KATHLEEN SANFORD, Individually and as Administratrix of the Estate of Michael R. Sanford v. Pamela Stiles

*
Judge Becker sat on the panel in this case and did
substantial work in the drafting of this opinion. However, he died
before the opinion was filed. The decision is filed by a quorum of
the panel. See 28 U.S.C. § 46(d).
**
Judge Roth assumed senior status on May 31, 2006.
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-4496
KATHLEEN SANFORD, Individually and as Administratrix of
the Estate of
Michael R. Sanford,
Appellant
v.
PAMELA STILES; DENNIS MURPHY;
EAST PENN SCHOOL DISTRICT
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 03-cv-05698)
District Judge: Honorable Lawrence F. Stengel
Argued November 14, 2005
Before: FUENTES, BECKER, * and ROTH ** Circuit Judges.
(Filed: August 2, 2006)
Robert G. Bauer (ARGUED)

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2
Abraham, Bauer & Spalding
1600 Market Street, 5th Floor
Philadelphia, Pennsylvania 19103
C. Theresa Barone
Nelson, Levine, de Luca & Horst
4 Sentry Parkway, Suite 300
Blue Bell, Pennsylvania 19422
Attorneys for Appellant
Anne E. Hendricks (ARGUED)
Paul N. Lalley
Levin Legal Group
1800 Byberry Road
1301 Masons Mill Business Park
Huntingdon Valley, Pennsylvania 19006
Attorneys for Appellees
OPINION OF THE COURT
PER CURIAM
This case arises out of the unfortunate death of Michael
Sanford, a sixteen-year-old boy who committed suicide at his home
in Emmaus, Pennsylvania. Kathleen Sanford, Michael’s mother,
appeals the District Court’s grant of summary judgment against her
in an action against the East Penn School District and one if its
guidance counselors, Pamela Stiles (“the Defendants”). Kathleen
Sanford filed suit under 42 U.S.C. § 1983, alleging that the
Defendants are liable for her son’s death under a state-created
danger theory. She also alleges that Pamela Stiles is individually
liable for negligence under state law. We will affirm the grant of
summary judgment against Sanford.
This case requires us to examine and clarify an unsettled
area of the law: the standard of fault in state-created danger cases.
As we have noted before, the relevant question – whether a state

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1See, e.g., Estate of Smith v. Marasco, 430 F.3d 140, 153 (3d
Cir. 2005) (hereinafter “Smith II”) (citing Estate of Smith v.
Marasco, 318 F.3d 497, 509 (3d Cir. 2003) (hereinafter “Smith
I”)).
2
Hereinafter, for ease of reference, we refer to Michael
Sanford as “Michael” and Kathleen Sanford as “Sanford.”
3
actor’s behavior “shocks the conscience” – has an elusive quality
to it.1 This is in part because the level of culpability required to
shock the conscience will depend upon the extent to which a state
actor is required to act under pressure. In the present case, we are
satisfied that Kathleen Sanford’s state-created danger claims cannot
prevail because she is unable to show that Stiles or the East Penn
School District acted with the requisite level of culpability. We
also must reject Sanford’s state law negligence claim because Stiles
is entitled to broad immunity under the Pennsylvania Political
Subdivision Tort Claims Act.
I. Facts and Procedural History
The events in this case began when Karen Martin, a high
school student, received a troubling note from classmate Michael
Sanford.2 Karen and Michael had dated for a brief period. Karen
was passed the note on November 26, 2002, after Michael learned
that she was dating a student named Ryan. The note stated:
I know I really haven’t talked to you in awhile.
Hopefully this note doesn’t come out the wrong way.
I’ve heard 3 diff[erent] stories about you & Ryan.
The one I heard almost made me want to go kill
myself. Mostly because if there was any chance in
hell of you & me solving the what if’s I fucked it up.
Anyways I heard that instead of Danielle it was you
online Friday. If I said anything stupid, I apologize
(this weekend sucked & I’ve tried to make myself
forget it). So how have you been? How’s driving
going? Remember stop signs w/ white lines around
them are optional & if you hit a pedestrian @ nite &
he’s wearing black its 100 pts. For some reason, I

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4
just thought this & have to ask you, is there any
grudge or an[imosity] btwn us? I g2g. Write back if
you can, if not hopefully I ttyl. Luv ya. Ur ex-
husband, Mike.
(App. 41 (emphasis added).)
Karen indicated several times that, after reading Michael’s
note, she did not believe that Michael would actually kill himself.
Still, the day after receiving the message, Karen approached a
school guidance counselor, Barbara Valladares, about the note’s
contents. Karen claimed that she was worried about Michael and
that she was sick of him “bugging” her. Karen told Valladares that
she “didn’t think” Michael would hurt himself but that she just
“wanted to be safe.” (App. 462.) Karen asked Valladares not to
reveal the source of the note.
Valladares gave a copy of the note to Michael’s guidance
counselor, Pamela Stiles, and relayed both that Karen “wanted
Michael to stop bothering her” and that Karen was concerned about
Michael’s reaction to their earlier breakup. (App. 236.) Stiles
immediately called Michael into her office. She told Michael that
some of his friends were worried about him, and that therefore she
was worried about him. Stiles asked Michael if he was upset about
some sort of situation with a girl, and he replied: “that was two
months ago when I was upset about that. I’m not upset about that
now.” (App. 280.) According to Stiles, Michael responded in a
“very straightforward” manner. (App. 255.)
Additionally, Stiles asked Michael if he ever had plans to
hurt himself or if he would do such a thing. He answered
“definitely not.” (App. 256.) She asked him “forward thinking”
questions and became satisfied that he had future plans. (App. 256-
57.) Finally, Stiles asked Michael if anything else was upsetting
him. According to Stiles, Michael stated, “no, he was fine.” (App.
257.)
Stiles later reported that Michael “kind of shrugged that
[she] would even ask him these questions or if there was a
problem.” (App. 257.) Stiles was convinced that the feelings
expressed in the note dated several months back. She concluded

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5
that “Mike did not present any signs . . . that were of a nature that
he was thinking about harming himself.” (App. 280.) Therefore,
because she believed Michael was not at risk, she did not contact
the school psychologist or Michael’s mother.
According to Stiles, she and Michael spoke for ten to fifteen
minutes during this first encounter. Stiles then gave the note back
to Valladares and “told her that [she] had seen Michael and that he
did not display any suicidal ideation to [her] in what he
verbalized.” (App. 259.) Also, Jason Pekarik, a friend of Michael’s,
later testified that Michael told him that he had been called into the
guidance office. According to Pekarik, Michael “laughed about it”
and said that “everything was fine.” (App. 647.)
On December 4, 2002, Michael again visited the guidance
office. Stiles stated that she asked Michael if he would like to come
in, but that Michael only asked Stiles if it was a “blond-haired girl”
who gave her the note. (App. 264.) Stiles said that she could not
share that information. She stated in her deposition that this was
because of ethical practices aimed to help students “feel
comfortable giving information.” (App. 264, 266.) Stiles invited
Michael to talk further. However, Michael only responded:
“thanks, I thought that’s what you would say. That’s all I needed.”
(App. 264.) According to Stiles, Michael “did not seem upset”
during their interaction. (App. 268.)
That evening, Michael committed suicide by hanging
himself. Immediately before his death, Michael and his mother had
argued. Sanford believed that the argument occurred because she
told Michael to take his sweatshirt off and to close the car
windows. According to Sanford, Michael “opened up the car door
while it was still going” and started to run home. (App. 847-48.)
Sanford looked for Michael, but when he saw the car, he “took off
again.” (App. 848.) At one point, Michael again entered the car, but
he only threw some of Sanford’s cigarettes out of the car, then
walked the short distance home. After they had both returned
home, Sanford asked Michael to clean the kitchen. When Sanford
went down to look for him, she found that he had hanged himself
from a door in the basement.
As the District Court noted, no one, including Sanford,

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3 We have jurisdiction to review the District Court’s
determination under 28 U.S.C. § 1291. Our review of a grant of
summary judgment is plenary and “we must grant all reasonable
inferences from the evidence to the non-moving party.” See Knabe
v. Boury Corp., 114 F.3d 407, 410 n.4 (3d Cir. 1997); see also
Anderson v. Consol. Rail Corp., 297 F.3d 242, 246-47 (3d Cir.
2002).
6
Karen Martin, or Michael’s uncle believed that Michael was
suicidal. Michael’s uncle, David Schlegel, was a licensed social
worker and had worked as a therapist. Schlegel testified that
Michael seemed “happy-go-lucky” before his death and that there
were no signs that he would harm himself. Additionally, shortly
before Michael’s death, Sanford had read an instant message
exchange between Michael and his friend Jason Pekarik. The
messages referenced suicidal behavior. Still, after reading the
messages, Sanford was not concerned that Michael could be
suicidal.
It appears that Stiles followed school protocol in making her
assessment of Michael. The Emmaus High School Counseling
Department Guidelines Handbook delineates a “Suicide Referral
Process.” That protocol states:
In cases of suicide ideation, the assigned counselor
will assess the situation no matter what the referral
source (SAP, teacher, parent, and self-referral). The
counselor will determine if and when a referral
should be made to the school psychologist.
(App. 85.) A flow chart provides further information.
Sanford filed this action against Stiles and the East Penn
School District in the District Court for the Eastern District of
Pennsylvania. She alleged that the Defendants were liable for
Michael’s death under a state-created danger theory for
constitutional violations pursuant to 42 U.S.C. § 1983. She also
alleged that Stiles was individually liable for negligence under state
law. The Defendants filed a motion for summary judgment, which
the District Court granted.3

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4
This Court has generally stated that this first exception,
derived from DeShaney, requires a custodial relationship. It is a
very limited exception. For example, we have read DeShaney
“primarily as setting out a test of physical custody.” Torisky v.
Schweiker, 446 F.3d 438, 445 (3d Cir. 2006) (citation omitted). A
“deprivation of liberty” through, for example, incarceration or
institutionalization, is required. See id. at 444.
No “special relationship” existed here. In D.R. v. Middle
Bucks Area Vocational Technical School, 972 F.2d 1364 (3d Cir.
1992), we held that no special relationship exists between school
children and the state. This is because parents decide where their
children’s education will take place, because school children
“remain resident in their homes,” and because “the child is not
physically restrained from leaving school during school hours.” Id.
7
The District Court determined that the substantive due
process claims brought against both Defendants failed.
Specifically, a reasonable jury could not conclude that Stiles
“create[d] the danger” to Michael or that her conduct exceeded
mere negligence. The District Court also rejected Sanford’s claim
of municipal liability against the East Penn School District because
Sanford failed to create a genuine issue of material fact as to
whether Stiles caused an underlying constitutional violation.
Finally, the District Court rejected the state law negligence claim
against Stiles both because Sanford could not prove causation
under tort law and because Stiles was entitled to immunity under
Pennsylvania law.
II. Substantive Due Process: Sanford’s State-Created Danger
Claim Against Stiles
Sanford alleges that Stiles is liable under a state-created
danger theory because her actions “increased the risk that Michael
would commit suicide.” (Appellant’s Br. at 14.) Generally, the Due
Process Clause does not impose an affirmative duty upon the state
to protect citizens from the acts of private individuals. See
DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S.
189, 198-200 (1989). However, we have explicitly recognized two
exceptions to this general rule. First, the state has a duty to protect
or care for individuals when a “special relationship” exists.4

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at 1371-73; see also Ingraham v. Wright, 430 U.S. 651, 670 (1977)
(finding that, in another context, “[t]he schoolchild has little need
for . . . protection” because “the public school remains an open
institution”).
5See Pena v. Deprisco, 432 F.3d 98, 107-10 (2d Cir. 2005);
Kallstrom v. City of Columbus, 136 F.3d 1055, 1066 (6th Cir.
1998); Reed v. Gardner, 986 F.2d 1122, 1126 (7th Cir. 1993);
Forrester v. Bass, 397 F.3d 1047, 1057-59 (8th Cir. 2005);
Kennedy v. City of Ridgefield, 439 F.3d 1055, 1061 (9th Cir. 2006);
Uhlrig v. Harder, 64 F.3d 567, 572 (10th Cir. 1995); Butera v.
District of Columbia, 235 F.3d 637, 648-51 (D.C. Cir. 2001); see
also Wyke v. Polk County Sch. Bd., 129 F.3d 560, 567 (11th Cir.
1997) (“The language of DeShaney does indeed ‘leave room’ for
state liability where the state creates a danger or renders an
individual more vulnerable to it.”). But see Velez-Diaz v.
Vega-Irizarry, 421 F.3d 71, 80 (1st Cir. 2005) (“This court has, to
date, discussed the state created danger theory, but never found it
actionable on the facts alleged.”) (internal quotation marks and
citation omitted); Pinder v. Johnson, 54 F.3d 1169, 1176 n.* (4th
Cir. 1995); Rios v. City of Del Rio, 444 F.3d 417, 422 (5th Cir.
2006) (noting that “this court has frequently spoken of the
8
Second, the state has a duty when a “state-created danger” is
involved. See Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 907
(3d Cir. 1997). Sanford’s federal claims are based on this second
exception.
In Kneipp v. Tedder, 95 F.3d 1199, 1201 (3d Cir. 1996), we
first adopted the state-created danger theory as a mechanism by
which plaintiffs may establish constitutional violations under 42
U.S.C. § 1983. We confirmed that liability may attach where the
state acts to create or enhance a danger that deprives the plaintiff
of his or her Fourteenth Amendment right to substantive due
process. Id. at 1205; see also Brown v. Pa. Dep’t of Health
Emergency Med. Servs. Training Inst., 318 F.3d 473, 478 (3d Cir.
2003). The state-created danger theory is now widely recognized.
Although the Supreme Court has not yet explicitly adopted it, a
majority of our sister circuits have implemented some variation of
the theory.5

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‘state-created danger’ theory,” but has never adopted it).
9
To prevail on a state-created danger claim in the Third
Circuit, a plaintiff must prove the following four elements:
(1) the harm ultimately caused was foreseeable and
fairly direct;
(2) a state actor acted with a degree of culpability
that shocks the conscience;
(3) a relationship between the state and the plaintiff
existed such that the plaintiff was a foreseeable
victim of the defendant’s acts, or a member of a
discrete class of persons subjected to the potential
harm brought about by the state’s actions, as
opposed to a member of the public in general; and
(4) a state actor affirmatively used his or her
authority in a way that created a danger to the citizen
or that rendered the citizen more vulnerable to
danger than had the state not acted at all.
Bright v. Westmoreland County, 443 F.3d 276, 281 (3d Cir. 2006)
(internal quotation marks and footnotes omitted); see also Smith II,
430 F.3d at 153 (quoting an earlier version of the test).
Sanford maintains that Stiles created the risk of Michael’s
death by, for example, holding herself out as a source of aid to
Michael, cutting off other possible avenues of help, undertaking an
assessment of Michael without proper training, improperly
evaluating his risk, and deciding not to contact the school
psychologist or a parent. Sanford’s claim against Stiles fails
because she is unable to show at least two of the four required
elements of a state-created danger claim. Specifically, no
reasonable jury could find (1) that Stiles acted with the requisite
degree of culpability, or (2) that she “create[d] an opportunity that
otherwise would not have existed for [harm] to occur.” Smith II,
430 F.3d at 153. Therefore, we will affirm the judgment of the
District Court. We examine the two elements in question, prongs

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6
We assume without deciding that Sanford has raised an
issue of fact for summary judgment purposes as to the first and
third prongs.
10
two and four, in turn.6
A. Prong Two: The Standard of Culpability
Because the culpability requirement is often the most
difficult element for a plaintiff to prove, the outcome of a state-
created danger case will often turn on this prong. See id. The
Supreme Court has not fully explicated the standard of culpability
in substantive due process cases generally, and our own
jurisprudence is difficult to discern. See County of Sacramento v.
Lewis, 523 U.S. 833, 849 (1998) (noting that a complete analysis
of the fault requirement in substantive due process cases is “a
matter for closer calls”). We now attempt to clarify this difficult
area of the law.
i. Jurisprudence on the Standard of
Culpability
In assessing the standard of fault in state-created danger
cases, we have inquired in the past whether “the state actor acted
in willful disregard for the safety of the plaintiff.” See, e.g., Morse,
132 F.3d at 908 (quoting Kneipp, 95 F.3d at 1208). More recently,
largely in consideration of the Supreme Court’s decision in Lewis,
523 U.S. at 847-49, we have acknowledged that the fault inquiry
requires asking whether the state official “acted with a degree of
culpability that shocks the conscience.” See, e.g., Bright, 443 F.3d
at 281.
The Supreme Court decided Lewis nearly two years after we
issued our opinion adopting the state-created danger theory in
Kneipp. The Court granted certiorari to resolve a conflict among
the circuits as to the standard of culpability for due process
violations in the context of a police chase. Lewis, 523 U.S. at 839.
The Court held that generally, in a due process challenge to
executive action, the threshold question is whether the government
officer’s actions “shock the contemporary conscience.” Id. at 847

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11
n.8. The Court determined that in the specific context of a high-
speed police pursuit, only an “intent to harm” the plaintiff could
shock the conscience. Id. at 854. However, the Court stated that
whether behavior rises to the level of conscience-shocking will
depend upon the facts of each individual case. Id. at 850 (“Rules of
due process are not . . . subject to mechanical application in
unfamiliar territory.”).
The Court suggested that in some instances, conduct
involving more than negligence but less than intentional conduct
could be “shocking” in the constitutional sense. Therefore,
deliberate indifference, or perhaps gross negligence or
recklessness, could be sufficient. Id. at 849-50. In discussing the
importance of context, the Court compared a high-speed chase or
a prison riot on one hand with decisions regarding the medical
needs of custodial prisoners on the other. Id. at 849-52. In the latter
custodial situation, deliberate indifference to the medical needs of
prisoners would likely be sufficient because the state actor could
engage in “actual deliberation” and “unhurried judgments.” Id. at
851, 853. In the former situation, where deliberation is impossible,
the higher standard of “intent to harm” would be required. Id. at
854. Of course, we note that Lewis was not a state-created danger
case but rather dealt with substantive due process generally.
Following Lewis, we have stated that in substantive due
process cases, “[t]he exact degree of wrongfulness necessary to
reach the conscience-shocking level depends upon the
circumstances of a particular case.” Miller v. City of Philadelphia,
174 F.3d 368, 375 (3d Cir. 1999). And we have had occasion to
reflect on the appropriate standard of fault in a number of different
settings. Sometimes, an intent to cause harm has been required;
other times, deliberate indifference has been sufficient. In Miller,
174 F.3d at 375-76, we first utilized a standard part way between
intent to harm and deliberate indifference. In that case, a
Department of Human Services social worker believed that two
children were victims of domestic abuse, based on reports by
daycare personnel, videotape footage of the children’s injuries, and
statements made by the children themselves. Id. at 371. The
children were removed almost immediately from their mother’s
custody after an order was issued by an on-call emergency judge.
Id. After custody was restored, the children’s mother filed a

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12
substantive due process suit against the social worker, alleging that
he had pursued his investigation without probable cause,
misrepresented facts to an assistant city solicitor, and induced a
children’s hospital doctor to perjure himself. Id.
We stated that the social worker’s actions, leading to the
emergency order to separate parent and child, involved less
urgency than a high-speed chase but more urgency than a decision
involving the medical care of a prisoner. Id. at 375-76. Therefore,
we applied a standard of fault between “deliberate indifference”
and “purpose to cause harm.” Id. at 375. We defined this new
standard as “gross negligence or arbitrariness that indeed ‘shocks
the conscience.’” Id. at 375-76. This standard was created to apply
to cases in which no immediate or split-second decision was
required, but where officials nonetheless did not have the luxury of
true deliberation. As a result, we had articulated three possible
standards to determine whether behavior rose to the level of
conscience-shocking: 1) deliberate indifference; 2) “gross
negligence or arbitrariness that indeed ‘shocks the conscience”; and
3) intent to cause harm. We concluded that the middle standard had
not been met, relying in part on the fact that there was “substantial
evidence . . . that the children were in danger of abuse.” Id. at 377.
Like Lewis, Miller was not a “state-created danger” case, and is
therefore distinguishable on that basis. However, given the
subsequent incorporation of Miller into our state-created danger
case law, we find it highly instructive.
In Nicini v. Morra, 212 F.3d 798, 800-01 (3d Cir. 2000) (en
banc), we reviewed a substantive due process claim brought by a
minor against a New Jersey Department of Human Services
caseworker who placed him in the equivalent of a foster home.
Nicini was clearly very troubled and had apparently made two
suicide attempts in the past. Id. at 801. After Nicini was sexually
abused by one of the parents in his new foster home placement, he
filed suit against the caseworker. He alleged that the caseworker
failed to properly investigate the background of the foster parent,
and that the caseworker knew or should have known that the

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7Nicini also was not a state-created danger case. There,
potential liability was based upon the “special relationship” that
existed between the minor and the state. Id. at 809. We first found
that the state had an affirmative duty to protect the child under the
Due Process Clause. To that end, we held that “when the state
places a child in state-regulated foster care, the state has entered
into a special relationship with that child which imposes upon it
certain affirmative duties.” Id. at 808. Failure to perform those
duties could give rise to a cause of action under § 1983. We then
went on to determine whether the caseworker’s conduct was
“egregious enough” to amount to a constitutional violation. Id. at
809.
13
placement was inappropriate.7 Id. at 804. We assessed the
caseworker’s actions under the deliberate indifference standard,
declining to impose the heightened standards utilized in Lewis and
Miller. Id. at 811. We explicitly distinguished Miller because the
caseworker in Nicini, unlike the social worker in Miller, had “time
‘to make unhurried judgments’” in investigating whether to permit
the child to remain in the foster care in which he was placed. Id.
(quoting Lewis, 523 U.S. at 853).
Roughly two years later, in Ziccardi v. City of Philadelphia,
288 F.3d 57, 58-59 (3d Cir. 2002), a plaintiff brought a substantive
due process claim against two paramedics, asserting that their
careless actions in lifting him from a fall rendered him a
quadriplegic. Rather than immobilizing the plaintiff’s cervical
spine before they moved him from the ground, the paramedics
quickly lifted him and allegedly caused his injuries. Id. at 60.
We noted that Miller was binding and that the standard of
culpability discussed there – a standard more rigorous than
deliberate indifference – should apply. Id. at 65. However, we
determined that the language in Miller – “gross negligence or
arbitrariness that indeed ‘shocks the conscience’” – was not
intended as a “precise articulation.” Id. at 65. Specifically, we
noted that arbitrariness is a general requirement for substantive due
process violations and that gross negligence encompasses a lower
level of intent than deliberate indifference. Id. at 66 n.6.
In attempting to elucidate and apply the level of culpability

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8Ziccardi created a new articulation for the mid-level
standard first discussed in Miller. The Ziccardi Court explicitly
recognized that the case before it was not a “state created danger”
case and therefore was not governed by Kneipp and its progeny. Id.
at 65 n.5. In Ziccardi, the plaintiff alleged that he was harmed
directly by Philadelphia Fire Department paramedics and the city.
See id. at 58-59.
9
Following Smith I, we decided A.M. v. Luzerne County
Juvenile Detention Center, 372 F.3d 572 (3d Cir. 2004). There, we
found that the deliberate indifference standard would apply to the
question whether employees of a juvenile detention center violated
the plaintiff’s substantive due process rights in failing to protect
14
required in Miller, we noted that the case “appear[ed] to have
demanded proof of something less than knowledge that the harm
was practically certain but more than knowledge that there was a
substantial risk that the harm would occur.” Id. at 66. We
formulated the following standard for circumstances where no
instantaneous decision is necessary, but where the state actor also
does not have the luxury of proceeding in a deliberate fashion: A
plaintiff must show that the “defendant[] consciously disregarded,
not just a substantial risk, but a great risk that serious harm would
result.” Id. (emphasis added). 8
We next decided Estate of Smith v. Marasco, 318 F.3d at
506, or Smith I, in which the plaintiffs explicitly brought a state-
created danger claim. As in Ziccardi and Miller, we believed that
the situation in Smith I demanded a standard for conscience-
shocking behavior that was between deliberate indifference and
intent to cause harm. Specifically, we examined the
appropriateness of state police officers’ decision, inter alia, to
activate a Special Emergency Response Team. Id. at 508-09. We
determined that the relevant decisions were not made in a
“hyperpressurized environment.” Id. at 508.
Not acknowledging Ziccardi, we utilized the articulation
earlier formulated in Miller. We reiterated that in situations falling
in the grey area between requiring “true split-second decisions”
and allowing “relaxed deliberation,” liability may be found if an
official’s conduct “exhibits a level of gross negligence or
arbitrariness that shocks the conscience.” 9 Id. at 509.

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him from assault by other residents. Id. at 579, 587. We determined
that split-second decisions were not required because “forethought
about [a resident’s] welfare [was] not only feasible but obligatory.”
Id. at 579 (first alteration in original) (internal quotation marks and
citation omitted). Specifically, “child-care workers . . . had the
opportunity over a five-week period to see a pattern of physical
assaults . . . emerging . . . and develop a plan to protect A.M. from
assaults by other residents.” Id. at 587. Our holding also rested in
part upon the custodial nature of the center.
10But cf. Schieber v. City of Philadelphia, 320 F.3d 409 (3d
Cir. 2003) (single-judge opinion discussing Ziccardi in the context
of a state-created danger claim).
11
We did not explicitly adopt the Ziccardi standard in Rivas.
In fact, it is not altogether clear which standard was applied. For
example, at one point after discussing Ziccardi, the opinion refers
to the only proper test as whether the technicians consciously
disregarded “a substantial risk.” Rivas, 365 F.3d at 196. That would
indicate use of the deliberate indifference standard. However, given
that the opinion speaks deferentially of Ziccardi, and that the
culpability question is later summarized in terms of a “great risk of
harm,” id. at 196, we believe that Ziccardi was probably meant to
apply.
15
It was not until we decided Rivas v. City of Passaic, 365
F.3d 181 (3d Cir. 2004), that we first explicitly acknowledged the
heightened standard in Ziccardi in a state-created danger case.10
There, we considered a family’s claim that two emergency medical
technicians exposed a seizure victim to danger by calling the police
and reporting that the victim attacked them, but failing to warn the
officers that the victim had suffered a seizure. Id. at 185-88. Upon
arrival, the police restrained the man, allegedly causing his death.
Id. at 200. We echoed the Ziccardi reiteration of Miller, stating at
one point that a reasonable jury could conclude that the technicians
“consciously disregarded a great risk of serious harm to [the
victim].” 11 Id. at 196.
Finally, in Smith II, 430 F.3d at 153-56, we again considered
the elusive fault requirement, though in the context of qualified
immunity. We first noted the inherent difficulty in determining
whether conduct “shocks the conscience.” Id. at 153 (quoting Smith

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12
In Lewis, the Supreme Court specified that deliberation
need not be viewed in the “narrow, technical sense” often adopted
by traditional homicide law. 523 U.S. at 852 n.11. Rather, the
Court suggested that deliberation, as required to show deliberate
indifference, could take place very quickly. Id.
13
We leave to another day the question whether actual
knowledge is required to meet the culpability requirement in state-
created danger cases. On the one hand, the Supreme Court has held
that actual subjective knowledge of a risk is required for at least
some Eighth Amendment claims. See Farmer v. Brennan, 511 U.S.
at 829. However, the Court has also held that the “obviousness” of
a risk can be sufficient for liability in other cases. See Bd. of the
County Commissioners of Bryan County v. Brown, 520 U.S. 397,
410-12 (1997) (obviousness sufficient in decision-to-hire cases);
16
I, 318 F.3d at 509; Herrera v. Collins, 506 U.S. 390, 428 (1993)
(Scalia, J., dissenting) (questioning “the usefulness of ‘conscience
shocking’ as a legal test”)). We also stated that “[o]ur . . . decisions
have not clarified this [second] element of the test to any great
extent.” Id. at 153. For example, we recognized that the definition
applied in Smith I was “somewhat circular.” Id.
In addressing the claim before us, we noted and seemed to
apply our decision in Ziccardi, and stated in a footnote that the
standard articulated there was “useful.” Id. at 154 n.10. However,
we also stated that the Ziccardi opinion did not deal with the
question whether the standard formulated applied to state-created
danger claims. Id. at 154.
ii. Conclusion on the Standard of Culpability
From the cases discussed above, we gather the following.
The level of culpability required to shock the conscience increases
as the time state actors have to deliberate decreases. In a
“hyperpressurized environment,” an intent to cause harm is usually
required. On the other hand, in cases where deliberation is possible
and officials have the time to make “unhurried judgments,”
deliberate indifference is sufficient.12 Though we need not decide
the issue here, we note the possibility that deliberate indifference
might exist without actual knowledge of a risk of harm when the
risk is so obvious that it should be known.13 We also recognize that

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City of Canton v. Harris, 489 U.S. 378, 390 (1989) (obviousness
sufficient in failure-to-train claims).
The Third Circuit has since stated that generally, a
municipality may be held liable for a constitutional violation
arising from a policy or custom if it demonstrates indifference to a
known or obvious consequence. See, e.g., A.M., 372 F.3d at 580.
But we have not addressed the question as it relates to underlying
state-created danger claims. There is currently a divide among the
circuits on this issue. Some courts have concluded that the more
expansive objective definition of deliberate indifference utilized in
Brown and Harris extends to state-created danger claims or
Fourteenth Amendment substantive due process cases generally.
See, e.g., Kennedy v. City of Ridgefield, 439 F.3d 1055, 1062 (9th
Cir. 2006) (stating that a state official must “act[] with deliberate
indifference to the known or obvious danger”) (citation omitted);
Board v. Farnham, 394 F.3d 469, 478 (7th Cir. 2005) (“[W]e have
articulated the test for deliberate indifference for Fourteenth
Amendment purposes to be ‘a conscious disregard of known or
obvious dangers.’”) (citations omitted); Christiansen v. City of
Tulsa, 332 F.3d 1270, 1281 (10th Cir. 2003) (“[A] plaintiff must
demonstrate that . . . the risk was obvious or known . . . [and]
defendants acted recklessly in conscious disregard of that risk
. . . .”) (internal quotation marks and citation omitted). In contrast,
the Sixth Circuit, for example, has utilized a purely subjective
standard. See, e.g., McQueen v. Beecher Cmty. Sch., 433 F.3d 460,
469 (6th Cir. 2006) (noting that “the official must both be aware of
facts from which the inference could be drawn that a substantial
risk of serious harm exists, and he must also draw the inference”)
(internal quotation marks and citation omitted). Again, we need not
decide this question here as there is no dispute that Stiles was
subjectively aware of a risk that Michael might be suicidal.
17
there are circumstances involving something less urgent than a
“split-second” decision but more urgent than an “unhurried
judgment.” Generally, this category will include situations in which
the state actor is required to act “in a matter of hours or minutes.”
See Ziccardi, 288 F.3d at 65. In other words, these are situations in
which there is some urgency and only “hurried deliberation” is
practical. For these circumstances, we utilize the standard set forth
in Miller and reiterated in the explicit context of state-created
danger in Smith I. However, we believe that “gross negligence or

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14
At this juncture, we need not decide upon the
“seriousness” of harm that is required, and see no need to comment
on this question.
15
We recognize that in some instances these standards may
become arduous to apply. Other circuits have taken a more
straightforward approach to the fault requirement. For example, the
Ninth Circuit has held that “deliberate indifference to [a] known or
obvious danger” is the uniform standard in all state-created danger
cases. See Kennedy, 439 F.3d at 1062 (alteration in original) (citing
L.W. v. Grubbs, 92 F.3d 894, 900 (9th Cir. 1996)). The Sixth and
Eighth Circuits have suggested a two-tiered standard under which
deliberate indifference will apply if an opportunity for reflection
exists while intent to harm will apply to “split-second decision[s].”
See McQueen, 433 F.3d at 469; Hart v. City of Little Rock, 432
F.3d 801, 806 (8th Cir. 2005). However, unlike these courts, we are
constrained by Miller and subsequent cases to recognize our three
existing tests to identify conscience-shocking behavior.
18
arbitrariness that indeed ‘shocks the conscience’” is a standard that
provides little guidance. Therefore, we will incorporate the
Ziccardi test, which is an interpretation of Miller, insofar as it
requires that the defendants disregard a great risk of serious harm
rather than a substantial risk.14
In conclusion, we hold that in a state-created danger case,
when a state actor is not confronted with a “hyperpressurized
environment” but nonetheless does not have the luxury of
proceeding in a deliberate fashion, the relevant question is whether
the officer consciously disregarded a great risk of harm. Again, it
is possible that actual knowledge of the risk may not be necessary
where the risk is “obvious.”15
iii. Application of the Standard of Culpability
The District Court concluded that the deliberate indifference
standard applied, but like many other courts to examine this
difficult area of the law, it incorrectly differentiated between a
“shocks the conscience standard” on the one hand and a “deliberate
indifference standard” on the other. For example, the Court
suggested that the Lewis standard does not apply in non-urgent
situations. We again clarify that in any state-created danger case,

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19
the state actor’s behavior must always shock the conscience. But
what is required to meet the conscience-shocking level will depend
upon the circumstances of each case, particularly the extent to
which deliberation is possible. In some circumstances, deliberate
indifference will be sufficient. In others, it will not.
In finding that the deliberate indifference standard applied,
the District Court noted that Stiles “had an entire week – and
another visit from Michael Sanford – to reconsider her [initial]
evaluation.” We agree that at least some forethought about
Michael’s condition was possible. Certainly, the intent to harm
requirement utilized in Lewis does not apply. We also find this case
distinguishable from Miller to the extent that there was probably no
“need for [Stiles] to act in a matter of hours or minutes.” Ziccardi,
288 F.3d at 65. But regardless of whether deliberate indifference,
or something more, is required to show that Stiles’ conduct
shocked the conscience, Sanford is unable to meet her burden.
Mere negligence is not enough to shock the conscience. See
Schieber, 320 F.3d at 419. Thus, the relevant question is not
whether Stiles should have contacted the school psychologist or
Michael’s parent. Instead, the question is whether, under the
circumstances, Stiles’ decisions shock the conscience. We hold
that, applying either the deliberate indifference standard or the
heightened standard we articulated above, they do not.
First, we examine the apparent gravity of the risk. As the
District Court noted, “no one,” including Michael’s mother, Karen,
or Michael’s uncle, believed that Michael was at risk of harm.
Karen indicated several times that she did not believe that Michael
would actually commit suicide. For example, she stated: “I was
shocked by the fact that he said he wanted to go kill himself. But,
of course, I didn’t think by the context of it that he was serious.”
(App. 410.) Karen had never heard Michael talk about hurting
himself before and she concluded that he was “not being serious”
since “it just seem[ed] like one of those things that you would say”
and because Michael joked in the note. (App. 410, 460-61.)
We also do not believe that the language in the note itself
was a clear cry for help. Karen testified that the expression “I
want[] to kill myself” was used “all the time” by her friends. (App.
461.) Karen was also told by Valladares that the guidance office
“get[s] notes like this all the time.” (App. 424.) Significantly, the

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20
note also referred to any suicidal thoughts as occurring in the past.
Second, Stiles cannot be said to have “disregarded” any risk
that Michael presented. She did not simply ignore the note. To the
contrary, she promptly spoke with Michael, at which point she
made a “conscious judgment” that he indicated no suicidal signs.
(See, e.g., App. 421.) This judgment was influenced by the fact that
Michael assured Stiles that he was no longer upset about the issue
with Karen and that he had future plans. (App. 256, 280.) For these
reasons, we cannot conclude that Stiles’ conduct shocked the
conscience. The evidence adduced by Sanford, even when all
inferences are drawn in her favor, falls short of both the standard
we have borrowed from Ziccardi and the deliberate indifference
standard.
B. Prong Four: Did Stiles Create A Danger?
Given that Sanford has failed to show that Stiles
demonstrated the requisite level of fault, her claim can go no
further. However, we note that Sanford has also failed to create a
question of fact as to the fourth prong of the state-created danger
test. Given our opinion in Bright, we ask if Stiles used her authority
“in a way that created a danger” to Michael or that “rendered [him]
more vulnerable to danger than had [she] not acted at all.” Bright,
443 F.3d at 281.
Sanford alleges eleven “specific affirmative acts” on the part
of Stiles. (Appellant’s Br. at 25-26.) For example, she alleges that
Stiles (1) “Interject[ed] herself into Michael’s mental status,” (2)
“Cut[] Michael off from other sources of aid,” (3) “Question[ed]
Michael in a manner that pushed him toward suicide,” (4)
“Misdiagnos[ed] Michael’s psychological condition,” (4)
“Intentionally decid[ed] not to refer Michael to the school
psychologist,” (5) “Intentionally decid[ed] not to contact Michael’s
parent,” and (6) “Refus[ed] Michael’s request to reveal the identify
of the person who had turned in the note.” (Id.)
We agree with the District Court that “[i]n this case, the link
between the Defendants’ conduct and Michael Sanford’s untimely
death is far too attenuated to justify imposition of liability.” We
reach this decision based on several considerations. First, as the
District Court noted, Michael visited Stiles on only two occasions

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21
– once when she initially called him into her office and again when
Michael asked her who she had received the note from. There is no
evidence that Michael was agitated by these meetings, or that they
contributed in any way to his suicidal feelings.
Second, contrary to Sanford’s contentions, there is nothing
in the record to suggest that Michael relied on Stiles for support or
guidance. The primary encounter between Stiles and Michael was
initiated by Stiles, and Michael repeatedly indicated that nothing
was troubling him. Finally, Stiles did not in any way interfere with
Sanford’s parental relationship with her son. She did not, for
example, suggest that Michael not speak with his mother. Sanford’s
choice not to intervene, for example, once she had seen Michael’s
instant messages referring to suicide, was not influenced by Stiles.
As the District Court noted, Sanford has attempted to
“recharacterize” Stiles’ failures as “affirmative actions.” We
believe that this case is more about Stiles’ failure to prevent
Sanford’s death. As we have stated many times, “mere failure to
protect an individual . . . does not violate the Due Process Clause.”
Id. at 284 (citing DeShaney, 489 U.S. at 197) (internal quotation
marks omitted).
III. Related Case Law
Our holding that Sanford has failed to make out a state-
created danger claim is consistent with the case law of other
circuits that have addressed similar cases involving student
suicides. In fact, we are aware of only one such instance in which
a state-created danger case against school officials survived
summary judgment.
Sanford argues that this case is analogous to Armijo v.
Wagon Mound Public Schools, 159 F.3d 1253 (10th Cir. 1998), in
which the Tenth Circuit found sufficient evidence for the plaintiff
to survive summary judgment in a state-created danger claim
against certain school officials. However, Armijo presented a far
more compelling case. There, a sixteen-year-old special education
student committed suicide after he was suspended from school. Id.
at 1256-57. He was driven home in the middle of the day, while
angry. Id. at 1257. Armijo’s parents were not notified and the boy
was left to remain alone at home, in contravention of school policy.

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22
Id. Additionally, school officials were aware that Armijo had
access to firearms at home, id. at 1264, and that he had previously
threatened suicide. For example, Armijo had said to a school aid:
“I’m just going to shoot myself” and “maybe I’d be better off
dead.” Id. at 1256. Armijo is a far cry from this case because there
was much more evidence there that school officials actually created
the danger to Armijo.
This case is more properly analogized to Wyke v. Polk
County School Board, 129 F.3d 560 (11th Cir. 1997). Like this
case, Wyke focuses on a failure to intervene. A thirteen-year-old
boy named Shawn committed suicide at home after twice
attempting suicide at school. Id. at 563. School officials were
“somewhat aware” of these incidents but failed to hold Shawn in
custody, contact his mother, or provide him with counseling
services. Id. Another boy who was aware of Shawn’s first suicide
attempt alerted his own mother, who in turn notified the school’s
dean of students. Id. at 564. The dean made the assurance that “he
would take care of it” but only read Shawn some verses from the
Bible. Id. The mother who reported the incident to the dean
testified that she would have contacted Shawn’s mother directly
had she known that the dean would not intervene in a more
meaningful way. Id. at 570.
The Eleventh Circuit concluded that Shawn’s mother’s
claim failed as a matter of law because nothing in the Due Process
Clause required that school officers protect Shawn’s life. Id. at 569.
The school did not make a decision to prevent anyone from helping
Shawn and it could not be held liable. Id. While we do not express
agreement or disagreement with the Eleventh Circuit’s holding, we
note that, like Armijo, Wyke presented much more urgent
circumstances than those we review here. Still, Wyke’s claim
failed.
The First and Seventh Circuits have also denied claims
involving similar or more pressing risks than those we confront
here. In Hasenfus v. LaJeunesse, 175 F.3d 68 (1st Cir. 1999), the
First Circuit rejected parents’ Due Process claim after their
daughter attempted suicide on school grounds. The child, a known
rape victim, attempted suicide after being reprimanded in front of
her schoolmates by a teacher. Id. at 73. Seven other students in the
girl’s middle school had attempted suicide in the three months

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23
prior. Id. at 70. In affirming the district court, the First Circuit
stated:
The federal courts have no general authority to
decide when school administrators should introduce
suicide prevention programs, or whether an unruly or
upset school child should be sent out of class, or
what should be said to other parents about a tragic
incident at school. Substantive due process is not a
license for judges to supersede the decisions of local
officials and elected legislators on such matters.
Id. at 74.
Finally, in Martin v. Shawano-Gresham School District, 295
F.3d 701, 704 (7th Cir. 2002), a seventh grade student committed
suicide after she was suspended for possessing a cigarette on
school property. The student, Timijane, went home “crying pretty
hard.” Id. It was later discovered that she had shown some signs of
suicide risk – for example, she had a book in her locker called
“After a Suicide,” and there had been other suicide attempts at the
school. Id. at 704, 710. The Seventh Circuit refused Timijane’s
parents’ claim, holding that “[b]ecause the defendants did not
create or increase a risk that Timijane would commit suicide . . .
the . . . substantive due process claim must fail.” Id. at 712.
Given this case law, we are confident that we have reached
the correct decision in this case.
IV. Qualified Immunity
Because we find that no constitutional right was violated,
we need not address the question whether Stiles was entitled to
qualified immunity in the federal claim. See Saucier v. Katz, 533
U.S. 194, 201 (2001) (“If no constitutional right would have been
violated were the allegations established, there is no necessity for
further inquiries concerning qualified immunity.”).
V. Liability of the East Penn School District
Sanford advances a claim of municipal liability against the
East Penn School District. She argues that the School District is

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16
As the District Court noted, Sanford did not explicitly
pursue a “failure to train” claim.
17
“Policy is made when a decisionmaker possessing final
authority to establish municipal policy with respect to the action
issues an official proclamation, policy, or edict.” Berg v. County of
Allegheny, 219 F.3d 261, 275 (3d Cir. 2000) (internal quotation
marks and citation omitted).
24
liable for damages because Stiles’ actions were taken pursuant to
school policy. For example, Sanford alleges that the District’s
counselors are not adequately prepared to make an initial
assessment of a student’s suicide risk.16 (Appellant’s Br. at 37.) The
District Court dismissed the municipal liability claim on summary
judgment.
There is no respondeat superior theory of municipal liability,
so a city may not be held vicariously liable under § 1983 for the
actions of its agents. See Monell v. Dep’t of Soc. Servs., 436 U.S.
658, 691 (1978). Rather, a municipality may be held liable only if
its policy or custom is the “moving force” behind a constitutional
violation. See Brown, 520 U.S. at 400; see also Collins v. City of
Harker Heights, 503 U.S. 115, 122 (1992) (stating that a
municipality is only liable when the municipality itself is the
“wrongdoer”). In Brown v. Pennsylvania Department of Health
Emergency Medical Services Training Institute, 318 F.3d at 482,
we held that it is possible for a municipality to be held
independently liable for a substantive due process violation even
when none of its individual employees is liable. However, we
emphasized that in order for municipal liability to exist, there must
still be a violation of the plaintiff’s constitutional rights. Id. (citing
Collins, 503 U.S. at 122). Here, there was none.
We assume arguendo that the School District’s Suicide
Referral Process constitutes a “policy” or “custom” of the
District. 17 Still, in order to prove that a violation occurred, Sanford
must show a “direct causal link” between the policy and a
constitutional violation. Id. Additionally, to meet the standard of
fault, Sanford must show that the municipality acted with
“deliberate indifference” toward the rights of its students. Id. at 479
(“[T]he [Supreme] Court has instructed that ‘deliberate
indifference’ is the necessary standard in order to establish § 1983

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18
Liability can be imposed for (1) the operation of a motor
vehicle in the possession or control of a local agency; (2) the care,
custody or control of personal property in the possession or control
of a local agency; (3) the care, custody or control of real property;
(4) a dangerous condition created by trees, traffic controls, or street
lights; (5) a dangerous condition of utility service facilities; (6) a
25
liability of a municipality.”) (citation omitted); see also Carswell
v. Borough of Homestead, 381 F.3d 235, 245 (3d Cir. 2004); Berg,
219 F.3d at 276.
In our view, Sanford has not made either showing. She has
failed to cite any evidence that Michael’s reasons for taking his
own life were related to Stiles’ “intervention,” which was
undertaken in accordance with school policy. Therefore, no policy
can be said to have caused Michael’s death. Sanford has also failed
to create a genuine issue of material fact as to whether the School
District “disregarded a known or obvious consequence of [its]
action.” Brown, 520 U.S. at 410. For example, as the District Court
noted, there is no evidence of a pattern of student suicides in the
district. Nor is there evidence that the policy had failed in the past.
Hence, we find no reason to overturn the District Court’s judgment
with respect to Sanford’s claim of municipal liability.
VI. Sanford’s State Law Negligence Claim
We now turn to Sanford’s allegation that Stiles is liable for
negligence under Pennsylvania law. The District Court determined
that Sanford’s state claim failed for lack of causation. Specifically,
it stated that Sanford “has not presented evidence that Pamela
Stiles caused Michael Sanford to kill himself.” Additionally, the
District Court found that Stiles is entitled to immunity under
Pennsylvania’s Political Subdivision Tort Claims Act (“PPSTCA”).
We agree and affirm on this point.
Under the PPSTCA, local agencies such as school districts
are given broad tort immunity. The Act provides that, “no local
agency shall be liable for any damages on account of any injury to
a person or property caused by any act of the local agency or an
employee thereof or any other person.” 42 Pa. Cons. Stat. § 8541.
There are eight “acts” excepted from the immunity granted under
§ 8541, but none applies here. See 42 Pa. Cons. Stat. § 8542.18

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dangerous condition of streets; (7) a dangerous condition of
sidewalks; (8) the care, custody or control of animals in the
possession or control of a local agency. 42 Pa. Cons. Stat. § 8542.
26
Municipal employees, including school district employees,
are generally immune from liability to the same extent as their
employing agency, so long as the act committed was within the
scope of the employee’s employment. 42 Pa. Cons. Stat. § 8545.
However, there is an exception to this general rule: Employees are
not immune from liability under § 8545 where their conduct
amounts to “actual malice” or “willful misconduct”:
In any action against a local agency or employee
thereof for damages on account of an injury caused
by the act of the employee in which it is judicially
determined that the act of the employee caused the
injury and that such act constituted a crime, actual
fraud, actual malice or willful misconduct, the
provisions of section[] 8545 . . . shall not apply.
42 Pa. Cons. Stat. § 8550 (emphasis added).
There are no allegations of actual malice here. And, as the
Pennsylvania Supreme Court has recognized, willful misconduct
is a demanding level of fault. Willful misconduct has been defined
by the Pennsylvania Supreme Court as “conduct whereby the actor
desired to bring about the result that followed or at least was aware
that it was substantially certain to follow, so that such desire can be
implied.” Renk v. City of Pittsburgh, 641 A.2d 289, 293 (Pa. 1994)
(citations omitted). Otherwise stated, “the term ‘willful
misconduct’ is synonymous with the term ‘intentional tort.’” Id.
(citation omitted); see also Bright, 443 F.3d at 287; Brown v.
Muhlenberg Twp., 269 F.3d 205, 214 (3d Cir. 2001). For the same
reasons stated earlier in this opinion, we do not believe that a
reasonable jury could conclude that Stiles engaged in “willful
misconduct.” Therefore, she is entitled to immunity under
Pennsylvania law.
VII. Conclusion
For the foregoing reasons, we believe that Sanford’s federal
and state claims must fail. She has failed to meet the necessary

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27
elements for a state-created danger claim under Third Circuit law .
Specifically, there is no genuine issue of material fact as to the
requisite level of culpability or as to whether Stiles or the East
Penn School District created or enhanced the danger that Michael
would commit suicide. Furthermore, Stiles is entitled to immunity
under Pennsylvania state law. We will therefore affirm.

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