Appeal from the United States District Court for the Eastern District of Wisconsin. No. 2:11-cv-222-RTR--Rudolph T. Randa, Judge.
The opinion of the court was delivered by: Posner, Circuit Judge.
Before POSNER, WOOD, and TINDER, Circuit Judges.
The plaintiffs--the estate of a decedent, Kamonie Slade, and his parents--brought suit against administrators of the Wisconsin public school that the boy was attending at the time of his death from drowning at a class outing. The suit is based on 42 U.S.C. § 1983 and claims that the defendants deprived Kamonie of his life in violation of the due process clause of the Fourteenth Amendment. The district judge granted summary judgment for the defendants and having done so relinquished jurisdiction over the plaintiffs' supplemental state law tort claims and dismissed the suit. The appeal challenges only the dismissal of the federal claim; and the only defendants against whom that claim is made, and hence the only appellees, are Estes (formerly named Roundtree) and Gosz, the principal and an assistant principal of the school. The plaintiffs seem to have a meritorious state law tort claim against at least Gosz. But with irrelevant exceptions, Wisconsin law caps the tort liability of a public employee at $50,000 per victim. Wis. Stat. § 893.80(3); Linville v. City of Janesville, 516 N.W.2d 427, 433 (Wis. 1994). 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.
The facts are not in serious dispute. Gosz planned and Estes approved a field trip to Mauthe Lake for graduating seventh graders on the last day of the school year. The lake, a 70-acre lake with a maximum depth of 23 feet, is located in the Kettle Moraine State Forest in southeastern
Wisconsin, and has a public beach. The seventh graders were invited, not required, to go on the trip. Notices were sent to the students' parents asking permission for their kids "to play in the water" (if they went on the outing) and, if permission was granted, asking the parents to equip their kids with bathing suits and other swimming gear. Rules of the Milwaukee Public School District, which includes the school that Kamonie attended, forbid recreational swimming on field trips unless a lifeguard is present. Gosz, who conducted the children to the lake, was aware that there was no lifeguard, aware of the school district's rules about swim- ming, and aware that there were places in the designated swimming area where the water would be over the chil- dren's heads. And Estes may have directed Gosz to keep the children out of the water, which Gosz did not do.
Ninety-two children participated in the outing. In the morning about half of them entered the lake, all from the public beach. After lunch a teacher named Pitta saw six children, including Kamonie, who was 12 years old, at the water's edge. Gosz asked Pitta to supervise them. Pitta didn't know whether any of the children could swim, and although he can swim he is not a certified lifeguard and was not wearing a bathing suit. He told the children not to go so far into the lake that the water would be above their chests. Kamonie, with other students, walked into the lake and kept walking until the water reached his chest, and he was then drawn, either by a current or by the downward slope of the lake's bottom, to a location at which the water was over his head. He was a poor swimmer, was unable to keep afloat, and drowned.
Pitta dove into the water when he heard children yelling for help, and a child approached Gosz and told her that someone was drowning. After telling another adult to call 911, Gosz followed Pitta into the water. All to no avail. Kamonie was about 100 feet from the shore when he drowned, but still inside the lake's designated swimming area. He was a shade under 6 feet tall; the lake was approximately 7.6 feet deep where he drowned. For purposes of the appeal we assume that had a lifeguard been present Kamonie would have been saved, although obviously this is uncertain.
A state does not deprive a person of his life in viola- tion 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 by an employee of the state acting within the scope of his or her employ- ment. E.g., Paine v. Cason, 678 F.3d 500, 509-11 (7th Cir. 2012); King ex rel. King v. East St. Louis School District 189, 496 F.3d 812, 817-18 (7th Cir. 2007); Currier v. Doran, 242 F.3d 905, 918 (10th Cir. 2001); cf. Sanford v. Stiles, 456 F.3d 298, 309-10 (3d Cir. 2006) (per curiam). The cases generally understand "recklessness" to mean knowledge of a serious risk to another person, coupled with failure to avert the risk though it could easily have been averted. This is the criminal meaning of recklessness, whereas in civil cases at common law it is enough that the risk, besides being serious and eminently avoidable, is obvious; it need not be known to the defendant. See Doe v. St. Francis School District, 694 F.3d 869, 872 (7th Cir. 2012).
A complication is that often in cases such as this the court in describing the liability standard will substitute for recklessness the term "deliberate indifference." The word "deliberate" makes the standard sound like the criminal standard of recklessness. But actually it's an unsettled question whether knowledge of the risk is required or it is enough that the risk is obvious, West By & Through Norris v. Waymire, 114 F.3d 646, 650-52 (7th Cir. 1997); Sanford v. Stiles, supra, 456 F.3d at 310 and n. 15, other than in Eighth Amendment ("cruel and unusual punishments") cases, where the Supreme Court has held that knowledge of the risk is required for liability. Farmer v. Brennan, 511 U.S. 525, 536-42 (1994). Although as we pointed out in Doe "in practice there is little difference between known and obvious, the former being a natural inference from the latter," 694 F.3d at 871 (citation omit- ted), there is at least a shade of difference; the risk might be obvious to a normal person but the defendant might be especially obtuse. But in this case as in Doe the dif- ference between what is known and what is obvious is unimportant.
The defendants argue that they committed no "affirma- tive act" causally related to Kamonie's drowning. The term "affirmative act" appears in some of the cases but is unhelpful. All acts are affirmative, including standing still when one could save a person by warning him of some impending danger. The defendants acted when they decided to have an outing for the students at which there would be swimming, when they asked parental authorization, when they allowed the kids to go into the water even though no lifeguard was present. Consider the following case. Police publish the name of a person who provided them with a confidential tip, and as a result of the publication he's killed by the criminals inculpated by the tip. It is no defense to a charge of a violation of due process that the death was inflicted by private persons. Monfils v. Taylor, 165 F.3d 511 (7th Cir. 1998); Kennedy v. City of Ridgefield, 439 F.3d 1055 (9th Cir. 2006); Kallstrom v. City of Columbus, 136 F.3d 1055, 1063 (6th Cir. 1998). The police had placed him in a position of great danger and the danger was a significant causal factor in his demise, although not the only factor, just as the acts of the defendants in this case were not the only causes of Kamonie's death: his lack of good swimming skills and the depth and the lake's current or the pitch of the lake floor were causes as well.
Cases like Monfils are "trap" cases; the police place a person in a situation in which he is endangered by other private persons; the police in effect are their accompli- ces--unwitting, but if reckless culpable. In other cases in which state employees are held liable under the due process clause for injuries inflicted by private persons--cases often referred to (not very illuminatingly) as "special relationship" cases--the state has by ex- ercising custody over a person deprived him of the ability to protect himself and has thus endangered him.
K.H. Through Murphy v. Morgan, 914 F.2d 846, 848-50 (7th Cir. 1990); Doe ex rel. Johnson v. South Carolina Depart-ment of Social Services, 597 F.3d 163, 172-75 (4th Cir. 2010).
With such cases contrast one in which residents of a neighborhood that is a battlefield of rival gangs plead with the police to make greater efforts to pacify the neigh- borhood, but their pleas fall on deaf ears--and sure enough a resident is caught in a crossfire and dies. His estate may have a claim against the police under state law, but not under the Fourteenth Amend- ment. DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989); Sandage v. Board of Commis- sioners, 548 F.3d 595, 596 (7th Cir. 2008); Stevens v. Umsted, 131 F.3d 697, 705-06 (7th Cir. 1997); Jones v. Reynolds, 438 F.3d 685, 691-92, 694 (6th Cir. 2006). This is not because the police failed to act; they acted, but their act was the deployment of their resources elsewhere. That act was a significant causal factor in the death, but there is no constitutional violation. This is not because of absence of causality but because recognition of a constitutional right to adequate police protection and other public assistance would place federal judges in control of much of the apparatus of government. For much of what gov- ernment does is protect and otherwise assist members of the public, and when it fails in these duties and harm results it is often easy enough to make a colorable claim of negligence or worse. Were liability under federal law allowed to be imposed in such cases, federal judges would become deeply involved in the allocation of public funds and services, a task for which guidance can't be found in the Constitution. The judges would be at ...