IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

JOHN A. KEIL,
Plaintiff, > C. A. No. S19C-12-012 CAK
Vv.

KAREN OBERLY and THE
CITY OF REHOBOTH BEACH,

Defendants.

Submitted: February 13, 2020
Decided: April 1, 2020
Upon Defendant City of Rehoboth Beach’s Motion to Dismiss

GRANTED

MEMORANDUM OPINION AND ORDER

Michael Silverman, Esquire, Silverman McDonald & Friedman, 1010 North
Bancroft Parkway, Suite 22, Wilmington, Delaware 19805

Daniel A. Griffith, Esquire, Whiteford, Taylor & Preston, L.L.C., The Renaissance
Centre, Suite 500, 405 North King Street, Wilmington, Delaware 19801

KARSNITZ, J.
Delaware law provides governmental entities broad tort immunity. !
The County and Municipal Tort Claims Act’ (“the Act”) provides “...all
governmental entities and their employees shall be immune from suit on any and
all tort claims....” The language could not be more encompassing. Section
4011(b) states, without limitation to the specific functions listed, six particular
governmental operations that are immune from tort liability. Section 401 1(c)
provides an exception for municipal employees only for acts committed outside
their employment, or performed with wanton negligence or wilful and malicious
intent. Finally, the Act in Section 4012 provides exceptions to the general rule of
immunity for three well-defined functions.’

Plaintiff had the misfortune to trip over a “concrete stump” that he
alleges in his complaint was covered by snow. As described to me at oral
argument the concrete stump was a marker for boundary lines. Plaintiff alleges

significant injuries including a “nos11e break, upper laceration, severed lip

 

"See 10 Del. C. $4011.
* 10 Del, C. Chapter 40, Subchapter II

* Generally (1) ownership and use of motor vehicles, (2) construction and operation of
public buildings, and (3) sudden and accidental discharge of smoke or chemicals.

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laceration, forehead, right hand and wrist injury.”* The Complaint further alleges
Plaintiff's fall occurred on real property owned by Karen Oberly, or the City of
Rehoboth Beach.

Plaintiff has now sued Ms. Oberly and the City alleging that either or
both are legally responsible for his damages suffered. The City has responded by
filing a motion to dismiss Plaintiff's claims pursuant to Superior Court Civil Rule
12(b)(6). The City asserts it is immune from Plaintiff's tort claim. I agree.

I accept the facts Plaintiff alleges in his Complaint as true in deciding
this motion. I analyze if Plaintiff may recover under any circumstance susceptible
of proof based on the allegations in the Complaint.°

Plain and simple Plaintiff has alleged a tort claim against an immune
entity. The Complaint contains no allegations that would fall within the Act’s
exceptions. The Complaint does not allege (1) use or operation of a motor vehicle,
(2) operation of a public building, or (3) unlawful discharge, the only exceptions
to the immunity rule.

In response to the motion Plaintiff asks that I deny it to allow the

processes of discovery to occur. If there were some arguable circumstance alleged

 

* Complaint, paragraph 4, D.I. No. 1
> Spence v. Funk, 396 A. 2d 967, 968 (Del. 1978)

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in the Complaint which might be susceptible to proof of a claim, I would allow
discovery to proceed. There are no circumstances.

In response to the motion Plaintiff argues (1) it is unclear who owns
the land and (2) the City may have know of the problem with the stump and acted
recklessly® in allowing it to remain on the property. Again the short answer is
neither of these contentions matter under the Act.

Ownership of land is not an exception in the Act; ownership of public
buildings can be. Here the allegation is not as to a public building, but as to a
stump set in the corner of a residential lot. Reckless conduct is only relevant as to
claims against municipal employees.

Plaintiff also argues that Plaintiff's claim may not fall within the
specific enumeration of functions contained in Section 4011(b)(6). Section (b)(6)
is one of the specific functions for which immunity applies and covers generally
defects in highways, sidewalks and the like. However, the specific items in
Section (b)(a) (and those in (b)) (1-5) are examples only of functions for which

immunity applies. Section 401 1(b) contains the following language.

 

° Plaintiff did not plead an allegation of recklessness. It would not matter. Reckless
conduct is only relevant as to claims against City employees.

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Paragraphs (b)(1) to (6) of this section to

which immunity applies are cited as
examples and shall not be interpreted

to limit the general immunity provided
by this section.

As a result whether the conduct alleged here falls within (b)(6) (and it

probably does not), makes no difference as it does not affect the general grant of

immunity.

Plaintiff claims in tort against the City of Rehoboth. The City is
immune from those claims. The Complaint makes no contentions which would
implicate the exceptions to the Acts immunity. I have no alternative but to grant

the City’s motion and dismiss the Complaint as to it.

IT IS SO ORDERED

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