction workers to have access to the 

school through an unlocked rear entrance, Stovall was able 

to enter the building and murder Diane Morse is 

insufficient to support liability. While we must accept the 

allegation that Stovall gained access to the building 

through the unlocked rear entrance, this does not mean the 

attack on Diane Morse occurred as a direct result of 

defendants allowing the construction crews to prop open 

the door. The causation, if any, is too attenuated. Plaintiff 

can prove no set of facts which will provide the direct 

causal connection between Stovall's deadly attack and any 

of defendants' allegedly improper acts. 

 12 
The cases which have found liability under the statecreated danger theory do not stretch the concepts of 

foreseeability and causation this far. Kneipp itself involved 

a visibly inebriated and incapacitated woman who was left 

alone on the road by police. Consequently we concluded 

that "a reasonable jury could find that the harm likely to 

befall Samantha if separated from [her husband] while in a 

highly intoxicated state in cold weather was indeed

foreseeable" and could have led directly to her injuries. 95 

F.3d at 1208. 

Similarly, the decisions to hold the state actors liable 

under the state-created danger theory in Wood v. 

Ostrander, 879 F.2d 583 (9th Cir. 1989), and Cornelius v. 

Town of Highland Lake, 880 F.2d 348 (11th Cir. 1989), 

were premised on facts in which the harm visited on the 

plaintiffs was more foreseeable than the random attack 

perpetrated by Stovall here. The plaintiff in Wood was the 

female passenger of a drunk driver who was pulled over late 

one evening by police. The driver was arrested and the car 

impounded, leaving Ms. Wood stranded on the road in a 

notoriously high crime area. After beginning thefive mile 

walk to her home, Ms. Wood accepted a ride from an 

unknown man who subsequently took her to a secluded

area and raped her. Addressing the issue of foreseeable 

harm, the court noted that the "inherent danger facing a 

woman left alone at night in an unsafe area is a matter of 

common sense." 879 F.2d at 590 (citations omitted).

In Cornelius, the United States Court of Appeals for the 

Eleventh Circuit found that prison and town officials could 

be liable to the plaintiff, who was abducted and held 

hostage for several days by prison inmates assigned to a 

community work program in the town hall where she was 

employed. Reversing the lower court's grant of summary 

judgment, the court of appeals found that genuine issues of 

fact existed which related to the "special danger" created by 

the work squad's presence in the town hall. The court 

noted that the defendants in Cornelius knew of the 

dangerous propensities of the prison inmates assigned to 

the work program, as well as the lack of supervision over 

those inmates, and thus "were aware of the danger present 

from the community work squad inmates." 880 F.2d at

 13 
358. The ultimate manifestation of that danger was 

therefore foreseeable. By contrast, there is no allegation in 

the complaint here that defendants knew that Stovall posed 

a threat to anyone at Lower Merion High School, let alone 

Diane Morse. 

In this respect the case before us is more analogous to 

the facts in Gregory v. City of Rogers, 974 F.2d 1006 (8th 

Cir. 1992), cert. denied, 507 U.S. 913 (1993). In Gregory, 

three friends were returning home from an evening of 

drinking, with one of them, Stanley Turner, serving as 

designated driver. The police stopped their vehicle for 

running a red light, and in the process of making a routine 

warrant check, discovered an outstanding warrant for 

Turner's arrest. At his request, the police allowed Turner to 

drive to the station in order to clear up the matter. After 

arriving at the station, Turner parked and went inside, 

leaving behind his two intoxicated passengers, and leaving 

the keys in the ignition. After waiting for thirty minutes, the 

passengers drove off, and were involved in a single car 

accident which killed the driver and injured the other 

passenger. Plaintiffs - the surviving passenger and the wife, 

son and estate of the decedent - brought a claim against 

the police under the state-created danger theory. The 

district court granted the defendants' motion for summary 

judgment, and the United States Court of Appeals for the 

Eighth Circuit, sitting en banc, affirmed. The court 

concluded that even if the police were aware that both 

passengers were intoxicated, a reasonable trier of fact could 

not find that the police placed them in a dangerous

situation by merely leaving them alone in the car. Id. at 

1011 (contrasting the facts there with the facts in Wood). 

"Simply put, it was not unsafe for the intoxicated 

[passengers] to wait for Turner inside the car where it was 

parked until Turner inexplicably left the keys with them." 

Id. at 1012. The court ruled that because Turner's 

unforeseeable act was the catalyst for the injury which 

plaintiffs suffered, the police could not be held liable. Id. 

The same can be said in the case before us. Here, it was 

not defendants' decision to allow the rear entrance to the 

school to remain open that precipitated or was the catalyst 

for the attack on Ms. Morse. Furthermore, we believe that 

 14 
the harm allegedly created by the defendants in Gregory 

was more foreseeable than the harm allegedly created here. 

Unlike the situation in Gregory, where the defendants were 

aware that intoxicated passengers were left behind in the 

car, the defendants here were unaware that any mentally 

deranged person, let alone Stovall, was waiting outside the 

building for an opportunity to cause harm. Based on a 

review of the complaint, we find that plaintiff can prove no 

set of facts which will entitle him to relief. Defendants could 

not have foreseen the danger to Diane Morse, nor, as a 

matter of law, can their actions be said to have directly 

caused the attack. Consequently, plaintiff has failed to 

plead adequately the foreseeable injury element of the 

Kneipp test. 

B. Willful Disregard for Plaintiff's Safety 

The second prong of the Kneipp test asks whether the 

state actor acted with willful disregard for or deliberate 

indifference to plaintiff's safety. Kneipp , 95 F.3d at 1208 & 

n.21. "[T]he environment created by the state actors must 

be dangerous; they must know it to be dangerous; and . . . 

[they] must have been at least deliberately indifferent." 

Johnson v. Dallas Indep. Sch. Dist., 38 F.3d 198, 201 (5th 

Cir. 1994), cert. denied, 514 U.S. 1017 (1995). See also 

Leffal v. Dallas Indep. Sch. Dist., 28 F.3d 521, 531 (5th Cir. 

1994) ("[I]t is not enough to show that the state increased 

the danger of harm from third persons; the [S] 1983

plaintiff must also show that the state acted with the 

requisite degree of culpability in failing to protect the 

plaintiff."). In other words, the state's actions must evince 

a willingness to ignore a foreseeable danger or risk. Of 

course, the notion of deliberate indifference contemplates a 

danger that must at least be foreseeable. In Kneipp, we 

focused on the police officers' decision to send Samantha 

Kneipp home alone, despite their awareness of her 

intoxicated and incapacitated state, as evidence of their 

deliberate indifference. In Cornelius, the court held the 

defendants could be liable based on their knowledge of the 

risk created by the presence of the community work squad 

inmates. 880 F.2d at 358. These factors are not present 

here. Defendants could not have been aware of the danger 

posed by Stovall, nor could they have foreseen it. As a 

 15 
matter of law they cannot have acted with willful disregard 

for Diane Morse's safety.10 

Our decision in Mark v. Borough of Hatboro is instructive. 

The plaintiff owned an auto repair business that was 

destroyed in a fire set by a volunteer firefighter. The 

plaintiff filed a S 1983 action against the borough and the 

_________________________________________________________________ 

10. The Kneipp court noted that "we have declined to distinguish such 

terms as "deliberate indifference," "reckless indifference," "gross 

negligence," or "reckless disregard" in the context of a violation of 

substantive due process under the Fourteenth Amendment." 95 F.3d at 

1208 n.21 (citing Williams v. Borough of West Chester, 891 F.2d 458, 

464 n. 10 (3d Cir. 1989)). The concept of "willful disregard" fits within 

this same ill-defined category of mens rea. "Willful disregard" and 

"reckless indifference" appear to fall somewhere between intent, which 

"includes proceeding with knowledge that the harm is substantially 

certain to occur" and negligence, which involves"the mere unreasonable 

risk of harm to another." W. Page Keeton et al, Prosser & Keeton on 

Torts S 34 at 212 (5th ed. 1984). Thus the term "willful" indifference is 

somewhat misleading, requiring not an intent to harm, but a failure to 

act appropriately in light of a known or obvious risk. Id. at 213-14 ("The 

`willful' requirement, therefore, breaks down and receives at best lip 

service, where it is clear from the facts that the defendant, whatever his 

state of mind, has proceeded in disregard of a high and excessive degree 

of danger, either known to him or apparent to a reasonable person in his 

position."). 

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

 The actor's conduct is in reckless disregard of the safety of 

another 

 if he does an act or intentionally fails to do an act which it is 

his 

 duty to the other to do, knowing or having reason to know of facts 

 which would lead a reasonable man to realize, not only that his 

 conduct creates an unreasonable risk of physical harm to another, 

 but also that such risk is substantially greater than that which is 

 necessary to make his conduct negligent. 

The Restatement underscores that the test of willful indifference does not 

require that the state actor "recognize [his conduct] as being extremely 

dangerous . . . [but that] he knows or has reason to know of 

circumstances which would bring home to the realization of the 

ordinary, reasonable man the highly dangerous character of his 

conduct." Id., comment c. The element of willfulness, however, is not 

entirely disregarded, and thus "[c]onduct cannot be in reckless disregard 

of the safety of others unless the act or omission is itself intended." 

Id., 

comment b. 
 16 
fire company, claiming their failure to properly screen 

volunteer firefighters resulted in the damage to his 

property. Affirming the district court's grant of summary 

judgment, we rejected plaintiff's claim that "the danger of 

volunteer firefighters committing arson is so grave and so 

obvious that the defendants failure [to screen volunteers] 

evinced willful disregard for the rights of individuals with 

whom the firefighters came in contact." Mark, 51 F.3d at 

1140. A similar analysis can be applied to the allegations 

here. As contrasted with the risk that an intoxicated 

woman left alone on the road during inclement weather 

might be injured, the risk that unlocking a school entrance 

would invite the actions of a deranged third person is no 

more a foreseeable risk than the risk that a firefighter will 

have a proclivity for arson. Consequently, defendants here 

cannot have acted with the requisite culpability to be liable 

under the state-created danger theory. 

Also instructive is the decision of the United States Court 

of Appeals for the Fifth Circuit in Johnson v. Dallas Indep. 

Sch. Dist., 38 F.3d 198 (5th Cir. 1994), cert. denied, 514 

U.S. 1017 (1995). In that case, a student at a Dallas high 

school was killed by a stray bullet fired by a non-student 

during an argument in a school hallway. The ruckus was 

instigated by the non-student, who was able to enter the 

school carrying a concealed weapon because the school's 

metal detectors were not in use. The decedent's father filed 

suit under S 1983, claiming, inter alia, that the school 

district was responsible for his son's death under the statecreated danger theory. The district court granted 

defendants' motion to dismiss, and the court of appeals 

affirmed. According to the court, 

 [a]ctual knowledge of a serious risk of physical danger 

 to the plaintiff has been a common feature of the state- 

 created danger cases. From the pleadings in this case, 

 no legitimate inference can be drawn that the school 

 officials might have been actually aware of a high risk 

 that an armed non student invader would enter the 

 campus and fire a pistol randomly during school 

 hours. 

38 F.3d at 201-202. The court of appeals found that "the 

most that may be said of defendants' ultimately ineffective 

 17 
attempts to secure the environment is that they were 

negligent, but not that they were deliberately indifferent." 

Id. at 202. 

The same is true in the case before us. Stovall's attack on 

Diane Morse was not a foreseeable risk, and there is no 

allegation in the complaint that defendants knew of the 

threat she posed. Defendants, by allowing construction 

workers to keep the rear entrance to the school unlocked, 

did not willfully or deliberately disregard a foreseeable 

danger. Assuming their actions rose to the level of

negligence, merely negligent acts cannot support a claim 

under the state-created danger theory of S 1983. Kneipp, 95 

F.3d at 1208; Johnson, 38 F.3d at 202. Much like the 

decedent in Johnson, Morse was "the tragic victim of 

random criminal conduct rather than of school officials' 

deliberate, callous decisions," and plaintiff's complaint 

cannot be read to allege otherwise. Consequently, plaintiff 

has not met his pleading burden under the second prong of 

the Kneipp test. 

C. Relationship Between State and Plaintiff - Foreseeable 

 Plaintiff. 

The third element of the Kneipp test asks whether "there 

existed some relationship between the state and the

plaintiff." In Mark, when we initially identified this as an 

element of the state-created danger theory, we explained 

that the cases which had found liability were based on facts 

where the state acted in such a way as to leave "a discrete 

plaintiff vulnerable to a foreseeable injury." 51 F.3d at 

1153. In Kneipp we found there was "a relationship 

between the state and [Ms. Kneipp] . . . during which the 

state place[d] the victim in danger of a foreseeable injury." 

We then distinguished this "relationship" element of the 

state-created danger theory from that required under the 

"special relationship" theory of DeShaney, noting that "the 

relationship requirement under the state-created danger 

theory contemplates some contact such that the plaintiff 

was a foreseeable victim of the defendant's acts in a tort 

sense." 95 F.3d at 1209 n.22. 

The district court here interpreted the "foreseeable 

plaintiff" element11 ofKneipp and Mark to require that "a 

plaintiff must allege facts indicating that there was a 

_________________________________________________________________ 

11. Although the district court referred to this element as the "discrete 

plaintiff " requirement, we use the term "foreseeable plaintiff" to 

describe 

this element of the Mark test. 
 18 
particular danger to the victim of the resulting harm." 

Morse, 1996 WL 677514, at *2. The district court traced the 

progression of the "foreseeable plaintiff" requirement from 

its origins in Martinez v. California, 444 U.S. 277 (1980). 

Martinez involved a S 1983 action brought by the parents of 

a young girl who was murdered by a parolee five months 

after his release from prison. Plaintiffs alleged that the 

officials responsible for granting parole were liable for their 

daughter's death. In rejecting plaintiffs' claims, the 

Supreme Court stated that "the parole board was not aware 

that appellant's decedent, as distinguished from the public 

at large, faced any special danger." 444 U.S. at 285. The 

district court read this language to require that the state 

actor be aware that it is creating a risk of harm to a 

particular plaintiff. 

Our decision in Commonwealth Bank & Trust Co. v. 

Russell, 825 F.2d 12 (3d Cir. 1987) also addressed the 

issue of who qualifies as a "foreseeable plaintiff." In that 

instance a suit was filed on behalf of a couple murdered by 

an escaped inmate, alleging that breaches in the prison's 

security resulted in the prisoner's escape and, ultimately, 

the couple's death. We held that prison officials were not 

liable on the grounds that, inter alia, they could not have 

known that decedents faced any particular threat greater 

than that faced by the "public at large." Id. at 16. Once 

again, the district court here read this case as requiring 

plaintiffs employing the state-created danger theory to 

allege they faced a particular threat of harm which set them 

apart from the general public. 

The district court next examined our decision in Mark v. 

Borough of Hatboro. As we have noted, the actor in that 

case was a volunteer firefighter who set fire to and 

destroyed the plaintiff's auto repair business. The plaintiff 

contended the municipality was liable to him for arson 

damage under the state-created danger theory. We declined 

to address the viability of the theory at that time, ruling 

that in any event a constitutional violation could not be 

made out under the facts of the case. As we stated:

 When the alleged unlawful act is a policy directed at 

 the public at large - namely a failure to protect the 

 public by failing adequately to screen applicants for 

 19 
 membership in a volunteer fire company, the rationale 

 behind the rule disappears - there can be no specific 

 knowledge of the particular plaintiff's condition, and 

 there is no relationship between the defendant and the 

 plaintiff. 

51 F.3d at 1153. Focusing on this language, the district 

court interpreted the third prong of the Kneipp test to 

require an allegation that the state actor was aware of a 

danger to a specific individual. Because the complaint did 

not allege this, the district court held that plaintiff failed to 

state a claim under the state-created danger theory.12 

We analyze the foreseeable plaintiff prong somewhat

differently than the district court. It seems evident that the 

Supreme Court's "public at large" language in Martinez, as 

well as our statements in Commonwealth and Marks, 

exclude from the reach of the state-created danger theory 

those instances where the state actor creates only a threat 

_________________________________________________________________ 

12. There appears to be some question whether Mark and Kneipp require 

the state actor have "specific knowledge" of the plaintiff, or merely that 

the plaintiff was a "foreseeable" victim. But any tension, we believe, can 

be explained by a review of the facts of each case. Discussing whether 

the creation of a danger to the "public at large" could lead to liability 

under the state-created danger theory, the Mark court noted that "when 

the alleged unlawful act is a policy directed at the public at large . . . 

there can be no specific knowledge of the particular plaintiff's 

condition" 

and thus the third element of the Mark test is not met. 51 F.3d at 1153. 

The Kneipp court, on the other hand, stated that the relationship 

element of the state-created danger theory "contemplates some contact 

such that the plaintiff was a foreseeable victim of a defendant's acts in 

a tort sense." 95 F.3d at 1209 n.22. The distinguishing characteristic 

here is the allegedly unlawful act. Mark involved a claim in which the 

alleged "act" was a policy directed at the public at large, whereas the 

acts of the police officer in Kneipp were directed at a particular 

individual. Where the state actor has allegedly created a danger towards 

the public generally, rather than an individual or group of individuals, 

holding a state actor liable for the injuries of foreseeable plaintiffs 

would 

expand the scope of the state-created danger theory beyond its useful 

and intended limits. Where, as here, the allegedly unlawful acts of the 

state actor affect only a limited group of potential plaintiffs, the 

potentially broad reach of the state-created danger theory is constrained 

by examining whether the plaintiff or plaintiffs were "foreseeable" 

victims. 

 20 
to the general population. This is in keeping with the 

Court's decision in DeShaney, and the general rule that the 

state is not obligated to protect its citizens from the 

random, violent acts of private persons. But it does not 

appear this limitation necessarily restricts the scope of 

S 1983 to those instances where a specific individual is 

placed in danger. Another view of these cases would allow 

a plaintiff, in certain situations, to bring a state-created 

danger claim if the plaintiff was a member of a discrete 

class of persons subjected to the potential harm brought 

about by the state's actions. Stated differently, depending 

on the facts of a particular case, a "discrete plaintiff" may 

mean a specific person or a specific class of persons. The 

primary focus when making this determination is 

foreseeability. 

Some of the cases that have applied the state-created 

danger theory have held state actors liable for creating a 

risk to a definable class of persons. The decision of the 

United States Court of Appeals for the Seventh Circuit in 

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

illustrative. In that case, police officers arrested the driver 

of a vehicle, Cathy Irby, and left behind her intoxicated 

passenger, Larry Rice, with the keys to the car. A few hours 

later Rice, while driving Irby's car, collided head on with 

plaintiff 's vehicle, killing plaintiff 's wife and pre-natal son, 

and injuring the plaintiff, his two daughters and his inlaws. The court of appeals reversed the lower court's 

dismissal of plaintiff 's state-created danger claim, noting 

that "it was the police action in removing Irby, combined 

with their knowledge of Rice's intoxication, which creates 

their liability for the subsequent accident."13 Clearly the act 

of placing a drunk driver at the wheel of the car did not 

create a danger to the Reed family specifically. The court of 

appeals found that the act "rendered the Reeds and the 

other motorists on Route 130 vulnerable to a dangerous 

driver." Id. at 1127 ("When the police create a specific 

_________________________________________________________________ 

13. The Reed court assumed, based on its reading of the complaint, that 

Irby was sober at the time of the arrest. It noted, however, that if she 

had in fact been intoxicated, the state could not be liable "for 

exchanging 

one drunk driver for another" because even "without state intervention, 

the same danger would exist." 986 F.2d at 1125. 

 21 
danger, they need not know who in particular will be hurt. 

Some dangers are so evident, while their victims are so 

random, that state actors can be held accountable by any 

injured party."). 

It is evident that the case law in this area is not uniform 

on the necessity to allege a specific plaintiff as opposed to 

a specific class of plaintiffs. What is clear is that a member 

of the general public may not qualify. Of course, DeShaney 

involved a discrete, individual plaintiff, and as the source of 

the state-created danger theory, can be read to restrict who 

may sue under this theory. But in other situations,

requiring the plaintiff to be part of an identifiable and 

discrete class of persons subject to the harm the state 

allegedly has created also fits within the purposes of the 

state-created danger theory. 

For this reason, it would not appear that the statecreated danger theory of liability under S 1983 always 

requires knowledge that a specific individual has been 

placed in harm's way. Although it is appropriate to draw 

lines here, there would appear to be no principled 

distinction between a discrete plaintiff and a discrete class 

of plaintiffs. The ultimate test is one of foreseeability. 

The issue here is whether Diane Morse, and all those 

present in Lower Merion High School, were a sufficiently 

discrete group of persons who could have been foreseeable 

victims of an armed and dangerous intruder. This is by no 

means an easy question, for the reasons we have 

expressed. But we need not decide this issue here because 

we hold that plaintiff cannot satisfy the other three prongs 

of the Kniepp test. 

D. Creating the Opportunity for Harm 

The final element of the Kneipp test is whether the state 

actor used its authority to create an opportunity which 

otherwise would not have existed for the specific harm to 

occur. The district court read this requirement to 

contemplate that a state actor must affirmatively act to 

create the risk which results in harm to the plaintiff. Under 

the allegations presented here, the district court concluded 

that the only affirmative act attributable to the defendants 

was the assertion they unlocked the door to facilitate the 

 22 
work of the various contractors at the high school. The 

district court declined to address whether the act of 

unlocking the door rose "to the level required to impose 

liability under the state-created danger theory," Morse, 

1996 WL 677514, at *6 (quoting Kneipp, 95 F.3d at 1207), 

relying instead on plaintiff's failure to satisfy the 

"foreseeable plaintiff " requirement under Kneipp. 

The case law addressing the question whether an 

affirmative act is required under the state-created danger 

theory, and if so what constitutes an affirmative act for 

purposes of liability, is less than clear. Conduct that has 

been held to be an affirmative act under one set of facts has 

not met that standard in a similar setting. For example, we 

held in Kneipp that the police officer's act of "interven[ing] 

to cut off Samantha's private source of protection by giving 

Joseph permission to go home alone" constituted an 

affirmative act for purposes of S 1983 liability.14 95 F.3d at 

1210; see also Wood v. Ostrander, 879 F.2d 583 (9th Cir. 

1989), cert. denied, 498 U.S. 938 (1990) (trooper liable for 

arresting driver of vehicle and leaving female passenger 

alone in a high crime area); White v. Rochford, 592 F.2d 

381 (7th Cir. 1979) (arresting driver and leaving minor 

passengers behind in vehicle on side of highway gave rise 

to constitutional claim). 

By comparison, the opinion in Gregory v. City of Rogers, 

974 F.2d 1006 (8th Cir. 1992), draws a different conclusion 

from a similar act. In that instance, the police removed the 

designated driver of a vehicle because of an outstanding 

arrest warrant, and left behind two intoxicated persons who 

subsequently drove off and were involved in an accident. 

The United States Court of Appeals for the Eighth Circuit 

held the police officer could not be held to have 

affirmatively placed the intoxicated passengers in danger. 

Courts that have addressed this issue have pointed out 

that the line between an affirmative act and an omission is 

difficult to draw. As the United States Court of Appeals for 

the Seventh Circuit said: 

_________________________________________________________________ 

14. Whether the officers's actions in Kneipp constituted an affirmative 

act 

or an act of omission is a close question. 

 23 
 We do not want to pretend that the line between action 

 and inaction, between inflicting and failing to prevent 

 the infliction of harm, is clearer than it is. If the state 

 puts a man in a position of danger from private 

 persons and then fails to protect him, it will not be 

 heard to say that its role was merely passive; it is as 

 much an active tortfeasor as if it had thrown him into 

 a snake pit. 

Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir. 1982) The 

district court here noted this difficulty when it said that 

"[s]tate-created danger law does not address the question of 

when an act crosses the line and becomes an affirmative 

act warranting Section 1983 liability." Morse at *6 n.11. 

Whether an affirmative act rather than an act of omission 

is required under the state-created danger theory appears 

to have been answered by Mark. As the Mark court noted, 

one of the common factors in cases addressing the statecreated danger is that the state actors "used their authority 

to create an opportunity that otherwise would not have 

existed for the third party's crime to occur." Mark, 51 F.3d 

at 1152. Thus, the dispositive factor appears to be whether 

the state has in some way placed the plaintiff in a

dangerous position that was foreseeable, and not whether 

the act was more appropriately characterized as an 

affirmative act or an omission. 

The following cases are illustrative of this principle. In 

Mitchell v. Duval County Sch. Bd., 107 F.3d 837 (11th Cir. 

1997), the court of appeals rejected a state-created danger 

claim under facts analogous to the case before us. The 

decedent, Richard Mitchell, was a fourteen year-old student 

who was shot and killed one evening while waiting for a 

ride home from a school function. Mitchell had attempted 

to telephone his father from inside the school 

administration office, but was denied entry. Instead he 

used an outside pay phone, and, while waiting for his 

father on a driveway adjacent to the school, was shot and 

killed during a robbery attempt. The court of appeals 

rejected plaintiff's state-created danger theory on the 

grounds that he failed to "show that the state affirmatively 

placed decedent in a position of danger." Id. at 839. 

According to the court, nothing the school did "required 

 24 
[decedent] to wait where he did." Indeed, the boy could have 

waited inside the administration building or immediately 

outside, rather than waiting "a considerable distance away 

on the edge of the school's parking lot." Because the 

plaintiffs could prove no set of facts which would 

demonstrate that either an act or omission on the part of 

the state actors placed the decedent closer to the ultimate 

harm, the court of appeals affirmed the dismissal of the 

complaint. 

In a case before this Court, two high school students filed 

a S 1983 claim alleging they were sexually molested by 

fellow students in the bathroom and darkroom of their 

graphic arts class room. D.R. v. Middle Bucks Area 

Vocational Tech. Sch., 972 F.2d 1364 (3d Cir. 1992) (en 

banc), cert. denied, 506 U.S. 1079 (1993). According to 

their complaint, the high school's failure to adequately 

supervise the class or investigate the misconduct created 

the dangerous situation that resulted in their injuries. We 

affirmed the dismissal of the complaint, holding that the 

school was not liable because the plaintiffs did not 

demonstrate that the state placed the plaintiffs in danger, 

increased their risk of harm, or made them more vulnerable 

to danger. "Plaintiffs did not suffer harm, however, from 

that kind of foreseeable risk. . . . Plaintiff's harm came 

about solely through the acts of private persons without the 

level of intermingling of state conduct with private violence 

that supported liability in Wood, Swader, and Cornelius." 

972 F.2d at 1375. 

In both cases, there was no direct causal connection 

between the acts or omissions of the state and the harm 

which befell the victim. In neither case was it the act or 

omission of the state actor that directly placed the victim in 

harm's way. The same can be said of the case before us. 

Plaintiff does not allege, nor can he prove, that defendants 

placed Diane Morse in "a dangerous environment stripped 

of means to defend [herself] and cut off from sources of 

aid." Johnson, 38 F.3d at 202. Nor does plaintiff allege that 

defendants placed her in a "unique confrontational 

encounter" with Stovall. Cornelius, 880 F.2d at 359. What 

plaintiff does allege is that defendants, by unlocking the 

rear entrance of the school building, "increased the risk to 

 25 
Diane Morse . . . and left Diane Morse vulnerable to the 

actions of her attacker." Complaint P 44. As we have 

already noted, however, Stovall's deadly attack was not a 

foreseeable and fairly direct result of defendants' behavior. 

Plaintiff, therefore, can prove no set of facts that will 

demonstrate that defendants placed Diane Morse in harm's 

way, and consequently has not satisfied the fourth prong of 

the Kneipp test. 

Conclusion 

Based on the foregoing, we hold that plaintiff has not met 

the test set forth in Kneipp v. Tedder and has failed to state 

a claim under the state-created danger theory of 42 U.S.C. 

S 1983. 

We will affirm the judgment of the district court. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 26