Civil Rights — failure to protect

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United States Court of Appeals For the Seventh Circuit

Civil

Civil Rights — failure to protect

Where school employees were negligent, but not reckless in managing a class outing to a lake, they are not liable under 42 U.S.C. 1983 for a child’s drowning.

“Consider tort liability to a business invitee. A homeowner through negligence, perhaps even gross negligence, fails to repair a rotten step in his doorway. A repairman—a business invitee—steps on the rotten step, which gives way, spilling and injuring him. The homeowner is liable at common law for negligence. But if it is a public school rather than a private home, can the repairman sue school officials under 42 U.S.C. § 1983, on the ground that he was enticed into a place of danger? The answer is no. ‘Entice’ does not mean to be careless in allowing someone onto your property, or onto property (such as the lake in this case) that you control access to (for the defendants had to give the kids they were shepherding permission to enter the lake). Had Kamonie told Gosz that although he was a poor swimmer he was going to try to swim across the lake, and she had replied ‘proceed at your own risk,’ her conduct would have been reckless endangerment; for she had brought him to a place of danger and he was in her charge yet she would be virtually daring him to risk his life. That is not this case. Gosz didn’t know that Kamonie was a poor swimmer, or that if he was he would nevertheless wade too far into the lake, or that he or any other student was in significant danger. And Gosz and Estes did take some steps to try to ensure the children’s safety. They sent permission slips home; the slips referred to ‘playing in the water’; there were teacher-chaperones accompanying Gosz—she was not the only adult at the scene and she told one of them, Pitta, to watch Kamonie and his playmates while they played in the water. And Pitta did so, though he lacked the skills he would have needed to have a good chance of saving Kamonie from drowning. Gosz was as we said negligent; she was not reckless. And likewise Estes.”

Affirmed.

12-2425 Slade v. Board of School Directors of the City of Milwaukee

Appeal from the United States District Court for the Eastern District of Wisconsin, Randa, J., Posner, J.