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State Created Danger Case Against High School Survives

P.J. D'Annunzio, The Legal Intelligencer
February 9, 2017

A disabled student's state-created danger case against his former high school stemming from a swimming pool injury can proceed, a federal judge has ruled.

U.S. District Judge Michael Baylson of the Eastern District of Pennsylvania denied Lower Merion School District's motion to dismiss Matthew Lichtenstein's case against the district.

Lichtenstein, wheelchairbound and disabled since birth, claimed he was dependent upon Lower Merion High School personnel for basic needs, including assistance with entering the school's swimming pool. Lichtenstein claimed that in order to enter the pool, school staff lowered him in with a shower chair.

He claimed that the chair was in poor condition and eventually broke. School staff had to handle him "roughly" in order to keep him from falling. Lichtenstein alleged this caused "serious and permanent injury." He argued that the school's use of a decrepit chair constituted a state-created danger.

Despite the district's assertions to the contrary, Baylson wrote in his opinion Wednesday that Lichtenstein made sufficient statecreated danger claims for the case to proceed.

Baylson said Lichtenstein met the elements required for statecreated danger: the harm was foreseeable? the state's actions shock the conscience? Lichtenstein was vulnerable to potential harm from the state? and the state actor used his or her authority in a way that created a hazardous circumstance.

For the first element, Baylson agreed that the high school could have foreseen the danger posed by the chair.

"Plaintiff, for his part, argues that defendants' decision to transport plaintiff in the chair, when its unsafe nature was 'readily apparent,' created a foreseeable risk that plaintiff would suffer harm," Baylson said. "This court agrees."

As for the second element, Baylson held that Lichtenstein need only show that the school was indifferent to his needs to lay out a shock to the conscience.

"The facts plaintiff alleges are sufficient to raise the inference that the decision to continue to use the chair constituted deliberated indifference to plaintiff's wellbeing," Baylson said. According to Baylson, the school conceded to the third element, that Lichtenstein depended upon it for help.

Finally, regarding the school's creation of a hazard, Baylson said, "At this point, plaintiff's allegation that defendants transported him in the chair is sufficient to raise the inference that it was defendants' affirmative act that made plaintiff vulnerable to danger."

Andrew Neuwirth, who represents Lichtenstein, declined to comment.

The district's lawyer, Joseph J. Santarone, said in an email, "We are confident that discovery will support our position. We will reassert our arguments at the summary judgment stage, which will include the video of the actual incident taken from two angles at the pool. Matthew graduated from Lower Merion H.S. and was in the school system until age 21. The district employees including the two aides who are individually named provided outstanding care and support to Matthew for many years."

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