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Cody Goss, A Minor By and Through His P/N/G Tammy Goss v. Alloway Township School and (Jei/Js

February 7, 2011

CODY GOSS, A MINOR BY AND THROUGH HIS P/N/G TAMMY GOSS, PLAINTIFF,
v.
ALLOWAY TOWNSHIP SCHOOL AND (JEI/JS) ALLOWAY TOWNSHIP SCHOOL DISTRICT,
DEFENDANTS.



The opinion of the court was delivered by: Honorable Joseph E. Irenas

OPINION

IRENAS, Senior District Judge:

Plaintiff Cody Goss, by and through his mother Tammy Goss, initiated this action after injuring himself during recess on a playground owned and operated by Defendants Alloway Township School and Alloway Township School District (collectively "Defendants"). The Complaint asserts claims for negligence and for violations of Plaintiff's constitutional right to bodily integrity pursuant to 42 U.S.C. § 1983.*fn1 Defendants filed a Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6), asserting that Plaintiff failed to make out any constitutional claims and that the Court lacks subject matter jurisdiction over the remaining negligence claim.

I.

On October 22, 2008, Plaintiff, then a six-year-old first grade student, was playing on the monkey bars of Defendants' playground. (Compl. ¶¶ 3, 10.) While playing unassisted and unsupervised, Plaintiff fell to the cement-like surface of the playground and suffered a "displaced wrist fracture."*fn2 (Id.¶12.)

Plaintiff attributes his injuries to Defendants' alleged practice of "mak[ing] decisions regarding the upkeep, maintenance, and care of School and School District property for purely economic reasons regardless of the resultant cost to student safety." (Compl. ¶ 40.) This "cost-cutting" practice resulted in two policies which allegedly caused Plaintiff's injuries: Defendants' policy of allowing students to play on a cement-like playground, and their policy of allowing students to remain unsupervised and unassisted on the playground. (See Compl. ¶¶ 41-42.)

Regarding the playground surface, Plaintiff alleges that "the risk of harm to students playing on a playground with a cement-like surface is so great that Defendants undoubtedly knew that their decision not to pay for sufficient padding of the playground surface" put Plaintiff at a "heightened risk for bodily harm." (Id. ¶ 22; Pl's Opp. Br. at 8.)

Regarding supervision on the playground, Plaintiff alleges that Defendants failed "to properly train and supervise its employees, servants and/or agents with regard to the supervision and assistance required for the playground and its users." (Compl. ¶ 43.) Plaintiff further alleges that Defendants "allow[ed] the playground and its users to go unsupervised, unmonitored, and unassisted." (Id. ¶ 26.)

On October 22, 2010, Plaintiff filed a Complaint in this Court. In addition to a negligence claim, Plaintiff asserts constitutional claims pursuant to 42 U.S.C. § 1983 seeking to remedy Defendants' alleged violation of his liberty interest in bodily integrity protected by the Due Process Clause of the Fourteenth Amendment.*fn3

On December 1, 2010, Defendants filed the instant Motion to Dismiss.

II.

A.

Federal Rule of Civil Procedure 12(b)(6) provides that a court may dismiss a complaint "for failure to state a claim upon which relief can be granted." In order to survive a motion to dismiss, a complaint must allege facts that raise a right to relief above the speculative level. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also Fed. R. Civ. P. 8(a)(2).

While a court must accept as true all allegations in the plaintiff's complaint, and view them in the light most favorable to the plaintiff, Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008), a court is not required to accept sweeping legal conclusions cast in the form of factual allegations, unwarranted inferences, or unsupported conclusions. Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). The complaint must state sufficient facts to show that the legal allegations are not simply possible, but plausible. Phillips, 515 F.3d at 234. "A claim has facial plausibility when the plaintiff pleads factual ...


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