Dec. 27, 2012 – The parents of a Milwaukee student who drowned on a school field trip recently lost in the U.S. Court of Appeals for the Seventh Circuit, which ruled that school administrators did not deprive the student of his life in violation of due process.

The principal and assistant principal of Roosevelt Middle School, part of the Milwaukee Public School District, planned a field trip to a lake in the Kettle Moraine State Forest for the school’s seventh graders. Notices sent to parents asked for permission to let their children swim.

The school district’s rules prohibited swimming on field trips unless a lifeguard was present. Although no lifeguard was present at the lake, the children were allowed to swim. Kamonie Slade, who was 12 years old, was unable to stay afloat in deeper water and drowned.

The estate and Slade’s parents filed a federal civil action for deprivation of rights under 42 U.S.C. § 1983, alleging the acts of the school administrators deprived Kamonie of his life in violation of the Fourteenth Amendment to the U.S. Constitution (due process clause).

The U.S. District Court for the Eastern District of Wisconsin granted summary judgment in favor of the school administrators. The three-judge appeals panel recently affirmed.

However, the panel noted that the estate and parents may have a state law tort claim, even though Wisconsin caps the tort liability of public employees at $50,000 per victim.

“That would make the plaintiffs’ maximum recovery on their state law claims for wrongful death and loss of consortium $150,000, which is meager in the circumstances but of course beyond our control,” wrote Judge Richard Posner for the three-judge panel.

While exploring the liability standard in deprivation cases, the panel ruled that negligence, or even gross negligence, does not serve as a basis for liability in due process cases.

“A state does not deprive a person of life in violation of the Fourteenth Amendment merely by failing to prevent his dying, but does violate the amendment if the death was caused by the reckless act” of a state employee acting within the scope of employment, Judge Posner wrote.

The school administrators may have been negligent, the panel ruled, but they were not “reckless.” Judge Posner noted that the school administrators did take some steps to ensure the safety of the students swimming, and did not know Kamonie was a poor swimmer.