July 18, 2019

Tenth Circuit: Danger-Creation Exception to State Actor Liability for Only Own Acts Not Met

The Tenth Circuit Court of Appeals published its opinion in Hernandez v. Ridley on Wednesday, November 13, 2013.

Jose Hernandez, Jr., and Salvador Hernandez were killed by a motorist while they were performing road construction in Oklahoma. Their representative sued their employer, Duit Construction Company, and the motorist and alleged a substantive due process claim against a host of Oklahoma Department of Transportation (ODOT) employees. All ODOT employees except the director and the resident engineer on the construction project were dismissed by the district court. The question is whether the two remaining employees are entitled to qualified immunity.

Normally, state actors are only liable for their own acts. Hernandez argued that the ODOT employees were liable for the acts of the third-party driver because they created the danger that caused the deaths. This argument failed because it did not meet the threshold to invoking the danger-creation exception to the rule. There must be private violence, but Hernandez alleged negligence of the driver, not deliberateness. The court went on to state that Hernandez also failed to meet the second element of the threshold, affirmative conduct on the part of the state in placing the plaintiff in danger.

Because the plaintiff failed to meet either threshold to the danger-creation exception, the court reversed the failure to dismiss the remaining ODOT employees from the suit.