      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

MARCIA L. FIDANCE,                        )
                                          )
      Plaintiff,                          )
                                          )
             v.                           )
                                          )        C.A. No. N17C-04-134 CLS
CITY OF WILMINGTON, a municipal )
corporation of the State of Delaware, et. )
al,                                       )
                                          )
      Defendants.                         )
                                          )


                           Decided: September 29, 2017

                                      ORDER

      Plaintiff filed a tort action against Defendant, City of Wilmington (“the City”),

Billy Casper Golf, LLC, and Billy Casper Golf Management, Inc., based on alleged

trip and fall at Ed Oliver Gold Club on May 3, 2015, 800 North DuPont Road,

Wilmington, Delaware. Plaintiff alleges that on or about May 3, 2015, she was

walking and tripped and fell on a sidewalk which was defective and improperly

maintained. Plaintiff contends that the Defendants had control and possession of,

and a duty to maintain the premises. Defendants filed separate Motions to Dismiss,

and the Court addresses each of the Motions in this Order. For the reasons discussed

below, the City of Wilmington’s Motion to Dismiss is GRANTED, and Defendants

Billy Casper’s Motion is DENIED.
   A. Defendant, City of Wilmington’s Motion to Dismiss.

                                Parties’ Contentions

Defendant, City of Wilmington, filed a Motion to Dismiss on May 15, 2017. The

City contends that as a municipality, it is immune to tort claims stemming from trip

and falls on sidewalks. Additionally, the City argues that Plaintiff’s claims do not

fall under any exception to the County and Municipal Tort Claims Act. Plaintiff

responds to this argument arguing that the City is not immune from suit because

Plaintiff’s claims fall within an exception to the County Municipal Tort Claims Act.

Plaintiff states that 10 Del. C. § 4012(2) provides that the governmental entity is

responsible for its negligent acts or omissions that cause damage in the construction,

operation or maintenance of any public building or appurtenances thereto. The City

contends that this exception does not apply to Plaintiff’s case because 10 Del. C. §

4012(2) also states that the municipality is not liable for negligent acts or omissions

in the construction of “buildings, structures, facilities or equipment designed for use

primarily by the public in connection with public outdoor recreation.” The City’s

argument is that because the property is a public golf course, and golf is a

recreational activity, the section 4012(2) exception does not apply and the City is

immune from suit. Plaintiff claims that this argument overlooks that the City’s

property is not just a public golf course, but a public banquet facility as well, which

is used in “a separate and distinct capacity from the golf course.” Plaintiff states that

                                           2
she was not on the property because of a golf related activity. Rather, Plaintiff was

attending a social function at the banquet hall for a neighborhood reunion. The City

argues that as a matter of law, Delaware courts have held that the City is immune

from suit due to injuries from sidewalks that are in disrepair, and Section 4011(6)

specifically applies to sidewalks.1 Section 4012(2) provides that the City is liable for

negligent acts or omissions causing bodily injury “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.”2 Defendant

argues that Plaintiff’s case fits into the 4012(2) “exception to the exception” as a

building or structure designed for use primarily by the public in connection with

golf, an outdoor recreation.

        In response, Plaintiff states that although the golf course may be considered

public outdoor recreation, Plaintiff was not on the premises to golf. Rather, Plaintiff

claims that she fell outside of the banquet hall on the property while attending a

social event. Additionally, Plaintiff argues that the “Dover Room” banquet hall is

used for other purposes totally unrelated to golf. For example, Plaintiff’s Response

provided an excerpt from the golf course’s website stating that the “Dover Room



1
    See 10 Del. C. § 4011(6).
2
    10 Del. C. § 4012(2)(emphasis added).
                                            3
accommodates 140 guests and the Wilmington Room, perfect for a business meeting

or small private event, can seat up to 50 guests. Our professional and experienced

staff is prepared to serve any special event from weddings and receptions to business

meetings and private parties.” Plaintiff claims that the sidewalk where Plaintiff fell

is appurtenant to the Dover Room, which is a public building, and thus falls within

the exception to the City’s immunity. Defendant argues that Plaintiff’s Complaint

fails to mention a public building or allegations that the sidewalk in question is

appurtenant to a public building.

                                Standard of Review

      The test for sufficiency of a complaint challenged by a Rule 12(b)(6) motion

to dismiss is whether a plaintiff may recover under any reasonably conceivable set

of circumstances susceptible of proof under the complaint. 3          In making its

determination, the Court must accept all well-pleaded allegations in the complaint

as true and draw all reasonable factual inferences in favor of the non-moving party.4

The complaint must be without merit as a matter of fact or law to be dismissed.5




3
  Spence v. Funk, 396 A.2d 967, 968 (1978); see Cambium Ltd. v. Trilantic Capital
Partners III L.P., 2012 WL 172844, at *1 (Del. Jan. 20, 2012) (citing Cent. Mortg.
Co. v. Morgan Stanley Mortg. Capital Holdings LLC, 27 A.3d 531, 537 (Del. 2011)).
4
  Ramunno v. Cawley, 705 A.2d 1029, 1034-36 (Del.1998); Nix v. Sawyer, 466 A.2d
407, 410 (Del. Super. Ct.1983).
5
  Diamond State Tel. Co. v. University of Delaware, 269 A.2d 52 (Del.1970).
                                         4
Therefore, if the plaintiff can recover under any conceivable set of circumstances

susceptible of proof under the complaint, the motion to dismiss will not be granted.6


                                     Discussion

      In pertinent, Delaware’s County and Municipal Tort Claims Act, 10 Del. C.

§ 4011, provides:

      (a) Except as otherwise expressly provided by statute, all governmental
          entities and their employees shall be immune from suit on any and
          all tort claims seeking recovery of damages. That a governmental
          entity has the power to sue or be sued, whether appearing in its
          charter or statutory enablement, shall not create or be interpreted as
          a waiver of the immunity granted under this subchapter.

      (b) Notwithstanding § 4012 of this title, a governmental entity shall not
         be liable for any damage claim which results from:

         (6) Any defect, lack of repair or lack of sufficient railing in any
         highway, townway, sidewalk, parking area, causeway, bridge,
         airport runway or taxiway, including appurtenances necessary for
         the control of such ways including but not limited to street signs,
         traffic lights and controls, parking meters and guardrails.7

Thus, unless provided by statute, the City is immune from suit on any and all tort

claims seeking recovery of damages for any defect or lack of repair in sidewalks.8

10 Del. C. § 4012 lists the exceptions to the City’s immunity. This section states:


6
  Ramunno, 705 A.2d at 1034; see Cambium, 2012 WL 172844, at *1 (citing Cent.
Mortg., 27 A.3d at 537).
7
  10 Del. C. § 4011.
8
  See Anthony v. City of Dover, 2015 WL 511170, at *2 (Del. Super. Jan. 29,
2015)(“The Delaware Courts have held that a city is immune from suit due to
damages from a sidewalk in disrepair.”).
                                         5
      A governmental entity shall be exposed to liability for its negligent acts
      or omissions causing property damage, bodily injury or death in the
      following instances:

      (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.9

      Before the Court discusses the exceptions in section 4012, the Court must

analyze the connection between sections 4011(b) and 4012. Plaintiff’s complaint

states “she tripped and fell on a sidewalk which was defective and improperly

maintained.” Delaware courts have held that “[t]he activities listed in Section 4012

are an exclusive list and are the only activities as to which municipal immunity is

waived.”10 Section 4011(b) states “notwithstanding § 4012 of this title,” the City is

not liable for “[a]ny defect, lack of repair or lack of sufficient railing” in any

sidewalk.11 Meanwhile, section 4012 states that a governmental entity is exposed

to liability for its “negligent acts or omissions causing . . . bodily injury in . . . the

construction, operation or maintenance of any public building or the appurtenances

thereto.”12 The Delaware Supreme Court has held that “Section 4011(b) sets forth a

number of exceptions to section 4012, which in turn provides exceptions to section




9
  10 Del. C. § 4012(2)(emphasis added).
10
   Hedrick v. Webb, 2004 WL 2735517, at *8 (Del. Super. Nov. 22, 2004).
11
   10 Del. C. § 4011(b)(emphasis added).
12
   10 Del. C. § 4012(2).
                                         6
4011(a).”13 In Quereguan, Delaware Chancery Court noted that regardless if

something may be “considered an ‘appurtenance’ under § 4012(2), a finding that

[plaintiff’s] claim falls within § 4011(b) would bar him from recovering money

damages.”14 The Quereguan court noted that “[i]n a few cases on point, such things

as sidewalks and parking lots have been found to be ‘appurtenances’” under section

4012.15 However, if the municipality can show that plaintiff’s claim falls within

section 4011(b), then section 4012 is insignificant. Specifically, the Quereguan

court cited to Buckalew, a 1987 Superior Court case where the court found that snow

and icy conditions on a parking lot fell within the class of tort claims permitted under

10 Del. C. § 4012 because it was the “result of a negligent act or omission in the

maintenance of the fire hall parking lot” rather than a “defect” pursuant to 4011(b).16

The Buckalew court made a distinction between the words “defect” in §4011 and

“maintenance” in §4012. The court ultimately held that “[t]he purposes of the

legislature in making this distinction was to hold the governmental entity liable for

injuries that were caused by their own negligence or omission (something they could



13
   Middleton v. Wilmington Housing Authority, 1994 WL 35382, at *2 (Del. Feb. 2,
1994).
14
   Quereguan v. New Castle County, 2004 WL 2271606, at *3 (Del. Ch. Sept. 28,
2004).
15
   Quereguan v. New Castle County, 2004 WL 2271606, at *3 (Del. Ch. Sept. 28,
2004)(citing Buckalew v. Cranston Heights Fire Co., 1987 WL 10272, at *2-3 (Del.
Super. Apr. 21, 1987)).
16
   Buckalew, 1987 WL 10272, at *2-3.
                                       7
have prevented) and, at the same time, grant them immunity from liability for those

‘defects’ or imperfections which may not have been their fault.”17 The Court finds

that this reasoning does not apply in Plaintiff’s case.18 There are no allegations in

the complaint that Plaintiff tripped on anything other than a sidewalk, which the City

is absolved of liability pursuant to 10 Del. C. § 4011(b)(6). The “notwithstanding”

language in section 4011(b), coupled with the Delaware Supreme Court’s finding in

Middleton that section 4011(b) sets forth a number of exceptions to section 4012,

falls in favor of the City’s argument. Additionally, the Court finds that the place

where Plaintiff fell is a facility “designed for use primarily in connection with public

outdoor recreation.” The golf course is a public course, and Plaintiff fell on the

sidewalk outside of the banquet hall. The property is designed primarily for use as

a golf course, which is public outdoor recreation. Thus, reading sections 4011 and

4012 together, the property falls within the section 4012 outdoor recreation

exception.   For the aforementioned reasons, the City’s Motion to Dismiss is

GRANTED.



17
  Buckalew, 1987 WL 10272, at *2.
18
  See Taylor v. Wilmington Housing Authority, 2002 WL 519912, at *1 (Del. Super.
Feb. 20, 2002)(Finding that sidewalks are appurtenances to buildings which they are
adjacent, and Plaintiff’s claim that she slipped on snow and ice was not barred under
10 Del. C. § 4011); see also Collins v. National R.R. Passenger Corp., 1990 WL
177581, at *1-2 (Del. Super. Nov. 6, 1990)(Finding that there were no exceptions to
immunity where a plaintiff fell on an uncovered manhole located in a grassy area
covered by vegetation).
                                            8
     B. Defendants Billy Casper Golf, LLC and Billy Casper Golf Management,
        Inc.’s Motion to Dismiss.

       Defendants Billy Casper Golf, LLC and Billy Casper Golf Management, Inc.

(collectively “Billy Casper”) filed a Motion to Dismiss on May 18, 2017. Billy

Casper argues that Plaintiff fails to allege any specific facts that indicate the

negligence act on the Billy Casper Defendants. Billy Casper cites to a Delaware

Supreme Court case, Polaski v. Dover Downs, Inc.19, where plaintiff failed to state

a viable premises liability claim because plaintiff did not identify the dangerous

defect on the premises. The Court is not persuaded by this argument, as the Polaski

case was decided on a motion for summary judgment. Here, discovery is not closed.

Plaintiff’s Form 30 Interrogatories states that Plaintiff’s attorney is in possession

photos of the area where Plaintiff allegedly fell, and “Delaware is a notice pleading

state. Thus, for a complaint to survive a motion to dismiss, it need only give general

notice of the claim asserted.”20 Defendants Billy Casper Golf, LLC and Billy Casper

Golf Management, Inc.’s Motion to Dismiss is DENIED.

       IT IS SO ORDERED.


                                                    /s/ Calvin L. Scott

                                                    Judge Calvin L. Scott, Jr.



19
  Polaski v. Dover Downs, Inc., 2012 WL 3291783, at *2 (Del. Aug. 14, 2012).
20
  Blaskovitz by and through Blaskovitz v. Dover Federal Credit Union, 2017 WL
2615748, at *2 (Del. Super. June, 15 2017).
                                        9
