'State-Created Danger' Suit Over Mold in Public Housing Headed to Trial

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'State-Created Danger' Suit Over Mold in Public Housing Headed to Trial

in March 2006, the suit says, that Ebony McKinney suffered an asthma

attack that left her in a coma from a lack of oxygen and led to extensive brain

damage that now leaves her in need of round-the-clock care.

where there was more time for careful decision making, the standard is

reduced to one of " deliberate indifference. "

" This court will not absolve PHA of all responsibility for its conduct

simply because plaintiffs could have avoided the danger by living on the

street, " Schiller wrote.

U.S. District Judge Berle M. Schiller ruled that a jury could hold PHA

responsible if it concludes that the agency acted with " deliberate

indifference " when it approved the home despite problems with leaks, and later

when it

allegedly delayed the McKinney family's departure from the home by

requiring 30-days' notice to the landlord before moving to a safer house.

To establish such a claim, Schiller said, the plaintiff must satisfy a

four-prong test, showing that (1) the harm caused was foreseeable and fairly

direct; (2) a state actor acted with a degree of culpability that shocks the

conscience; (3) some relationship existed between the state and the

plaintiff that renders plaintiff a foreseeable victim; and (4) a state actor

affirmatively used his or her authority in a way that created a danger to the

citizen or that rendered the citizen more vulnerable to danger than had the

state not acted at all.

P. Duffy

The Legal Intelligencer

April 29, 2010

A federal jury on Monday will begin hearing a civil rights case brought

under the " state-created danger " theory in which a family living in public

housing claims that the Philadelphia Housing Authority ignored complaints

about persistent mold in their home that triggered an acute asthma attack that

left their daughter brain damaged.

The trial of McKinney v. PHA, which is expected to last three weeks, will

pit plaintiffs attorneys A. Trunk and Garabet M. Zakeosian of _Kline

& Specter_ (http://www.klinespecter.com/) against the defense team of

Abbe F. Fletman and E. Licausi of _Flaster Greenberg_

(http://www.flastergreenberg.com/) .

In a 39-page _opinion_

(http://www.paed.uscourts.gov/documents/opinions/10D0390P.pdf) (pdf) handed

down last week, U.S. District Judge Berle M.

Schiller ruled that a jury could hold PHA responsible if it concludes that the

agency acted with " deliberate indifference " when it approved the home despite

problems with leaks, and later when it allegedly delayed the McKinney

family's departure from the home by requiring 30-days' notice to the landlord

before moving to a safer house.

It was during that waiting period, in March 2006, the suit says, that Ebony

McKinney suffered an asthma attack that left her in a coma from a lack of

oxygen and led to extensive brain damage that now leaves her in need of

round-the-clock care.

Schiller rejected PHA's argument that it cannot be liable for a

state-created danger because the McKinneys could have moved out of the troubled

house

earlier or even repaired the problems themselves.

Instead, Schiller said, the family's ability to move was " severely limited "

because PHA was paying all of their rent and the family also lacked the

means to repair persistent leaks or move to a different home without

government assistance.

" This court will not absolve PHA of all responsibility for its conduct

simply because plaintiffs could have avoided the danger by living on the

street, " Schiller wrote.

But Schiller's opinion also included some significant rulings in PHA's

favor. The plaintiffs, he said, were barred from pursuing any claims under the

Housing Act because the federal statute does not provide for a private

cause of action.

Schiller also dismissed all claims against individual PHA employees,

finding that they are all entitled to qualified immunity because of their lack

of

training about the dangers of mold.

" The evidence strongly suggests that the individual defendants were not

aware that their conduct might violate plaintiffs' rights, " Schiller wrote.

" Without knowledge of these dangers, the individual PHA defendants might have

known of plaintiffs' substantive due process right to be free of

state-created dangers, but cannot be charged with understanding that what they

were

doing violates that right. "

But the bulk of Schiller's opinion was devoted to an analysis of the

state-created danger claim.

To establish such a claim, Schiller said, the plaintiff must satisfy a

four-prong test, showing that (1) the harm caused was foreseeable and fairly

direct; (2) a state actor acted with a degree of culpability that shocks the

conscience; (3) some relationship existed between the state and the

plaintiff that renders plaintiff a foreseeable victim; and (4) a state actor

affirmatively used his or her authority in a way that created a danger to the

citizen or that rendered the citizen more vulnerable to danger than had the

state not acted at all.

PHA's lawyers argued that the plaintiffs could not meet either the second

or fourth prong of the test.

Schiller considered first whether PHA's conduct could be found to " shock

the conscience. "

In cases where the government conduct is premised on decisions made in a

" hyper-pressurized " environment such as a high-speed police chase, Schiller

found that plaintiffs must show that the harm was deliberate.

But in the McKinneys' case against PHA, he said, where there was more time

for careful decision making, the standard is reduced to one of " deliberate

indifference. "

Applying that standard, Schiller found that " sufficient evidence exists

that PHA acted with deliberate indifference to present the question to a

jury. "

In 1999, Schiller noted, the U.S. Department of Housing and Urban

Development issued a report that focused on preventing health problems in

children,

and specifically noting that excess moisture was a potential problem.

PHA got a $1 million grant in 2004, Schiller noted, to fund a project to

identify mold and moisture as asthma triggers.

The inspections of the McKinneys' mold-infested home, both before the

family rented it and during the time they lived there, could lead the jury to

conclude that PHA was aware of the leaks and excess moisture in the house,

Schiller found.

" Despite this, the PHA approved the property for inclusion in the [public

housing program], continued to make rental payments on the home, and

obstructed plaintiffs in their efforts to move out of the home, " Schiller

wrote.

Schiller also rejected the defense team's argument that none of PHA's

conduct could qualify as an " affirmative act. "

Trunk and Zakeosian pointed to PHA's initial approval of the property; its

payment of monthly rent to the landlords; and its decision to delay the

McKinneys' move to afford 30 days' notice to the landlord of the mold-infested

house.

But Fletman and Licausi argued that the gravamen of the plaintiffs' claims

was an alleged failure by PHA to detect the dangerous condition and failure

to intervene to protect the family.

Schiller sided with the plaintiffs, saying " a jury could find that PHA took

steps, such as approving the house and making rental payments without

which the plaintiffs would never have lived at the property or have been

exposed to the alleged dangers therein. "

The jury could also find an affirmative act in PHA's decision to delay the

family's exit from the home, Schiller said.

" These are, in the most literal sense, affirmative acts that rendered

plaintiffs more vulnerable to the harms inside the home. The court rejects PHA's

contention that these were, as a matter of law, failures to act, " Schiller

wrote.

Sharon Noonan Kramer