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Estate of Her v. Hoeppner

United States Court of Appeals, Seventh Circuit

September 26, 2019

The Estate of Swannie Her, et al., Plaintiffs-Appellants,
Craig Hoeppner, Parks Director for the City of West Bend, et al., Defendants-Appellees.

          Argued May 29, 2019

          Appeal from the United States District Court for the Eastern District of Wisconsin. No. 17-CV-1015 - Nancy Joseph, Magistrate Judge.

          Before Kanne, Sykes, and Brennan, Circuit Judges.


         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.

         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 constitutional 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 magistrate 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 defendants created a danger just by operating a public swimming 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 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 armpits-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 guidebook to preventing accidents at the pond. Most importantly, the manual urges lifeguards to keep close watch on inexperienced 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 fiance, and nine of her ten children-gathered in Regner Park to celebrate a relative's second birthday. The party took 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 medical 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 Amendment 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 to follow established lifeguarding rules, increasing ...

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