NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1177-25
MONICA TENNANT,
Administratrix Ad Prosequendum
for the ESTATE OF MICAH
SAMUEL TENNANT-DUNMORE,
ANGELA TENNANT, and M.T., APPROVED FOR PUBLICATION a minor, by her Parent and Guardian August 10, 2026 Ad Litem, ANGELA TENNANT, APPELLATE DIVISION
Plaintiffs-Respondents,
v.
PLEASANTVILLE BOARD OF
EDUCATION,
Defendant/Third-Party
Plaintiff-Appellant,
and
DENNIS ANDERSON, HOWARD
JOHNSON, STEPHEN TOWNSEND,
DANNY ADCOCK, and NEW
JERSEY STATE
INTERSCHOLASTIC ATHLETIC
ASSOCIATION,
Defendants/Third-Party
Plaintiffs,
v.
ALVIN WYATT,
Third-Party Defendant.
Argued May 20, 2026 – Decided August 10, 2026
Before Judges Currier, Berdote Byrne and Jablonski.
On appeal from an interlocutory order of the Superior
Court of New Jersey, Law Division, Atlantic County,
Docket No. L-2985-21.
Roshan D. Shah argued the cause for appellant (Shah
Law Group, attorneys; Roshan D. Shah and Todd S.
McGarvey, of counsel and on the briefs).
Oliver T. Barry argued the cause for respondents
(Barry Corrado & Grassi, PC, attorneys; Oliver T.
Barry, on the brief).
The opinion of the court was delivered by
CURRIER, P.J.A.D.
In this tragic case, where ten-year-old Micah Tennant-Dunmore was
fatally struck by a bullet intended for another while he attended a high school
football game, we consider whether defendant Pleasantville Board of
Education (PBOE) can be civilly liable to Micah under the New Jersey Civil
Rights Act (NJCRA), N.J.S.A. 10:6-2(c) and the New Jersey Constitution,
Article I, ¶ 1 under a state-created danger theory.
The New Jersey Supreme Court has found a state actor liable under a
state-created danger theory only one time, in Gormley v. Wood-El, 218 N.J. 72
(2014). There, the plaintiff, a public defender, was brutally attacked while
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visiting an involuntarily committed client in an unsupervised area at Ancora
Psychiatric Hospital (Ancora), a state-managed facility. Id. at 83-90. The
Court concluded there was evidence that the state defendants had acted with
deliberate disregard for the plaintiff's safety, given the number of assaults that
had occurred against attorneys in the visiting room at Ancora. Id. at 109.
The trial court here relied on Gormley to deny PBOE's motion for
summary judgment. After our de novo review and viewing plaintiffs '
contentions in the most favorable light, as we must, Comprehensive
Neurosurgical, P.C. v. Valley Hospital, 257 N.J. 33, 73 (2024), we conclude
Gormley was a narrow and unique set of circumstances that are not present
here. Plaintiffs have not demonstrated PBOE created a danger which would
expose it to liability and permit an exception from the well-established
precedent that a person does not have a constitutional right to have a state
actor protect them from criminal misconduct of another. See DeShaney v.
Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189, 197-99 (1989). We
reverse the order denying PBOE summary judgment.
I.
On October 28, 2019, eighteen days before the subject football game,
Ibn Abdullah fired shots at Alvin Wyatt in Atlantic City. Wyatt's cousin died
in connection with that shooting.
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On November 15, plaintiff Angela Tennant brought her son Micah and
his sister to the playoff football game between Pleasantville High School
(PHS) and Camden High School. The family arrived at the PHS field at the
beginning of the third quarter and bought tickets to enter the game. Micah and
his sister were not students in the Pleasantville school district.
At the time, defendant Dennis Anderson was interim superintendent of
PBOE, defendant Howard Johnson was the principal of PHS, defendant
Stephen Townsend was the athletic director for PBOE, and defendant Danny
Adcock was director of school safety.
Adcock had created a security plan for the football game, which
increased the normal assignment of three Pleasantville Police Department
officers to six officers, assisted by a K-9 unit. The officers were "strategically
positioned around the perimeter of the football field and the bleachers to allow
for maximum exposure and visibility and increase[d] response time in the
event of an incident." Additionally, seven event staff were positioned in the
parking lot, entrance, end zone and concession stand. The Camden Police
Department was also providing a "minimum of two (2) police officers and
several additional security personnel to assist at the event." Attendees were
only permitted to bring in a bag no larger than the size of a small purse.
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Adcock attended the game along with the Pleasantville police chief and a
Class III officer. 1 In all, there were ten armed officers in attendance. Metal
detectors were not employed at the game, given that they were not utilized at
any PHS sporting events.
Sometime after halftime, Wyatt arrived at the PHS football field and
entered the game through the main entrance with an illegal firearm. Wyatt
fired six or seven shots at Abdullah, who was seated in the bleachers, and then
ran away. Micah, also seated in the bleachers, was struck by one of the bullets
and died five days later. In September 2023, Wyatt was convicted of murder
and weapons charges and sentenced to seventy years in prison.
Following the shooting, PBOE implemented the scanning of attendees at
PHS athletic events with metal detectors.
II.
In 2021, plaintiffs instituted suit against PBOE, the four individual
PBOE employees and defendant Interscholastic Athletic Association (IAA).
The complaint asserted common law claims for: dangerous condition of
property (Count I, against PBOE and IAA); dangerous condition of
1
A Class III officer is "a retired officer who has previously served as a duly qualified, full-time law enforcement officer in any municipality, county agency of this state, bi-state agency, or federal agency and must be living in New Jersey." Police Training Commission, Special Law Enforcement Officer—Class III 1 (2019).
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property/bystander liability (Count II, against PBOE and IAA); state-created
danger, a due process violation under NJCRA and Article I, ¶ 1 of the New
Jersey Constitution (Count III, against PBOE and the individual defendants);
and direct entity liability (Count IV, against PBOE and the individual
defendants). Plaintiffs generally alleged there was no metal detector at the
entrance to the field and that PBOE failed to take appropriate safety measures.
PBOE defendants filed an answer and third-party complaint against Wyatt, the
shooter.
During Adcock's deposition, he testified metal detectors had never been
used at PHS sporting events, including football games. He conceded it would
have been a preventative safety measure to have metal detectors at the football
field. Adcock acknowledged there were metal detectors at the entrance to the
PHS building. Adcock was aware there had been a shooting at a little league
football game at a different field four years earlier, in 2015.
Plaintiffs retained an expert—The Right Stuff Consulting Inc.—to
"provide an expert opinion regarding whether proper practices regarding
entertainment facilities and event management were established or followed by
[PBOE] and the other defendants." The expert report, authored in 2024, stated
that "[s]ince 2017, there have been at least 835 documented police responses to
calls to [PHS]. These include fights, assaults, sexual assaults, and weapons
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possession types of incidents." Superintendent Anderson agreed that
Pleasantville was considered a high-crime area.
PBOE, the individual defendants, and IAA moved for summary
judgment. After oral argument, the court issued an oral decision on August 12,
2025. The court dismissed Counts I and II of plaintiffs' complaint, finding
PBOE had not created a dangerous condition and was entitled to immunity
under the New Jersey Tort Claims Act, N.J.S.A. 59:5-4. Addressing Counts III
and IV, the court granted summary judgment to the individual defendants on
the NJCRA claims but denied the motion as to PBOE. Therefore, the only
surviving cause of action was the direct entity count against PBOE. 2
III.
On appeal, PBOE contends the trial court erred in denying its motion for
summary judgment because the court misapplied Gormley and plaintiffs did
not establish a valid claim under Monell v. Department of Social Services of
New York, 436 U.S. 658, 690-91 (1978).
We review a trial court's decision to grant summary judgment de novo.
Christakos v. Boyadjis, 262 N.J. 447, 462 (2026). We consider "whether the
competent evidential materials presented, when viewed in the light most
2
The court also granted the uncontested summary judgment motion in favor of IAA.
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favorable to the non-moving party, are sufficient to permit a rational factfinder
to resolve the alleged disputed issue in favor of the non-moving party."
Statewide Ins. Fund v. Star Ins. Co., 253 N.J. 119, 125 (2023) (quoting Brill v.
Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)). A motion for
summary judgment will be granted if "the pleadings, depositions, answers to
interrogatories and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact challenged and that
the moving party is entitled to a judgment or order as a matter of law." Green
v. Monmouth Univ., 237 N.J. 516, 529 (2019) (internal quotation marks
omitted) (quoting R. 4:46-2(c)).
In denying summary judgment to PBOE, the trial court discussed general
concepts of duty and foreseeability, and the applicability of Gormley, and
determined the shooting was sufficiently foreseeable to support a claim of
state-created danger. The court further found Gormley did not require a
special relationship akin to custody, obviating plaintiffs' need to establish that
element. The court also found plaintiffs presented sufficient evidence to
permit a reasonable jury to conclude that PBOE created a dangerous situation
by failing to screen attendees for weapons at the football game. The court
further found PBOE had a policy and practice of not using metal detectors at
sporting events despite the prior incidents of violence in the area. The court
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found it was best left to a jury to determine whether PBOE's actions shocked
the conscience.
A.
We start with the limited governing case law regarding the state-created
danger theory, a doctrine not yet accepted by the United States Supreme Court
as a viable cause of action. However, federal circuit courts of appeal,
including the Third Circuit, have relied on DeShaney to conclude that "state
and local officials may be held liable under [the Federal Civil Rights Act, 42
U.S.C. § 1983] for death or injury suffered as a result of a 'state created
danger.'" Gonzales v. City of Camden, 357 N.J. Super. 339, 346 (App. Div.
2003).
In DeShaney, a young boy was permanently disabled by abuse he
suffered in his home at the hands of his father. 489 U.S. at 191. The father 's
violent behavior had been reported repeatedly to the local social services
agency, but the agency, nevertheless, had returned the child to his father's care.
Ibid. The child and his mother argued the State had violated the child's due
process right under section 1983 to protection from his violent father. Id. at
193. The Supreme Court affirmed the general rule that a state's failure to
protect its citizens from private violence does not violate the due process
clause of the Fourteenth Amendment. Id. at 189-90. Further, the State is not
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responsible for protecting an individual from harm inflicted by another means.
Ibid. Therefore, the Court concluded the State did not violate the child's due
process rights when it failed to protect him from his father. Ibid.
However, the Court noted, in limited circumstances, the State owes a
duty of care to individuals that are "incarcerated" or "involuntarily
committed." Id. at 198-99. This is because the State has imposed a limitation
on that person's freedom to act on their own behalf. Id. at 199-200. This has
been described as the "special relationship" exception to the general rule.
Circuit courts have also relied on DeShaney to recognize an additional
exception: the state-created danger doctrine. This derives from the Court's
observation that: "While the State may have been aware of the dangers that
[the plaintiff] faced in the free world, it played no part in their creation, nor
did it do anything to render him any more vulnerable to them." Id. at 201.
"That language, in addition to the holdings of pre-DeShaney cases, has led
other courts to find that a state can be held liable if it places a person in a
position of danger that the person would not have been in without the state
action." Est. of Strumph v. Ventura, 369 N.J. Super. 516, 525 (App. Div.
2004).
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In Bright v. Westmoreland County, 443 F.3d 276, 281 (3d Cir. 2006),
the Third Circuit articulated four factors necessary to establish state -created
danger:
(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.
The New Jersey Supreme Court has addressed the state-created danger
doctrine only in Gormley, in circumstances where the plaintiff public defender
was attacked by an involuntarily committed client in an unsupervised "day
room" in Ancora where attorneys and psychiatrists were frequently violently
attacked by mentally ill patients. 218 N.J. at 87-88. The plaintiff asserted
causes of action under the Federal Civil Rights Act, 42 U.S.C. § 1983 and the
NJCRA. Id. at 83.
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The Court applied the Bright factors to determine whether there was a
state-created danger that violated the plaintiff's due process rights. Id. at 106-11. The Court concluded the plaintiff was a member of a discrete class of
victims subject to the foreseeable harm set in motion by the defendants, who
were state actors. Id. at 106-07. This was because Ancora officials controlled
and restrained the movements of residents and visitors within the locked
facility. Id. at 107. The Court found the discrete class of foreseeable victims
were "professionals required to meet in the volatile day room with patients."
Ibid. Moreover, Ancora was aware of thousands of assaults committed on its
grounds, including 810 incidents against staff members and visitors. Id. at 88.
Attorneys and psychiatrists were frequently victims of the attacks. Id. at 107.
Thus, the Court found an assault was foreseeable. Ibid.
The Court also concluded defendants
affirmatively used their authority to create the danger
that made [the plaintiff] more vulnerable to the
assault. [The plaintiff] was not acting in the "free
world" but rather in a locked institutional environment
over which defendants exercised total control,
including control over where [the plaintiff] met with
her client . . . .
[Id. at 108.]
The Court stated
[d]efendants not only controlled and restrained [the
plaintiff's] physical movements, but they also
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possessed knowledge of the special dangers that [the
patient] might pose to the unsuspecting attorney, who
was meeting her client for the first time. The
institution assigned [the patient] Continuous Visual
Observation status because of the particular safety risk
the patient posed to herself and others. A staff
member, who presumably knew of [the patient's] CVO
status, brought her to the day room—brought her in
contact with [the plaintiff]. But no one told [the
plaintiff] of the heightened-risk assessment. When
[the plaintiff] sat catty-corner to [the patient] because
the din in the day room made a confidential, lawyerclient conversation impossible—that was the
environment defendants had created, an environment
conducive to the many assaults that frequently
occurred in the day room. Having brought the
dangerous patient together with the attorney in an
unsecured setting, [the plaintiff] literally was left to
fend for herself when she was viciously attacked.
[The plaintiff]'s injuries were not a result of
defendants' inaction, but the result of their protocols,
the affirmative steps that created an institutional
environment in which patients could freely attack their
attorneys and psychiatrists.
[Id. at 108-09 (Internal citations omitted).]
The Court also found there was sufficient evidence to meet the Bright
shock-the-conscience standard, stating "defendants acted with deliberate
indifference to the foreseeable dangers threatening the physical safety of
attorneys constitutionally assigned to represent committed patients." Id. at
109. The Court noted the expert testimony indicating "the level of violence at
Ancora was unique to that institution," and given the extraordinary number of
assaults, "defendants executed a policy, over a course of years, in complete
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disregard of the known danger that mentally disturbed patients were attacking
professionals, such as Gormley, in the ward's day room." Ibid. The Court
described the defendants as "complacent" regarding "the ongoing violence
committed against attorneys at Ancora," an attitude that could "be viewed by a
jury as shocking by itself." Ibid. Therefore, the Court found the plaintiff had
satisfied the Bright factors, precluding summary judgment and permitting a
jury to consider whether the defendants had violated the plaintiff 's substantive
due process right to be free from state-created dangers under the Fourteenth
Amendment.
The Court cautioned it had considered the totality of the circumstances
of the "egregious" facts presented in the case, not the individual Bright factors
in isolation, to conclude the situation was conscience-shocking. Id. at 111. In
finding the defendants acted with deliberate indifference to the violence that
threatened the plaintiff, the Court described Ancora officials as "the architects
of an environment in which anarchy reigned in the day rooms of Ancora."
Ibid.
The Gormley Court also noted that a "special relationship" arises when
the State has taken a person into custody against his or her will. Id. at 118
(LaVecchia, J., dissenting). Under those circumstances, the State has an
affirmative duty of care and protection for the person because of the special
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relationship. Ibid. However, the Gormley majority did not address whether
the plaintiff had a special relationship with Ancora, stating in footnote 11:
We do not address Gormley's argument that her
"special-relationship" with Ancora is a separate basis
for liability because, in the context of the facts before
us, that relationship is subsumed within state-createddanger liability. Indeed, some courts have questioned
whether there is a distinction between specialrelationship and state-created-danger liability. See
Paine v. Cason, 678 F.3d 500, 510 (7th Cir. 2012);
Ketchum v. Cnty. of Alameda, 811 F.2d 1243, 1247
(9th Cir. 1987); Est. of Gilmore v. Buckley, 787 F.2d
714, 722 (1st Cir. 1986). But see Kneipp v. Tedder,
95 F.3d 1199, 1209 n. 22 (3d Cir. 1996) (viewing
"special relationship" and state-created danger as
distinct). At least for our purposes here, we do not
have to decide whether those doctrines are different.
[Id. at 110 n.11 (Citations reformatted).]
In sum, the DeShaney Court held the State only had a duty of care to
individuals that were "incarcerated" or "involuntarily committed" because the
State had imposed a limitation on that person's freedom to act on his or her
own behalf. 489 U.S. at 198-200. However, the State is not responsible to
protect an individual from harms inflicted by outsiders when the victim is not
in a custodial relationship with the State. That is the special relationship
theory. Plaintiffs here do not assert liability under the special relationship
theory.
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In Gormley, our Supreme Court adopted a state-created danger theory,
relying on the Bright factors for its analysis of the totality of the extraordinary
facts presented there. It is under that theory that plaintiffs assert a direct entity
claim against PBOE.
B.
The trial court found plaintiffs established sufficient evidence of a state -created danger to preclude summary judgment to PBOE and permit the case to
proceed to a jury determination. In our de novo review, we must analyze the
Bright factors as required under Gormley.
We consider factors one and three together as they "overlap to some
degree." Gormley, 218 N.J. at 101. Therefore, plaintiffs must present
evidence that the harm caused to Micah was foreseeable and fairly direct; and
Micah was a specifically foreseeable victim or part of a discrete class of
foreseeable victims, as opposed to an undifferentiated member of the general
public. Id. at 101-02.
The trial court found there was sufficient evidence for a jury to find "the
defendants foresaw that some kind of violence or injury could occur at this
football game." The court explained because defendants had some security
measures in place, such as the hiring of police officers, defendants were
acknowledging "violence was possible." In addition, the court stated
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"defendants had actual knowledge of criminal and violent incidents at the
school. That the city . . . was in a high-crime area. There was a prior
shooting, . . . at a nearby field." The court discussed gun violence in general
and in schools, and the fact that PHS used metal detectors at its school
entrance. The court stated, "the current reality is that there's a not less than
zero chance that at some point someone's going to be the victim of gun
violence at a school."
PBOE contends this was a random shooting and they could not have
been aware of the likelihood that Wyatt would enter the football field with a
gun searching for Abdullah to exact vengeance regarding a completely
unrelated shooting three weeks earlier in another city. These are certainly
strong arguments before a jury. However, in the context of summary
judgment, in which we accord plaintiffs all inferences, we are satisfied there
was sufficient evidence for a jury to consider whether the harm caused to
Micah was foreseeable and whether he was a member of a discrete class of
persons subject to potential harm brought about by the state's actions because
PBOE did not screen attendees for firearms, and Micah was a spectator at a
PHS sporting event.
However, we part ways with the trial court's determination regarding
factors two and four: whether the failure to install metal detectors to screen
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attendees at the game was "deliberate indifference" that shocked the
conscience; and whether defendants affirmatively used their authority in a way
that created a danger to Micah.
The Gormley Court warned the Bright test is a "high bar to vault," and
shocking the conscience is not an act of negligence or even gross negligence.
218 N.J. at 112. To satisfy that standard, a plaintiff must show the State acted
with "deliberate indifference." Id. at 102-03. "[W]hether conduct is
conscience-shocking is a fact-sensitive analysis and will depend on whether
the officials' conduct is egregious in light of the particular circumstances." Id.
at 103 (citing Cnty. of Sacramento v. Lewis, 523 U.S. 833, 850 (1998)).
Plaintiffs here have not presented sufficient evidence to satisfy that element.
In Gormley, the Court found the "level of violence" and "thousands of
assaults" at Ancora placed the defendants on notice of the danger to visiting
attorneys, requiring the defendants to take some affirmative action for a
visitor's physical safety. 218 N.J. at 109. Plaintiffs here have not presented
the egregious totality of circumstances to meet the Bright conscience-shocking
factor. The evidence here—that the city of Pleasantville was generally
considered a high crime area and there were acts of violence at PHS—could
unfortunately describe and pertain to an infinite number of situations in this or
any state. We cannot conclude that was the intent of Gormley and most likely
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is why no New Jersey court has ever again found the narrow, horrific, and
extraordinary circumstances required to impose liability on a state actor to
protect a citizen from the criminal misconduct of a private actor. Under the
circumstances presented here, plaintiffs have not shown defendants acted with
deliberate indifference to any foreseeable danger threatening Micah 's safety.
As stated, there was no evidence of specific incidents of violence at this
football field nor at any prior PHS football game. There was unspecific
evidence referencing a prior shooting at a little league football game at another
field four years earlier. However, there was no correlation between any event
that ever occurred at PHS or at a different field four years earlier, and this
shooting, committed by an individual who did not live in the city nor attended
either school playing in the game.
Furthermore, unlike the Ancora defendants, PBOE implemented a safety
plan, took precautions and attempted to ensure the safety of the attendees.
There were nine Pleasantville police officers present at the game. PBOE also
hired additional Camden police officers for the event. With these actions,
PBOE put into place a strong security presence, an act which precludes any
finding of deliberate indifference and disregard for constitutional rights.
Moreover, "[f]actor four requires that a state official affirmatively use
his authority either to create the danger or to render a person 'substantially
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more vulnerable to injury' than he otherwise would have been absent state
action." Gormley, 218 N.J. at 103 (citing Schieber v. City of Phila., 320 F.3d
409, 416 (3d Cir. 2003)). "For liability to attach there must be 'affirmative
state action' and not just a failure to protect a person from violence by
another." Ibid. (citing Bright, 443 F.3d at 284); see also Morrow v. Balaski,
719 F.3d 160, 178-79 (3d Cir. 2013) (stating "the requirement serves . . . to
distinguish cases where . . . officials might have done more . . . [from] cases
where . . . officials created or increased the risk itself" (alteration and
omissions in original)).
PBOE did not take any affirmative action nor establish a protocol or
policy that created "an environment in which anarchy reigned." Gormley, 218
N.J. at 111. To the contrary, PBOE implemented a safety plan and attempted
to ensure the safety of the attendees. Furthermore, plaintiffs allege PBOE
failed to act by failing to install a metal detector at the entrance to the field.
That is not an allegation of an affirmative action taken by PBOE that increased
the risk to Micah, particularly in light of the strong in-person security
measures PBOE implemented using its police officers supported by the
Camden police. Therefore, plaintiffs have not satisfied the fourth prong. See
Bright, 443 F.3d at 281.
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The totality of the circumstances presented here does not rise to a
substantive due process violation. Plaintiffs have not satisfied the Bright
standard to establish a state-created danger theory of liability to hold PBOE
responsible for a private actor's criminal misconduct and plaintiffs' resulting
damages.
The NJCRA is modeled after the Federal Civil Rights Act, 42 U.S.C. §
1983, and federal interpretation provides guidance in construing the NJCRA.
Winberry Realty P'ship v. Borough of Rutherford, 247 N.J. 165, 190 (2021).
A government entity may be held liable for constitutional deprivation only if
the violation was a result of an official municipal policy or custom. Monell,
436 U.S. at 694; Besler v. Bd. of Educ. of W. Windsor-Plainsboro Reg'l Sch.
Dist., 201 N.J. 544, 566-67 (2010). When addressing a Monell claim, a court
must consider whether the plaintiff's harm is caused by a constitutional
violation, and if so, whether the government entity is responsible for the
violation. Collins v. City of Harker Heights, 503 U.S. 115, 120 (1992).
Plaintiffs' Monell claim in Count I was grounded in the assertion that
PBOE violated plaintiffs' right to substantive due process. Because we
conclude plaintiffs did not establish a constitutional right for PBOE to protect
Micah from third-party criminal misconduct, the Monell claim in Count IV
should have been dismissed.
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Reversed.
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