The Estate of Swannie Her v. Craig Hoeppner ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-3524
THE ESTATE OF SWANNIE HER, et al.,
Plaintiffs-Appellants,
v.
CRAIG HOEPPNER,
Parks Director for the
City of West Bend, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 17-CV-1015 — Nancy Joseph, Magistrate Judge.
____________________
ARGUED MAY 29, 2019 — DECIDED SEPTEMBER 26, 2019
____________________
Before KANNE, SYKES, and BRENNAN, Circuit Judges.
SYKES, Circuit Judge. A June afternoon in Wisconsin took a
tragic turn when six-year-old Swannie Her was found
unresponsive on the bottom of a man-made swimming pond
operated by the City of West Bend. She never regained
consciousness and died a few days later.
2 No. 18-3524
Swannie’s estate, her mother, and her siblings filed suit
alleging that she died as a result of federal constitutional and
state-law violations by the West Bend Parks Director, the
seven lifeguards who were on duty, and the City. The consti-
tutional claim arises under 42 U.S.C. § 1983 and alleges a
deprivation of life without due process in violation of rights
secured by the Fourteenth Amendment. The theory of the
claim rests on two contentions: (1) the City’s swimming
pond is a state-created danger and (2) the defendants acted
or failed to act in a way that increased the danger. A magis-
trate judge entered summary judgment for the defendants,
ruling that the evidence is insufficient to permit a reasonable
jury to find a due-process violation premised on a state-
created danger. The judge relinquished jurisdiction over the
state-law claims, setting up this appeal.
We affirm. Liability for injury from a state-created danger
is an exception to the general rule that the Due Process
Clause confers no affirmative right to governmental aid.
DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189,
196 (1989). Our caselaw construes this exception narrowly,
and the judge correctly concluded that this case falls outside
its boundaries. No reasonable jury could find that the de-
fendants created a danger just by operating a public swim-
ming pond or that they did anything to increase the danger
to Swannie before she drowned. Nor was their conduct so
egregious and culpable that it “shocks the conscience,” a
necessary predicate for a court to find that an injury from a
state-created danger amounts to a due-process violation.
I. Background
The City of West Bend owns and operates Regner Park, a
large public area with several recreational options. During
No. 18-3524 3
the summer months, patrons can cool off in the park’s man-
made swimming pond for a small fee. Like other bodies of
water with organic floors, the Regner Park pond is murky.
Visibility is limited to roughly six inches below the surface,
and swimmers more than two feet from shore cannot see the
bottom.
The pond is divided into three zones: Zone 1, the general
swimming area, ranges in depth up to a maximum of five
feet. Zone 2, which features a diving raft, is the center of the
pond and reaches a depth of fifteen feet. And Zone 3, the
children’s play area, is no more than three-feet deep. Ropes
and buoys cordon off the three zones; they also mark points
where the water gets deeper. Swimmers wishing to enter
Zone 2—or otherwise enter water deeper than their arm-
pits—must pass a swim test, at which point they receive a
special wristband signifying that they are permitted to do so.
Lifeguards employed by the City patrol the pond. Each
lifeguard is certified in basic lifeguarding practices and
receives pond-specific instruction. They also receive the West
Bend Aquatic Manual & Emergency Response Plan, a guide-
book to preventing accidents at the pond. Most importantly,
the manual urges lifeguards to keep close watch on inexpe-
rienced swimmers and small children. The parties debate
whether those surveillance responsibilities are “mandatory,”
as the plaintiffs characterize them, or if lifeguards “[a]re
allowed to use their judgment and discretion when scanning
the water to determine where to focus their attention,” as the
defendants maintain.
On June 11, 2016, the Her family—mother Connie, her
fiancé, and nine of her ten children—gathered in Regner
Park to celebrate a relative’s second birthday. The party took
4 No. 18-3524
place at a picnic area near the swimming pond. Young
Swannie arrived at roughly 5 p.m. that afternoon with two of
her siblings. After greeting family and friends, she donned
her bathing suit and obtained her mother’s permission to
swim in the pond. Connie did not accompany Swannie but
rather asked two of her older children—Evangelin, age 9,
and Thvon, age 14—to keep an eye on their younger sister.
Swannie received a general admission wristband, but she
never took the swim test required to swim in water above
her armpits.
The Her children began swimming in Zone 3. At some
point Swannie said she wanted to go see Ekin, another
sibling, in a deeper part of the pond. No one knows precisely
when or where Swannie went beneath the surface; neither
the seven lifeguards on duty nor any member of the Her
family or anyone else at the pond witnessed it. But at
5:55 p.m. a man swimming in Zone 2 discovered Swannie
unresponsive at the bottom of the pond. He carried her out
of the water and called for help. The lifeguards immediately
called 911 and began resuscitation efforts. Emergency medi-
cal responders took Swannie to a nearby hospital, but she
never regained consciousness and died several days later.
Swannie’s estate, together with Connie and her surviving
children (collectively “the Estate”), filed this lawsuit the
following year. The defendants are Parks Director Craig
Hoeppner, the City and its insurer, and the seven lifeguards
who were on duty that day. The complaint seeks damages
under § 1983 for violation of Swannie’s Fourteenth Amend-
ment right to due process. The claim rests on the doctrine of
“state-created danger”: the Estate claims that the defendants
created and operated a dangerously murky pond and failed
No. 18-3524 5
to follow established lifeguarding rules, increasing the
danger to Swannie. The suit also raised state-law claims for
negligence, wrongful death, and a violation of Wisconsin’s
Safe Place Statute.
The defendants moved for summary judgment, and the
magistrate judge granted the motion, concluding that the
Estate lacks evidence that the defendants created a danger
by operating the swimming pond or increased a danger by
their conduct on the day she drowned. The judge explained
that any factual disputes about the adequacy of the pond’s
safety protocols raised at most a potential question of negli-
gence, not a violation of due process. The judge relinquished
supplemental jurisdiction over the state-law claims and
entered final judgment for the defendants.
II. Discussion
We review a summary judgment de novo, construing the
record and drawing all reasonable inferences in the plain-
tiffs’ favor as the nonmoving parties. Wilson-Trattner v.
Campbell, 863 F.3d 589, 593 (7th Cir. 2017). Summary judg-
ment is warranted if “the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a).
We review the magistrate judge’s decision to relinquish
supplemental jurisdiction for an abuse of discretion. Rivera v.
Allstate Ins. Co., 913 F.3d 603, 618 (7th Cir. 2018).
The Fourteenth Amendment provides that “[n]o state
shall … deprive any person of life, liberty, or property,
without due process of law.” U.S. CONST. amend. XIV, § 1.
The Supreme Court has cautioned that the Due Process
Clause “does not transform every tort committed by a state
6 No. 18-3524
actor into a constitutional violation.” DeShaney, 489 U.S. at
202. More specifically, the Clause “confer[s] no affirmative
right to governmental aid, even where such aid may be
necessary to secure life, liberty, or property interests of
which the government itself may not deprive the individu-
al.” Id. at 196.
There are two recognized exceptions to the DeShaney
rule. First, when a public official “affirmatively places a
particular individual in a position of danger the individual
would not otherwise have faced,” the official may be liable
for a due-process violation if injury results. Monfils v. Taylor,
165 F.3d 511, 516 (7th Cir. 1998) (quotation marks omitted).
The second exception comes into play when “the state has a
‘special relationship’ with a person, that is, if the state has
custody of a person, thus cutting off alternative avenues of
aid.” Id.
The exception for state-created dangers is at issue here,
but it’s quite narrow and reserved for “egregious” conduct
by public officials. Doe v. Village of Arlington Heights, 782 F.3d
911, 917 (7th Cir. 2015). A due-process claim of this kind
requires proof of three elements: (1) the government, by its
affirmative acts, created or increased a danger to the plain-
tiff; (2) the government’s failure to protect against the danger
caused the plaintiff’s injury; and (3) the conduct in question
“shocks the conscience.” Flint v. City of Belvidere, 791 F.3d
764, 770 (7th Cir. 2015) (quotation marks omitted). The third
element—conscience-shocking conduct—requires a culpable
state of mind equivalent to deliberate indifference. King v.
E. St. Louis Sch. Dist. 189, 496 F.3d 812, 819 (7th Cir. 2007).
Elsewhere we’ve referred to this as a requirement of criminal
No. 18-3524 7
recklessness. See Slade v. Bd. of Sch. Dirs. of Milwaukee, 702
F.3d 1027, 1033 (7th Cir. 2012).
Viewing the evidence in the light most favorable to the
Estate, we agree with the magistrate judge that the record
falls far short on each of these elements. The Estate empha-
sizes that the swimming pond was “murky” and had poor
visibility and “uneven topography.” That’s true of man-
made swimming holes in general, and many natural lakes as
well. There’s no evidence that the Regner Park swimming
pond is distinctively dangerous.
The Estate also points to testimony from the defense ex-
pert describing swimming as an “inherently dangerous
activity.” That’s certainly true. As even experienced swim-
mers will concede, any body of water—whether man-made
or natural—presents inherent dangers, especially to chil-
dren. See id. at 1032 (observing that most adults understand
that “lakes and other natural bodies of water, even inland
water, are dangerous because of currents and uneven depth,
and especially to children”). Swimming, or participating in
any water-based recreational activity for that matter, exposes
participants to risk of injury, including drowning.
And while operating any public swimming facility in-
vites swimmers to expose themselves to the dangers inher-
ent in this activity, liability under the Due Process Clause
doesn’t attach “just because the danger materializes.” Id. at
1031. After all, “[d]angers to the public at large are insuffi-
cient for constitutional purposes.” See Buchanan-Moore v.
County of Milwaukee, 570 F.3d 824, 828 (7th Cir. 2009). The
Estate needs specific evidence that this particular swimming
pond is especially dangerous for a young child like Swannie.
It has none.
8 No. 18-3524
In the end, the Estate’s argument boils down to the re-
markable assertion that a municipal swimming pond is by
its nature a state-created danger. That proposition, if adopt-
ed, would turn every tort injury at a public pond or pool into
a constitutional violation. Federal constitutional claims
involving public playgrounds and practice fields wouldn’t
be far behind. Indeed, the Estate’s preferred result “would
potentially set up a federal question whenever an accident
happens during activities sponsored by the state.” Waybright
v. Frederick County, 528 F.3d 199, 208 (4th Cir. 2008). But the
Fourteenth Amendment doesn’t displace state tort law by
transforming accidents at public facilities into federal consti-
tutional claims. See, e.g., Daniels v. Williams, 474 U.S. 327, 332
(1986) (“Our Constitution … does not purport to supplant
traditional tort law in laying down rules of conduct to
regulate liability for injuries that attend living together in
society.”).
Perhaps aware that its broad position is untenable, the
Estate falls back on a narrower argument that the defendants
increased a danger to Swannie. But this theory is no stronger
because there’s no evidence that the defendants actively “did
something that turned a potential danger into an actual
one.” Sandage v. Bd. of Comm’rs of Vanderburgh Cty., 548 F.3d
595, 600 (7th Cir. 2008). The Estate argues that the City failed
to take proper safety precautions, like dredging the bottom
of the pond, and the lifeguards failed to comply with the
park’s “mandatory” rules involving small children. And it
emphasizes evidence that the pond was especially crowded
on the afternoon in question, and at one point a lifeguard
admitting to being “overwhelmed” by the number of swim-
mers.
No. 18-3524 9
But we’ve explained that DeShaney draws an “essential
distinction between endangering and failing to protect.” Id. at
599 (emphases added). The former may amount to a consti-
tutional violation if other facts are present; the latter is
simple negligence. Moreover, no evidence suggests that the
lifeguards disregarded their training. Each lifeguard was
charged with scanning the swimming pond for signs of
trouble and responding as needed. That Swannie slipped
beneath the surface without being noticed by anyone—
lifeguard, family member, or anybody else at the pond—
reflects the heartbreaking reality of childhood drownings.
But it’s not evidence that the defendants took affirmative
steps that created or increased a danger to Swannie.
The Estate’s difficulty articulating a theory of the case
that might situate this claim within the law of state-created
dangers reflects the fundamental problem with its position:
this is at most a negligence claim. To be sure, “[n]ot paying
enough attention to a child and thus allowing the child to …
drown is terribly tragic, and possibly even negligent.”
DeAnzona v. City & County of Denver, 222 F.3d 1229, 1236
(10th Cir. 2000). But mere negligence is “categorically be-
neath the threshold of constitutional due process.” County of
Sacramento v. Lewis, 523 U.S. 833, 849 (1998). Indeed, “gov-
ernmental defendants must act with a mens rea akin to
criminal recklessness for constitutional liability to attach.”
Flint, 791 F.3d at 770.
We made this point clear in Slade, another drowning case
brought on a theory of state-created danger. There, a middle-
school student drowned on a field trip to a park with a large
natural lake. 702 F.3d at 1028–29. Swimming was anticipat-
ed; indeed, parents were asked to indicate when signing the
10 No. 18-3524
permission slip whether their student was allowed to swim.
The school district had a rule prohibiting swimming on field
trips unless a lifeguard is present. No lifeguard was present
that day, but the assistant principal let the students swim
anyway and a seventh-grade boy drowned. We noted that
the assistant principal “was negligent and her negligence
enhanced the danger inherent in swimming in a lake: she
disobeyed the rule requiring the presence of a lifeguard even
though she knew that portions of the designated swimming
area were so deep that the water was over the head of some
of the kids.” Id. at 1032. While that negligence may have
increased the risk of danger to the student, it was not the
type of reckless, conscience-shocking conduct that might be
actionable as a constitutional violation. Id. at 1032–33.
Slade involved far more blameworthy conduct than what
occurred here, and still we rejected the due-process claim.
Despite the tragic loss of life, Slade hewed closely to the
principle that the Due Process Clause cannot be interpreted
“to impose federal duties that are analogous to those tradi-
tionally imposed by state tort law.” Collins v. City of Harker
Heights, 503 U.S. 115, 128 (1992). We do the same here. On
this record, no reasonable jury could find that the defendants
created or increased a danger to Swannie or that they were
deliberately indifferent to the danger. The judge was right to
enter summary judgment for the defendants.
AFFIRMED