Sept. 27, 2019 – The U.S. Court of Appeals for the Seventh Circuit has ruled that the City of West Bend is not constitutionally liable for the tragic drowning death of a six-year-old girl in a public swimming pond the city owned and operated.
The estate of Swannie Her sued the city, the West Bend parks director and seven lifeguards after Swannie drowned at a man-made swimming pond.
The estate filed a 42 U.S.C. section 1983 claim, alleging the city deprived Swannie of her life because the swimming pond was a state-created danger and the danger increased through actions (or inactions) of the defendants – the city and its employees.
The district judge granted summary judgment to the city, and in Estate of Her v. Hoeppner, No. 18-3524 (Sept. 26. 2019), a three-judge panel affirmed.
“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,” wrote Judge Diane Sykes. “Our case law construes this exception narrowly, and the judge correctly concluded that this case falls outside its boundaries.”
The panel said no reasonable jury could conclude the city created a danger by operating a swimming pond or increased the dangers of swimming there.
“Nor was there 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,” wrote Judge Sykes.
Swannie did not take a swim test before entering the pond, which had a general swimming area with a maximum depth of 15 feet. The children’s swim area was not deeper than three feet. The different swim areas had markers and buoys around them.
The lifeguarding manual urged lifeguards to watch inexperienced and young children especially close. Swannie was swimming in the children’s area but moved into the general swimming area to be closer to an older sibling. No one saw her go under. Swannie was able to enter the general swimming area undetected by lifeguards.
The estate said the city created a danger with a deep and murky man-made swimming pond and the safety protocols did not do enough to mitigate an increased risk.
But the panel explained that recreational activities such as a swimming have inherent dangers, and the estate needed more evidence to show this particular pond created a danger that was especially dangerous, compared to other swimming facilities.
“In the end, the Estate’s argument boils down to a remarkable assertion that a municipal swimming pond is by its nature a state-created danger,” Judges Sykes wrote.
“That proposition, if adopted, 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.”
The panel also rejected the estate’s claim that safety protocols were not adequate. “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,” wrote Judge Sykes. “But it’s not evidence that the defendants took affirmative steps that created or increased a danger to Swannie.”
