Did State-Created Danger in Public Housing Cause Girl’s Permanent Brain Damage?

In March, 2006, 12-year-old Ebony Gage suffered severe brain damage following an acute asthma attack that left her in a coma due to lack of oxygen. Four years later, Ebony continues to need around-the-clock care. A jury trial begins today in federal court to determine if the Philadelphia Housing Authority subjected Ebony to a state-created danger, causing her injuries.

Ebony’s family filed suit against the Philadelphia Housing Authority claiming that it subjected the family to a state-created danger by acting with deliberate indifference when it was unresponsive to complaints about moisture and mold in the home and by delaying the family’s ability to leave the home. Under the Fifth and Fourteenth Amendments to the United States Constitution, the government can be held liable if it created the danger to which Ebony was subjected or did something to render her more vulnerable to that harm.

This was a tragedy that could have been avoided. The property failed an inspection in September 1999, just a month before Ebony’s family moved in, and it continued to fail inspections through January 2006. Throughout the time the family lived at the property, Ebony’s mother repeatedly complained about water leaks, which were never effectively remedied, and she also complained about the presence of mold in 2005. After the years of complaints and ineffective repairs, the family was waiting for the required 30-day notice period to expire before they could finally move when Ebony suffered her tragic asthma attack.

The Philadelphia Housing Authority knew that mold and moisture problems were asthma triggers and received a $1,000,000 Asthma Intervention and Reduction program grant in 2004 to help reduce the number of asthma triggers in homes of children living in public housing. Ebony’s family argues that it was this known risk that triggered Ebony’s asthma attack.

Because the family lived in public housing, their ability to move was severely limited by the rules of the Housing Choice Voucher Program and their reliance on the Philadelphia Housing Authority to pay their rent. Their ability to repair the persistent leaks themselves was also severely limited because of their lack of means. The United States District Court for the Eastern District of Pennsylvania held in its summary judgment decision that the claim could go forward and the Court would not absolve the Philadelphia Housing Authority of responsibility “simply because Plaintiffs could have avoided the danger by living on the street.”

How many other families are subjected to state-created dangers every day and do not realize it because the consequences are not as severe or because there is not a well-documented history of the danger? Even when tragedy strikes, many people do not know they may have legal recourse or do not know how to gain access to the legal system. It is difficult to prevail in these cases and hold the state accountable, but legal claims should still be pursued vigorously because the courtroom may be the only place where victims have a voice, and one successful case may save lives.

No matter what the ultimate verdict is, Ebony’s life and that of her family will never be the same. Spangenberg, Shibley & Liber is here to pursue justice on behalf of people like Ebony, and to try to prevent similar tragedies in the future.