I'm trying to get some info regarding what constitutes a state-created danger. I found this:

http://www.law.com/jsp/article.jsp?id=1110202460661

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In Kneipp, the 3rd Circuit held that the plaintiff in a state-created danger case must prove four facts:

The harm ultimately caused was foreseeable and fairly direct.

The state actor acted in willful disregard for the safety of the plaintiff.

There existed some relationship between the state and the plaintiff.

The state actors used their authority to create an opportunity that otherwise would not have existed for the third party's crime to occur.

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Any of you fancy, smancy lawyer-types have other info on the subject?

I got to looking (despite the fact that I'm planning on going into public administration and need to know for career's sake) wondering if this theory would preclude A&M from bringing a student-involved Bonfire back to campus. From the info I found, I think they might be hard-pressed, but I sure hope otherwise.

TIA

Read the other thread. Plaintiffs alleged a "state created danger" in order to overturn maximum limit that a citizen can collect by suing a state agency.

By suing Texas A&M, the plaintiffs in the Bonfire litigation were filing suit, effectively, against a state agency. States enact liability caps to protect the citizenry from paying, with their tax dollars, large tort claims awarded to others.

The limit in effect in 1999 as one-half million dollars for all claims against the state of Texas arising out of the same incident. By alleging in federal court that the state "created" the danger, plaintiffs hoped the federal court wouldn't allow the state to hide behind the liability cap.

The goal was to be able to win large jury awards that would be paid from the state coffers. The Fifth Circuit did not buy into this, and therefore the maximum that the plaintiffs can collect in the state court lawsuits is limited by the liability cap.

[This message has been edited by DualAG (edited 4/25/2007 3:15p).]

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The state actors used their authority to create an opportunity that otherwise would not have existed for the third party's crime to occur.

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As long as Student Bonfire is around, this will be an interesting part of the "state created danger" scare...

since the opportunity exists elsewhere...

Thanks Dual. I appreciate your answer. Completely makes sense.

Rebel, I'm not sure I'm following you...

Dual, care to excplain to me what interest the state has in protecting Bowen's penstion?

Shouldn't he have to defend his assets himself?

In general, state agencies defend their employees against tort claims resulting from the conduct of their duties, unless there are egregious circumstances. Employers, both public and private, want their employees to carry out their professional duties without fear of personal loss.

The university would defend a teacher who was sued for giving a student a bad grade. The Department of Public Safety would defend a state trooper whose legal high-speed pursuit of a suspect caused harm to a third party motorist. This protection often extends to private industry. My company would defend me, as an airline pilot, in a lawsuit filed by a passenger alleging that my hard landing caused damage to his tail bone. The company, itself, however, could be found liable.

Such personal indemnification is not absolute and is subject to the nuances of the law and employment policy. A junior high school assistant principal may be protected by his school district if a parent claims his infliction of corporal punishment excessively damaged a kid's posterior, but that protection may not hold up if the principal violated policy.

Go to the Fifth Circuit's web site and read the 30-plus pages of verbiage concerning the alleged "state created danger." There is indeed such a concept. Citing numerous cases, however, the court decided that the plaintiffs' claim did not merit such consideration with regard to the 1999 Bonfire tragedy.

BTW, I don't think much of Bowen, either. The Linbeck Commission's report damned his lack of proactive leadership. In one memorable line, it said he drove past the Bonfire site every day and night for eight years without questioning if the students were building a structure under competent engineering supervision.

You and I might have decided the case differently. But for those of us who would like to see another Bonfire built on campus during our lifetimes, this may move us a significant step closer to the eventual termination of the litigation. If the plaintiffs had won, and both the liability cap and the university officers' personal indemnification had been lifted, all of us would endure the sensational testimony in the consolidated state cases and the years of appeals that followed.

Now, whoever becomes Gates' permanent successor may make a decision as to whether the Bonfire tradition will return to campus.

[This message has been edited by DualAG (edited 4/26/2007 7:03p).]

Dual -- I am still struggling with trying to understand if the University would bring Bonfire back to campus given the existence of the state-created danger doctrine.

A) University officials, beyond a reasonable doubt, know that Bonfire poses a risk given the 1999 collapse.
B) University officials would act with "deliberate indifference" by using their authority to allow the risk to return to campus.

... that is assuming that students are involved in construction (overseen by qualified professionals, of course). I guess that I could see a "professional" stack returning. (I surely hope not because Burn is one night of many and the greatness of Bonfire is manifested in building the hell...)

I'm hoping for a positive answer, but I just don't know if it would be there.

Thanks for the insights on all of this.

Dual, this all interests me greatly, too. I appreciate you sharing your knowledge of the legal system. It puts more meaning behind things I hear.

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Dual -- I am still struggling with trying to understand if the University would bring Bonfire back to campus given the existence of the state-created danger doctrine.

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Prior to 1999 there were many known problems regarding Bonfire, but inertia kept the fire burning. Now inertia works on behalf of those who never want to see another on-campus Bonfire. I share your skepticism about the future of the tradition as an officially recognized and supported event.

The tragedy was all the more shocking because integrity of the stack became the deadly factor that nobody anticipated. We were all quite aware of problems with the Bonfire culture: alcohol, crude behavior, round-the-clock schedules that caused students to miss or sleep through class, rowdy students in the neighborhoods after burn, and an attitude that Bonfire was an untouchable student tradition that even the university couldn't regulate.

The danger of thousands of logs falling on builders is, in fact, one of the easiest to manage. Student Bonfire, if anyone cares to take notice, has managed to incorporate professional engineering and student participation--although skeptics both on and off campus remain unconvinced. The State of Texas and its university systems engage in multiple risk management endeavors each day. Texas A&M could, if it wanted, undertake a Bonfire project that falls within the parameters of acceptable risk.

Again, go to the court's web site and read the opinions. As badly as A&M mismanaged the events leading up to the tragedy, it still wasn't enough to trigger a finding that the liability cap and employee indemnification warranted annulling. State created danger won't keep Bonfire from burning on campus again. Institutional memory will.

The specter of another November 18 will be utilized by opponents of the tradition as the lead factor in opposing resumption of the tradition. Behind this facade will be the determination of campus officials, those who remain here from one president to the next, to never again let another Bonfire genie out of the bottle.

The very factor that most Bonfire traditionalists value the most--a student tradition controlled by students--is what the university fears the most. Somebody like Dr. Gates, if he wanted, could have cut through that deep-seeded institutional opposition. Presidents like him come along only once each generation.

Sadly, it will be a long time, even after the litigation settles, before we see another on-campus Bonfire.

[This message has been edited by DualAG (edited 4/27/2007 8:49a).]

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Rebel, I'm not sure I'm following you...

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As long as Student Bonfire is around in some form, the university is not creating an opportunity that the students would not have had otherwise...

this doesn't mean that SB has to build a fire along side of the university, but they (we) must be ready to hit the ground running should the university ever decide to challenge the claim that SB can give the students a similar opportunity