Litigation Department

You have likely seen or at least heard of school bullies who "pick on" and "beat up" students they don't like. Until recently, courts consistently have rejected holding school districts liable for these incidents. However, a Federal judge sitting in the Eastern District of Pennsylvania has allowed for the expansion of a "state created danger test" to school districts. This test considers whether a state entity has, in essence, created the dangerous condition that results in harm.

Historically, state schools were generally safe from such liability. The state created danger test was most often applied to incidents involving police (i.e., they arrest the driver of a vehicle in the middle of a bad neighborhood, leaving the passenger behind, who is then attacked) or child welfare cases (i.e., the Youth Services Department places a child back into a formerly abusive home where the child is further injured).

However, in the recent case of Gremo v. Karlin, et al. , Judge Brody refused to dismiss an Amended Complaint involving an attack on a senior honor student so serious that he has suffered permanent loss of cognitive function and short-term memory loss, and will require permanent medication. The victim was hit and kicked by a group of 15 students in a common area of the school. Significantly, such attacks were known to have occurred for at least the preceding two years by the same group of students.

The victim alleged that the school officials failed to have any coordinated effort to discipline the attackers, to monitor or secure the common areas where these incidents occurred, and also underreported and concealed the incidents of violence.

Determining Liability
Using the state created danger test , Judge Brody found that this case met all four of the test's requirements for liability. First, she found that the harm was direct and foreseeable. Second, the allegations, if true, supported that the school officials had a willful disregard of the victim's safety. Third, there is an obvious relationship between the state school and its student, the victim. Fourth, the court found that the school officials used their authority to create an opportunity for the criminal incidents to occur. Namely, knowing that such incidents occurred, yet failing to monitor the common areas, coupled with underreporting and/or the occurrence of the attacks, is tantamount to encouraging the bullying and student attacks.

Implications for School Districts
While the Gremo case is an extreme example, school districts must be careful to navigate incidents of school violence in a cautious way. School districts must exert a concerted effort to enforce disciplinary measures against offending students and demonstrate initiative in securing the safety of areas that are prone to incidents.

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