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A federal judge has green lighted a state-created danger suit brought by the widow of a man who died of a heart attack after performing court-ordered community service on a day when an excessive heat warning had been issued. In his 18-page opinion in Marvel v. Delaware County, Senior U.S. District Judge Ronald L. Buckwalter found that county officials “could have reasonably foreseen that physical labor by an older man during an excessive heat warning could lead to injury or death.” The county’s lawyer, Mark Alan Raith of Holsten & Associates, argued that the county was unaware that David Marvel had any heart condition and that he had worked the day before without complaint or incident. But Buckwalter said “the mere fact that Marvel was fortunate enough to survive one day does not exonerate defendant from otherwise foreseeable consequences.” Raith also argued that if the court accepted Grace Marvel’s theory, the county would be forced to suspend all outside work for employees or community service workers on “normal” August days when the weather is hot for fear that someone might be fatally stricken. Buckwalter disagreed, saying Aug. 1, 2006, was “not simply a normal, hot August day,” and noting that the temperature-humidity index “was 115 to 117 degrees Fahrenheit in the sun.” According to court papers, David Marvel, 59, was issued a criminal citation in May 2006 for possession of an open container of alcohol in Ridley Creek State Park. Marvel pleaded guilty to the charge and entered the county’s accelerated rehabilitative disposition program, the suit says, and was sentenced to perform community service. County officials later assigned Marvel to assist paid contractors with the construction of a firing range at the county’s emergency training center, the suit says. Marvel worked a nine-hour day on July 31, 2006. On Aug. 1, his second and final day of community service, the suit says Marvel was assisting in the construction of a two-story scaffold and was unloading cement cinderblocks in the direct sunlight when he began to feel ill. The suit says Marvel descended from the scaffold and was walking on the ground level of the partially constructed building when he collapsed to the floor, sweating and gasping for air. One of the community service workers called Marvel’s wife, Grace, who is a nurse at Mercy Fitzgerald Hospital, and she suggested that the workers soak their shirts with water and place them on his body. Marvel was taken to the hospital by ambulance but could not be revived and was pronounced dead of a cardiac arrest less than an hour after his collapse, according to court papers. In her civil rights suit, Grace Marvel complained that her husband’s death could have been prevented if the county had established a policy of screening ARD applicants for medical or physical conditions or medications that could limit their ability to perform community service. Attorney Don P. Palermo filed the suit, which also alleged that the county should have assigned older workers to less strenuous tasks and that the county should have had a policy of delaying outdoor physical work during excessive heat warnings. Delaware County moved for dismissal of the suit, arguing that Marvel could not meet the four-prong test for establishing a claim of state-created danger. Under the 3rd Circuit’s test for such claims, the plaintiff must show that the harm ultimately caused to the plaintiff was “foreseeable and fairly direct;” that a state-actor acted in “willful disregard” of the plaintiff’s safety; that there was some relationship between the state and the plaintiff; and that the state actor used his authority to create “an opportunity for danger that otherwise would not have existed.” Now, Buckwalter has ruled that Marvel satisfied all four prongs of the test. Marvel’s heart attack was foreseeable, Buckwalter found, because the National Weather Service had issued an excessive heat warning and “nevertheless, defendants ordered Marvel, a 59-year-old man, to perform his community service by unloading cement cinderblocks from a pallet in direct sunlight.” If the allegations in the suit are true, Buckwalter said, they “suggest that the defendants not only foresaw the danger of harm their actions presented, but were deliberately indifferent.” The county’s “seeming deliberate indifference,” Buckwalter said, was “compounded” by allegations that the community service workers were provided with only one water cooler, which ran out during the day; and that county officials failed to provide the workers with sufficient protection from direct sunlight, such as a tent or canopy. The relationship test was also met, Buckwalter found, because Marvel “was not merely a member of the public – he was a community service worker assigned to perform work under the ARD program.” When the county assigned Marvel to heavy labor and required him to report on an excessively hot day, Buckwalter said, “It subjected him, as a member of a discrete class of persons, to potential harm.” The final prong of the test was also satisfied, Buckwalter found, by allegations that Marvel was never screened for medical conditions before being ordered to perform heavy labor in the direct sun. “Such affirmative actions, if true, would have been the but-for cause of Marvel’s death from heat-related cardiac failure,” Buckwalter wrote. Buckwalter flatly rejected Raith’s argument that the county “did not ‘create’ the hot weather.” “By assigning the 59-year-old Marvel to heavy labor community service in the excessive heat, Delaware County enhanced his risk of harm,” Buckwalter wrote. In an interview, Raith said it is difficult to win dismissal of suits on a motion to dismiss, but that he will be moving later for summary judgment when the plaintiff must come forward with evidence to support her theory. “We think we have a very defensible case,” Raith said. Palermo could not be reached for comment. (Copies of the 18-page opinion in Marvel v. Delaware County , PICS No. 08-0623, are available from The Legal Intelligencer . Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information. Some cases are not available until 1 p.m.)

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