In April 2007, I notified you about the Fifth Circuit landmark case of Breen v. Texas A&M University. In this case, the Court expressly adopted the state-created danger theory, i.e., liability can exist when the government creates a dangerous environment that results in a person being injured. The Breen case arose from the Texas A&M bonfire collapse that killed 12 students and injured 27 others. The Court held that the individual defendants were entitled to qualified immunity because the state-created danger theory was not clearly established law in the Fifth Circuit at the time of the accident.
On July 23, 2007, several of the Plaintiffs filed an appeal to the United States Supreme Court. On July 26, 2007, the Fifth Circuit panel granted its own motion to withdraw certain provisions of the April 24, 2007 decision. Among the portions withdrawn are the sections recognizing the state-created danger theory. In other words, the Fifth Circuit has reversed itself and did not expressly adopt the state-created danger theory in this case.
The long-term effect of this case will not be known for some time. It is possible that the Court will adopt the state-created danger theory in a rehearing in this case or in another case. Accordingly, school districts and employees should be on alert for policies and activities that may place students and members of the public at a higher risk for injuries because of school district acts or omissions. Your policies and practices need to be analyzed to avoid potential liability.
Whether the state-created danger theory has been adopted in this jurisdiction is a question for which we still do not have a definitive answer. Nevertheless, plaintiffs’ attorneys will continue to pursue its adoption. You need to be careful in order to avoid being the next test case.
Please feel free to give our law firm a call if you have any questions or need any additional information.