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LICHTLER v. COUNTY OF ORANGE

February 25, 1993

DONNA V. LICHTLER, as Administratrix of the Estate of JOANNA TERESA LICHTLER, Deceased; et al., Plaintiffs,
v.
THE COUNTY OF ORANGE, et al., Defendants. AMBER LITCHHULT, an infant by her Parent and Natural Guardian GILBERT LITCHHULT and GILBERT LITCHHULT, Individually, et al., Plaintiffs, v. THE COUNTY OF ORANGE, et al., Defendants.



The opinion of the court was delivered by: VINCENT L. BRODERICK

MEMORANDUM ORDER

 VINCENT L. BRODERICK, U.S.D.J.

 I

 These cases involve a disaster at the East Coldenham Elementary School arising out of a tornado and wind storm which struck the area on November 16, 1989. Plaintiffs assert that because of New York's compulsory education laws, the Fourteenth Amendment requires reasonable care of children in public schools and that this duty was violated, thus triggering liability under 42 USC § 1983. Plaintiffs also argue that the County of Orange undertook to help avoid such disasters through its disaster planning but failed to do so adequately, thus violating life, liberty and property rights of plaintiffs without due process.

 Thirty-nine (39) state court suits for money damages ensued, against numerous parties alleged to have had some responsibility in varying ways for failure to prevent the disaster. These cases, filed in Supreme Court, Orange County, involve the parties to the present federal lawsuits. With the exception of claims against the County of Orange which were dismissed, *fn1" these state suits are still pending.

 The County of Orange has moved for summary judgment with respect to the complaints before me. For the reasons which follow, I grant partial summary judgment to the County pursuant to Fed.R.Civ.P. 56(d) as to one issue, conclude that adjudication of the remaining issues is premature until further developments in the state court actions, deny the motions without prejudice in all other respects, and place these cases on the suspense calendar.

 II

 Since power implies responsibility, where governmental agencies or entities utilize sovereign compulsion to exercise coercive powers, a correlative duty exists of due care toward those subjected to such compulsion. This principle has been applied where persons are in various types of official custody. See Revere v. Massachusetts General Hospital, 463 U.S. 239, 77 L. Ed. 2d 605, 103 S. Ct. 2979 (1983); Youngberg v. Romeo, 457 U.S. 307, 73 L. Ed. 2d 28, 102 S. Ct. 2452 (1982); Estelle v. Gamble, 429 U.S. 97, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976). *fn2" Because of compulsory education laws, substantially expanded to cover post-elementary education after the Second World War, *fn3" the duty has also been recognized in some decisions as owed to children in public schools. Pagano by Pagano v. Massapequa Public Schools, 714 F. Supp. 641 (E.D.N.Y. 1989); Robert G. v. Newburgh City School District, 1990 U.S. Dist. LEXIS 91 (S.D.N.Y. Jan. 5, 1990); see also Doe v. New York City, 649 F.2d 134 (2d Cir. 1981) (foster care). A state imposing compulsory attendance upon school children must take reasonable steps to protect those required to attend from foreseeable risks of personal injury or death.

 III

 I thus agree with plaintiffs that the County of Orange must take care to protect public school students from foreseeable risks of injury or loss of life. Questions remain, however, as to whether or not the duty to exercise reasonable care was violated, and as to what tribunal should determine that issue. See Daniels v. Williams, 474 U.S. 327, 88 L. Ed. 2d 662, 106 S. Ct. 662 (1986). The County seeks summary judgment that no duty was violated.

 I conclude that before I can determine whether or not genuine issues of material fact exist, further factual development is required concerning (a) what precautions might have been reasonable against the risk of a disaster such as that which occurred, and (b) whether or not deliberate or reckless disregard of the need for such precautions can be established. See Mahoney v. Hankin, 844 F.2d 64, 68 (2d Cir. 1988); Goddard v. Urrea, 847 F.2d 765, 769 (8th Cir. 1988).

 I deny this branch of the County's motion without prejudice for this reason and because, on the grounds discussed below, I conclude that further proceedings in state court should precede resolution in this court of the issue of whether the duty was violated.

 IV

 In Parratt v. Taylor, 451 U.S. 527, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981), *fn4" involving a claim under 42 USC § 1983 that the Fourteenth Amendment was violated by negligent loss of a prisoner's property, the Supreme Court held that (a) where no authorized but unconstitutional state procedure was involved and (b) where pre-deprivation proceedings were impracticable, due process could ...


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