Negligence – Gross negligence claim against school nurse is dismissed

Where a student who was assaulted by fellow students sued a school nurse for gross negligence, but she exercised “some degree of care,” including assessing him for concussion, treating him with ice for his shoulder and jaw and provided documentation to his parents, her motion to dismiss was granted.

Background

This action arises out of an assault which J.M.H. suffered at the hands of fellow students at Patriot High School in Prince
William County on Dec. 6, 2023. Plaintiff’s operative complaint alleges two substantive due process claims under 42 U.S.C. § 1983 against the Prince William County School Board, or PWCSB, a gross negligence claim against school nurse Katharine O’Shea and a gross negligence claim against Robert Murphy, a security specialist. PWCSB and O’Shea have filed a motion to dismiss.

Substantive due process

Under Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978), suits against a municipality for a federal constitutional deprivation are only permitted when the municipality undertook the allegedly unconstitutional action pursuant to an “official policy” or “custom.” “For the purpose of determining liability under Monell, local school boards in Virginia are treated as municipalities.”

As a general rule, “the Due Process Clause of the Fourteenth Amendment does not require governmental actors to affirmatively protect life, liberty, or property against intrusion by private third parties.” There is an exception where “the state affirmatively acts to create or increase the risk that resulted in the victim’s injury.”

In order for this state-created danger exception to apply, however, “[i]t is not enough to reframe a failure to protect against a danger into an affirmative act.” Indeed, the Fourth Circuit has held that “[i]t cannot be that the state ‘commits an affirmative act’ or ‘creates a danger’ every time it does anything that makes injury at the hands of a third party more likely.”

Here, plaintiff’s state-created danger claims center on a series of alleged choices or inactions by PWCSB which are far removed from the other students’ attack on plaintiff. Specifically, plaintiff points to the PWCSB’s decision to approve the installation of weapons detectors and subsequent failure to provide additional staffing to “effectively” man all of the stations while adequately responding to incidents as affirmative acts.

Importantly, plaintiff does not actually allege that there was inadequate staffing on the day in question. Rather, plaintiff alleges that Murphy made a decision. Plaintiff’s allegation in this regard does not include any information suggesting that there was a staffing shortage or that staffing was inadequate. And plaintiff only tangentially connects that decision to the EVOLV weapons detection systems to the extent they were part of the entry to the school.

In the main, plaintiff simply asserts that Murphy made a decision based on when the students were entering the building. This does not reflect a policy or custom of the PWCSB.

The alleged causal connection between the decision to approve the installation of weapons detectors and the students’ attack on plaintiff is indirect at best in establishing any liability. Its decision to approve the installation of weapons detection systems did not directly cause plaintiff’s injuries — his fellow students did. Accordingly, plaintiff has failed to plausibly allege that the state-created danger exception applies, and his claims against the PWCSB will be dismissed.

Gross negligence

“Gross negligence is a degree of negligence showing indifference to another and an utter disregard of prudence that amounts to a complete neglect of the safety of such other person.” Here, O’Shea brought plaintiff to her office in a wheelchair, assessed plaintiff, including for a concussion, recorded her findings about his physical appearance and his reports that he did not lose consciousness and that his dizziness had passed, treated plaintiff with ice for his shoulder and jaw and provided a copy of the concussion screening form and an ace form to plaintiff’s parents who arrived just over an hour later and who indicated that they were taking him to the emergency room.

Although plaintiff argues that O’Shea should have immediately called for an ambulance (despite his own declination of an offer to do so), it cannot be reasonably disputed that O’Shea exercised “some degree of care” in assessing and treating plaintiff. Moreover, plaintiff does not plausibly allege that O’Shea’s failure to immediately contact emergency services caused or exacerbated his injuries. Accordingly, Count Three will be dismissed, and O’Shea will be terminated as a defendant in this action.

PWCSB and O’Shea’s motion to dismiss granted.

J.M.H. v. Prince William County School Board, Case No. 1:25-cv-15, March 12, 2026. EDVA at Alexandria (Alston). VLW 026-3-121. 14 pp.

Full-Text Opinion

VLW 026-3-121
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