         IN THE SUPERIOR COURT OF THE STATE OF DELAWARE1
                   IN AND FOR NEW CASTLE COUNTY

LESLIE KESTING,                                )
      Plaintiff,                               )
      v.                                       )    C.A. No. N14C-07-095 ALR
RIVER ROAD SWIMMING CLUB                       )
d/b/a RIVER ROAD SWIM CLUB,                    )
RIVER TERRACE                                  )
COOPERATIVE, INC., UNITED                      )
WATER DELAWARE, INC., CITY                     )
OF WILMINGTON, DELAWARE,                       )
NEW CASTLE COUNTY,                             )
DELAWARE, STATE OF                             )
DELAWARE, and PROGRESSIVE                      )
POOL MANAGEMENT, INC.,                         )
      Defendants.                              )

                                    Submitted: December 12, 2014
                                     Decided: December 15, 2014

                 Upon Defendant New Castle County’s Motion to Dismiss
                         DENIED WITHOUT PREJUDICE

       Plaintiff Leslie Kesting alleges that on August 31, 2012, she slipped and fell

into an “open manhole” (“Manhole”) at the intersection of Haines Road and River

Road, New Castle County, Delaware.                 Defendant New Castle County filed a

motion to dismiss pursuant to Rule 12(b)(6). 1 Plaintiff opposes the County’s

motion. The Court heard oral argument.




1
    Super. Ct. Civ. R. 12 (b)(6).
       The Court must accept all well-pled allegations in Plaintiff’s complaint as

true. 2 A motion to dismiss for failure to state a claim upon which relief can be

granted will not be granted if the plaintiff may recover under any conceivable set

of circumstances susceptible of proof under the complaint. 3                   All reasonable

inferences shall be in favor of the non-moving party. 4


       The County and Municipal Tort Claims Act (“Tort Claims Act”) applies to

Plaintiff’s claims against New Castle County. The Tort Claims Act states that “all

governmental entities and their employees shall be immune from suit on any and

all tort claims seeking recovery of damages.” 5 The Tort Claims Act provides

circumstances where a governmental entity waives sovereign immunity:

              “(1) In its ownership, maintenance or use of any motor
              vehicle, special mobile equipment, trailer, aircraft or
              other machinery or equipment, whether mobile or
              stationary. (2) In the construction, operation or
              maintenance of any public building or the appurtenances
              thereto, except as to historic sites or buildings, structures,
              facilities or equipment designed for use primarily by the
              public in connection with public outdoor recreation.6

       Plaintiff requests a reasonable opportunity to argue that her injuries fall

under an exception to sovereign immunity.                New Castle County argues that

2
   Savor, Inc. v. FMR Corp., 812 A.2d 894, 896 (Del. 2002).
3
   Spence v. Funk, 396 A.2d 967 (Del. 1978); Rawley v. J.J. White, Inc., 918 A.2d 316, 319 (Del.
2007).
4
   Ramunno v. Cawley, 705 A.2d 1029, 1034 (Del. 1998); Savor, Inc. v. FMR Corp., 812 A.2d
894, 896 (Del. 2002).
5
  10 Del. C. § 4011.
6
  10 Del. C. § 4012.
                                                2
Plaintiff’s Complaint should be dismissed because the Tort Claims Act provides

blanket protection and that the alleged injuries do not meet any waiver exceptions.

Although the exceptions in the Tort Claims Act are narrowly construed, 7 granting a

motion to dismiss is only appropriate if Plaintiff is unable to recover under any

conceivable set of circumstances.

       When New Castle County’s Motion is considered in a light most favorable

to Plaintiff, the possibility remains that her injuries resulted from a failure to

maintain the manhole as stationary equipment or an appurtenance to a public

building.8 New Castle County has not satisfied the high standard required for

granting a motion to dismiss. Plaintiff should have the opportunity to clarify

whether her injuries fall under the exceptions listed in the Tort Claims Act. It is

therefore appropriate to deny New Castle County’s Motion to Dismiss at this time.

       NOW, THEREFORE, this 15th day of December, 2014, Defendant New

Castle County’s Motion to Dismiss is hereby DENIED without prejudice.

       IT IS SO ORDERED.



                                            Andrea L. Rocanelli
                                            _______________________________
                                            The Honorable Andrea L. Rocanelli

7
   See Fiat Motors of N. Am., Inc. v. Mayor of Wilm., 498 A.2d 1062, 1066 (Del. 1985); Sadler v.
New Castle Cnty., 565 A.2d 917, 921-23 (Del. 1989); Moore v. Wilm. Hous. Auth., 619 A.2d
1166, 1168-69 (Del. 1993).
8
  10 Del. C. § 4012.
                                               3
