decision in DeShaney v. Winnebago County Dep’t of Social Services, 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989), noted that “as a general matter ... a State’s failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause,” but that certain exceptions have been created. McQueen, 433 F.3d at 464 (internal citations and quotation marks omitted). To prevail under the state-created danger theory, Plaintiff must show “an affirmative act [by Defendants] that creates or increases the risk [to Plaintiff]; a special danger to the victim as distinguished from the public at large, and the requisite degree of state culpability.” Id. The Court can assume that the second prong of the test, a “special danger,” has been met. See id. (<HOLDING>). On the other two prongs of the test, however,
holding that summary judgment was not appropriate because whether the danger posed by a swimming pool was known or obvious was a fact question holding danger was so open and obvious to plaintiff that as a matter of law he knew or should have known of danger recognizing the existence of the statecreated danger theory of constitutional liability holding that a material fact had been raised as to whether the danger of one student shooting another while the teacher was out of the room was a special danger holding that even if the industry and federal regulations evidenced an inherent danger and the defendant knew or should have realized that the device was or was likely to be dangerous for the use for which it was supplied there was a complete absence of evidence that the defendant had reason to believe that the plaintiff or its employees would not realize the danger