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Fialkowski v. Greenwich Home for Children Inc.

argued: July 31, 1990.

LEONA FIALKOWSKI, AS MOTHER AND ADMINISTRATRIX OF THE ESTATE OF WALTER FIALKOWSKI, AND MARION FIALKOWSKI, AS FATHER OF WALTER FIALKOWSKI, APPELLANTS
v.
GREENWICH HOME FOR CHILDREN, INC.; MARVA LUCAS; NORTHEAST COMMUNITY MENTAL HEALTH AND MENTAL RETARDATION CENTER, INC.; RICHARD C. SURLES, ADMINISTRATOR, OFFICE OF MENTAL HEALTH AND MENTAL RETARDATION, CITY OF PHILADELPHIA; AND RUSSELL G. RICE, JR., REGIONAL COMMISSIONER OF MENTAL RETARDATION, COMMONWEALTH OF PENNSYLVANIA, APPELLEES



On Appeal from the United States District Court for the Eastern District of Pennsylvania; D.C. Civil No. 86-6598.

Higginbotham, Chief Judge, Scirica and Alito, Circuit Judges.

Author: Alito

Opinion OF THE COURT

ALITO, Circuit Judge

Leona and Marion Fialkowski ("the Fialkowskis"), appeal from a district court order granting summary judgment in favor of Northeast Community Mental Health and Mental Retardation Center, Inc. ("Northeast"), in their action seeking damages for the tragic choking death of their profoundly retarded adult son, Walter Fialkowski. Since we conclude that the undisputed facts cannot support a verdict against Northeast under the Due Process Clause of the Fourteenth Amendment or under state tort law, we will affirm.

I.

A. Walter Fialkowski, who was 33 years old at the time of his death, suffered from an eating disorder known as food shovelling and a hypoactive (i.e., abnormally low) gag reflex. Food shovelling is the act of stuffing excessive quantities of food in the mouth at one time; a hypoactive gag reflex renders a person abnormally susceptible to choking. As a result of Walter Fialkowski's condition, special precautions were necessary to prevent him from choking.

Walter Fialkowski lived at home and was cared for by his family from birth until age 21, when his parents placed him at the Woodhaven Center, a training facility for the mentally retarded. Two years later, the Fialkowskis felt that their son was no longer improving at Woodhaven Center and decided to transfer him to a group home.

The Fialkowskis made use of the system established by the Commonwealth of Pennsylvania "to assure . . . the availability and equitable provision of adequate . . . mental retardation services to all persons who need them." 50 PA. CONS. STAT. ANN. § 4201 (Purdon 1969). Under this system, counties, including Philadelphia, have the duty to evaluate the needs of mentally retarded persons and to develop plans to meet those needs. 50 PA. CONS. STAT. ANN. §§ 4301-05 (Purdon 1969).

In order to ensure that necessary services are provided, each county mental health and mental retardation administrator is required to arrange for the operation of a "base service unit" ("BSU") (55 PA. CODE § 4210.21). A county may operate a BSU with its own staff or contract for an outside organization to serve as the BSU. 55 PA. CODE § 4210.26. Philadelphia entered into such a contract with Northeast, a nonprofit organization.

As the BSU handling Walter Fialkowski's case, Northeast had the responsibility, among others, for performing an "intake study" (55 PA. CODE §§ 4210.22(1), 6201.13) and, if necessary, making arrangements for him to receive services directly from another facility under contract with the local authorities (55 PA. CODE § 4210.101(d)). Northeast referred Walter Fialkowski to what is called under the Pennsylvania regulations a "Community Rehabilitation Residential Service" ("CRRS")*fn1 and commonly described as a "community living arrangement" or CLA.*fn2 Walter Fialkowski was one of the first severely retarded persons in Philadelphia to reside in such a facility.

The CRRS in which Walter Fialkowski was voluntarily placed by his parents was operated by a private entity, Greenwich Home for Children, Inc. ("Greenwich"), under contract with the City of Philadelphia. One other mentally retarded person shared this facility with Walter Fialkowski, and a Greenwich staff member was present in the facility at all times. Walter Fialkowski had his own room, assisted in maintaining the house, and was free to leave the home under staff supervision. During weekdays, he generally attended educational programs at another facility under contract with the City of Philadelphia. On the day of his accident, he did not attend this program due to a mild illness. Greenwich arranged for Marva Lucas, a part-time employee, to supervise him at the CRRS. Lucas prepared two peanut butter sandwiches and cut them into quarters. When she turned her back momentarily, Walter apparently stuffed all of the sandwich quarters into his mouth and choked. Despite emergency efforts, he died.

B. The Fialkowskis began this action in 1986, naming as defendants Northeast, Greenwich, and Lucas, as well as the Pennsylvania Regional Commissioner of Mental Retardation (Russell G. Rice, Jr.) and the administrator of the Philadelphia Office of Mental Health and Mental Retardation (Richard C. Surles). Count one of the complaint asserted a claim under 42 U.S.C. § 1983 for alleged violation of Fourteenth Amendment due process rights. Count two asserted a pendent state tort claim. The complaint sought compensatory and punitive damages and declaratory relief. The claims against Rice were subsequently dismissed on Eleventh Amendment grounds, and the Fialkowskis do not contest that dismissal on appeal.

After discovery, Northeast, Greenwich, and Lucas moved for summary judgment. The district court held that the Section 1983 claim was foreclosed by the Supreme Court's recent decision in DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 109 S. Ct. 998, 103 L. Ed. 2d 249 (1989), because the defendants owed no constitutional duty to protect a person who was not in involuntary custody. The court also granted summary judgment in favor of Northeast and Lucas on the pendent state claim. The court noted that Northeast, as a nonprofit health care provider, was immune from a simple negligence claim under 50 PA. CONS. STAT. ANN. § 4603 (Purdon 1969) for anything done pursuant to the Pennsylvania Mental Health and Mental Retardation Act, 50 PA. CONS. STAT. ANN. § 4101 et seq.; the court likewise observed that Lucas, as a person employed under the Act, enjoyed the same limited immunity. The court then concluded that "the evidence, which would be available to plaintiffs at the time of trial, is insufficient to establish more than simple negligence ...


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